Australian Constitutionalism Research Articles

Responsive Constitutionalism in Australia

Responsive constitutionalism is a theory of constitutionalism that starts from the idea that democracy involves two overlapping commitments — to a relatively thin ‘minimum core’ set of norms and institutions and thicker, more contestable set of rights and deliberative commitments. It then proceeds to affirm a commitment both to legal and political constitutionalism. This article explores the relevance of this theory for Australian constitutionalism and suggests that it in fact has strong resonance with the Australian constitutional tradition. First, the capital ‘C’ Constitution gives strong legal protection to the ‘minimum core’ of democracy in ss 7, 24 and the High Court’s decisions on the implied freedom of political communication and access to the franchise. Second, the small ‘c’ constitution adopts norms that help protect the democratic minimum core and advance a responsive approach to thicker democratic commitments to rights. Third, there are important connections between the idea of responsive constitutionalism and limits on the scope legal constitutionalism and judicial review in Australia. Yet, there are also ways in which a responsive approach points to potential reforms of the Australian constitutional model — to include more robust rights-based constitutional protections, albeit in ways that are premised on a notion of shared legal and political authority and enforcement, and therefore involve a ‘weak-form’ national rights charter or extended principle of legality.

Federalising Socialism Without Doctrine

The Australian Constitution is only partly ‘liberal’ (securing political and economic liberties); another part is ‘socialist without doctrine’ (empowering governments to own and operate vast public capital, while providing social insurance in a market economy). That mixture is common in modern advanced economies but was anomalous in the Anglophone constitutional tradition in 1901. Legislative power over ‘old age and invalid pensions’, ‘railway construction’ and ‘conciliation and arbitration for the prevention and settlement of industrial disputes’ was an accepted part of the incipient Federal scheme but repugnant to Anglophone constitutional orthodoxy of the 19th century. The integration of ‘colonial socialism’ into the Constitution created one of the longest-standing puzzles in Australian jurisprudence, the Surplus Revenue Case of 1908, and laid the foundations for federal dominance of the Australian economy. Understanding the enduring impact of colonial socialism in Australian constitutionalism sheds light on how Australia’s distinctive political economy grew within a ‘Washminster’ system of government. It also provides principled guidance for future policy challenges that may require expansion of state involvement in the economy.

Reflection on Indian and Australian Constitutionalism

Every country has its own Constitution but it does not imply that Constitutionalism is also flourishing there. The term constitution and constitutionalism reflects two different meaning. As per the scholars, Constitution entrusted with it the written and unwritten principles, which regulate the administration within a nation. On the other hand, ‘Constitutionalism’ refers to those values, ideas and principles that govern the government organs while performing their function and exercising their powers. These values are so inherent, that without which the spirit of constitution cannot be follows. In the general sense constitutionalism refers a government with limited power and it is antithesis of arbitrariness. Professor Gerhard Casper recognized the descriptive and prescriptive usage of constitutionalism. In descriptive sense it often associated with struggle by historians for acknowledgment of common people’s “right to consent” in constitution and establishment of state institutions as crucial aspect of constitution, and In prescriptive approach it concern with functioning of state functionaries in such a manner that it ensures compliance with constitutional spirit. Therefore, constitutionalism describes both source of power and limitation on that power. Once both India and Australia were British colonies, but after the independence, they adopted their own constitution, which has started to work in its own way. India has a unique experience with regard to constitutionalism. It has excellent administrative structure but excessive bureaucratization, pluralistic society and local politics, which often raise a question on constitutionalism. On the other hand Australian constitution emphasis on institutional arrangements for the purpose of protection of rights and it incorporates sufficient safeguards, which ensure collective decision making by politician. The object of the paper is to provide a comparative analysis of Indian and Australian constitutionalism that will be useful to utilize the experiences of one country to promote the constitutionalism. In this paper, firstly researcher discusses the concept of constitutionalism in India and Australia. Researcher attempted to explore that how the concept of constitutionalism is work and at what extent this concept is undermined in both the countries.

Political Constitutionalism: Individual Responsibility and Collective Restraint

Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.

Australian Constitutionalism and the UK-Style Dialogue Model of Human Rights Protection

This paper considers the constitutional obstacles in Australia to the effective operation of a UK-style dialogue model of human rights protection. In Momcilovic v The Queen, the High Court of Australia relied upon separation of judicial power principles to frustrate the operation of dialogue models in Australia: whether enacted at the federal or State level. As a consequence, constitutionalism Australian-style – specifically, separation of powers implications – presents impenetrable obstacles to the effective operation of a UK-style dialogue model, and has locked in a limited role for the judiciary in the protection of rights.

The Federal Principle in Australian Antifederalism

More than a century of Australian arguments opposed to federalism are surveyed to find evidence for the persistence over time of a broad federal principle in Australian discourse among those who most opposed federalism. At no time during the history of modern Australia has the federal structure of Australian constitutionalism been seriously challenged, yet during several periods there have been vocal popular movements to adopt a unitary structure in place of federalism, and we can refer to these movements as Antifederalists. In examining their proposals for alternative unitary structures much rests on the establishment of regional units with some form of specified legislative authority rather than outright sovereignty. This regional dimension of the Antifederalist unification movement in Australia is an essential part of that movement.

What comparativism tells us about originalism

Defended as a method of constitutional interpretation, originalism is typically thought to reflect uniquely American anxieties about the judicial expansion of rights and the place of popular constitutional culture in judicial review. As such, it has appeared to be of little general interest to constitutional scholars. This paper uses comparative constitutional law to challenge that assumption. Australian constitutionalism lacks the key features thought to make the view distinctively American and yet, the paper argues, originalism not only thrives in Australia but has a firmer foundation in the Australian constitutional system. This has important implications for the application of comparativism to constitutional theory beyond the debate about originalism: the fact that theorists have largely overlooked the possibility that the American constitutional system is not the best fit for originalist interpretation helps show how assumptions grounded in American debates about judicial activism have come to define the aims of interpretive theory.

The People, The Queen, and Australian Independence

This paper investigates the emergence of the Commonwealth of Australia in 1901 and makes the case for Australian independence at that time, drawing the relationship between the people and the Sovereign, as well as upon the views of Justice Lionel Murphy while analyzing the opposing views of other High Court judges. It also argues that the role of royal power and the relationship between the Sovereign and the Australian people was and remains fundamental to Australian constitutionalism.

The Forgotten Founding

The Australian founding seems to be little understood and of little consequence for most Australians. To address this problem of the ‘forgotten founding’, extensive civics education programs have been proposed and implemented. The paper argues that these civics programs need to engage an underlying cause of this problem: the tension between the two traditions — the common law and liberal constitutionalism — that have shaped Australia. In delineating the nature of this tension, the paper argues that a dominant common law tradition, which locates the ultimate constitutional authority in the common law and not the people, has depreciated the founding, divided scholarship into the legal and the political, and thereby constrained the study of Australian constitutionalism.

One continent, two federalisms: rediscovering the original meanings of Australian federal ideas

Federalism is usually described in political science as a single body of ideas—in Australia's case arriving in the 1840s–50s and moving to constitutional reality in the 1890s. This article re‐examines the origins and diversity of federal ideas in Australia. It suggests that federal thought began influencing Australia's constitutional development significantly earlier than previously described. This first Australian federalism had a previously unappreciated level of support in British colonial policy and drew on Benjamin Franklin's American model of territorial change as a ‘commonwealth for increase’. The revised picture entrenches the notion of federalism's logic but also reveals a dynamic, decentralist style of federalism quite different from Australia's orthodox ‘classic’ or compact federal theory. In fact, Australian political thought contains two often‐conflicting ideas of federalism. The presence of these approaches helps explain longstanding dissent over the regional foundations of Australian constitutionalism.

Political Theory and the Rights of Indigenous Peoples

List of contributors Acknowledgements 1. Introduction Duncan Ivison, Paul Patton and Will Sanders Part I. Sovereignty: 2. Waitangi as mystery of state: consequences of the ascription of federative capacity to the Maori J. G. A. Pocock 3. The struggles of indigenous peoples for and of freedom James Tully 4. Beyond regret: Mabo's implications for Australian constitutionalism Jeremy Webber 5. Engaging with indigeneity: Tino Rangatiratanga in Aotearoa Roger Maaka and Augie Fleras Part II. Identity: 6. Paths towards a Mohawk nation: narratives of citizenship and nationhood in Kahnawake Audra Simpson 7. (De)Constructing the politics of indigeneity Manuhuia Barcham 8. On display for its aesthetic beauty: how western institutions fabricate knowledge about aboriginal cultural heritage Sonia Smallacombe 9. On the plurality of interests: aboriginal self-government and land rights John Bern and Susan Dodds Part III. Democracy: 10. The liberal image of the nation William E. Connolly 11. Minority claims under two conceptions of democracy Philip Pettit 12. American multiculturalism and the 'nations within' Will Kymlicka 13. Hybrid democracy: Iroquois federalism and the postcolonial project Iris Marion Young Notes Bibliography Index.

High Court Review 2002: The Least Dangerous Branch

The article provides a general political review of recent High Court decisions and explores the extent to which the judiciary can be said to be the 'least dangerous branch'. By examining recent events such as the 'Kirby incident', as well as the important judgments handed down by the High Court concerning Native Title, IVF and the Web, it seeks to delineate the influence and changing role of the High Court in Australian politics and constitutionalism. This is the Australian Journal of Political Science 's second annual review of the Australian High Court from a political-science perspective.

High Court Review 2001: Politics, Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.

The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia

This paper addresses the following questions in the context of the convention debates and the drafting of the Constitution: On what basis did the founders include specific rights in the Constitution? What was their understanding of these rights? What sorts of rights were excluded and for what reasons? The first part of the paper locates the specific rights that were proposed to be entrenched into the Constitution in the context of the prevailing Australian constitutionalism and the innovation that was federalism. The second part turns to the federation debates and the founders' discussions of the rights provisions to ascertain their understanding of these rights and of the notions of progress, freedom and liberalism implicit in such understanding. In its concluding part the paper will consider the extent to which the founders' notion of liberalism would favour the Court's principles of constitutional interpretation and implied rights.

The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia

This paper addresses the following questions in the context of the convention debates and the drafting of the Constitution: On what basis did the founders include specific rights in the Constitution? What was their understanding of these rights? What sorts of rights were excluded and for what reasons? The first part of the paper locates the specific rights that were proposed to be entrenched into the Constitution in the context of the prevailing Australian constitutionalism and the innovation that was federalism. The second part turns to the federation debates and the founders' discussions of the rights provisions to ascertain their understanding of these rights and of the notions of progress, freedom and liberalism implicit in such understanding. In its concluding part the paper will consider the extent to which the founders' notion of liberalism would favour the Court's principles of constitutional interpretation and implied rights.

Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.