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Constitutional Implications in Australia
373
decision-maker’.
128
They explained it remained the role of the legislature ‘to
determine which policies and social benefits ought to be pursued’.
129
They
reinforced the importance of the boundaries between the branches of govern-
ment. In that same case, Gageler J also noted reservations about the majority’s
approach, including that the final ‘adequate in its balance’ criterion failed to
provide an appropriate degree of guidance for the exercise of the judicial dis-
cretion; he argued that such a generalised and abstract principle would not be
able to promote consistency or predictability in judicial decisions.
12.3.2.2. Process-based Theory
Another potential-related explanation for this unwillingness to support rights-
based judicial review by the High Court could be a belief, in Australia, in a
form of John Hart Ely-style ‘process-based’ theory of judicial review – according
to which the key function of the Court is to police the boundaries of the polit-
ical process and ensure that the channels for political change remain open,
rather than to adjudicate on the substantive merits of the laws and policies
produced by that process.
130
Representation-reinforcing theories of this kind
have been extremely influential in many constitutional democracies outside
the United States,
131
and have been openly defended by some of the current
members of Australia’s High Court.
132
They also clearly have some resonance
with the emphasis by the Court, in cases such as Lange, on its role in pro-
tecting principles of ‘representative and responsible government’ – and not
commitments to substantive democracy, more generally.
133
One difficulty with this account, however, is that it is not one that is explic-
itly endorsed by the broader political culture in Australia or by key political
elites who oppose the expansion of rights-based judicial review.
134
It is also
an account that suggests that the High Court should have been willing to
128
(2015) 89 ALJR 857, [89].
129
Ibid.
[90].
130
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard
University Press 1980). We are indebted to Iddo Porat for pushing us on this point.
131
See e.g., discussion of New Zealand in Rosalind Dixon, ‘Partial Bills of Rights’ (2015) 63 Amer-
ican Journal of Comparative Law 101.
132
Stephen Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitu-
tion’ [2009] NSW Bar Association News 14.
133
See Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520; Theophanous v. Herald
& Weekly Times Ltd (1994) 182 CLR 104 (McHugh J).
134
See e.g., Julian Leeser and Ryan Haddrick (eds.), Don’t Leave Us with the Bill: The Case
Against an Australian Bill of Rights (Barton, ACT: Menzies Research Centre 2009); Bob Carr,
Supra note 115; Bernice Carrick, ‘Freedom on the Wallaby: A Comparison of Arguments in the
Australian Bill of Rights Debate’ (2010) 1 Western Australian Jurist 68.
374
Rosalind Dixon and Gabrielle Appleby
recognise at least some form of implied right to equality or implied protec-
tion for ‘discrete and insular minorities’ in the political process.
135
The Court,
however, in cases such as Leeth and Kruger has consistently rejected the sug-
gestion that it should play a role in protecting minorities in this way, or rec-
ognise any form of general implied principle of non-discrimination under the
Constitution.
While the political and judicial resistance to rights-based review may be
weaker for core political rights than other more substantive rights it is still
an important source of pressure pushing against the recognition of almost all
forms of rights-based judicial review in Australia – of both an express and an
implied kind.
12.4. Conclusion
Constitutional implications play a central role in the jurisprudence and the
day-to-day working of Australia’s constitutional order. They inform the scope
and operation of the constitutional structures: the separation of powers, fed-
eralism, and responsible government and key aspects of the Australian dem-
ocratic system including freedom of political communication and universal
access to the franchise. Yet Australian constitutional culture remains suspi-
cious of the idea of constitutional implications in the domain of individual
rights.
In this chapter, we explored two broad, interrelated reasons for this division.
First, we suggest, it can be traced to Australia’s early embrace of legalistic con-
stitutional interpretative methodology and wariness of drawing implications
from outside the constitutional text and structure of the Constitution, com-
bined with the narrow recognition given to individual rights in the text and
structure of the Australian Constitution, which make any form of rights-based
implication under the Constitution susceptible to significant legal-method-
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