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Constitutional Implications in Australia
345
The two explanations are interrelated: the political resistance to change
in this area is itself informed by the reasoning and methodology favoured by
the Australian High Court since the Engineers’ Case, which emphasises the
need for judicial judgments to be strongly grounded in constitutional text and
structure, rather than more open-ended inquiries.
The potential broader lessons from the Australian experience, therefore,
are that the trajectory of constitutional implications in a particular constitu-
tional jurisdiction can be shaped both by the express language and structure
of a particular constitution and more contingent local legal- and political-
cultural factors. The scope of implied constitutional rights protection in
Australia might look quite different, we suggest, if either the general language
and structure of the Constitution were more supportive of individual rights,
the High Court were more open to ‘looser’ forms of construction or the back-
ground political culture were more supportive of rights-based judicial review.
It is the combination of these factors that seems to explain the continuation
of what, in global terms, is a striking bifurcation between structural and
rights-based judicial review in Australia, or the willingness of the High Court
consistently to draw and enforce a broad range of structural constitutional
implications, while largely rejecting most rights-based implications, beyond
those core political rights associated with representative democracy. Even
there, the Court has taken explicit care to frame the implications as limita-
tions on government power as opposed to rights.
6
The remainder of the chapter is divided into three sections. Section
12.1
sets out the key modern structural constitutional implications identified and
enforced by the High Court, and explains their centrality to current Australian
constitutional practice. Section
12.2
discusses the ongoing resistance by the
Court to other more squarely rights-based implications. Section
12.3
specu-
lates on the potential explanations for this structure–rights dualism, or tale of
resistance, in relation to the acceptance of implications in Australia. Section
12.4
offers a brief conclusion as to the lessons of this experience for broader
comparative constitutional understandings.
12.1. The Centrality of Implications as an Invisible
Dimension of Australian Constitutional Law and Practice
Today, the High Court’s jurisprudence on the existence and development of
implied limits is an important – indeed increasingly central – part of Australian
constitutional law, and has a growing impact on how government is practiced.
This is true for the separation of federal judicial and non-judicial power,
6
See e.g., Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 560.
346
Rosalind Dixon and Gabrielle Appleby
constitutional federalism in relation to the protection of the states and the
Commonwealth, implied guarantees of freedom of political communication
and universal access to the franchise to protect the operation of representative
democracy. Most recently, the Court has also found a non-textual limitation
on the Commonwealth’s executive power to preserve and promote federalism
and responsible government.
This heavy reliance on implications has added an important ‘invisible’
dimension to Australian constitutional law and practice. On some level, it
could be said that constitutional implications are indistinct from the constitu-
tional document, the visible constitution. This might even be thought to be
particularly persuasive in the Australian context, where the Court has insisted
that implications are grounded in the interpretation of the text and struc-
ture of the Constitution and may thus be viewed as emanations of that text.
Indeed, in many contexts in Australian constitutional law, successive courts
have attempted to ground previously broadly drawn implied limitations more
closely in the text and individual words of the Constitution. However, consti-
tutional implications differ in their nature from more direct judicial interpre-
tation. What generally distinguishes constitutional implications from direct
judicial interpretation is that the Court’s drawing of an implication comes
not from an attempt to interpret the words of a provision in its application to
a particular dispute, but rather to draw on inferences from text and structure
of the Constitution to find a principle and rules that will resolve the dispute,
which could not be resolved by the direct application and interpretation of
the constitutional text alone. As Cheryl Saunders and Adrienne Stone have
explained:
The form of these arguments is to reason from specific provisions . . . to a
more general principle . . . to a more specific set of rules.
7
Further, implications are generally drawn from the combined force of text
and structure, and the interplay between specific provisions and the structural
framework of the constitutional document, rather than the application and
interpretation of individual provisions.
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