tually exclusive: Deane J has taken a view of the position that incorporates both objectives:
Kingswell v. The Queen (1985) 159 CLR 264, 300 (Deane J); Brown v. The Queen (1986) 160
Constitutional Implications in Australia
361
For
the High Court, this has meant a number of things. The first is that the
text and structure of the Constitution, as a whole, provide limited support for
the Court assuming an active role in protecting individual rights or inserting
rights protections in areas where the framers were clear they did not wish to
grant such protections, such as due process and equal protection rights.
78
Second, in any given case where the Court is asked to recognise an implied
constitutional right, it also means that the Court will face a ‘slippery slope’
based argument: if it chooses to recognise a right as implicitly protected by
the Constitution, it will likely be asked to recognise a large number of other,
rights-based implications in the future, which themselves are not strongly
grounded in the text and structure of the Constitution. The Court, in such a
case, can attempt to identify some reason why the relevant right is particularly
tied to the text of the Constitution or is specially deserving of judicial protec-
tion from the perspective of other constitutional values or commitments – for
example, by connecting it to broader commitments to political democracy or
a system of ‘representative and responsible government’.
79
But if such an ‘allo-
cational’ account is unavailable, it will be faced with the clear difficulty that,
by deciding to recognise one right, it may end up committing the Court, in
the future, to a quite radical departure from existing interpretive principles.
80
This is exactly the kind of ‘slippery slope’ argument that can persuade a court
not to endorse a particular principle in the first place.
81
Members of the High Court have, at times, arguably been quite explicit in
identifying this kind of logic as a reason for rejecting various implied rights
principles as implicit in the concept of representative democracy recognised
by the Constitution. In Theophanous, for instance, McHugh J directly chal-
lenged the basis of the Court’s earlier decision in ACTV, identifying an implied
right to freedom of political communication, on slippery slope type grounds.
If the principle in ACTV were grounded in the free-standing notion of rep-
resentative democracy, McHugh J suggested, it would be difficult to confine
the logical consequences of this to the protection of political communica-
tion. Instead, the notion of ‘representative democracy’ could be understood
to support a broad range of implications connected to the notions of political
.org.au/news/comments/20560/
; National Human Rights Consultation Committee, National
Human Rights Consultation Report (2009); Expert Panel on Constitutional Recognition of
Indigenous Australians, note 71.
78
See further explanation of the lack of concern by the Australian regarding the inclusion of
constitutional human rights protections in Williams and Hume, Supra note 73, 60–73.
79
See e.g., discussion in Dixon, Supra note 4.
80
On allocational accounts, see e.g.,
ibid.
, 91–2.
81
Compare Eugene Volokh, ‘The Mechanisms of the Slippery Slope’ (2003) 116
Harvard Law
Review 1026 on slippery slope arguments generally.
362
Rosalind Dixon and Gabrielle Appleby
equality, or ‘equality or rights and privileges’ among citizens.
82
This was also
one reason McHugh J favoured a narrower view of
the scope and basis of the
implied freedom, as more directly connected to the type of ‘representative and
responsible government’ that was given effect to in sections 7, 24, 64 and 128 –
a position that logically supports various political rights and liberties, but not
broader implications protective of individual equality or liberty.
83
12.3.1.2. Engineers’ and the Dominance of ‘Text and Structure’
These text-based limits in Australia are also reinforced in significance by the
longstanding emphasis in legal culture in Australia on the importance of argu-
ments from constitutional ‘text and structure’.
This emphasis on text and structure, in Australian legal culture, is often
traced to the 1920 decision of the High Court in the Engineers’ Case:
84
The
Court, in the
Engineers’
Case, issued a landmark
decision overruling earlier
implied doctrines of the Court known as the immunity of instrumentalities
and reserved state powers, and in doing so, began a path of asserting the pri-
macy of constitutional text as the basis for constitutional interpretation in
Australia.
It was clearly open to the Court in Engineers’ to justify its decision in
more purposive, ‘living’ constitutional terms: when the Constitution was
first adopted, the dominant view of the Constitution was that it was a com-
pact between states, designed to create only limited power on the part of
the Commonwealth Parliament to pursue certain common economic and
defence interests. Over time, as economic and political conditions changed –
i.e., the idea of Australian nationhood was consolidated by war, economic
and commercial integration, the unifying force of federal law, the decline
of dependence upon British naval and military power and a recognition
and acceptance of common external interests and obligations among the
states – there was also clearly increased support for a broader definition of
Commonwealth power and a weaker notion of state immunity.
85
The Court,
however, did not express its decision in these terms.
86
Instead, it framed its
decision in terms of a
methodological critique of earlier cases, as taking too
broad and flexible an approach to constitutional interpretation generally and
82
Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104, 199–200.
83
Ibid.
, 198–201.
84
See e.g., George Williams, ‘Engineers is Dead, Long Live the Engineers!’ (1995) 17 Sydney
Law Review 62.
85
Victoria v.
Commonwealth (1971) 122 CLR 353, 395 (Windeyer J) (‘
Payroll Tax Case’).
86
Cf
ibid.
