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Constitutional Implications in Australia
367
to Murphy J.
107
Like Murphy J, by the end of his time on the Court Kirby J was
also something of an outsider to the inner workings of the Court and thus not
in a position to command broad support for his preferred approach to consti-
tutional interpretation.
108
12.3.2. A Political–Cultural Explanation: The Shadow of
Parliamentary Supremacy and Process-based Theory
Another important explanation for the Court’s reluctance to draw particular
types of rights implications relates to more distinctly political understandings
and attitudes in Australia.
109
12.3.2.1. Suspicion of Judicial Review of Political Judgments
There is, after all, clear scope for the Australian Parliament to amend the
scope of both the visible and invisible constitution in this context, to give
more express constitutional protection to individual rights. There has been
a range of proposals to amend the Constitution, to add further rights protec-
tions, over the last few decades, as well as proposals to adopt a range of quasi-
constitutional or statutory rights protections.
110
However, almost all of these
proposals have failed either at the proposal or referendum stage. Australians
107
For examples of those making connection, albeit in a positive way, see e.g., Scott Guy and
Kristy Richardson, ‘Justice Murphy and Kirby: Reviving Social Democracy and the Constitu-
tion’ (2010) 22(1) Bond Law Review 26.
108
See A. J. Brown, Michael Kirby: Paradoxes and Principles (Annandale, NSW: Federation Press,
2011).
109
Legal cultural and political understandings, of course, inevitably transect. Compare Roux, Supra
note 91. In some cases, leading members of the judiciary and legal profession have also been
at the forefront of public arguments in favour of political over legal constitutionalism in this
context. See e.g., Momcilovic v. The Queen (2011) 245 CLR 1, 177–8 [444]. But contrast James
Spigelman, ‘The Common Law Bill of Rights’ (2008) 3 Statutory Interpretation and Human
Rights: McPherson Lecture Series; Al-Kateb v. Godwin (2004) 219 CLR 562 (McHugh J).
110
One of the interesting questions about statutory rights protection of this kind in Australia is
whether, if it had succeeded more generally, it would in fact have been understood as consti-
tutional or quasi-constitutional in status, or rather relegated to a more purely ‘statutory’ status,
in ways that would have made it a candidate for being described as part of the ‘invisible consti-
tution’ in a more sociological sense. For debate about this question of the relationship between
statutory and common law norms, and the definition of the Constitution in a sociological
sense, in Australia, see e.g., Rosalind Dixon and Jason Spinak, ‘Common law liability of clubs
for injury to intoxicated persons: Cole v. South Tweed Heads Rugby League Football Club
Ltd’ (2004) 27 University of New South Wales Law Journal 816; Rosalind Dixon and George
Williams, ‘Introduction’ in Rosalind Dixon and George Williams (eds.), The High Court, the
Constitution, and Australian Politics (Cambridge: Cambridge University Press, 2015).
368
Rosalind Dixon and Gabrielle Appleby
are variously suspicious of judicial review of human rights protections and
complacent about the sufficiency of current protections.
111
In a capital “C” constitutional context, the most recent constitutional
amendment attempt – in 1988 – to expand rights protection met with a nota-
ble lack of support. When recommendations were made by the Constitutional
Commission to amend the Constitution to insert a number of additional
rights-based guarantees, the Parliament chose to put only a narrow portion of
those proposals to the electorate at a national referendum – i.e., proposals to
broaden the existing guarantees of freedom of religion, trial by jury and acqui-
sition of property on just terms.
112
At the relevant referendum, the proposals
also gained only 30.79 per cent of the national vote. Earlier, more successful
referendums – such as the 1967 referendum that removed two provisions that
discriminated against Indigenous Australians and the 1977 referendum, pro-
viding a mandatory retirement age for federal judges and giving people in
the Territory the right to vote in referendums held under section 128 of the
Constitution have also not been explicitly rights-oriented or conferred broad
discretion on the judicial branch to determine their scope.
113
In a quasi-constitutional or statutory context, there has been successful
reform in the last two decades in Australia at a state and territory level. In 2004,
the Australian Capital Territory enacted the Human Rights Act, giving courts
broad power to reinterpret legislation so as to render it rights compatible, and to
make non-binding declarations of ‘inconsistent interpretation’ modelled on the
remedies available under section 4 of the United Kingdom Human Rights Act.
In 2006, Victoria enacted a similar form of statutory charter in the form of the
Victorian Charter of Rights and Responsibilities. While both models empower
the judiciary to consider the severity of rights breaches and weigh them against
other public objectives in the context of statutory interpretation, they fall far
short of giving the judiciary ultimate power in determining such questions.
At a federal level, however, there has been far more limited change, driven
at least in part by reluctance to involve the judiciary in rights analysis. Several
attempts were made in the 1970s and 1980s to introduce a statutory bill of rights
at a Commonwealth level, but these proposals consistently failed to gain the
necessary degree of political support.
114
And in 2011, despite calls by a special
111
Hilary Charlesworth, ‘The Australian Reluctance about Rights’ (1993) 31 Osgoode Hall Law
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