Thirty years ago, as part of a Symposium in the Sydney Law Review, Michael Detmold declared the advent of ‘The New Constitutional Law’ stating ‘we now have everything a written bill of rights could give us’.^{Footnote 1} He was reacting to the High Court’s decision in Australian Capital Television v Commonwealth,^{Footnote 2} just 2 years earlier, where the High Court recognised a constitutional ‘implication’ protecting ‘freedom of political communication’. The development was widely regarded as a break with Australia’s constitutional past and to promise a new era, if not a constitutional revolution.

The decision’s most enthusiastic supporters regarded it as a full-throated recognition of principles immanent in the Australian constitutional order. For Michael Detmold, extensive rights-based protection for the individual arose from the very idea of a constitution.^{Footnote 3} For Michael Stokes, the decision was an elaboration of the Constitution’s ‘commitment’ to a set of core political values including federalism, representative democracy and responsible government.^{Footnote 4}

More moderate supporters sought to defend the developments from charges of judicial activism. Though the constitutional implication was an innovation,^{Footnote 5} it was grounded in established methods of reasoning or justified as a procedural protection of constitutional government.^{Footnote 6} But even for these moderate enthusiasts, it was widely expected that the case would be followed by the recognition of further right protecting implications that would bring Australia closer to the mainstream of liberal constitutions.^{Footnote 7} Indeed, the new doctrine was often cast as a ‘constitutional right’ or even a ‘human right’.^{Footnote 8}

More than 30 years on from that heady time, not much has eventuated. The freedom of political communication has survived despite some instability in the doctrine and is now an entrenched and frequently litigated aspect of Australian constitutional law. However, its development has been cautious — even cramped^{Footnote 9} — and the idea of a constitutional ‘right’ firmly resisted.^{Footnote 10} Moreover, there remains a persistent (if minority) critical line of thinking among constitutional scholars and judges^{Footnote 11} and we have seen neither much more by way of development of other constitutional rights by implication from representative government nor much progress towards a rights-oriented constitutional law in general. The dominant characterisation of the Constitution continues to be understood (even celebrated) as old fashioned, uninspiring and practical. Metaphors abound. Australia is a ‘frozen continent’,^{Footnote 12} a ‘small brown bird’,^{Footnote 13} a mere ‘rule book’.^{Footnote 14}

However, the last decade has also seen the emergence of a vein of thought, that Chief Justice Gageler has called ‘The New Constitutional Scholarship’.^{Footnote 15} This work envisions the Australian Constitution in quite different terms and relies on quite different sources of ideas. The scholarship of the 1990s was oriented to questions of constitutional interpretation and broader questions of constitutional theory. It was also developed with at least one eye to the rest of the world, much of it seeking to align Australian constitutionalism with the liberal democratic mainstream. This newer scholarship emphasises the distinctiveness of the Australian Constitution and, whilst acknowledging its significant flaws, argues for its progressive potential.^{Footnote 16}

This volume contains four important new contributions to this literature. Three of the four turn to our constitutional history, building on the work of Marian Sawer,^{Footnote 17} John Hirst^{Footnote 18} and Helen Irving^{Footnote 19} among others. These contributions each focus on an aspect of the Australian Constitution that, viewed in its historical perspective, are taken to reveal both the progressive foundations and future potential of the Constitution. Lynsey Blayden characterises the constitutional framing as motivated by a form of social liberalism and places her focus on the conciliation and arbitration power. As she characterises it, this power, in a rare move for its era, empowered the Commonwealth to intervene in what were hitherto understood as private relations between employer and employee. She traces how this power was central to social and economic policy over much of the 20^th century, encouraged the growth of trade unions and their role in the setting of wages and conditions. Will Bateman’s attention is focussed on the financial structure of federation and the ways in which it ensured that the national government had power to act in support of a modern market economy, both owning and operating state capital and providing social insurance. On Bateman’s account, this model of ‘egalitarian state potency’ was innovative for its time and distinct from the constitutional models of the United Kingdom and the United States. He claims also that it explains and justifies the High Court’s decision in the Surplus Revenue Case,^{Footnote 20} that moneys appropriated for the credit of certain Commonwealth trust accounts, but not expended, were not ‘surplus revenue’ for the purposes of s. 94 of the Constitution and thus not required to be distributed to the states. Lastly, William Partlett provides an account of ‘popular political constitutionalism’ that has given rise to a distinctive for Australian democracy.

These articles, which can be taken as contributions to an understanding of Australian constitutional identity,^{Footnote 21} promise to open rich veins of scholarship. But they also reveal points of tension. There is, first, a tension between the idea of the Australian Constitution as a framework for a strong state and the Constitution’s federal design. The Surplus Revenue Case effectively renders the Commonwealth obligation to distribute surpluses to the states ineffective.^{Footnote 22} It may contribute to ‘egalitarian state potency’ by ensuring the fiscal power of Commonwealth, but it arises from a judicial nullification of an element of the federal scheme.

Second, there is a tension within the idea of ‘popular political constitutionalism’. On the one hand, the strong commitment to a role for the people seems to explain and justify constitutional limits on governmental powers to interfere with the ‘direct choice’ of the people. But at the same time, there are strong commitments to political constitutionalism, that would require that governments and parliaments be free to protect democracy and to innovate without judicial restriction.^{Footnote 23} As Partlett puts it, ‘the critical question … is how the Court can protect the role of the people without undermining Australian political constitutionalism’.^{Footnote 24}

The final contribution to this Symposium offers one idea as to how these strands might be reconciled, at least with respect to the protection of Australian democracy. Rosalind Dixon’s account of ‘responsive constitutionalism’ would allow the High Court to drive constitutional law in a more democratically sensitive direction. Tellingly, however, she does so through a revitalised and explicitly normative principle of legality, an aspect of Australia’s small ‘c’ constitution that leaves political constitutionalism largely intact.

The great value in this work lies in its power to expand our constitutional imagination. Australia’s constitutional distinctiveness need not be regarded as lying in its uninspiring or muted practicality. Nor need a morally attractive vision of our Constitution be pursued by aligning it with the dominant international model for a liberal democracy. It might, on the contrary, lie in an older, progressive tradition, albeit one that itself contains conflicting strands and internal tensions.