II Democracy and Responsive Constitutionalism

In Democracy and Distrust, John Hart Ely famously argued that the US Supreme Court should adopt a ‘representation-reinforcing’ approach to judicial review, which focused on protecting ‘the channels of political change’ and ‘discrete and insular minorities’, but was otherwise more restrained in scope. This idea was also picked up and adapted to an Australian context by Justice Stephen Gageler, first as counsel, and then in academic writing as Solicitor-General.^{Footnote 8} It also arguably informed the High Court’s development of the implied freedom of political communication (IFPC) in Australian Capital Television v Commonwealth.^{Footnote 9}

A responsive theory of constitutionalism likewise picks up on and adapts Ely’s ideas, but in ways designed to capture comparative constitutional experiences beyond the US and modern social science understandings about the promise and limits of various institutions — including courts.^{Footnote 10} Like most representation-reinforcing theories, responsive constitutional theory starts with a relatively thin understanding of democracy and suggests that it should be understood as the ‘minimum core’ of what democracy requires.^{Footnote 11} This minimum is not purely procedural or focused solely on elections. For instance, for elections to be truly free and fair, there must be protection for political rights and freedoms, including rights to freedom of speech, association and assembly. There must also be institutions capable of protecting political rights and freedoms, and ensuring that elections are in fact regular, free, fair and based on terms of true multi-party competition.

Hence, the democratic minimum core is defined to include commitments to (i) free and fair multi-party elections, (ii) political rights and freedoms and (iii) independent institutions creating a system of ‘checks and balances’.^{Footnote 12} There is clearly scope for disagreement about what these principles entail in practice. Political rights and freedoms, for example, can be understood as quite narrow and focused solely on certain ‘core’ forms of political speech, or else extending to a much broader range of expressive activity, including certain forms of protest and campaign spending. Rights of access to the franchise can be defined narrowly, as only applying to adult citizens, or else extended to encompass broader conceptions of the political community — including young people, or long-time residents. But the idea of ‘minimum core’ is that disagreement of this kind should generally be resolved in favour of a narrower approach: the whole idea of the minimum core is that it represents the set of norms that almost all theories of democracy suggest are necessary for constitutional democracy to exist, and that all extant constitutional democracies have in place, as part of their current system of self-government.

At the same time, RC also embraces the importance of thicker understandings of democracy, which emphasize the importance of broader commitments to individual rights and democratic deliberation. Commitments of this kind are essential to ensuring that democracy is truly a system of self-government conducted on terms of equality among citizens.^{Footnote 13} At the same time, RC holds that there is often disagreement among citizens about what these commitments entail in various concrete contexts. Moreover, if citizens are free to make up their own minds on these questions, it will be reasonable for them to disagree on questions of this kind.^{Footnote 14} This also means that the most principled way to determine the concrete content of these ideals is through democracy itself — or by considering how these commitments are understood by democratic majorities.

Combining these understandings, a responsive constitutional approach seeks to draw a distinction between the democratic minimum core, or thin commitments to democracy, and thicker notions, which it suggests are more contestable. As I note above, there may be disagreement at the margins as to what is in or out of the democratic minimum core, but its essential content is not open to reasonable disagreement among committed democrats.^{Footnote 15} Thicker understandings of democracy, in turn, are open to consistent, reasonable disagreement. This also suggests quite different understandings of the relationship between democracy and majority opinions or attitudes.

In thin understandings of democracy, expressions of majority opinion will be both an output and input of a well-functioning democratic system. The whole idea of the democratic minimum core is that it seeks to protect and enshrine institutions capable of promoting the responsiveness of a political system to the needs and aspirations of ordinary voters — and specifically the median voter, or democratic majorities. But it also starts from the premise that elections and competition among parties are necessary mechanisms for the structured expression of majority opinion. Without intermediation of this kind, majority opinion will often be incoherent or transient, or fail to respect even minimal conditions of rationality and coherence.^{Footnote 16} In thicker understandings of democracy, commitments to rights and deliberation are meant to constrain and modify the effect of democratic majority preferences. Majoritarianism is, therefore, an input not output of democratic decision-making — it can shape and inform how we understand commitments to rights and deliberation, but only within certain bounds, of commitments to mutual respect, dignity and equality.

Each of these versions of democracy can also be undermined by different forms of democratic ‘dysfunction’. The idea of RC is based on there being three key risks of democratic dysfunction that courts are often well placed to help counter: first, the accumulation of electoral or institutional monopoly power by a single political actor or set of actors; second, ‘democratic blind spots’; and third, ‘democratic burdens of inertia’. Electoral and institutional monopoly power is a question of degree, and many well-functioning democratic systems will have some degree of asymmetry among political parties or some degree of market power for incumbents.^{Footnote 17} However, there is still some line between ordinary partisan advantage and the accumulation of electoral or institutional monopoly, which if crossed, means there will be a real risk to the minimum core of a democratic system — that is, the degree to which it is in fact well-functioning, even in a quite minimal or thin sense.

Other sources of democratic dysfunction, namely democratic blind spots and burdens of inertia, involve thicker conceptions of democracy and concerns about individual rights protection. Legislative blind spots are the product of capacity constraints, and bounded rationality, on the part of legislators, which mean that they do not have time to consider the full range of ways in which legislation may affect rights or other constitutional guarantees (‘blind spots of application’), nor the expertise to understand the full range of ways in which rights or other constitutional norms may be accommodated consistent with achievement of the relevant legislative objective (‘blind spots of accommodation’).

Other forms of blind spot may arise because of the limits on the diversity, or experiences and perspectives of legislators. Legislators are certainly capable of representing the views and interests of citizens with different life experiences to their own.^{Footnote 18} They can also engage with the community in a range of ways designed to promote their understanding of these diverse perspectives.^{Footnote 19} But there will also be limits to indirect representation of this kind, in ways that may contribute to legislative ‘blind spots of perspective’.

Legislative processes can also be subject to ‘burdens of inertia’ — or dynamics that mean that legislation does not change in line with evolving democratic understandings, even where there is majority support for the expansion of constitutional rights or other guarantees. Inertia of this kind can arise for two reasons or take two forms. ‘Priority-driven’ forms of inertia can arise simply because of institutional capacity constraints on legislatures, that mean they are unable to consider the full range of issues of concern to citizens at any given time or in any given legislative sitting. Because of this, they will also tend to prioritize issues of greatest concern to a larger number of voters. This can mean that the constitutional claims of small minorities consistently fail to gain legislative attention, even when they enjoy (weak) majority support.^{Footnote 20} Problems of this kind are also likely to be far worse in systems subject to interest group dynamics in which small, well-resourced interest groups compete for legislative attention to their priorities, at the expense of issues of concern to the median voter.^{Footnote 21}

‘Coalition-driven’ burdens of inertia, in contrast, will arise where issues may be of greater salience to a larger number of voters, but tend to divide political parties internally. Because parties are an essential part of competitive democracy, a responsive approach recognizes the importance of internal party dynamics as part of a well-functioning democratic constitutional order. These dynamics can also mean that where issues divide parties, party leaders have an incentive to keep them off the legislative agenda, again, even if a majority of voters would support legislative change.

Democratic burdens of inertia can also arise in some areas in ways that involve the interaction between legislative and executive inaction. To be realized, some constitutional norms require complex and sustained state action. Think of rights such as the right of access to housing or health care, or new constitutional guarantees of environmental protection. If the executive lacks the willingness or capacity to take this action, and the legislature fails adequately to supervise the executive performance of its functions,^{Footnote 22} this will lead to a complex form of ‘compound inertia’.^{Footnote 23} These complex forms of inertia can also further contribute to democratic dysfunction, even in well-functioning democratic systems, but especially in systems with weaker state capacity.

How can a constitutional system guard against these risks? The most important constitutional design choice in a responsive approach will arguably be the design of an electoral system. If electoral systems promote responsiveness by legislators to the will of the median voter, this will considerably reduce the risks of democratic dysfunction, particularly democratic burdens of inertia. But even with these structures in place, democratic dysfunction can still arise in the form of democratic blind spots, and in some cases, risks to the democratic minimum core. Legislative blind spots are the product of time-constraints and limited foresight on the part of legislators. Threats to the minimum core arise from deliberate attempts by would-be authoritarians to erode electoral and institutional pluralism — including by dismantling responsive electoral systems.

Even in well-functioning democratic constitutional systems, therefore, a responsive approach suggests there is a need to create a range of institutions capable of countering risks of democratic dysfunction — including courts and other independent ‘fourth branch’ bodies or ‘guarantor institutions’, such as human rights and electoral commissions, and ombudsmen and auditors-general.^{Footnote 24} And as the notion of the democratic minimum core makes clear, it suggests the need for a range of institutional checks and balances capable of maintaining and stabilizing commitments to regular, free and fair multi-party elections, based on the universal exercise of political rights and freedoms.

Courts often play an especially important role in this context — because of both their independence and public profile and capacity to pay attention to individual cases and circumstances and to provide individuals with concrete legal relief. Their independence and public profile can mean they are some of the last institutions to be fully captured or degraded in a country undergoing a process of democratic backsliding or ‘abusive’ constitutional change.^{Footnote 25} They can thus serve as a critical ‘speed bump’ or deterrent against attempts to undermine other key institutional limits on the accumulation of power by a single political actor or set of actors — including limits imposed by parliament, fourth branch institutions and sub-national governments.^{Footnote 26}

In some cases, courts’ profile can also mean that they are able to draw media and public attention to an issue in ways that increase the pressure on legislative and executive actors to overcome democratic inertia or the ongoing effects of democratic blind spots.^{Footnote 27} But human rights and equality commissions can also play an important role in drawing government, media and public attention to the ways in which legislation impacts on the enjoyment of human rights, including rights to equality and non-discrimination, or is subject to burdens of inertia.

Political institutions can likewise play an important role. For instance, legislative committees often play an important role in identifying and countering legislative blind spots, even before legislation is enacted. This is especially true of committees with a multi-partisan composition or special remit and responsibility that allows them to transcend immediate partisan perspectives and promote attention to constitutional requirements. Hence, a responsive approach favours the creation of a wide range of committees of this kind.

However, a distinctive feature of courts, especially in the common law, Anglo-American tradition is the degree to which they are positioned to consider the effects of legislation in particular concrete contexts, and provide individuals adversely affected by the law with access to timely and effective legal remedies — that is, remedies that are binding on governments and citizens and affect the existing as well as future rights and liabilities of individual parties.^{Footnote 28} Concrete, case-by-case decision-making of this kind makes common law courts ideally equipped to identify and counter blind spots of application and accommodation. And access to timely, coercive relief can give courts broad-ranging tools for countering a variety of sources of democratic dysfunction.

One of the key principles behind the idea of RC, therefore, is the idea that democratic ideals are best protected through a mix of ‘legal’ and ‘political’ constitutionalism — or the sharing of authority and responsibility for constitutional implementation between courts, fourth branch institutions and legislative and executive actors.^{Footnote 29} Legal models of constitutionalism start with the idea of there being at least some set of written, entrenched constitutional norms, and then allocate responsibility to courts for the interpretation and enforcement of those norms, whereas political models of constitutionalism assume that constitutions may consist in a mix of written and unwritten, entrenched and flexible norms, but suggest that in each case legislators rather than judges should have prime responsibility for the interpretation and enforcement of these norms.

RC, in turn, seeks to combine aspects of both judicial and legislative responsibility for democratic constitutional implementation. Moreover, RC envisages a quite specific sharing of responsibility, or mix of legal and political constitutionalism in this context. RC, as I have noted previously, is closely related to other ‘third way’ models of constitutionalism such as the ‘new Commonwealth constitutional model’.^{Footnote 30} But unlike these models, it contemplates that courts should exercise a mix of strong and weak — not simply weak — forms of review.^{Footnote 31}

How is this the same, or different, to Ely-style understanding of courts’ role in reinforcing commitments to representative government? In Democracy and Distrust, John Hart Ely focused on two distinct sources of democratic dysfunction: measures that ‘clog’ or undermine ‘the channels of political change’, and those that affect ‘discrete and insular minorities’. These ideas also spanned the divide between thin and thick democracy. Maintaining the channels of political change is an essential part of thin notions of democracy, whereas protecting the rights of discrete and insular minorities is important to realizing thicker democratic commitments to rights and deliberation.

The difficulty for Ely, however, was three-fold: first, Ely claimed that this account was largely procedural in character and avoided difficult forms of substantive judgment about what democracy is, or entails. This claim, however, clearly does not hold up. There is too much scope for disagreement about the degree to which various channels of change are essential to democracy, and especially, what counts as a ‘discrete and insular minority’.^{Footnote 32}

Second, many scholars have highlighted the difficulties with this formulation of equality rights. Commitments to equality, or non-discrimination, aim to advance three broad constitutional or political values: a commitment to freedom and equality of opportunity for all individuals, regardless of background; a commitment to equal dignity for all; and a commitment to eradicating past forms of group-based subordination, or historical disadvantage.^{Footnote 33} The difficulty with a focus on ‘discrete and insular minorities’ is also that it fails fully to capture these various understandings. Women, for instance, have suffered a long history of legal, economic and social discrimination, but are a statistical majority, with meaningful political power, and close (indeed intimate) connections to men. Gays and lesbians, young and old people and those with physical disabilities have likewise all experienced historical discrimination, yet often live, work and form political coalitions with heterosexual, able-bodied and working age family and allies. And commitments to ending subordination do not exhaust the scope of commitments to equal freedom and dignity.

Third, Ely developed his account of judicial review with a focus entirely on the US Constitution and Supreme Court. As such, he failed to consider the full range of ways in which democracy, and commitments to democratic responsiveness, may be threatened or undermined.

Because of this, comparative constitutional scholars have begun to develop a new vision of judicial representation-reinforcement — that acknowledges the porousness of the procedure-substantive distinction, takes a more fluid approach to promoting commitments to equality and accounts for the full range of ways in which democracy around the world may be threatened by real-world political dynamics. This vision is also at the centre of ‘comparative political process theory’ (CPPT) or ‘comparative representation reinforcing theory’ (‘CRRT’), of which RC is just one example.^{Footnote 34}

III Responsive Constitutionalism and Two-Track (Strong and Weak) Judicial Review

Another key difference between Ely and modern CRRT is an embrace of the idea of ‘weak’ judicial review as a means of protecting thicker conceptions of democracy. The idea of ‘weak’ judicial review was a concept developed by Mark Tushnet to describe constitutional systems in which court decisions in respect of rights enjoyed limited legal finality. The Supreme Court of the United States has broad power to issue a range of remedies, including remedies striking down legislation and depriving of it legal effect.^{Footnote 35} Decisions of the Supreme Court under Art III of the Constitution can only formally be modified or overridden in a limited number of ways — namely through formal constitutional amendment under Art V of the Constitution, or the making of exceptions to the jurisdiction of the Court under Art III. The procedures for amendment under Art V are also extremely onerous, and it is not clear how far such exceptions can go under Art III. Therefore, whatever the scope for informal constitutional change or dialogue with the Court, there is limited scope for formal override of Court decisions. Hence, decisions of the Court under the US Constitution enjoy a ‘strong’ degree of formal legality finality.

The same could be said in Australia under the Commonwealth Constitution. Amendment to the Constitution under s 128 is a demanding process, which rarely succeeds in practice.^{Footnote 36} As in the US, there is also uncertainty as to bounds of Parliament’s power to make ‘exceptions’ to the High Court’s jurisdiction under s 73 of the Constitution; and there are clear limits to the effectiveness of any such power, given the entrenchment of the Court’s jurisdiction to hear challenges to the validity of Commonwealth legislation under ss 75(iii) and (v) of the Constitution.

In many other national and sub-national constitutional systems, however, it will be much easier for legislatures formally to override or modify the effects of a court decision. Formal procedures for amendment are almost always less demanding under Art V of the US Constitution.^{Footnote 37} There may be broader powers to make exceptions to court jurisdiction than under Art III (as for example in India) or express power to legislate ‘notwithstanding’ certain provisions of a constitution (as for example in Canada). In some countries, constitutional protections for rights may also be enacted by way of an ordinary statute. This also means there is broad power both to amend and expressly or impliedly repeal the operation of constitutional norms as they are interpreted by courts.^{Footnote 38} Indeed, except in Canada, this is arguably the defining feature of the constitutional rights instruments that comprise the ‘new Commonwealth constitutional model’, including Australian statutory rights charters such as the Human Rights Act 2004 (ACT), Victorian Charter of Rights and Responsibilities Act 2006 (Vic) and Queensland Human Rights Act 2019 (Qld).^{Footnote 39} This is also why Tushnet labels judicial review under these constitutional instruments ‘weak’ rather than strong in nature.

In the new Commonwealth constitutional model, a further source of judicial non-finality is also found in the express limits on courts’ remedial powers — for instance, under s 4 of the UK Human Rights Act 1998 (UK) (‘HRA’), and like provisions in Australia and New Zealand. Under s 4 of the HRA, UK courts are empowered to make a ‘declaration of incompatibility’ indicating inconsistency between legislation and those rights (ie, European Convention on Human Rights norms) protected by the HRA. But a declaration of this kind lacks immediate coercive effect — that is, it is expressly stated to have no effect on ‘the validity, continuing operation or enforcement of the provision in respect of which it is given’ and to be ‘not binding on the parties to the proceedings in which it is made’.^{Footnote 40} Similar provisions are found in s 32 of the Human Rights Act 2004 (ACT), s 36 of the Victorian Charter of Rights and Responsibilities 2006 (Vic) and s 53 of the Human Rights Act 2019 (Qld). Powers of statutory interpretation or ‘reading down’ aside, this means courts are limited to issuing non-immediate, non-coercive remedies that rely on the medium-term willingness of legislators to respond to such a declaration.

In a responsive approach, there are real risks to limiting courts’ powers in this way: one of the core ideas behind RC is that courts and fourth branch institutions have an important role in countering these various sources of democratic dysfunction. Often, this requires them to enjoy a degree of capital ‘C’, entrenched Constitutional power, and strong powers of judicial review.

But there are also advantages: weakened forms of review provide an important mechanism for reducing the risk that representation-reinforcing review by courts will misfire, so that rather than increasing overall democratic responsiveness, they end up creating new forms of democratic inertia, debilitation and backlash.

For instance, in seeking to counter democratic burdens of inertia, courts may view certain laws as reflecting outmoded purposes or attitudes, when in fact those laws continue to enjoy democratic majority support. Or in seeking to counter democratic blind spots, courts may misjudge the relative importance citizens place on the achievement of certain legislative objectives. In both cases, this result may be a form of ‘reverse’ democratic inertia, where a court changes the law in ways that do not enjoy democratic constitutional support, and yet are legally or practically hard for legislatures to reverse. Conversely, if courts seek consistently to counter inertia, and do so effectively, they may help overcome inertia in those cases, but actively undermine the incentive for legislatures and executive actors to build their willingness and capacity to do so in an even broader range of cases.^{Footnote 41}

Finally, in some cases, courts may deliver opinions or recommendations that are strongly opposed by the current government or legislative majority and by a majority of citizens. In such cases, their decisions are also likely to meet with a real risk of triggering damaging forms of attack on the institution itself. This form of institutionally focused backlash can also undermine the capacity of courts to enforce any and all constitutional requirements, including the most minimal commitments to the rule of law.^{Footnote 42}

The premise of RC, therefore, is that courts should enjoy broad and strong powers of review, but within the context of a commitment to shared legal and political constitutional enforcement, and hence, a commitment by courts themselves to engaging in a mix of weak and strong judicial review across different cases and contexts. This is also notably different from Ely’s own conception of constitutional judicial review as consistently strong in form.^{Footnote 43}

Thus, in a responsive approach, there will be a powerful case for strong judicial review in cases involving the democratic minimum core; the risk to democratic functioning is high, and there is little scope for reasonable disagreement about the commitments a court is seeking to uphold. The key argument for judicial restraint or weakness is pragmatic or prudential rather than principled in nature — that is, the desire to avoid problems of democratic backlash, rather than reverse burdens of inertia or risks of democratic ‘debilitation’. And hence, there is a powerful democratic case for courts to adopt robust or demanding forms of scrutiny, and grant strong judicial remedies — or delay the effect of those remedies only in cases where they judge the risk of backlash arising from more immediate relief to be too great.^{Footnote 44}

In cases involving blind spots and burdens of inertia, in contrast, the case for judicial intervention is real but less pressing: except for certain cases involving serious and irreversible harm to human dignity, the democratic harms at issue in these cases can be addressed by future legislative or executive policy change. There is also a greater risk of reverse inertia and democratic debilitation arising from judicial intervention, and therefore a clearer principled as well as pragmatic case for courts taking a more restrained approach to constitutional implications designed to counter these various forms of democratic dysfunction, or judicial remedies designed to counter them. In many cases, this will also translate into courts relying on a mix of weak and strong review — or a mix of strong remedies and narrow reasoning (weak rights-strong remedies); or coercive and delayed remedies (weak-strong remedies).^{Footnote 45}

IV Responsive Constitutionalism and the Australian Constitution

How do these ideas map on to the existing constitutional system in Australia? The democratic minimum core in Australia is protected largely through political cultural norms and two key features of Australia’s electoral system: first, a system of ‘preferential’ or ranked choice voting, and second, a system of compulsory voting.^{Footnote 46} Ranked choice or preferential voting avoids the danger that election outcomes may be swayed by the entry of a third candidate and thereby fail to reflect majority preferences. Compulsory voting promotes competition among parties and candidates for the support of the median voter, as opposed to more extreme members of their own party base or coalition.^{Footnote 47}

In addition, the Australian welfare system helps maintain both the legitimacy and stability of the democratic minimum core. Processes of democratic self-government are only meaningful where there is universal access to a ‘dignified social minimum’.^{Footnote 48} Otherwise, citizens lack the social bases for self-respect and meaningful political participation, and the time to devote to the exercise of political as opposed to economic freedoms. Universal access to a dignified social minimum is also important to the stability of the democratic minimum core: it guards against the risk of illiberal constitutional populist movements that seek to combine forms of economic populism with attacks on democracy and institutional pluralism.^{Footnote 49} In Australia, while the welfare state is authorized by the capital ‘C’ Constitution (and especially the Benefits Power, inserted by way of constitutional referendum in 1944),^{Footnote 50} its scope and continuation largely depend on a range of Commonwealth statutes.^{Footnote 51}

B Weak but Variable Protection for Human Rights

The protection of human rights in Australia, in contrast, is both weaker and more variable in scope. The Constitution manifestly does not protect discrete and insular minorities.^{Footnote 75} And it provides only partial protection to rights affected by democratic blind spots and burdens of inertia.

Rights to individual freedom are generally protected under Australian law, but only in weak form — as their effect and enforcement can be overridden by ordinary Commonwealth or state legislation. This includes rights to freedom of speech and movement, rights to privacy and freedom from surveillance or entry into private property,^{Footnote 76} and even rights to a fair trial such as those recognized by the High Court in Dietrich v The Queen,^{Footnote 77} which could effectively be modified by Commonwealth or state statute. They can also be protected only through traditional forms of reading down or interpretive remedies.

Rights to equality and non-discrimination are protected in a range of specific ways defined by statute, but not by the common law or any capital ‘C’ Constitutional norms.^{Footnote 78} In Kartinyeri v Commonwealth,^{Footnote 79} for example, the High Court held that even in its amended form, the plain language of the race power permitted the Commonwealth to pass laws creating both positive discrimination in favour of, and negative discrimination against, First Nation peoples. And in Leeth v The Queen, the Court rejected the contention that the Constitution contained an implied prohibition on discriminatory Commonwealth or state laws, or individual right to equal protection or protection from discriminatory federal legislation.^{Footnote 80}

But various Commonwealth and state anti-discrimination and anti-vilification laws provide clear statutory protection against certain forms of discrimination, and narrow but concrete legal relief for individuals affected by discrimination of this kind. It is just that these protections can be amended or repealed at any time, and they are not generally understood to provide the basis for broader interpretive or ‘reading down’ style remedies of the kind available for basic liberty rights, under the principle of legality. And the right to human dignity, and its various specific manifestations in international human rights norms, is protected in select ways by the common law,^{Footnote 81} through various administrative law doctrines, and by the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and state rights charters.^{Footnote 82} At a constitutional level, dignity is recognized only as a constitutional value, rather than a common law right.^{Footnote 83} And as noted above, its protection via a range of specific human rights charters involves either weak or no judicial enforcement (Table 1).

Table 1. Scope of statutory rights protections in Australian constitutional law.

This creates clear gaps in human rights protection, including in cases involving discrete and insular minorities (such as remote First Nation communities or potentially non-citizens in immigration detention), and where there is clear evidence of democratic dysfunction at play — that is, legislative blind spots and burdens of inertia.^{Footnote 84} That is, it creates gaps in the degree to which the Australian Constitution can be seen to reflect a commitment to democratic representation-reinforcement, in either an Elyian or neo-Elyian sense.

Consider the recent decision of the High Court in Garlett v Western Australia.^{Footnote 85} The legislation under challenge in Garlett was Western Australian legislation providing for the preventative detention of high-risk offenders, including offenders at high risk of committing robbery. The key question about the legislation was, in effect, whether it imposed a disproportionate limitation on individual rights to liberty — bearing in mind the risk of re-offence, the protection of the community and relevant alternatives for the protection of the community. And while the legislation required a court to follow a reasoned and structured process, and consider the adequacy of community supervision orders as an alternative prior to the making of any such order, it did not contemplate the possibility of short-term, involuntary treatment for addiction or mental health conditions as a relevant alternative.^{Footnote 86} Nor was it passed after full consideration and engagement with the perspective of First Nations in Western Australia.^{Footnote 87}

For some, this first omission in particular might be considered a distinction without a difference; facilities for the involuntary treatment of mental health conditions have many similarities with minimum security correctional facilities.^{Footnote 88} But for others, there are still important differences in the staffing, ethos and purpose of such facilities, and their chances of supporting successful recovery and rehabilitation.^{Footnote 89} The failure by the Western Australian Parliament to consider this alternative, as a precondition to the making of a preventative detention order, could thus be considered a true blind spot of accommodation that operated alongside relevant blind spots of perspective as to the impact of the law on young First Nation offenders.^{Footnote 90}

The constitutional challenge, however, was focused entirely on separation of powers questions, specifically the application of the Kable principle, and hence whether the High Risk Serious Offenders Act 2020 (WA) (‘HRSO’) conferred a function on Western Australian courts inconsistent with their necessary independence and integrity as ‘a repository of the judicial power of the Commonwealth’.^{Footnote 91} It did not directly raise issues of individual freedom or security of the person, or the racially disparate impact of the law,^{Footnote 92} likely on the understanding that given the clarity and specificity of the HRSO, the relevant human rights arguments simply had insufficient prospects of success.

And while Justices Gageler and Gordon would have found that the HRSO was not ultimately capable of being characterized as consistent with the Kable principle — that is, as having a protective rather than punitive purpose, or authorizing ‘the involuntary detention of a citizen in custody’ other than as an incident of the adjudication of criminal guilt only in ‘exceptional cases’^{Footnote 93} — a majority found otherwise.^{Footnote 94} The decision also led to little willingness to revisit the legislation in the Western Australian Parliament.^{Footnote 95} Even after the High Court’s decision, therefore, the relevant blind spots in the law simply went unchecked. The only limit on their operation, arising from the decision, was the insistence by Justice Edelman that the HRSO could not validly be construed as applying to all robberies, rather than robberies ‘with a sufficiently high degree of seriousness’ or ‘sufficiently high magnitude of harm’ to justify the making of a restriction order.^{Footnote 96}

IV Responsive Constitutionalism and the Principle of Legality

What would it mean for Australia to adopt a more fully responsive approach to the protection of human rights in this context? One possibility is for the Court itself to help close the current gap in weak-form human rights protection; another is for there to be legislative change creating an express statutory basis for a role of this kind. In either case, it is important to stress the kind of reform supported by a responsive approach: one that broadens the High Court’s role in rights protection, including its powers to issue appropriate individual relief, but does not make it more difficult for the Commonwealth or state parliaments to contribute to the process of implementing small ‘c’ constitutional rights commitments.

This is distinct from an Elyian-style vision of expanded protection for the rights of discrete and insular minorities: while Ely was generally wary of strong-form judicial protection of rights, his vision of judicial minority rights protection was squarely based on the idea of entrenched, strong-form constitutional rights protection. A responsive approach, in contrast, envisages broadening courts’ role in this context, but within the context of a commitment to constitutional ‘dialogue’ or weak-strong forms of judicial review.

The dialogue metaphor has been criticized by the High Court, as reflecting an ‘inappropriate’, perhaps unduly conversational, account of the exercise of judicial power.^{Footnote 97} But at its best, it is entirely consistent with the idea that courts make decisions according to law, on the understanding that those decisions have coercive effects against individuals and the state. It simply conveys the understanding that small and large ‘C’ constitutional meaning is constructed through an iterative process, involving both legislative and judicial judgment, and this iterative process has advantages for the democratic legitimacy of judicial review.^{Footnote 98}

The principle of legality is an interpretive principle: wherever possible, it provides that statutes should not be construed as infringing ‘fundamental rights’ and freedoms.^{Footnote 99} And as the High Court noted in Momcilovic v The Queen, this allows courts to adopt a narrow or strained approach to the interpretation of the language of a statute.^{Footnote 100} The limit to the principle is that courts must maintain the distinction between legislation and interpretation, and hence must not engage in a process of legislation or statutory re-writing.^{Footnote 101}

What is less clear are the kinds of rights that can attract the operation of the principle or count as ‘fundamental’ for this purpose.^{Footnote 102} As Brendan Lim notes, this principle has two potential bases: firstly, the ‘positive’ version of the principle assumes that legislators are committed to the protection of rights, and hence are unlikely to infringe them absent express language indicating this intention.^{Footnote 103} This is the version of the principle set out by the High Court in Potter v Minahan ^{Footnote 104} and affirmed in cases such as Bropho v Western Australia ^{Footnote 105} and Malika Holdings Pty Ltd v Stretton.^{Footnote 106}

Secondly, the ‘normative’ version assumes that legislators may have varying intentions in relation to the protection of rights, but that there are normative reasons for courts to give heightened protection to rights, as opposed to other interests, in the interpretation of statutes.^{Footnote 107} This, for example, was how the Mason Court explained the principle in Coco v The Queen. ^{Footnote 108}

The scope of the principle will also vary between these two understandings.^{Footnote 109} The positive version of the principle depends on there being some relatively well-defined set of rights that can be identified in advance by legislators and courts as worthy of protection.^{Footnote 110} This often equates to a fairly narrow set of common law rights — in the form of freedom of speech, assembly, association, movement, privacy and bodily integrity, and even there is a question about how predictable these rights are in their concrete application.^{Footnote 111}

The normative version of the principle, in contrast, allows for a more contextual, ex post judgment about the importance of certain rights to the broader constitutional system.^{Footnote 112} This could also include attention to the degree to which certain rights have historically been protected by the common law, or as the US Supreme Court requires in judging whether rights are fundamental under the Due Process Clause, are ‘deeply rooted’ in a country’s constitutional traditions. Part of the value of a backward-looking approach of this kind is that it helps buttress the legal legitimacy of a decision to apply the principle of legality. Another benefit is that the common itself often reflects important political values, which are then indirectly captured by an attention to common law history and tradition.^{Footnote 113}

But history alone also need not be determinative: as Lim notes, statutory rights to non-discrimination, workplace protections or statutory forms of compensation, or certain welfare entitlements that support the enjoyment of basic human dignity could equally be considered fundamental in this context.^{Footnote 114} Here, the argument is that statutory norms help evidence the rights or values that society deems fundamental, or worthy of heightened legal protection — not that every past statutory entitlement should be treated as attracting the protection of the principle of legality.

The two understandings thus differ in their understanding of the relationship between the principle of legality and the related principle that, where possible, Commonwealth and state statutes are to be interpreted consistent with international law, including international human rights law.^{Footnote 115} The positive basis for this principle is doubtful, given the complexity of modern human rights law, and the varying attitudes towards international law on the part of legislators. Justice McHugh made this point with some force in Al-Kateb, as a reason not to endorse an interpretive principle of this kind.^{Footnote 116} But the normative basis for this principle is much more compelling: the principle of pacta sunt servanda means that Australia should seek to uphold its international human rights obligations wherever possible,^{Footnote 117} and protecting human rights enhances the moral and political legitimacy of our constitutional democratic system.

What a responsive approach adds to this understanding is that the breadth and intensity of both the principle of legality — and principles of interpretation consistent with international law — should vary, depending on the degree to which legislation is affected by various sources of democratic dysfunction.^{Footnote 118} Lim suggests this can be understood as a principle of rights ‘vulnerability’, or the idea that:

Hence, Lim suggests that ‘courts may legitimately insist upon a clearer statement of legislative intention in service of protecting “vulnerable” rights’.^{Footnote 120}

The same principle would apply if the Commonwealth Parliament were expressly to authorize Australian courts to rely on international human rights norms in the application of the principle of legality. The Australian Human Rights Commission (‘AHRC’), for instance, recently issued a position paper calling for the adoption of a Commonwealth Human Rights Act providing that all primary and secondary Commonwealth is to be ‘interpreted, so far as is reasonably possible, in a manner that is consistent with human rights’.^{Footnote 121} The AHRC further proposed the inclusion in a Commonwealth Human Rights Act of a wide range of rights, including a range of civil and political and economic, social and cultural rights.

This is effectively a call for Parliament to invite Australian courts to expand the scope of the weak-form rights protection offered by the principle of legality. What a responsive approach adds, in this context, is also the idea that the precise scope or intensity of that protection should be linked to the degree to which statutory limitations on rights are the product of recent, reasoned legislative deliberation, or else, the product of democratic blind spots or burdens of inertia.

It is important to note that this not how the Court currently understands or applies the principle of legality.^{Footnote 122} This is one reason scholars such as Lisa Burton Crawford reject this approach, and instead propose understanding the principle as a relevant part of the context for legislation. This approach is sceptical of the extent to which the background statutory norms can enhance the democratic process, but insists that courts can legitimately make interpretive choices so as to protect common law rights and principles.^{Footnote 123} Burton Crawford also rightly points out that the Court has never explicitly endorsed the idea it is appropriate in applying the principle of legality to consider democratic procedural considerations — or when or how laws were debated or enacted.^{Footnote 124}

But a democracy-enhancing approach is largely consistent with the general pattern of the Court’s jurisprudence in this area. A responsive approach also provides a distinctive version of the democracy-sensitive approach to the scope of the principle, but gives the idea of ‘vulnerability’ a somewhat different, more neo-Elyian gloss. Specifically, it suggests that in applying the principle of legality, courts should consider the degree to which relevant legislation is the product of the product of recent, reasoned deliberation by the legislature on a question, or rather influenced by democratic blind spots or burdens of inertia, or has the potential to create forms of electoral or institutional monopoly power. The greater the evidence of democratic dysfunction, the greater the argument will be for courts to apply the principle of legality, whereas the greater the evidence of recent, reasoned deliberation, the greater the argument for close adherence to the language of the statute.

This builds on, but is distinctive from, an Elyian process-based approach to vulnerability in two ways. First, it gives more precise content to the notion of rights that ‘concern the substance of representative government and the political process’: it suggests that these are political rights and freedoms necessary to the maintenance of the minimum core of any truly democratic constitutional system worldwide. This is also similar to but distinct from Ely’s idea of constitutional guarantees necessary to maintain the ‘channels of political change’. Second, a responsive approach avoids the difficult line-drawing exercise that can arise in any attempt to define what constitutes a ‘discrete and insular’ minority worthy of judicial protection, and instead focuses on laws that affect individual rights and are subject to arguable blind spots or burdens of inertia.

In addition, as a neo-Elyian theory, RC invites attention to the relationship between these forms of democratic dysfunction and overlapping structural constitutional principles and values — including commitments to individual freedom, dignity and equality.^{Footnote 125} A key premise of RC is that it provides a partial account of democratic constitutionalism, which must be complemented by attention to overlapping constitutional values or commitments.^{Footnote 126} It is, in this sense, a species of — rather than substitute for — a functionalist approach to constitutional construction.^{Footnote 127} Because of this, it invites attention to the degree to which certain rights or principles are democratically vulnerable and fundamental from a values-based perspective. As Julian Murphy notes, this is also important to ensuring concordance between the scope of the principle and existing case law in this area.^{Footnote 128}

Finally, a responsive approach understands the normative, democratic case for the principle of legality in a quite specific way: one way of understanding the Court’s reasoning in Coco was that the principle of legality aims to be democracy-forcing — that is, to force legislators openly to debate the limitation of rights, or to ‘enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights’.^{Footnote 129} And as Crawford notes, this has not proved to be an accurate description of what has occurred in consequence of courts’ applying the principle in Australia.^{Footnote 130}

But another understanding, endorsed by Lord Hoffman in Simms, is that it is meant to create a form of de facto weak rights-based review, whereby the legislature is free to override court decisions protecting rights, but only if it ‘squarely confront[s] what it is doing and accept[s] the political cost’ of limiting rights.^{Footnote 131} As Lim notes, this understanding was endorsed by Kirby J on numerous occasions, Gleeson CJ in Plaintiff S157/2002 v Commonwealth and Al-Kateb, French CJ in K-Generation Pty Ltd v Liquor Licensing Court, Heydon J in AG v Corporation of the City of Adelaide, and Gageler and Keane in Lee v New South Wales Crime Commission.^{Footnote 132}

A responsive approach also points to a third, related understanding, namely: the idea that courts can themselves enhance the functioning of our democracy, even without remanding questions to parliament for debate, but that their judgments about rights and values in this context are necessarily contestable, or subject to reasonable disagreement, and this makes it desirable that those judgments should be subject to override by the considered judgments of a majority of legislators.

V Conclusion

Constitutional theory and real-world practice cannot always speak usefully to each other. Constitutional practice may be too complex, dynamic or context-specific to allow for meaningful constitutional theorizing: hence, the call by some constitutional theorists for a ‘boiled down’ account of constitutional practices as the starting point for theoretical debates.^{Footnote 133} Conversely, for lawyers and judges, constitutional theory may ultimately be too abstract, or divorced from the specific constitutional context, to be useful.

But there are also advantages to attempting to place constitutional practice in conversation with a variety of different theoretical accounts: doing so allows us to reflect on the ways in which existing constitutional practice may, or may not, be democratically desirable and could therefore usefully be improved. With this aim in mind, the article explores the idea of RC as a distinctive model of democratic constitutionalism, which starts with an attempt to reconcile both ‘thin’ and ‘thick’ commitments to democracy, and in light of this posits three broad principles of constitutional design and construction: shared and overlapping responsibility for constitutional implementation among courts, legislature and ‘fourth branch’ institutions; strong and weak remedial powers on the part of courts; and a differential approach to the exercise of those power by courts, based on the specific context and risks of democratic dysfunction, especially the degree to which a case involves risks to the ‘democratic minimum core’ (strong relief) versus democratic blind spots and burdens of inertia (weak-strong relief), and counter-vailing risks of judicial over-enforcement — that is, reverse burdens of inertia, democratic backlash and debilitation.

On this account, the Australian constitutional system is operating relatively well: it gives strong constitutional protection to core political freedoms and the institutional checks and balances necessary for the maintenance of a system of free and fair multi-party elections, but narrower and weaker forms of protection to human rights generally. In giving effect to the IFPC, the Court has also taken a differential or ‘calibrated’ approach to proportionality analysis, which substantially aligns with a responsive judicial approach.^{Footnote 134}

At the same time, attention to the idea of RC can also help draw our attention to current gaps in human rights protections in Australia — including gaps in the breadth and strength of that protection. That is, a responsive constitutional theory lends additional theoretical support for aspects of the current constitutional order in Australia and suggests the benefits of reforms aimed at expanding the scope and strength of human rights protections — albeit within the context of a commitment to ‘dialogic’ or weak-strong rather than purely capital ‘C’ strong-form constitutional protection, and hence a commitment to weak judicial remedies such as that provided by ‘reading down’ or the principle of legality.

The High Court itself could drive this shift, towards an expanded, more normatively theorized principle of legality, either driven by the High Court alone, or else it could be encouraged by a Commonwealth Human Rights Act. The latter approach would clearly enhance the perceived legal and political legitimacy of the Court adopting this approach. But it is also not legally necessary.

For some, this fit with existing constitutional norms and structures may make a responsive approach, and its prescriptions for change, too modest. For others, it may point to too radical a departure from existing political constitutional approaches to rights protection or common law approaches to the principle of legality. A responsive approach certainly requires Australian lawyers and courts to step outside their current approach and rethink it through a more explicitly theoretical, democracy-sensitive lens, and for some, this may be a (theoretical) bridge too far. An approach of this kind would also raise distinctive evidentiary and procedural complexities, which merit further consideration as part of any debate on the merits of this kind of approach.^{Footnote 135}

But some Australian constitutional lawyers have already taken important steps in this direction: following the lead of (now Chief Justice) Stephen Gageler, they have shown a clear willingness to engage with the theoretical ideas of John Hart Ely about the relationship between democracy and judicial review.^{Footnote 136 , Footnote 137} RC offers both a continuation and adaption of Ely-style ideas: like Ely it offers an account of democratic constitutionalism and judicial review that is explicitly representation-reinforcing. But it also does so in a way that answers many of the modern critiques of Ely, and that is arguably even more fit for purpose in Australia in 2024. It does not depend on a wholly entrenched vision of constitutional rights protection and hence on any express guarantee of constitutional equality. Instead, it offers a vision of a flexible, statutory model of human rights dialogue under Australia’s existing Washminster system, which is arguably much less radical than an Ely-style commitment to protecting discrete and insular minorities.

Some lawyers and scholars will nonetheless reject it as too radical or unlikely to persuade the current High Court. But whether that is true, or not, remains to be seen and can only be tested by putting these ideas before judges and legislators — in the hope that at least some may see it as coherent and normatively attractive account of how Australia’s constitutional system could evolve in a more fully democratically responsive direction.