Australia is an independent democratic state that can be classified as either a federation or a constitutional monarchy. One of Australia’s unique features is that it combines both British and American models of state organization. In order to adopt new changes or additions to the Australian Constitution, it is necessary to hold a national referendum. The liberal democracy presupposes a legal system based on representative and direct democracy in which the will of the majority and the ability of elected representatives to exercise power are limited. This happens in the name of protecting the rights and freedoms of the minority and individual citizens. Liberalism in this case is revealed in the idea the minorities should have enough guaranties for their rights. Australian system is not fully adapted to the mentioned principles. Key features of liberal democracy in Australia are the lack of articulation of rights and freedoms at the legislative level and, at the same time, the stable and effective operation of the legal system.
The list of rights explicitly guaranteed in the Australian Constitution is extremely narrow and fragmentary, and therefore does not allow us to speak of a system of written constitutional rights in Australia. Politicians note that it consists of two chambers: the upper house represented by the Senate and the lower house, the House of Representatives. The Senate is represented by seventy-six senators, formed according to the principle of twelve from the state and two from the territory, for six years. The House of Representatives consists of one hundred and forty-eight deputies. From a formal point of view, the head of state is the King of England, who holds such titles as King of Australia and heads of the Commonwealth.
However, at each level the King has its own representation. The legislature is represented by a bicameral federal parliament. The remarkable fact is that failure to vote is punishable by a fine. The High Court is not prone to expansive interpretations of constitutional rights norms, and in its jurisprudence generally does not go beyond a literal understanding of the provisions which delineate the scope of rights (Hirst, 2002). The reasons for the High Court’s apparent reticence to judicial expression of rights will be discussed below.
Despite the restraint and discretionary reluctance to expand the scope of written rights, the High Court recognizes that the text of the Constitution is based on certain structural underlying principles. The latter include representative democracy, federalism, the rule of law, and the separation of powers, and that the interpretation of the Constitution and current law must be guided by those principles (Wolterstorff, 2016). Implied norm-principles are not developed by the judiciary, they exist in the text and structure of the Constitution and are only discovered or revealed in the process of judicial interpretation.
Some principles, written between the lines in the Constitution, are so fundamental to the understanding of the High Court that they have led to the recognition of a number of specific unwritten rights. These are primarily two principles, including the principle of representative democracy and the principle of the separation of powers and the exercise of judicial power only by a court. It will be shown below that the High Court, while recognizing a number of unwritten rights, has not created a system equivalent to a bill of rights.
However, one may speak of a limited list of rights derived directly from the text and structure of the Constitution, which are not protected in and of themselves, but as elements of the fundamental principles upon which the Australian state is built. Experts note that the doctrine of freedom of speech in the political sphere has developed under the conditions of a certain formalist approach to the interpretation of the Constitution (Wolterstorff, 2016). Nevertheless, in the more than twenty years since the formal recognition of the High Court, it is possible to speak more or less definitively about the established limits of freedom of political communication in Australia (Wolterstorff, 2016). Implied freedom now protects protests against duck hunting in legally protected areas, hostile criticism of the conduct of individual police officers, donations to election funds, and many other types of protest.
Australia recognizes a body of unwritten rights at the constitutional level, albeit on a modest scale, which is the main weakness of the system. Implied rights are found in the positions of individual High Court judges in decisions affecting the fundamental principles on which the Australian state is built. It should be noted, however, that judges tend to recognize only such unwritten constitutional rights as can be deduced from the text and structure of the Constitution. From the constitutional text, the High Court, through different derives specific rights and freedoms which are usually formulated as narrowly as possible and make no claim to autonomy or universality (Carson & Kerr, 2020). In order to safeguard itself against excessive deviation from the text of the Constitution, the Court recognizes unwritten freedoms only to the minimum extent necessary for the effective functioning of a fundamental constitutional principle.
This approach results in a much narrower list of guaranteed constitutional rights in Australia than is found in most democracies around the world. For an Australian citizen who believes that his or her fundamental rights have been violated by legislation, there is little chance of obtaining protection through constitutional justice (Heywood, 2019). In fact, the Constitution is an extremely weak mechanism for dealing with abuses by public authorities and can only be invoked in a very limited number of situations (Parkin, 2006). However, the strength of the system is revealed in the fact that the latter is remarkably stable and considered acceptable by most Australians. At no stage in the development of the Australian State has the legal and political public’s confidence in the protection of rights and freedoms through the mechanisms of representative democracy been substantially undermined (Wolterstorff, 2016). There is not, and never has been, any support in the legal consciousness of the Australian people for the proposition that a parliament which is not bound by strict legal constraints is prone to enact law-breaking laws. In contrast to the Basic Law of the Federal Republic of Germany, which is a reflection of the constitutional identity of the nation, laying down a hierarchy of social values headed by human dignity, the modest and more prosaic role of the Australian Constitution is seen as setting out the basis for the organization of public power.
At the drafting stage of the Australian Constitution, despite substantial borrowings from the U.S. Constitution, the written bill of rights was not deliberately relegated to the text of the Australian Constitution. More than 115 years after its adoption, the need for the document has never arisen (Carson & Kerr, 2020). Australia’s confidence in parliament seems unshaken. Even as Canada, New Zealand, and the United Kingdom, one after the other, have decided to enshrine in writing some form of list of fundamental rights, Australia has remained faithful to its idea of a democratic political system as the most effective guarantor of rights and freedoms (Aitkin, et al., 2012). In the case of Australia, politicians are dealing not only with the cultural phenomenon of weak constitutional judicial review in an environment of broad parliamentary confidence, but also with the pragmatic fear of judges that expanding the list of constitutionally guaranteed rights. The Australian Constitution, and constitutional culture in general, is very different from most constitutional models of the modern world.
Thus, the Australian Constitution is viewed as thin and not a source of value to the Australian political community. This does not mean that there is no public discussion of the values that identify Australian society, including human and civil rights and freedoms, in Australia; it only suggests that this discussion rarely appeals to constitutional categories. Adding to the peculiarities of constitutional design is the factor of the conservative Australian High Court, which demonstrates a commitment to formalism and legalism as methods of constitutional interpretation. The practice of the High Court has produced very few examples of the use of constitutional text and structure as sources of inspiration for the recognition of constitutional rights and freedoms other than those expressly mentioned. The current language in the law creates serious gaps in the implementation of liberalism within the democratic system. Nevertheless, the foundations on which the state system rests are a solid foundation for further transformation.
References
Aitkin, D., Jinks, B., Singleton, G., & Warhurst, J. (2012). Australian Political Institutions. Pitman.
Carson, E., & Kerr, L. (2020). Australian Social Policy and the Human Services. Cambridge University Press.
Heywood, A. (2019). Politics. Democracy and Legitimacy. Cambridge University Press.
Hirst, J. (2002). Australia’s democracy: A short history. Allen & Unwin.
Parkin. A. (2006). Understanding liberal democracy. Oxford University Press.
Wolterstorff, N. (2016). Understanding liberal democracy: Essays in political philosophy. Oxford University Press.