Foreword: Expanding Our Constitutional Imagination
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/0067205X241285955 |
| Author | Adrienne Stone |
| Date | 01 September 2024 |
| Subject Matter | Special Issue: Positive Democratic Constitutionalism in Australia |
Special Issue: Positive Democratic Constitutionalism in Australia
Federal Law Review
2024, Vol. 52(3) 261–263
© The Author(s) 2024
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DOI: 10.1177/0067205X241285955
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Foreword: Expanding Our
Constitutional Imagination
Adrienne Stone*
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’.
1
He was reacting to the High Court’s decision in Australian Capital Television v
Commonwealth,
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 prin-
ciples immanent in the Australian constitutional order. For Michael Detmold, extensive rights-based
protection for the individual arose from the very idea of a constitution.
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.
4
More moderate supporters sought to defend the developments from charges of judicial activism.
Though the constitutional implication was an innovation,
5
it was grounded in established methods
of reasoning or justified as a procedural protection of constitutional government.
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.
7
Indeed, the new doctrine was often cast as a ‘constitutional right’or even a ‘human
right’.
8
* Melbourne Laureate Professor, Melbourne Law School, University of Melbourne.
1. Michael Detmold, ‘The New Constitutional Law’(1994) 16 Sydney Law Review 228, 248.
2. (1992) 177 CLR 106.
3. Detmold (n 1) 229: ‘We, the citizens, have a constitution. Granted that premise, we have it equally. And, having the
Constitution equally, we have the power that it generates equally. The justification for the implied right of equality as a
control on our equally held power is as simple as that’.
4. Michael Stokes, ‘Constitutional Commitments not Original Intentions: Interpretation in the Freedom of Speech Cases’
(1994) 16 Sydney Law Review 250, 268.
5. Michael Coper, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’(1994) 16 Sydney
Law Review 185.
6. See David Tucker, ‘Representation-Reinforcing Review: Arguments about Political Advertising in Australia and the
United States’(1994) 16 Sydney Law Review 274, drawing on the American theorist John Hart Ely, but arguing that the
Australian context warranted greater judicial constraint.
7. See George Williams, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’(1996)
20 Melbourne University Law Review 848.
8. George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed,
2013).
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