Responsive Constitutionalism in Australia
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/0067205X241280112 |
| Author | Rosalind Dixon |
| 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) 359–383
© The Author(s) 2024
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DOI: 10.1177/0067205X241280112
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Responsive Constitutionalism in
Australia
Rosalind Dixon*
Abstract
Responsiveconstitutionalism is a theory of constitutionalismthat starts from the idea that democracy
involves two overlapping commitments —to a relatively thin ‘minimum core’set of norms and
institutionsand thicker, morecontestable set of rightsand deliberative commitments. It thenproceeds
to affirm a commitmentboth to legal and politicalconstitutionalism.This article exploresthe relevance
of this theoryfor Australian constitutionalism andsuggests that it in fact has strongresonance with the
Australianconstitutionaltradition. First, thecapital ‘C’Constitutiongives strong legal protectionto the
‘minimum core’of democracy in ss 7, 24 and the High Court’s decisions on the implied freedom of
political communication and access to the franchise. Second, the small ‘c’constitution adopts norms
that help protect the democratic minimum core and advance a responsive approach to thicker
democratic commitments to rights. Third, there are important connections between the idea of
responsive constitutionalism and limits on the scope legal constitutionalism and judicial review in
Australia. Yet,there are also ways in which a responsive approach points to potential reforms of the
Australian constitutional model —to include more robust rights-based constitutional protections,
albeit in ways that are premised on a notion of shared legal and political authority and enforcement,
and therefore involve a ‘weak-form’national rights charter or extended principle of legality.
Accepted 23 November 2023
I Introduction
Australian constitutional law is shaped by longstanding common law traditions and principles. And
because of this, many lawyers and judges suggest that it is best analysed in these terms, rather than
through a more theoretical prism.
1
The article suggests otherwise: it explores the relationship
between Australian constitutional law and a ‘responsive’theory of constitutionalism and suggests
* Scientia Professor of Law, UNSW Sydney. The author thanks Will Bateman, Lynsey Blayden, Lisa Burton Crawford,
Brendam Lim, Ashleigh Barnes and Will Partlett for helpful comments on previous versions of the article, and Hayden Clift
for outstanding research assistance. The author also thanks the Australian Research Council for research (FT210100667)
support. The article is dedicated to Sir Anthony Mason, a great friend, and exemplar of a market responsive approach to
constitutionalism and judicial review.
1. Mark Aronson, ‘Public Law Values in the Common Law’in Mark Elliot and David Feldman (eds), The Cambridge
Companion to Public Law (Cambridge University Press, 2015) 134.
there is in fact considerable overlap between the High Court’s capital and small ‘c’constitutional
role and responsive constitutional ideas. At the same time, it argues that a responsive constitutional
lens points to a case for broadening the role of the High Court in human rights enforcement, either
through an expanded, more normative approach to the principle of legality, or statutory model of
rights protection similar to the one proposed by the Australian Human Rights Commission in its
recent Position Paper.
2
In this sense, it is both a theory that has plausibility or ‘fit’within the existing
Australian constitutional context and that offers normative arguments for reform.
3
Theideaof‘responsive regulation’is well known in Australia, in part because of the role of John
Braithwaite and other Australian scholars in developing this pathbreaking idea.
4
Theideaof‘responsive
constitutionalism’(‘RC’)or‘responsive judicial review’(‘RJR’) picks up on these ideas —of flexible,
shared regulatory models —and adapts them to a constitutional context.
5
First, they suggests, con-
stitutional theory must be sensitive to commitments to democracy and hence leave scope for both
legislative as well as judicial constitutional judgments. Second, they suggests that both legislative and
judicial processes are subject to a range of forms of democratic dysfunction, which point to the value of
shared and overlapping institutional authority in respect of constitutional implementation. And third, they
argue that shared authority of this kind will generally involve courts exercising a mix of weak and strong
—not purely narrow and weak common law-style. In this sense, a theory or RJR or RC is the opposite of
many monolithic accounts of courts and judicial review, that assume either aheroicconceptionofcourts
and their capacity to promote democracy and human rights, or the primacy of judicial restraint or rule-
bound approaches to constitutional construction ( such as constitutional originalism). It is also a com-
plement, and update, to existing theories of representation-reinforcement in Australia that rely heavily on
John Harty Ely’sDemocracy and Distrust.
6
How do responsive ideas fit with Australia’s existing constitutional system and practices?
Australia’s‘Washminster’system of government has an inbuilt commitment to shared forms of legal
and political responsibility for constitutional implementation: the Commonwealth Constitution
gives the High Court prime responsibility for enforcing US-style commitments to federalism and an
2. Australian Human Rights Commission, ‘Free & Equal: A Human Rights Act for Australia’(Position Paper, December
2022) (‘Free & Equal’).
3. On fit, see Ronald Dworkin, TakingRights Seriously (Harvard University Press, 1977) ch 4. In the context of debates about
Australian constitutional law and the principle of legality,see also Murphy v Electoral Commissioner (2016) 261 CLR 28;
Brendan Lim, ‘The Normativity of the Principle of Legality’(2013) 37(2) University of Melbourne Law Review 372
(‘Normativity’).
4. Ian Ayresand John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press,
1992). See also John Braithwaite, ‘The Essence of Responsive Regulation’(2011) 44(3) University of British Columbia
Law Review 475; Christine Parker, ‘TwentyYears of Responsive Regulation: An Appreciation and Appraisal’(2013) 7(1)
Regulation and Governance 2.
5. See, eg, Malcolm Langford, Responsive Courts and Complex Cases (forthcoming); Rosalind Dixon, Responsive Judicial
Review: Democracy and Dysfunction in the Modern Age (Oxford University Press, 2023) (’Responsive Judicial Review’);
Rosalind Dixon, ‘The New Responsive Constitutionalism’The Modern Law Review (advance).
6. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (HarvardUniversity Press, 1980) (‘Democracy and
Distrust’); Rosalind Dixon and Michaela Hailbronner, ‘Ely in the World: The Global Legacy of Democracy and Distrust
Forty Years On’(2021) 19(2) International Journal of Constitutional Law 427. For reliance, see Stephen Gageler,
‘Foundations of Australian Federalism and the Role of Judicial Review’(1987), 17(3) Federal Law Review 162, 195;
Stephen Gageler, ‘Implied Rights’, in Michael Coper and George Williams (eds) The Cauldronof Constitutional Change
83, 84 (Centre for International and Public Law, Australian National University, 1997). See also Julian R Murphy,
‘Institutionally-Informed Statutory Interpretation: A Response to Crawford’(2023) 46(3) Melbourne Law Review 780.
360 Federal Law Review 52(3)
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