Taking Process-Based Theory Seriously: Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution?

Published date01 September 2020
AuthorAmelia Loughland
Date01 September 2020
Subject MatterArticles
FLR927813 324..349 Article
Federal Law Review
2020, Vol. 48(3) 324–349
Taking Process-Based Theory
ª The Author(s) 2020
Article reuse guidelines:
Seriously: Could ‘Discrete
DOI: 10.1177/0067205X20927813
and Insular Minorities’
Be Protected Under the
Australian Constitution?
Amelia Loughland*
The High Court is committed to protecting the substantive rights necessary for the effective
functioning of the constitutionally entrenched system of representative and responsible govern-
ment. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as
advocated by John Hart Ely in the United States, in which judicial intervention is limited to pro-
tecting the ordinary political processes established by the Constitution rather than adjudicating on
its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the
channels of political change, it has not engaged with the protection of minority rights or equality
concerns more broadly which were a key element of process-based theory. In this article, I argue
that the judicial protection of minority rights is a necessary and desirable corollary of the con-
stitutional entrenchment of representative government in the Australian Constitution. I explore
how this could arise through either a freestanding guarantee of equality or in a weaker form by
inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High
Court’s current interpretive approach may not support a broad protection of equality, its process-
based protection of representative government provides an available means to recognise minority
rights under the Australian Constitution.
I Introduction
Gageler J argued that High Court judges should approach judicial review under the Australian
Constitution (‘Constitution’)1 as though they were a ‘referee whose extraordinary constitutional
1. Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12 (‘Constitution’).
* BA/LLB (Hons 1), UNSW Sydney; Fellow of the Gilbert þ Tobin Centre of Public Law. This article began as an
undergraduate thesis supervised by Professors Rosalind Dixon and Gabrielle Appleby and I thank them both for their
exceptional feedback and insights. I also thank Lachlan Peake and the anonymous reviewers for their helpful comments on
earlier versions of this article. The author may be contacted at a.loughland@gmail.com.

responsibility is for the game itself rather than a linesman whose only responsibility is to call in or
out’.2 This characterisation of the judge’s role as having broader institutional responsibility reso-
nates with the process-based theory of judicial review advocated by John Hart Ely in the United
States,3 who argued that courts should correct failures in the majoritarian political process by
ensuring the ‘channels for political change’ remain open, rather than interfering with the outcomes
of that process.4 A similar concern can be detected in the Australian High Court’s protection of
democratic norms found to be entrenched in the Constitution, such as by ensuring that citizens can
properly engage in representative and responsible government through electoral enfranchisement
and open political discourse.5
Yet while a key element of Ely’s process-based theory of judicial review was that courts should
apply heightened scrutiny to laws which affect ‘discrete and insular minorities’,6 a concern for
minority rights protection has been notably absent from the High Court’s consideration of consti-
tutional rights and freedoms. By drawing upon Ely’s concern for the disadvantaged political
position of minority groups in majoritarian democracies, this article will argue that, properly
understood, the Constitution should be seen as responding to equality concerns through its
entrenchment of representative and responsible government. I argue that this entrenchment
involves more than simply a constitutionally recognised right to vote or free political speech and
requires judicial intervention to actively protect minorities in the face of their systemic under-
representation in democracies.
First, I explain Ely’s process-based theory and assess the critiques of his ‘discrete and insular
minorities’ formula as a mechanism for promoting substantive equality. I explore the resonance of
Ely’s process-based theory with the High Court’s protection of structural norms in the Constitution
and discuss how this theory could be adapted to protect minority rights in the Australian context,
which has already been demonstrated by Gageler J. I then discuss the systemic reasons why a
recognition of representative government calls for the active judicial protection of minority
interests, before exploring the avenues by which minority rights protection could be constitu-
tionally recognised in Australia. I suggest that although the strongest form of minority rights
protection would arise under an implied guarantee of equality, this is unlikely to be supported by
the text and structure of the Constitution. Consequently, I consider weaker available forms of
protection through a judicial recognition of the constitutional value of equality which could arise
in existing areas of constitutional doctrine such as proportionality analysis or the implied inci-
dental power.
II Ely’s Process-Based Theory
Ely’s process-based theory sought to resolve the democratic tension between substantive judicial
review and political accountability as enacted through simple majoritarianism. He was critical of
the undemocratic character of constitutional interpretation in American jurisprudence which he
2. Stephen Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ [2009] (Winter) Bar
News 30, 37.
3. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980).
4. Ibid 103.
5. See, eg, Roach v Electoral Commissioner (2007) 233 CLR 162; Lange v Australian Broadcasting Corporation (1997)
189 CLR 520.
6. United States v Carolene Products Co, 304 US 144, 152–3 n 4 (1938) (‘Carolene Products’).

Federal Law Review 48(3)
regarded as falling on the extremes of ‘clause-bound’ originalism7 or progressive ‘non-interpre-
tivism’ that allowed unelected judges to undermine legislative judgements by ‘finding’ substantive
values in the United States Constitution (‘US Constitution’).8 Ely’s via media sought to avoid the
democratic deficit in each of these approaches by leaving the selection of substantive political
values to elected officials and restricting the court’s role to protecting the existing avenues for
democratic accountability by facilitating ‘broad participation in the processes and distributions of
government’.9 For Ely, this form of review was more attuned to the spirit of the US Constitution,
which placed its trust in democratic institutions to make value determinations and enabled major-
itarian ‘disapproval’ through electoral accountability.10
Ely’s theory was not an academic invention but drew on the famous justification for degrees of
constitutional review buried in footnote four of United States v Carolene Products Co (‘Carolene
Products’),11 a case concerning the validity of a statute prohibiting the interstate shipment of filled
milk. In footnote four, Stone J held there were certain categories of laws which should be subject to
stricter scrutiny under the US Constitution’s Due Process and Equal Protection clauses, including
those which restricted political processes or were directed against particular racial or religious
minorities.12 His Honour also noted that prejudice against ‘discrete and insular minorities’ may be
a special condition which calls for a ‘more searching judicial inquiry’ of the law’s justification.13
This approach sought to address the ‘counter-majoritarian difficulty’14 that arose in the Lochner
era of American constitutional review in the 1930s, in which the Supreme Court interpreted
individual property rights afforded by the Due Process and Equal Protection clauses broadly in
order to invalidate progressive social legislation introduced under President Roosevelt’s major-
itarian political mandate.15 The solution offered by Carolene Products recognised that the Due
Process and Equal Protection clauses should be applied deferentially to ordinary legislation (such
as where federal law restricted the sale of certain kinds of milk) except where the process estab-
lished by the US Constitution itself was threatened. It therefore attempted to limit judicial review
of the potentially open-ended inquiries invited by the ‘Due Process’ and ‘Equal Protection’ con-
stitutional standards.16
Ely interpreted footnote four as encouraging the court to focus not on the importance of a
particular ‘fundamental value’ but rather on whether the opportunity of particular groups to
participate in the political process had been ‘unduly constricted’.17 Drawing out this theme, Ely
identified two key malfunctions that render the democratic process as ‘undeserving of trust’ and
which place a corresponding duty on the court to undertake stricter judicial scrutiny:
7. Ely (n 3) 17–18.
8. Ibid ch 3; Daniel Ortiz, ‘Pursuing a Perfect Politics: The Allure and Failure of Process Theory’ (1991) 77(4) Virginia
Law Review 721, 724.
9. Ely (n 3) 87.
10. Ibid 103.
11. 304 US 144, 152–3 n 4 (1938).
12. Ibid.
13. Ibid.
14. Alexander M Bickel, The Least Dangerous Branch (Yale University Press, 1972) 16.
15. Jesse H Choper and Stephen F Ross,...

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