The Australian Constitution as a Framework for Securing Economic Justice
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/0067205X231200732 |
| Author | Patrick Emerton,Kathryn James |
| Date | 01 September 2023 |
| Subject Matter | Special Issue: Inequality and Public Law (Part I) |
Special Issue: Inequality and Public Law (Part I)
Federal Law Review
2023, Vol. 51(3) 372–396
© The Author(s) 2023
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DOI: 10.1177/0067205X231200732
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The Australian Constitution as a
Framework for Securing Economic
Justice
Patrick Emerton* and Kathryn James**
Abstract
We contend that, contrary to mainstream understanding, the Australian Constitution provides a
meaningful framework for ensuring economic justice, by virtue of its conferral upon the
Commonwealth Parliament of particular legislative powers, namely the income justice and
taxation powers. We draw on Rawlsian political theory, together with constitutional theory
including recent work on constitutional directive principles, to explain how a constitution, and
specifically the Australian Constitution, can impose requirements upon the political order in-
dependently of its operation as a legal instrument whose legal meaning is interpreted and
applied by the courts. We use this novel account of the relationship between political and legal
constitutionalism to establish the consequences, for each branch of government, of this
constitutional requirement to secure economic justice. This includes a defence, from the
perspective of political as well as legal constitutionalism, of the constitutionality of laws im-
posing retrospective taxation.
Accepted 28 August 2023
I Introduction
This article argues that the Australian Constitution provides a meaningful framework for ensuring
economic justice, by virtue of its conferral upon the Commonwealth Parliament of particular
* Associate Professor, School of Law, Deakin University.
** Senior Lecturer/Australian Research Council Discovery Early Career Research fellow, Melbourne Law School,
University of Melbourne.
We thank Joanna Cookson for her excellent research assistance. We also thank Will Bateman, Azadeh Dastyari, Oscar Roos,
Dale Smith, Adrienne Stone, David Tan, Catherine Zhou, and audience members at the Faculty Research Seminar,
Melbourne Law School, for their comments on earlier versions of this article. This research was partlysupported by funding
from the Australian Government through the Australian Research Council’s Discovery Projects funding scheme (project
DE190100346). The views expressed herein are those of the authors and are not necessarily those of the Australian
Government or Australian Research Council. All errors are our own.
legislative powers. We focus on two classes of power: what we call the income justice powers,
namely, the powers to legislate for the provision of pensions,
1
and for arbitration in respect of
industrial disputes that extend beyond the limits of one state;
2
and the taxation power.
3
Central to our argument is a novel theory of the relationship between political and legal
constitutionalism in the Australian context, which explains the distinct but interrelated roles these
powers play within the Australian constitutional order. ‘The key divide between legal constitu-
tionalism and political constitutionalism’, says Khaitan, ‘relates to a difference over whether courts
or politicians should bear the primary responsibility for protecting and enforcing a constitution’.
4
Our theory explains how a constitution —and how the Australian Constitution —can impose
requirements upon the political order independently of its operation as a legal instrument whose
legal meaning is interpreted and applied by the courts. As we explain in Section II, a constitution can
serve as a source of requirements —substantive as well as procedural —that political decision-
making, including legislating, must conform to if it is to be defensible within the constitutional
order. We build on the idea of constitutional convention, and on recent work on constitutional
directive principles, to locate this claim within constitutional theory. However, because this is a
novel claim, particularly in the Australian context in which the Constitution has famously been
described as a ‘small brown bird’,
5
we need to say something about it at the outset.
From the perspective of legal constitutionalism, it can be easy to think of a constitution as ‘self-
actualising’, that is, as bringing politics into conformity with its requirements by dint of those
requirements’legal character. But as Krygier emphasises, this force of law depends upon a
sometimes neglected social fact, namely, that people within a society, in particular powerful actors
(including judges, and those to whom judges issue their orders), act in conformity with what the law
requires. That is, the force of law operates in societies that subscribe to the rule of law.
6
In this sense,
law is a social process, in which a constitution can play a fundamental role. Central to our argument
is the observation that a constitution can also be important in social and especially political
processes that are not primarily legal in character: a constitution can serve as one important source of
public political values and standards that establish parameters for political argument. This is a
distinctive manifestation of political constitutionalism.
The central normative premise we adopt but do not specifically defend is an intuitive, broadly
egalitarian, notion of justice that places particular emphasis on the equal worth of political liberties,
fair equality of opportunity, and the threat that may be posed to these forms of equality by economic
1. Australian Constitution s 51(xxiii). This article does not consider s 51(xxiiiA), which confers power to legislate for the
provision of other social security benefits and social services.
2. Ibid s 51(xxxv).
3. Ibid s 51(ii).
4. Tarunabh Khaitan, ‘ConstitutionalDirectives: Morally-Committed Political Constitutionalism’(2019) 82(4) Modern Law
Review 603, 607.
5. Patrick Keane, ‘In Celebration of the Constitution’(Speech, Banco Court, 12 June 2008), quoted in Elisa Arcioni and
Adrienne Stone, ‘The Small Brown Bird: Values and Aspirations in the Australian Constitution’(2016) 14(1) Inter-
national Journal of Constitutional Law 60, 63.
6. Martin Krygier, ‘TransitionalQuestions About the Ruleof Law: Why, What and How?’(2001) 28(1) East Central Europe
1, 12–16.
Emerton and James 373
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