Responsive Constitutionalism in Australia

Abstract

Responsive constitutionalism is a theory of constitutionalism that starts from the idea that democracy involves two overlapping commitments — to a relatively thin ‘minimum core’ set of norms and institutions and thicker, more contestable set of rights and deliberative commitments. It then proceeds to affirm a commitment both to legal and political constitutionalism. This article explores the relevance of this theory for Australian constitutionalism and suggests that it in fact has strong resonance with the Australian constitutional tradition. First, the capital ‘C’ Constitution gives strong legal protection to 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.