CONSTITUTIONAL IMPLICATIONS FROM
REPRESENTATIVE DEMOCRACY
JEREMY KIRK*
There is undoubtedly a growing willingness in the High Court to find constitutional
implications protecting individual freedoms or rights. There are a number of possible
bases for this approach, including the separation of powers l and the common law. 2 In
this context, the High Court's decisions in Australian Capital Television Pty Ltd v
Commonwealth (No 2) (the Political Advertising cqse)3 and Nationwide News Pty Ltd v
Wills 4 (which together I shall call the "principal cases") are very significant. A majority
of six judges5 in the decisions held both that the Constitution entrenches the system of
representative democracy and that this in tum implies constitutional protection of free
speech on political matters. The two cases were handed down on the same day and
must be read together as. the judges' reasoning for these conclusions overlap between
the cases. 6 The significance of the principal cases is twofold. They constitute the
clearest acceptance by the Court to date of an implied constitutional limitation relating
to individual freedom. More importantly, they establish a new basis for finding further
constitutional implications. If freedom of political communication is constitutionally
protected because it is essential to representative democracy, other freedoms and
requirements might be similarly essential and be similarly protected.
It is this issue w:hich is my focus here. I seek to address what requirements and
freedoms can and should be seen as impliedly protected by the Constitution because
they are essential to representative democracy. I thus plan to concentrate on the
possible direct ramifications of the principal cases rather than their wisdom, although
the latter is to some extent relevant to the former. My approach is as follows. Part One
sets out the basis for the Court's findings in the principal cases, as it is necessary to
understand this before considering the consequences of the decisions. Part Two
*
1
2
3
4
5
6
BA LLB (Hans) (AND). I wish to thank Associate Professor Geoffrey Lindell for his
supervision of the preparation of a previous version of this article. My thanks are also due
to Professor Leslie Zines and Ms Fiona Wheeler for their comments. All opinions and
errors are, of course, my own.
Eg, Polyukhovich v Commonwealth (1991) 172 CLR 501; Leeth v Commonwealth (1992) 174 CLR
455 at 501-502 per Gaudron J; Dietrich v R (1992) 177 CLR 292 at 326 per Deane J, at 362 per
GaudronJ.
,
See Leeth v Commonwealth (1992) 174 CLR 455 at 485-487 per Deane and Toohey JJ;
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69 per Deane and Toohey JJ.
(1992) 177 CLR 106 (hereafter Political Advertising).
(1992) 177 CLR 1 (hereafter Nationwide).
Mason eJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Nevertheless, I have distinguished between the two cases in the footnotes.
/
(
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Federal Law Review
Volume 23
examines the concept or definition of representative democracy itself. If the concept is
seen in broad terms, there is wide potential for the implication of limitations. Part
Three addresses what requirements might be considered necessary to the effective
operation of the process of representative democracy. Part Four examines reasons for
the High Court to be cautious in implying further limitations into the Constitution. I
conclude in Part Five by seeking to balance these reasons for restraint with the
precedent established in the principal cases. On this basis, I state my view of which
constitutional limitations should be said to be implied by the entrenchment of
representative democracy, and recommend an appropriate general approach for the
High Court in this area.
Since this article was written the High Court has handed down three new decisions
on the implied freedom of political communication. 7 These cases, all of which were
decided by four-three majorities, indicate that significant differences already have
emerged as to the perceived scope of the requirements of democracy. By accepting in
the principal cases both that representative democracy is entrenched in the
Constitution and that it requires certain limits on government power, the High Court
has opened up a complex and controversial new field of constitutional jurisprudence.
The full consequences of this action will remain a source of argument for decades to
corne.
1
THE PRINCIPAL CASES
To understand the ramifications of the High Court's decisions in Political Advertising
and Nationwide it is necessary to understand something of the detail of these complex
cases. The relevant aspects to consider are the issues in dispute, the arguments used to
establish the implied freedom of political communication, the nature of the freedom,
and indications as to what other types of freedoms might be found.
The legislation in dispute
Political Advertising concerned the addition of Part IIID to the Broadcasting Act 1942
(Cth). The new provisions had two main effects. First, they prohibited the broadcast of
political advertisements9 on radio and television during periods of Commonwealth
elections and referenda 10 and Territory,ll State and local government elections. 12
There were limited exceptions and news, current affairs and talkback programs were
not affected. 13 Secondly, broadcasters were required to provide free time to candidates
for election broadcasts. 14 This free time was to be allocated to parties and candidates
by the Broadcasting Tribunal, with political parties already represented in the relevant
Parliament to receive 90 per cent of the time in proportion to votes received at the
7
8
9
10
11
12
13
14
Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1, Stephens v West Australian
Newspapers Ltd (1994) 124 ALR 80, Cunliffe v Commonwealth (1994) 124 ALR 120.
The judges describe the implication variously as a freedom, right, guarantee, limitation
and prohibition.
Defined in ss 9SB(6), 9SC(6) and 9SD(6).
Section 95B.
Section 9SC.
Section 9SD.
Section 9SA.
Division 3.
1995
Constitutional Implications from Representative Democracy
39
preceding election. 1S The remainder of the time was available to be granted to
independent members and unrepresented parties and candidates. 16 No free time was
to be allocated to interest groups or members of the public, thus excluding them from
engaging in any political advertising on radio and television during the prescribed
periods. The Commonwealth advanced three justifications for the scheme: that it
reduced financial pressure on political parties, thus decreasing the risk of political
corruption; that it facilitated substantive equality of political communication by ending
the privileged position of those who could afford to pay for electronic advertising; and
that it prevented political debate being trivialised by short political advertisements.
Part IIID was held entirely invalid by a majority of the High Court - Mason CJ,
Deane and Toohey JJ (together) and Gaudron J - for breach of the implied freedom of
political communication. Mason CJ objected principally to the discriminatory effects of
the scheme in favouring the established political parties whilst curtailing the access of
independent members and new candidates to political advertising and excluding other
individuals and groups from such access. 17 Similarly, Deane and Toohey JJ objected to
the distorting effect of the scheme on freedom of political communication, as well as to
the exclusion of the people from one of the most effective forms of political
communication. I8 The main objection of Gaudron J was to the curtailment of political
discourse, at least of organisations and persons other than political parties and
candidates, during the periods when political discourse was essential. 19
Of the other judges, McHugh J held the Part invalid for breach of the freedom
insofar as the Part applied to Commonwealth elections. He seemed to take the view
that the freedom did not apply to protect State political communication. He held the
Part invalid in applying to State and local elections for breaching another implied
prohibition, namely that which prevents the Commonwealth from interfering in the
ability of the States to function. He held the Part valid in its application to Territory
elections. 20 Brennan J found that although the provisions did restrict political
communication, they did so in a way that was proportionate to achieving legitimate
ends and they were thus not invalid by reason of the new limitation. Like McHugh J,
he held the general prohibition on advertising in State and local elections invalid for
interfering in the ability of the States to function. 21 Dawson J rejected any general
implied freedom of political communication. He held Part 1110 valid in its entirety.22
Nationwide concerned the validity of s 299(1)(d)(ii) of the Industrial Relations Act
1988 (Cth). This provision made it an offence for a person, whether orally or in writing,
to "use words calculated ... to bring a member of the [Industrial Relations] Commission
or the Commission into disrepute". All seven judges interpreted the section as
excluding usual common law defences to this type of offence such as justification and
fair comment. On the basis of this interpretation they all held f.r1e provision invalid~
Brennan J, Deane and Toohey JJ (together) and Gaudron J held it breached tIle hTJ.1plied
limitation because it prohibited any criticism of a government institution, even if
IS
16
17
18
19
20
21
22
Section 95H.
Sections 95L and 95M.
Political Advertising (1992) 177 CLR 106 at 145-147.
Ibid at 171-175.
Ibid at 218-224.
Ibid at 236-246.
Ibid at 156-167.
Ibid at 188-202.
40
Federal Law Review
Volume 23
justified. Mason CJ, Dawson and McHugh JJ held only that the provision was beyond
the Commonwealth's incidental powers under ss 51(35) and 51(39) of the Constitution,
although Mason CJ and McHugh J used reasoning similar to that of the majority to
achieve this result.23
The basis of the implied freedom
The six judges who accepted the existence of the implied freedom of political
communication relied on essentially one argument. The argument can be broken into
three steps. The first step was the finding that the Constitution establishes and
entrenches the Commonwealth as a "representative democracy" (or "representative
govemment").24 The judges differed as to the precise source of this entrenchment.
Mason CJ and Brennan J focused on the provisions of the Constitution that establish the
Commonwealth government as a democracy.25 Both relied on Stephen J in AttorneyGeneral (Cth); Ex reI McKinlay v Commonwealth,26 who found the principles of
representative democracy encapsulated in the requirement in ss 7 and 24 of the
Constitution that members of the Senate and House of Representatives be "directly
chosen by the people" of the State and of the Commonwealth respectively. Deane and
Toohey JJ placed less reliance on the text, asserting representative government as one
of the "general doctrines of government which underlie the Constitution and are
implemented by its provisions".27 Gaudron J had a similar view. McHugh J focused on
the above words in ss 7 and 24, but stated that they must be "interpreted against the
background of the institutions of representative government and responsible
government".28
The argument's second step was to say that it is an "essential", "necessary",
"indispensable", "presupposed" or "inherent" element of representative democracy that
there be freedom of communication on political matters. 29 The judges (other than,
perhaps, McHugh J) saw this freedom as essential not only to the people's choosing of
political representatives but to the ongoing exercise of power by those representatives.
The judges relied here on a number of overseas cases to support their argument. 30
23
24
25
26
27
28
29
30
Nationwide (1992) 177 CLR 1 at 31 footnote 95 and 33-34 per Mason CJ, at 103 and 105 per
McHughJ.
Political Advertising (1992) 177 CLR 106 at 137-138 per Mason CJ, at 209-11 per Gaudron J,
at 228-230 per McHugh J; Nationwide (1992) 177 CLR 1 at 45-47 per Brennan J, at 69-72 per
Deane and Toohey JJ.
Sections I, 7, 24, 61, 62, 64 and 128.
(1975) 135 CLR 1 at 55-56.
Nationwide (1992) 177 CLR 1 at 69-70.
Political Advertising (1992) 177 CLR 106 at 230.
Ibid at 138-140 per Mason Cl, at 211-212 per Gaudron J, at 230-231 per McHugh J;
Nationwide (1992) 177 CLR 1 at 47-50 per Brennan J, at 72 per Deane and Toohey JJ.
Notably, from the United Kingdom: Attorney-General v Times Newspapers Lirnited [1974] AC
273 at 315; Attorney-General v Guardian Newspapers Limited (No 2) [1990] 1 AC 109 at 258,270
and 283; Hector v Attorney-General of Antigua and Barbuda [1990] 2 AC 312 at 318. From the
European Court of Human Rights: Sunday Times v United Kingdom (1979) 2 EHRR 245; The
Observer and The Guardian v United Kingdom (1991) 14 EHRR 153. From Canada: Re Alberta
Legislation [1938] 2 DLR 81 at 107-109 and 119-120; Retail, Wholesale and Department Store
Union, Local 580 v Dolphin Delivery Limited (1986) 33 DLR (4th) 174 at 183-184; Switzman v
Ebling (1957) 7 DLR (2d) 337 at 358 and 369-371.
1995
Constitutional Implications from Representative Democracy
41
The third step was the conclusion, following from the first two steps, that the
Constitution impliedly protects freedom of political communication. 31 Commonwealth
power is restricted accordingly. Brennan J summarised the argument in this way:
"[W]here a representative democracy is constitutionally entrenched, it carries with it
those legal incidents which are essential to the effective maintenance of that form of
government".32
The judges described the implication in different ways, but the basic content of it
seemed to be largely the same for Mason CJ, Brennan, Deane, Toohey and Gaudron JJ.
They expressly or implicitly saw it as extending to, at least, communication relating to
Federal or State governments and governmental institutions, communication on the
policies and nature of political candidates, and information and ideas on the
government of the Commonwealth generally. It covers communication between the
government, political candidates and the people. It also protects communication
amongst the people themselves, as individuals and groups can and should be able to
influence each other in a democracy. McHugh J's view is, on the face of it, more
limited. He declined to decide whether the protection applies other than during
elections,33 and seemed to reject that it can apply in relation to State matters. 34
Although Dawson J dissented, he accepted both that the Constitution entrenches
representative democracy (throtlgh ss 7 and 24) and that the people's right to make a
direct choice requires protection of the ability of the people to appreciate the available
alternatives. 35 His view is thus not far removed from the views of the other members of
the Court, although he was unwilling to take the step of speaking of a new implied
freedom of political communication.
The nature of the implied freedom
The judges treated the freedom, once established, as an independent restriction on
Commonwealth power. The issue then becomes simply whether the impugned law
breaches the freedom, and if so, whether the breach is unjustifiable. The question of
w:hetllcr the particular subject of regulation - political advertising, for instance - is
something essential to the operation of represerLtative democracy is not directly
relevant. To show a prima facie breach of the restriction it is enough that political
advertising is one part of political communication, and that political communication as
a whole is indispensable to democracy. The effect of the regulation "on representative
democracy may be relevant in assessing whether the prohibition is unjustifiably
breached.
The implied freedom is not absolute, with the judges proposing various tests for
permissible infringements. 36 Brennan J, for instance, employed the common
31
32
33
34
35
36
Political Advertising (1992) 177 CLR 106 at 140-141 per Mason CJ, at 215 and 217 per
Gaudron J, at 231-232 per McHugh J; Nationwide (1992) 177 CLR 1 at 48-51 per Brennan J, at
72-75, per Deane and Toohey JJ.
Nationwide (1992) 177 CLR 1 at 48.
Political Advertising (1992) 177 CLR 106 at 232-233.
Ibid at 241-245 and 246.
Ibid at 184-187.
Ibid at 142-144 per Mason CJ, at 150-151 and 157 per Brennan J, at 217-218 per Gaudron J,
at 234-235 per McHugh J; Nationwide (1992) 177 CLR 1 at 51 per Brennan J, at 76-77 per
Deane and Toohey JJ.
42
Federal Law Review
Volume 23
constitutional test for such matters, stating that a restriction of political communication
will be valid if it is "proportionate to the legitimate ends which it is appropriate and
adapted to serve".37 One important factor in applying such tests is the level of
deference shown to the judgment of Parliament, a matter on which the judges differed.
Brennan J, at one end of the spectrum, stated that the balancing of interests was "a
matter for the Parliament to determine"38 with the courts deciding only whether the
balance is within "the range of legitimate legislative choice".39 He thus held the
freedom was not unjustifiably infringed in Political Advertising. 40 Similarly, Dawson J
said it is for Parliament to provide for the form of representative democracy, within
constitutional limits, and in doing so it may adopt measures "about which there may be
a considerable variation of opinion".41 He thus held that the scheme in Political
Advertising, though not beyond criticism, was consistent with the guarantee of a direct
choice by the people. At the other end of the spectrum, Deane and Toohey JJ took a
much more interventionist approach. For example, they dismissed the
Commonwealth's main justification for the provisions in Political Advertising (namely,
reducing the risk of political corruption) virtually without argument, saying merely it
"seems to us, however, quite unconvincing".42
Whether the States or Territories are bound by the implied limitation was not
decided. Arguments can be made as to why the States and Territories should be bound
by such limitations but I do not have the space to address these here. 43 In Political
Advertising five of the judges did hold that the Commonwealth cannot restrict
communication on matters related to elections or government in the States. 44
The implied freedom is unlikely to be seen as an individual right enforceable
against persons other than governments. Brennan, Deane and Toohey JJ indicated that
the freedom is similar to that conferred by s 92: it operates primarily as a prohibition on
certain types of legislation. 45 Brennan J stated executive government action will be
bound by the limitation. 46 There seems to be little reason why judicial law-making
through the common law should not similarly be bound. The freedom might thus affect
the law of defamation, for instance.
37
38
39
40
41
42
43
44
45
46
Political Advertising (1992) 177 CLR 106 at 157.
Nationwide (1992) 177 CLR 1 at 50.
Ibid at 52.
Political Advertising (1992) 177 CLR 106 at 161-162.
Ibid at 188, generally at 188-191.
Ibid at 175.
See comments in Nationwide (1992) 177 CLR 1 at 52 per Brennan J, at 75-76 per Deane and
Toohey JJ; Political Advertising (1992) 177 CLR 106 at 176-177 per Deane and Toohey JJ, at
184 per Dawson J, at 217 per Gaudron J, at 246 per McHugh J. See Theophanous v Herald &
Weekly Times Ltd (1994) 124 ALR 1 and Stephens v West Australian Newspapers Ltd (1994) 124
ALR 80. See also discussion in L Zines, "A Judicially Created Bill of Rights?" (1994) 16
Sydney LR 166 at 179-180.
Political Advertising (1992) 177 CLR 106 at 142 per Mason CJ, at 162-163 per Brennan J, at
168-169 per Deane and Toohey JJ, at 216-217 per Gaudron J; Nationwide (1992) 177 CLR 1 at
75-76 per Deane and Toohey JJ.
Political Advertising (1992) 177 CLR 106 at 150 per Brennan J; Nationwide (1992) 177 CLR 1 at
76 per Deane and Toohey JJ .
Nationwide (1992) 177 CLR 1 at 50-51.
Constitutional Implications from Representative Democracy
43
~Indications
as to other possible implications
j,£here are few specific indications in the principal cases of what other possible
j~(Jreedoms could be based on the judges' arguments. Five judges seemingly approved
:~\::~)the views of Griffith CJ and Barton J in R v Smithers; ey parte Benson;47 they held that
~~~"',citizens have a right of access to the federal government, at least as against the States. 48
f~~\' Mason CJ and Deane and Toohey JJ quoted, not necessarily with approval, sources
),: Indicating that freedom of speech, of the press and of assembly or association are
",, essential components of democracy.49 Gaudron J suggested that "freedom of
:"movement, freedom of association and, perhaps, freedom of speech generally" might
" be covered. 50 McHugh J held that "rights of freedom of participation, association and
communication in relation to federal elections" are protected. 51
More generally, it is notable that one judge appeared to take a broader view of the
concept of representative democracy than the others. Six of the judges seemed to
perceive representative democracy essentially as a process of government involving
popular choice of representatives. What is important is protecting the process which
secures the people a share in their own government. 52 Mason CJ, Deane and Toohey JJ
linked this view with the idea that power in the Australian democracy is derived from
the people and exercised on their behalf. 53 Gaudron J, in contrast, talked of "a free
society governed in accordance with the principles of representative parliamentary
democracy".54 She apparently envisaged that substantive features of a free society
might be constitutionally protected, rather than just those features necessary for the
process of democracy to be efficacious. The difference may be related to the basis
found for representative democracy. Mason CJ, Dawson, McHugh and Brennan JJ
relied to varying extents on the requirement of ss 7 and 24 of the Constitution that the
people directly choose their representatives. This basis necessarily focuses attention on
the process of choosing representatives. Gaudron J primarily does not rely on these
sections, stating that representative democracy is a doctrine underlying the
Constitution. This basis leaves her view of what democracy involves more at large. As
Deane and Toohey JJ also took this view of the basis of representative democracy in the
onstitution, they too might in future suggest that representative democracy entails
ore than a process of government. Whether a process-related or a substantive view of
epresentative democracy is accepted will be an important determinant of the number
(1912) 16 CLR 99 at 108-109 and 109-110; see also Pioneer Express Pty Ltd v Hotchkiss (1958)
101 CLR 536 at 550, 560 and 566, and the United States cases of Crandall v State ofNevada 73
US 35 (1867) at 44 and Slaughterhouse cases 83 US 36 (1872).
Nationwide (1992) 177 CLR 1 at 60 per Brennan J, at 73-74 per Deane and Toohey JI; Political
Advertising (1992) 177 CLR 106 at 213-214 per Gaudron J, at 232 per McHugh J.
Political Advertising (1992) 177 CLR 106 at 139 per Mason CJ; Nationwide (1992) 177 CLR 1 at
79 per Deane and Toohey JJ.
Political Advertising (1992) 177 CLR 106 at 212.
Ibid at 227,232,233 and 234.
Ibid at 136, 137-138, 139-140 and 145 per Mason CI, at 187 per Dawson J, at 229 at:td 231-232
per McHugh J; Nationwide (1992) 177 CLR 1 at 47 and 51 per Brennan J, at 71-75 per Deane
and Toohey JJ.
Political Advertising (1992) 177 CLR 106 at 137-138 per Mason CJ; Nationwide (1992) 177 CLR
1 at 70 and 72 per Deane and Toohey JJ.
Political Advertising (1992) 177 CLR 106 at 210, 212 and 215; Nationwide (1992) 177 CLR 1 at
94. Emphasis added.
44
Federal Law Review
Volume 23
and nature of the constitutional implications that can be drawn from representative
democracy.
2
THE CONCEPT OF REPRESENTATIVE DEMOCRACY
The High Court has established a precedent for finding the Constitution implications
protecting matters essential to representative democracy. The extent to which
implications other than freedom of political communication will be found will depend
on how representative democracy is understood. A distinction can be drawn here
between the concept of representative democracy itself and the conditions that are
necessary for its effective operation. The basis for the majority's finding of the freedom
is that free political communication is essential to the "effective maintenance" of
representative democracy.55 In Part Three of this paper I will consider what other
conditions might also be necessary. If the concept of democracy itself is understood or
defined in broad terms, constitutional implications could also be made on the same
broad basis, as necessary parts of the constitutionally entrenched doctrine. I will
therefore consider how the concept should be understood; in particular, I will deal with
the view that democracy cannot be divorced from liberalism. It is such an argument
that Gaudron J seems to suggest in the principal cases. 56
The core definition of representative democracy
Democracy literally means rule or government by, or power of, the people. 57 Logically
and historically implicit in this is the notion of majority rule. Representative democracy
is a form of democracy in which the people govern indirectly, through elected
representatives, rather than directly governing themselves. 58 Beyond this core meaning
it is generally agreed that there is no single accepted definition or model of either
democracy or representative democracy.59 Stephen J recognised this fact in AttorneyGeneral (Cth); Ex reI McKinlay v Commonwealth 60 when he said:
It is, then, quite apparent that representative democracy is descriptive of a whole
spectrum of political institutions, each differing in countless respects yet answering to
that generic description.
In the principal cases the judges applied the test of essentiality to representative
democracy in implying the freedom of political communication. This test is the proper
55
56
57
58
59
60
Nationwide (1992) 177 CLR 1 at 48 per Brennan J; see also ibid at 72 per Deane and Toohey
JJ; Political Advertising (1992) 177 CLR 106 at 139 and 145 per Mason CJ, at 211-212 per
Gaudron J, at 230-231 per McHugh J.
Nationwide (1992) 177 CLR 1 at 94 per Gaudron J; Political Advertising (1992) 177 CLR 106 at
210, 212 and 215 per Gaudron J.
D Held, Models of Democracy (1987) at 2; G Maddox, Australian Democracy in Theory and
Practice (2nd ed 1991) at 64; The Oxford English Dictionary.
D Jaensch and M Teichmann, The Macmillan Dictionary ofAustralian Politics (1979) at 205.
P P Craig, Public Law and Democracy in the United Kingdom and the United States of America
(1990) at 4-5; R Dworkin, "The Forum of Principle" (1981) 56 New York University Law
Review 469 at 502; B Gaze and M Jones, Law, Liberty and Australian Democracy (1990) at 17;
G Maddox, above n 57 at 64; R R S Tracey, "The Legal Approach to Democratic Control of
Trade Unions" (1985) 15 MULR 177 at 182.
(1975) 135 CLR 1 at 57; approved by a majority of the Canadian Supreme Court in Reference
re: Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16 at 38.
1995
Constitutional Implications from Representative Democracy
45
one to continue to apply. It is consistent with the traditional approach to constitutional
interpretation which is to look to the connotation or essence of constitutional
concepts. 61 It also sits well with the arguments favouring judicial restraint in this area.
The question here, therefore, is whether something more than government by the
people should be seen as essential to the definition of representative democracy as
entrenched in the Australian Constitution.
A broader view of representative democracy
Justice Toohey has argued that democracy need not be seen just as majority rule, but as
involving a number of fundamental principles about how power is exercised. 62 He
implies that these principles include respect for what he calls "core liberal-democratic
values".63 Liberalism, in essence, is the doctrine that individuals are the basic unit of
moral concern, that they are fundamentally free, and that there are thus limits on the
extent to which the state should be allowed to interfere in individual freedom. 64
Toohey 1's view is arguably supported by Maddox, who argues that the "democratic
tradition" involves governments being limited to appropriate spheres of action, with
the concept of personal freedom being central to modern democracy.65 This argument
is supported by the fact that liberalism has been the dominant philosophy in the AngloSaxon world since about the seventeenth century,66 the period coinciding with the
development of representative democracy. The basic argument, therefore, is that
liberalism and democracy are so intertwined that they cannot be separated.
The views of Murphy J on implied constitutional rights seem to have been at least
partially based on this approach. The rights that Murphy J implied have been listed
and well discussed elsewhere. 67 One of the bases he gave for a number of the rights
was that the Constitution was a constitution for a democratic "free society" and that
constitutional implications could arise from the "nature of our society".o8 He thus
seems implicitly to link liberalism with our system of government. Gaudron 1's
comments in the principal cases are very reminiscent of Murphy 1's approach. Indeed,
she cites judgments of Murphy J in indicating the possible scope of freedoms that
might be implied into the Constitution based on democracy.69
61
62
63
64
65
66
67
68
69
Eg, Cheatle v R (1993) 177 CLR 541; see also L Zines, The High Court and the Constitution (3rd
ed 1992) at 16.
Justice Toohey, "A Government of Laws, and Not of Men?" (1993) 4 PLR 158 at 171.
Ibid at 169.
S Bottomley, N Gunningham and S Parker, Law in Context (1991) at 12-33; D Held, above
n 57 at 41; D Jaensch and M Teichmann, above n 58 at 138-139; C B Macpherson, The Life
and Times of Liberal Democracy (1977) at 2.
G Maddox, above n 57 at 97 and 450; see also L F Crisp, Australian National Government (4th
ed 1978) at 127-128; W Ivor Jennings, The British Constitution (5th ed 1966) at 203 and 211.
S Bottomley et aI, above n 64 at 10; J Whyte, "Legality and Legitimacy: the Problem of
Judicial Review of Legislation" (1987) 12 Queen's LJ 1 at 13.
G Winterton, "Extra-Constitutional Notions in Australian Constitutional Law" (1986) 16 FL
Rev 223 at 228-229.
See McGraw-Hinds (Aust) P/L v Smith (1979) 144 CLR 633 at 668 and 670; R v DirectorGeneral of Social Welfare (Victoria); Ex parte Henry (1975) 133 CLR 369 at 388; Seamen's Union
of Australia v Utah Development Co (1978) 144 CLR 120 at 157; Uebergang v Australian Wheat
Board (1980) 145 CLR 266 at 311-312; Victoria v Australian Building Construction Employees'
and Builders Labourers' Federation (1982) 152 CLR 25 at 108-112.
Political Advertising (1992) 177 CLR 106 at 212 footnotes 5 and 6.
Federal Law Review
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A related argument is put by Whyte. 70 He begins with the liberal premise that the
basis and justification for government is the individual's desire for autonomy and
security. Laws which infringe upon this autonomy conflict with the very goals of
.democratic government. He argues that a range of guaranteed freedoms and rights is
thus consistent with, and implicit in, democracy - including rights of general freedom
of speech, freedom of religion, due process and equality before the law. A right to
privacy, and thus perhaps to abortion, would also seem to be implied by this view.
Similar rights could be supported by the Toohey/Maddox view. Other theorists have
put analogous arguments to Whyte's.71
Liberalism and democracy - a response
There are a number of reasons for rejecting any argument that these broader views
extend the essential definition of representative democracy. The first is that democracy,
in history and political theory, has not generally been seen as necessarily requiring
limited government. This can be shown by examining four of the main models of
representative democracy. The first two of these come from the nineteenth century.
They have been labelled "protective democracy" and "developmental democracy".72
Protective democracy encompasses the views of natural rights liberals such as
James Madison and of the utilitarians Jeremy Bentham and James Mill. The unifying
feature is that each saw democracy primarily as a means to the end of protecting
individual liberty. Madison73 feared the tendency of humans to form self-interested
factions. He thus argued for the American system of §overnment, with its numerous
built-in checks and balances on the exercise of power. 7 Madison's favoured design (as
it originally stood) was barely democratic, as the people had a very limited direct role
in the formation of governments. 75 Jeremy Bentham and James Mil176 feared tha,t those
who govern, like all humans, would act in self-interest. Democracy, by enabling the
removal of governments, was the best way to guard against governors increasing their
power and not acting in the interests of al1. 77
The main proponent of developmental democracy was John Stuart Mil1. 78 He
accepted the instrumental value of democracy in constraining government. But he also
argued that democracy was valuable as a force for moral self-development of the
citizens who participated in its processes. 79 Despite this, he had a very restricted view
of the people's part in government. He advocated only a limited role for the elected
legislature and supported plural voting for the educated and skilled. 80
70
71
72
73
74
75
76
77
78
79
80
J Whyte, above n 66 at 8-9.
T R S Allan, "The Limits of Parliamentary Sovereignty" [1985] PL 614 at 615-622 and 623
footnote 34; R Dworkin, "Equality, Democracy, and Constitution: We the People in Court"
(1990) 28 Alberta Law Review 324.
D Held, above n 57, chapters 2 and 3; C B Macpherson, above n 64, chapters 2 and 3.
1751-1836.
o Held, above n 57 at 61-6; J Madison (B Wright ed), The Federalist (1966) No 10 at 129-136
W Harrison Moore, The Constitution of the Commonwealth of Australia (1st ed 1902) at 328;
C B Macpherson, above n 64 at 15-16.
1748-1832 and 1773-1836.
C B Macpherson, above n 64 at 35-7; D Held, above n 57 at 66-67.
1806-73.
C B Macpherson, above n 64 at 47; 0 Held, above n 57 at 86.
o Held, above n 57 at 94-95; C B Macpherson, above n 64 at 56-59.
1995
Constitutional Implications from Representative Democracy
47
A key concern of these theorists was the protection of liberty. They saw the
structure of government and the democratic process as themselves generally protective
of liberty, at least when established in the various forms they recommended. This view
is not the same as arguing that democratic government must protect liberty for it to be
democratic. That a system tends to produce a certain result does not make that result
one of the defining characteristics of the system. The fact that these theorists recognised
that democracy could involve infringement of individual freedoms is shown by their
concern to protect against tyranny of the majority. As Craig says of Mill, it "is clear that
he did not believe that some invisible hand within rerresentative democracy would
necessarily forestall the invasion of minority rights".8 In other words, the theorists
mentioned saw no necessary connection between respect for liberal freedoms and
democracy. It was for this reason that Madison and Mill proposed models of
democracy with only limited roles for the people.
The other two notable models, both from the twentieth century and both
purportedly descriptive, are "competitive elitism" and "pluralism". The former model
was developed by Max Weber and Joseph 5chumpeter. They saw democracy as simply
a method whereby elites competed for the right to govern. The people had no role in
government other than the selection of these elites through elections. The people's
protection from tyranny was· the ability to choose other govemors. 82 The pluralist
model saw the existence of competing interest groups as the chief characteristic and
virtue of western democracy. It was through groups that individuals could have some
influence on government. Liberty was protected by the competitive struggle between
groups and by the need for governments to rely on support from a range of minority
groups.83 These two models, whilst again indicating a concern for liberty, see
democracy as a process, and do not present it as a necessarily limited system of
government.
The four models thus sho\v that liberalism unsurprisingly, given its
philosophical dominance - has been an important issue in the minds of democratic
theorists, but has been seen as a distinct concept. This analysis is supported by the
expressed view of a number of recent liberal thinkers that liberalism and democracy
exist in tension with each other. 84 On this theme, the leading "New Right" libertarian,
Hayek, states that democracy is a method for choosing governments and the "chief
abuse" of the term is to "give it a substantive content prescribing what the aim of those
activities [that is, the democratic procedure] ought to be".8s
Other commentators have said that representative democracy essentially involves
that the government be responsive to the people and that this be guaranteed by free
and regular elections - in other words, that democracy is a process. Hanna Pitkin,
relying on a linguistic analysis, holds this view. 86 So, too, does the political scientist
81
82
83
84
85
86
P P Craig, above n 59 at 44.
G Maddox, above n 57 at 84-85; D Held, above n 57 at 158-159 and 165-166.
D Held, above n 57 at 187-95.
C Kukathas, D Lovell and W Maley, The Theory of Politics: An Australian Perspective (1990) at
3 and 9-10; M James, "Introduction", at 2-3, and "The Constitution in Australian Political
Thought", at 22, in M James (ed), The Constitutional Challenge (1982); T R 5 Allan,
"Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism" (1985) 44
CLJ 111 at 139-140.
F A Hayek, Law, Legislation and Liberty (1979) Vol 3 at 137, 5 and 39.
H Pitkin, The Concept of Representation (1967) at 6 and 232-235.
48
Federal Law Review
Volume 23
Birch, who speaks of democracy giving the representatives of the people a significant
share in government. 87 The early Australian constitutional commentator, Harrison
Moore, had an understanding similar to that of Birch. 88
Macpherson has asserted that protection of individual and minority rights is one of
the identifying characteristics of modem liberal democracies. 89 That we commonly
associate democracies with respect for such freedoms is conceded. But this respect may
have developed in parallel with, or been a result of, democracy without being a
necessary antecedent or part of it. The general improvement in industrial and social
conditions, and the greater emphasis on human rights, have occurred in the United
Kingdom and Australia only since the development of broad democracy in the
nineteenth century.
The liberalism argument is self-defeating. The very fact that constitutional
protection of individual liberties is considered to be necessary in a number of western
democracies, and is argued to be required in Australia by liberals such as Toohey J,
indicates that we do envisage democracies infringing these freedoms. Although there is
no doubt that models of representative democracy can be proposed which do require
protection of individual freedoms, it is clear that non-infringement of such freedoms is
not an essential part of the concept of democracy. A possible response would be that
western nations such as Australia are democracies, but flawed ones. If the criterion for
"true" democracy is complete and consistent respect for liberal values, I know of no
such democracy. The term would become an ideal, not a real political model that is
really entrenched in Australia's Constitution. The better view is that to the extent that
laws infringing liberal freedoms are a flaw, they are a flaw in democracy itself.
As for Whyte's social contract argument on the purposes of democratic government,
this is based only on subjective assertion. Any number of goals can be attributed to the
people as their basis for coming together in a society, and then used as an argument for
limiting the role of government. This indeterminacy is shown by the fact that Robert
Nozick uses such an argument to justify only the most minimal of states,90 whilst
Thomas Hobbes justified an absolute state on a similar basis. 91 To attribute one basis
for unity over another is simply to reconstruct one's own view of society as historical
reality.
A final, legal response to the liberalism argument is that a number of judges in
various contexts have indicated that democracy is fundamentally a process of
government in which the will of the majority ultimately reigns supreme. 92 This appears
87
88
89
90
91
92
A H Birch, Representative and Responsible Government (1964) at 13-17.
W Harrison Moore, The Constitution of the Commonwealth of Australia (1st ed 1902) at 327329; also 2nd ed 1910 at 78 and 612-616 - see references to this in Political Advertising
(1992) 177 CLR 106 at 136 and 139-140 per Mason CJ, at 229 per McHugh J .
C B Macpherson, above n 64 at 6-7.
R Nozick, Anarchy, State and Utopia (1974).
T Hobbes (edited by C B Macpherson), Leviathan (1968).
R v JB Sweeney; Ex parte Northwest Exports P/L (1981) 35 ALR 135 (High Court) at 142 per
Stephen J; Switzman v Elbling (1957) 7 DLR (2d) 337 (Canadian Supreme Court) at 358 per
Rand J (& Kellock J); BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 405 per
Kirby P; Grace Bible Church v Reedman (1984) 36 SASR 376 at 390 per Millhouse J; Wright v
McLeod (1983) 51 ALR 483 (Full Federal Court) at 502 per Smithers J~ at 514 per Evatt and
Northrop JJ, at 533 per Sheppard J; see also Sir Owen Dixon, Jesting Pilate (1965) at 106.
1995
Constitutional Implications from Representative Democracy
49
to be the view of a majority of the judges in the principal cases. 93 Four of these judges
implicitly reject the liberalism argument by notin? that the Constitution does not
contain broad guarantees of individual liberties. 4 Furthermore, the doctrine of
parliamentary supremacy itself involves the rejection of the argument as courts have
hitherto seen no inherent limits on the power of our democratic governments.
A question of semantics?
Some critics might dismiss my arguments as semantic. Literally, of course, they are
right, but when constitutional limitations can be implied on the basis of representative
democracy, the meaning of that term becomes critical. Some might accuse me of
selecting theorists to support my case; after all, a number of prominent commentators
have stated recently that democracy is more than just "crass majoritarianism". 95 There
is no doubt that substantive models of democracy can be and have been developed,96
and some of these may make respect for liberal values part of the definition of
democracy. However, the test the High Court set in the principal cases related to what
was essential to representative democracy. The analysis above shows that respect for
"core liberal-democratic values" is not part of the essential definition of democracy.
It has been said that the choice of a particular conception of democracy reflects
substantive value judgrnents. 97 Given the spectrum of models of representative
democracy, this statement cannot be denied. For judges to choose one particular model
of democracy and imply restrictions on government power based on that model would
thus represent an arbitrary imposition of a particular social and political philosophy.
The one certainty about representative democracy is the core definition - that ultimate
power lies \vith the people and is exercised through elected representatives. Implicit in
this, and necessarily implicit in all models of democracy, is that representative
democracy is (at least) a process of government. This process of government, not some
particular liberal model, is the essential concept of representative democracy on which
the judges should concentrate in seeking to protect the constitutionally entrenched
doctrine.
3
NECESSARY CONDITIONS OF REPRESENTATIVE DEMOCRACY
That democracy is fundamentally a process of government does not mean it does not
require certain individual freedoms. Just as the High Court found that free speech on
political matters is indispensable to the effective operation of representative
democracy, so other matters can be argued to be similarly 'essential based on practice,
93
94
95
96
97
Political Advertising (1992) 177 CLR 106 at 136, 137-138, 139-:140 and 145 per Mason CJ, at
187 per Dawson J, at 229 and 231-232 per McHugh J; Nationwide (1992) 177 CLR 1 at 47 and
51 per Brennan J, at 71-75 per Deane and Toohey JJ.
Political Advertising (1992) 177 CLR 106 at 135-136 per Mason CJ, at 182-183 per Dawson J,
at 228-229 per McHugh J; Nationwide (1992) 177 CLR 1 at 43-44 per Brennan J.
M Coper, "The High Court and Free Speech" (1994) 16 Sydney LR 185 at 190-191; Justice M
Kirby, Canberra Times 8 May 1994; H P Lee, liThe Australian High Court and Implied
Fundamental Guarantees" [1993] PL 606 at 627-8; Justice B McLachlin, "Southey Memorial
Lecture: The Canadian Charter and the Democratic Process" (1991) 18 MULR 350 at 353;
Justice Toohey, above n 62 at 171.
R Dworkin, above n 59 at 502-503.
Ibid at 502; P P Craig, above n 59 at 3-5 and 80.
50
Federal Law Review
Volume 23
precedent and democratic theory. There is a remarkable degree of agreement as to
minimum necessary conditions. A wide range of commentators suggest that all or
some of the following are required: freedom of speech, freedom of peaceful assembly
and freedom of association, as well as regular, free and fair elections. 98 Freedom of
movement and rights of access to government can also be argued to be indispensable
to democracy. All of these things might be said to be impliedly protected by the
Constitution. Before discussing these freedoms, two important preliminary points must
be addressed: whether the requirements of democracy should be looked at as of now or
as at 1900, and what the effect of finding such implied protections would be. I will
address the question of the extent to which a meaningful distinction can be drawn
between process-oriented and substantive views of democracy in Part Four.
Representative democracy as at now or at 1900?
The traditional approach to constitutional interpretation is to read terms as having the
essential meaning they had when the Constitution was enacted in 1900. 99 Yet the
Constitution does not use the term "representative democracy". In any case, the core
meaning of the concept has not changed since 1900. Nevertheless, the focus should not
be on 1900 in assessing what conditions are necessary for the effective maintenance of
democracy.100 Democracy is a dynamic phenomenon. Robert Garran said in 1897 that
responsible government "as we know it, is a new thing and a changing thing".101 To
ignore the lessons of 90 years of experience and development would be foolishly
limiting. A 1900 view of democracy would take no account of the important place of
the electronic media or the expanded role of interest groups, for example.
There is a strong precedent for this approach. In an unanimous joint judgment in
Cheatle v R, dealing with the s 80 constitutional guarantee of a jury trial, the High Court
indicated that the essential features of a jury trial were entrenched in the Constitution
as they were at 1900. 102 What was necessary in practice to fulfil these requirements,
however, could "vary with contemporary standards and perceptions". So too here, the
essential definition of representative democracy has not changed, but the conditions
necessary to fulfil this definition may have changed.
98
R Bassett, The Essentials of Parliamentary Democracy (1935) at 116-117; Jeremy Bentham see D Held, above n 57 at 67; A H Birch, above n 87 at 17; A Cox, The Court and the
Constitution (1987) at 212; L F Crisp, above n 65 at 132; W I Jennings, above n 65 at 208-209;
Rosa Luxemburg - see L F Crisp, above n 65 at 127; H Mayo quoted in B Gaze and
M Jones, above n 59 at 19; Justice McLachlin, above n 95 at 354; James Mill- see D Held,
above n 57 at 67; John Stuart Mill - see D Held, above n 57 at 93; H Pitkin, above n 86 at
234-235; Joseph Schumpeter - see D Held, above n 57 at 177; E Thompson, "A Bit of Paper
Called a Bill of Rights" in S Encel, D Horne and E Thompson (eds), Change the Rules (1977)
at 86-87; L Zines, Constitutional Change in the Commonwealth (1991) at 34.
99
Eg, Attorney-General (Vic); Ex reI Black v Commonwealth (1980) 146 CLR 559 at 578 per
Barwick CJ.
100 Cf Political Advertising (1992) 177 CLR 106 at 230 per McHugh J.
101 R R Garran, The Coming Commonwealth (1897) at 149.
102 (1993) 177 CLR 541 at 560-561.
1995
Constitutional Implications from Representative Democracy
51
The nature and effect of the possible implications
The other possible democratic constitutional implications will, like the freedom of
political communication, act as restrictions l03 on Commonwealth (and possibly State
and Territory) power. As such, inconsistent laws would be invalidated or read
down. l04 The limitations might also achieve the same result for the Commonwealth's
incidental powers lOS indirectly, through the, requirement of reasonable
proportionality.l06 Executive action would also probably be restricted. l07 Any
executive action is likely to be authorised by legislation anyway and thus directly
covered by the limitations. If legislation established some broad discretion, the Court
would simply read the legislation down so as not to authorise any breach of the
implied limitations, as it does for executive discretions which may breach s 92 of the
Constitution. lOB
In the principal cases a majority of the judges accepted that the freedom of political
communication applied constantly, not just in election periods. l09 The same should
apply for other such freedoms. The people primarily exercise their power at election
time. In making a meaningful choice they will be influenced by an assessment of the
government's performance over the period, by their own values and by other's ideas
and arguments. All these require continuously free communication, assembly,
association and so forth. Furthermore, in modem democracies, governments are
responsive to people and pressures at times other than elections. This is another way in
which the people exercise power and it, too, requires certain continuous freedoms and
access to government.
The possible implications will almost certainly not be seen as absolute rights.110 A
crucial issue thus will be balancing the freedoms with other legitimate public interests.
My maiIl focus here is on what freedoms should be implied, however, not on how to
apply the freedoms once established; The freedoms, being implied, will have to give
way in the face of express contrary principles irl the Constitution. This is arguably seen
in Sykes v Cleary, where constitutional restrictions on candidature were giverl full effect
103 Political Advertising (1992) 177 CLR 106 at 150 per Brennan J; Nationwide (1992) 177 CLR 1 at
76 per Deane and Toohey JI.
104 Some of the freedoms discussed, in the following text will have more significance for the
105
106
107
108
109
110
States and Territories than for the Commonwealth, if they are held to be bound. Matters·
such as public assembly and association are areas of activity more usually regulated at that
level.
Constitution, s 51(39).
Eg, Nationwide (1992) 177 CLR 1 at 29-34 per Mason CJ, at 101-105 per McHugh J; see also
Davis v Commonwealth (1988) 166 CLR 79.
Nationwide (1992) 177 CLR 1 at 50-51 per Brennan J.
L Zines, above n 61 at 131.
Nationwide (1992) 177 CLR 1 at 50-51 per Brennan J, at 72 per Deane and Toohey JJ; Political
Advertising (1992) 177 CLR 106 at 215 per Gaudron J, see also at 138-139 per ,Mason CJ; cf at
231-232 per McHughJ.
"
Cf Political Advertising (1992) 177 CLR 106 at 142-144 per Mason CJ, at 150-151 per Brennan
.J, at 217-218 per Gaudron J, at 234-235 per McHugh J; Nationwide (1992) 177 CLR 1 at 51 per
Brennan J, at 76-77 per Deane and Toohey JJ; see also Castlemaine Tooheys Ltd v South
Australia (1990) 169 CLR 436 at 472-473 (re s 92), Street v Queensland Bar Association (1989)
168 CLR 461 at 492-493,512-513,560,572 and-584 (re s 117).
52
Federal Law Review
Volume 23
by six judges111 despite the strong argument that such restrictions are inconsistent with
democratic principles. 112
Freedom of speech
It is worth mentioning some theoretical arguments as to why freedom of political
speech is important to democracy, as they affect what else might be seen as essential to
the process of democracy. One of the fundamental philosophical premises of
democracy is political equality.113 Democracy is government by the people (or at least
by the "citizens" which, as in Athenial'1 democracy,114 may not be all the people). This
involves a recognition that no particular person or group can claim an innate right to
govern or to impose a particular version of the good. Rather, the people decide
together by majority what is in their best interests. The premise of equality entails the
view that every person (or citizen) is entitled to participate in the processes of
government, because to hold otherwise would be to give people unequal political
rights. 11S In practice, of course, many democracies have not reflected the premise of
political equality in their operation.
The entitlement to participate itself supports political freedom of speech for citizens,
as speech on political matters is one form of participation. Yet a contradiction can arise:
if democracy is a process of government involving majority rule, the majority shoul~
be able to deprive citizens of free speech. The answer to this is that for majority rule to
be an on-going process, citizens must always be free to seek the formation of new
majorities. If it were otherwise, majority rule would be a one-off event, not a continuing
process of government, and the system could not be said to involve rule by the
people. 116 A certain amount of political freedom is thus required, including freedom of
political communication.
In justifying the implied freedom of political communication, tl1e judges in the
principal cases seemingly rely on the citizens' right to participate and on the principle
that free speech will facilitate the discovery of truth and the influencing of values and
will thus assist the voters to make a meaningful choice. 117 A number of commentators
have criticised the reasoning and the result in Political Advertising. One of the main
criticisms has been that the majority did not look back to the justifications for political
111 (1992) 176 CLR 77, see especially at 101 per Mason CJ, Toohey and McHugh JJ.
112 Ibid at 121 per Deane J (dissenting).
113 T D Campbell, "Democracy, Human Rights, and Positive Law" (1994) 16 Sydney LR 195 at
205; L,F Crisp, above n 65 at 127; J H Ely, Democracy and Distrust: A Theory ofJudicial Review
114
115
116
117
(1980) at 122; K D Ewing, "The Legal Regulation of Electoral Campaign Financing in
Australia: A Preliminary Study" (1992) 22 UWAL Rev 239 at 240-241; 0 Held, above n 57 at
2; G Maddox, above n 57 at 453-456; J Whyte, above n 66 at 6.
G Maddox, above n 57 at 65.
R Dworkin, above n 71 at 337-338; K D Ewing, above n 113 at 240-241; J Whyte, above n 66
at 7; see also Justice McLachlin, above n 95 at 353; R v Smithers; Ex parte Benson (1912) 16
CLR 99 at 109-110 per Barton J.
G Sartori, The Theory of Democracy Revisited (1987) Vol 1 at 32-33; G de Q Walker, "Dicey's
Dubious Dogma of Parliamentary Sovereignty" (1985) 59 ALJ 276 at 283; cf R Dworkin,
above n 59 at 506-507.
Political Advertising (1992) 177 CLR 106 at 138-140 per Mason CJ, at 211-212 per Gaudron J,
at 230-232 per McHugh J; Nationwide (1992) 177 CLR 1 at 47-50 per Brennan J, at 72 per
Deane and Toohey JJ.
1995
Constitutional Implications from Representative Democracy
53
free speech in assessing whether the legislation breached the implication. 11B Campbell
states that the majority seem to assume that they l'JlOW the content of the right to free
speech when it is, in fact, far from being a simple concept. 119 There is weight in such
objections. But these critics do not dispute that some free speech is a necessary condition
of representative democracy. Their argument is about what free speech requires. Craig
has argued that the content of the right to free ~eech in this context is determined by
the conception of democracy that is assumed. 12 In my view the matter is not quite as
open as he suggests, as some basic level of free speech can be justified for all models of
democracy using the two reasons given above. Nevertheless, value judgments are
obviously involved in deciding what is acceptable regulation of free speech. This fact
serves to emphasise that there is a place for judicial deference to the views of
Parliament in matters which do not clearly and unjustifiably restrict political
communication.
The judges in the principal cases do not decide whether a general freedom of speech
is essential to representative democracy.121 An argument can be made that it is. The
judges accept in the principal cases that attempts by third parties to influence the
public directly can be political communications. People may be influenced to vote one
way or another because of such communications. The values and beliefs of the public
can also be influenced by ideas implicit in communications that are not overtly aimed
at their political views. Thus any public communication is potentially a political matter,
at least when it involves the communication of ideas. As every area of human activity is
potentially subject to government intervention, communication on any subject could be
covered. This chain of reasoning is supported by some Canadian dicta. Rand J, for
example, said that democracy involves "government by the free public opinion of an
open society", and that this "demands the conditions of a virtually unobstructed access to
and diffusion of ideas" .122
The argument could extend to artistic expression. Lady Chatterley's Lover or Oz
magazine, for instance, might well be said to have influenced public sexual mores in
this century, contributing to changes in the legal regulation of sexual conduct. As for
commercial free speech, an advertisement promoting cigarettes, for example, contains
the implicit idea that the product is good, and this may influence people's vote, which
in turn may make government restrictions on cigarettes less likely. Thus commercial
advertisements can affect the political process. 123
These arguments show a credible link between general free speech and the
operation of the political process. Whether they should be accepted depends on one's
lIB TO Campbell, above n 113 at 203; D Z Cass, "Through the Looking Glass: The High Court
and the Right to Free Speech" (1993) 4 PLR 229 at 236; 0 Tucker, "RepresentationReinforcing Review: Arguments about Political Advertising in Australia and the United
States" (1994) 16 Sydney LR 274 at 284-286.
119 T D Campbell, above n 113 at 201-204.
120 P P Craig, above n 59 at 197-200.
121 Eg, Political Advertising (1992) 177 CLR 106 at 141 per Mason CJ, at 212 per ~audron J.
122 Switzman v Elbling (1957) 7 DLR (2d) 337 at 358 (emphasis added); see also Saumur v City of
Quebec and Attorney-General of Quebec [1953] 4 DLR 641 at 671 and 672-673 per Rand J;
Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33 DLR
(4th) 174 at 183 per McIntyre J (and six other judges).
123 Cf Virginia State Board of Pharmacy v Virginia Citizens Consumer Council Inc 425 US 748
(1976) at 765 per Blackmun J (for seven judges).
54
Federal Law Review
Volume 23
opinion of the legitimacy of constitutional implications, an issue which I will address in
Part Four. In my view, commercial and artistic matters are in general not sufficiently
central to the operation of the political process for their protection to be essential to that
process.
The High Court then faces the difficult obstacle of distinguishing between political
and other matters. The task is to delineate what is relevantly seen as part of the
political process. An appropriate test might be that a law is prima facie invalid insofar as
it has the purpose or effect of restricting communications which are reasonably capable
of being seen as primarily aimed at, or primarily relating to, the activity ofgovernment of the
community. This category should be contrasted with matters primarily aimed at or
relating to other individuals or other matters. The activity of government might cover,
in this context, matters relating to:
• the performance of governments or their institutions;
• the performance or suitability of politicians or candidates;
• actual or desired government policy or action;
• changes to the Constitution or governmental structure;
• ideas about the regulation of society generally.
Thus commercial advertisements or (most) artistic expressions, which have a prima~y
aim unrelated to the activity of government, would not be covered by the guarantee. A
law restricting protests outside foreign embassies would be marginal; it might be seen
as relating to our own foreign policy, but might also be characterised as unrelated to
our activity of government. 124 Whether a decision to deny a visa to an historian
because of his or her views would be in brea-ch of the guarantee would depend on an
assessment of whether the historian's proposed activities or talks had the primary aim
of discussing history for history's sake, or of influencing people's present views on the
activity of government. This example illustrates, incidentally, that the question of
whether government action breaches the limitation may have to be decided on a caseby-case basis.
Freedom of assembly
There has already been some judicial recognition of the important role that the freedom
to assemble can play in democracies. 125 The United States Supreme Court has said that
the freedom is implicit in the idea of citizenship and govemment. 126 The common law
has not recognised this freedom as a positive right, however, allowing its restriction by
actions in nuisance and other common law actions. 127
Freedom of peaceable assembly should be seen as essential to the operation of
democracy. Public assembly is one of the most effective forms of expressing public
Cf Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 346 per Einfeld J.
MeIser v Police [1967] NZLR 437 (CA) at 444 per Turner J and at 445 per McCarthy J;
Hubbard v Pitt [1976] 1 QB 142 at 178-179 per Lord Denning MR.
126 United States v Cruikshank 92 US 542 (1876) at 551-552.
127 B Gaze and M Jones, above n 59 at 117; eg Ex parte Lewis (1888) 21 QBD 191 at 197 per Wills
J; Hubbard v Pitt [1976] 1 QB 142 at 187 per Stamp LJ; Campbell v Samuels (1980) 23 SASR 389
at 393.
124
125
1995
Constitutional Implications from Representative Democracy
55
concern. 128 It has contributed to some of the important legislative and constitutional
reforms in British history.129 This freedom might be seen as part of the freedom of
political communication in any case. 130 The usual point of a public assembly is to
communicate some message or idea to the community or government. As to the
question of whether industrial picketing, for example, could be covered by this
freedom, similar arguments arise as for freedom of speech. Again, my view is that such
matters are generally not sufficiently central to the political process for their protection
to be essential. The test suggested above should apply.
Freedom of association
The breach of this freedom was an underlying theme in the High Court's decision in
the Communist Party case. 131 In the United States there is no express guarantee of
freedom of association but the Supreme Court has found this right implied in the First
Amendment. 132 In the first case where this was clearly found, the Court's reason was
that "[e]ffective advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association".133 In Sweezy v New
Hampshire, four judges indicated that free association is part of the political freedom on
which democracy is based. 134
,
These views are persuasive. Freedom of association may flow logically from free
speech. Furthermore, in modern democracies political parties play a fundamental role.
Thus the right to join or form a party is obviously crucial to being free to take part in
the political process. More generally, the pluralist description of democracy, though
discredited in many ways,fS5 has some relevance here. It showed the influence of
interest groups and their integral role in the modem political process. 136 To deny
people these avenues of influence would be to reduce significantly their opportunities _~
for effective political participation. Thus freedom of association is essential to
representative democracy. It is worth noting that if the Communist Party case were
decided today, the result could also be based on the ground of unjustified breach of the
128 F Brennan 5J, Too much Order with Too Little Law (1983) at 262; GE Fitzgerald QC, Report of a
Commission of Inquiry (1989) at 143; Hubbard v Pitt [1976] 1 QB 142 at 178 per Lord Denning
MR.
129 F Brennan SJ, above n 128 at 2 and 19-31.
130 Eg, Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 346 per Einfeld J; see
also Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33
DLR (4th) 174 at 186-187 per McIntyre J (for the Canadian Supreme Court); cf AttorneyGeneral of Canada v Dupond (1978) 84 DLR (3d) 420 at 439 per Beetz J (and 5 other judges).
131 Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 194·195, 197-198 and 200
132
133
134
135
136
per Dixop. J; at 206, 207 and 209 per McTiernan J; at 226-227 per Williams J; at 242 Webb J;
see com-fnent, G Rumble, "The Role of the Courts in the Protection of Individual Rights
through Constitutional Interpretation" in J McMillan (ed), Administrative Law: Does the
Public Benefit? (1992) at 33-34.
Eg, Shelton v Tucker 364 US 479 (1960) at 486; Griswold v Connecticut 381 US 479 (1965) at
483-4; Healy v James 408 US 169 (1972) at 181.
,
National Association for the Advancement of Coloured People v Alabama 357 US 449 (1958) at 460
per Harlan J for the whole Court.
354 US 234 (1957) at 250 per Warren CJ (for four judges).
M James, above n 84 at 28; D Held, above n 57 at 196-201.
J Warhurst, "Interest Groups" in J Summers, D Woodward and A Parkin (eds), Government,
Politics and Power in Australia (4th ed 1990) at 306.
Federal Law Review
56
Volume 23
implied constitutional freedom of association. A similar argument was raised in the
case but the majority did not consider it. 137
Speech and assembly activities tend to involve particular one-off acts which can be
classified as political or other matters. In contrast, the activity of association frequently
continues on an on-going basis and may be motivated by a number of objectives. For
example, a winemakers' association may be formed mainly to discuss winemaking but
may also, at times, lobby or criticise the government. If the constitutional freedom were
limited to protecting groups formed primarily for political purposes it would protect
political parties but little else. The justifications for free association, described above,
would extend the freedom to groups beyond political parties. Therefore the better view
is that a right to form or join any association with even potentially political aims should
be recognised. Interestingly, this freedom could reasonably be argued thus to include
freedom of religious association, which the States would potentially be bound to
recognise. 138
An argument might be made that to have a right implies having a choice,139 and
thus the right to associate freely protects the right not to associate, for instance in the
area of union membership. Constitutional restrictions in this area must be closely
linked to the concept of represen~ative democracy if they are to be legitimate. The
question thus should be whether the freedom not to associate is an essential part of
representative democracy, not whether the freedom to associate carries with it the
freedom not to associate.
It might be said that being forced to join an organisation which takes part in
political activities, and possibly thus being identified with the views of that
organisation, is contrary to notions of free political participation and communication.
Being made to join an association does not, however, mean that a person is forced to
accept that association's views. Indeed, so long as the organisation is run along
democratic lines, the person can always seek to change its management, policies or
practices. Further, the person could also become an active member of another
organisation with contrary views to that of the first association.
Legislation that set the joining of a particular political party as a criterion for the
gaining of some benefit could certainly be objectionable on democratic grounds. Such
an objection is better based on the argument that the provision would constitute an
interference with the democratic process through unequal government assistance to a
party (discussed below) than on an argument of freedom not to associate. Similarly, if
the rules of an organisation (for which memDership was not voluntary) sought to
restrict members' political activities in any significant way, for instance by prohibiting
membership of other associations, then such rules would constitute an interference
with democratic freedoms. If such rules were mandated by legislation, they might be
unconstitutional. Such invalidity would arise from breach of freedom of speech,
assembly, association and so on. The objection need not and would not rest on some
freedom not to associate. A freedom not to associate is not, of itself, an essential aspect
of the process of democracy.
137 (1951) 83 CLR I, see argument at 83-84 and at 168-169 per Latham CJ.
138
Cf Constitution, s 116.
139 This view of rights is arguably supported by Adelaide Company of Jehovah's Witnesses Inc v
Commonwealth (1943) 67 CLR 116 at 123 per Latham CJ; see also Brown v R (1986) 160 CLR
171 at 195 per Brennan J, at 204 per Deane J.
-
1995
Constitutional Implications from Representative Democracy
57
Freedom of movement and access to government
That citizens have the right to come to the seat of government and to assert any claim
upon the government has been held to be implicit in the United States Constitution and
the form of government it establishes. 140 This view was approved and applied in
Australia by two of the four judges in R v Smithers; Ex parte Benson,141 who effectively
held this entailed freedom of movement throughout Australia, at least as against the
States. These judgments were in turn seemingly approved by five judges in the
principal cases. 142 The Canadian Supreme Court has also indicated that representative
democracy involves the right to bring grievances and concerns to the attention of one's
representative. 143
The freedom to petition government is certainly fundamental to the operation of
democracy. It is part of the right to participate in the on-going process of government
to which I have referred above, as well as part of the continuous freedom to seek the
formation of new government policy (or new "majorities"). There would not be
government of the people if the government did not listen to the views of its citizens.
The existence of this freedom has recently been argued in the High Court in Cunliffe v
Commonwealth. 144
This freedom in tum requires some freedom of physical access to the institutions of
government, as personal contact is the most effective form of communication and
persuasion. Some general freedom of movement can be justified on this basis.
Furthermore, movement can be involved in the communication of political ideas, and is
necessarily part of assembly and association. Any or all of these might take place on a
national basis, thus requiring some national freedom of movement.
The recognition of freedom of movement should be limited to political matters. It
would seem absurd that all laws regulating public and private transport, for instance,
might be seen as prima facie invalid for regulating movement (subject to being shown to
the Court to be justified) because of their potential effect on the system of democracy.
The test suggested above should be applied. In this conti:xt ~he test would be that the
impugned law had the purpose or effect of restricting movement which is reasonably
capable of being seen as primarily relating to the activity of government, includiIlg
movement for the purpose of participating in the process of government (for instance
movement for the purpose of assembling for political protests, or for associating, or for
petitioning government). Thus, for example, a general law restricting movement into
particular parts of Australia might be prima facie invalid to the extent that it had the
effect of preventing political candidates, or others pursuing a political agenda, from
visiting people in those areas.
140
141
142
143
144
Crandall v State of Nevada 73 US 35 (1867) at 44 per Miller J, approved by a majority in
Slaughterhouse cases 83 US 36 (1872); see also United States v Cruikshank 92 US 542 (1876) at
552.
(1912) 16 CLR 99 at 108-109 per Griffith CJ, at 109-110 per Barton J; see also Pioneer Express
Pty Ltd v Hotchkiss (1958) 101 CLR 536 at 550 per Dixon CJ, at 560 per Taylpr J, at 566 per
Menzies J.
'
Nationwide (1992) 177 CLR 1 at 60 per Brennan J, at 73-74 per Deane and Toohey JJ; Political
Advertising (1992) 177 CLR 106 at 213-214 per Gaudron J, at 232 per McHugh J.
Reference re: Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16 at 35 per McLachlin J
(and 4 other judges).
(1994) 124 ALR 120.
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Regular, free and fair elections
Electoral systems
If representative democracy is rule by the people through elected representatives,
clearly the electoral process is of central importance. Regular, free and fair elections are
undoubtedly one of the indicators of representative democracy.145 The problem is in
identifying what this necessarily involves. There is a wide range of electoral systems
used around the world in nations commonly recognised to be democracies. 146 The
United States and Britain use "first past the post" systems, for instance, as opposed to
our preferential system. A choice as to the preferable method depends on the weight
given to such values as the perceived fairness of the result, the stability of the resulting
government and the closeness of representatives to electors. 147 Democratic theory and
practice require no particular answer, so there is no reason for the Court to intervene
here, subject to the requirements below.
Restrictions on candidature and unequal government assistance
Freedom to nominate for election has been recognised by some as a "democratic
right".148 This view follows from the argument that restrictions on participation in the
process of democracy conflict with the premise of political equality. In the United
States, some restrictions on candidature have been held to conflict with rights of free
voting and association,149 although some limitations have been upheld. 150 In Australia,
the Constitution itself imposes some restrictions. 1S1 Limitations beyond these would be
prima facie invalid for restricting participation, in my opinion, and would have to be
justified. Consistent with this view is Fabre v Ley, where the High Court upheld a
requirement for candidate deposits, but indicated that prescribing a sum
disproportionate to the valid purpose (of ensuring candidates are not frivolous) would
be beyond power. 152 Unequal government assistance to particular candidates or
parties might also corrupt the electoral process. Such action cannot be consistent with
political equality. This point is similar to some of the objections to the legislation in
Political Advertising. 153 Cases on trade union law have also recognised the conflict
between democratic principles and the unequal use of funds. 154
145 H Pitkin, above n 86 at 234-235; C B Macpherson, above n 64 at 7.
146
147
148
149
150
151
152
153
154
Eg, E Thompson, "Elections and Democracy" in S Encel, D Horne and E Thompson (eds),
Change the Rules (1977) at 173-179; I McMillan, G Evans and H Storey, Australia's
Constitution: Time for Change? (1983) at 251-254.
I McMillan et aI, above n 146 at 253-256.
Sykes v Cleary (1992) 176 CLR 77 at 121 per Deane I (dissenting); Lovell v FLAIEU (1978) 22
ALR 704 per Northrop J at 729; L F Crisp, above n 65 at 132.
Williams v Rhodes 393 US 23 (1968); cf Clements v Fashing 457 US 957 (1982).
Jenness v Fortson 403 US 431 (1971).
Section 44.
(1972) 127 CLR 665 at 669, cf at 672; cf Re Cusack (1985) 66 ALR 93 at 95 per Wilson I.
(1992) 177 CLR 106 at 146-147 per Mason CJ, at 172-175 per Deane and Toohey II.
Short v Wellings (1951) 72 CAR 84 at 87-88; Valentine v Butcher (1981) 51 FLR 127 at 139;
Scott v Jess (1984) 56 ALR 379 at 386-388 and 403-404; Darroch v Tanner (1987) 16 FeR 368.
1995
Constitutional Implications from Representative Democracy
59
Universal adult franchise
Today the universal adult franchise is generally seen as a prerequisite for
representative democracy,ISS although a number of historical models of democracy did
not involve even manhood suffrage. 1S6 Wide suffrage was implemented relatively
early in Australia. 1S7 All States except Western Australia and Tasmania had accepted
general manhood suffrage (for lower houses) by the time of Federation. The universal
adult franchise was in place throughout Australia by 1909, subject to some racial and
other exceptions.
It has been judicially recognised that the extent of the franchise is a matter of
fundamental importance in a democracy.lS8 In McKinlay's case, three judges1S9
indicated that universal adult franchise was now necessitated by the Constitutional
requirement in ss 7 and 24 that the Parliament be chosen by the people. The other four
judges in McKinlay rejected this view. 160 One of their main arguments was that express
provisions of the Constitution (ss 25, 30, 41 and 128) envisage less than universal
suffrage. Yet s 41 161 and the relevant parts of ss 30 and 128 are only transitional
measures and, as such, are of limited relevance. Section 25 contemplates discrimination
only at State level, and its effect (in potentially reducing the number of House of
Representatives seats allocated to a discriminating State) is to discourage such
discrimination anyway. Thus these provisions should not be seen as allowing the
Commonwealth to be discriminatory in its franchise.
Stephen J in McKinlay, one of the majority on the question, conceded that
representative democracy required the enfranchisement of some electors.162
Presumably a significant number of electors have to be enfranchised to meet the
requirement of ss 7 and 24 that members of the Commonwealth Parliament be "directly
chosen by the people". It is difficult to see how any line of sufficiency could be drawn,
other than universal adult suffrage, which is not arbitrary.
The question of who is entitled to vote is undoubtedly a substantive question. 163
Not all models of democracy require universal suffrage. But ss 7 and 24 of the
Constitution do speak of "the people" as a whole, not "some of the people", or "the
citizens". Further, a direct analogy can be made with the High Court's analysis in
IS5 B Costar, "Electoral Systems" in J Summers, D Woodward and A Parkin (eds), Government,
Politics and Power in Australia (4th ed 1990) at 183; C B Macpherson, above n 64 at 7.
1S6 See Athens, Re G Maddox, above n 57 at 65; Re Bentham and James Mill, see D Held, above
n 57 at 69; J S Mill, see C B Macpherson, above n 64 at 57-58.
IS7 L F Crisp, above n 65 at 136-137.
IS8 Judd v McKeon (1926) 38 CLR 380 at 385 per Isaacs J; King v Jones (1972) 128 CLR 221 at 266
per Stephen J; Reynolds v Sims 377 US 533 (1964) at 561-562 per Warren CJ (for 6 judges).
1S9 Attorney-General (Cth); Ex reI McKinlay v Commonwealth (1975) 135 CLR 1 at 36 per
McTiernan and Jacobs JJ, at 69 per Murphy J; see also Deane and Toohey JI in Nationwide
(1992) 177 CLR 1 at 72.
160 (1975) 135 CLR 1 at 18-20 per Barwick CI, at 44 per Gibbs J, at 56-57 per Stephen J, at 62 per
Mason J; see also Political Advertising (1992) 177 CLR 106 at 137 per Mason CJ, at 185 and
188 per Dawson J.
161 As interpreted in R v Pearson; Ex parte Sipka (1983) 152 CLR 254.
162 (1975) 135 CLR at 56.
163 L Tribe, "The Puzzling Persistence of Process-Based Constitutional Theories" (1980) 89 Yale
LJ 1063 at 1071.
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Cheatle v R.164 The Court indicated that it was an essential feature of juries that they be
representative of the wider community. In 1900, the Court continued, the exclusion of
women and the unpropertied from juries might have been consistent with this
principle if it was perceived that the only true community representatives were men of
property. However, "in contemporary Australia, the exclusion of females and
unpropertied persons would itself be inconsistent with such a requirement". Similarly
for representative democracy, the essential definition is that the people have power,
exercised through representatives. In 1900 this requirement might have been met by
enfranchising British males. Today, "the people" could not be seen as less than all adult
Australians.
On the basis of the words of ss 7 and 24 and the Cheatle analogy, and given the
accepted modern conception of democracy, long Australian practice, the fundamental
importance of the franchise in democracies, and the premise of political equality, a
persuasive argument can be made as to why universal adult suffrage is implicitly
required by the Constitution as an essential condition of representative democracy.
This view does not mean that some very limited exclusions may not be justifiable
exceptions to the basic principle, of course, such as for people who clearly lack the
capacity to make an independent choice between candidates.
Compulsory voting
It can be argued that having the right to vote carries with it the power to choose not to
vote. A similar argument has already been rejected by the High Court. 165 Just as for the
similar argument based on the definition of rights discussed in the context of freedom
of association, the question here should be whether the right not to vote is an essential
part of representative democracy. It is difficult to accept that requiring some minimum
level of participation can impede the effective operation of the political process or run
contrary to the notion of rule by the people, especially as the option of casting an
informal vote is always open in practice.
Malapportionment
Malapportionment is where electorates contain significantly different numbers of
electors, affecting the relative value of electors' votes. In a series of decisions the United
States Supreme Court has held that democracy requires equality of voting power, "as
nearly as is practicable".166 Recently the Canadian Supreme Court held that
representative democracy requires "relative parity of voting power", but only as one of
a number of values. It thus upheld an electoral distribution with up to 25% deviation
either way from the average population per seat. 167 In McKinlay, the High Court, with
Murphy J dissenting, held that a Commonwealth electoral distribution with a
population difference of nearly 100 per cent between the smallest and largest seats in a
State did not infringe the s 24 requirement that members be directly chosen by the
164 (1993) 177 CLR 541 at 560-561.
165 Judd v McKeon (1926) 38 CLR 380, also Faderson v Bridger (1971) 126 CLR 271.
166 See especially Baker v Carr 369 US 186 (1962); Gray v Sanders 372 US 368 (1963); Wesberry v
Sanders 376 US 1 (1964); Reynolds v Sims 377 US 533 (1964); Kirkpatrick v Preisler 394 US 526
(1969); Karcher v Daggett 462 US 725 (1983).
167 Reference re: Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16, 3 judges dissenting.
1995
Constitutional Implications from Representative Democracy
61
people. McTieman,--Jacobs and Mason JI accepted that a distribution might be so
disproportionate as to be invalid. 168
There are a number of arguments against requiring "one vote one value". One
objection is that Anglo-Australian history and practice, ~erhaps in contrast to those of
the United States, do not support such an implication. 1 Australia has been relatively
slow to adopt the one vote one value principle. 170 Even today the Electoral Act 1918
(Cth) allows disparities of up to 10 per cent either way following a redistribution, albeit
with the aim that there be no more than 2 per cent deviation three and a half years after
the redistribution. 171 Yet some support for the principle can be divined in the
Constitution. Sections 8 and 30 provide that electors may only vote once each election.
There is no difference in substance between some electors being allocated more than
one vote and some electors having a vote of significantly more weight than that of
others. 172 Section 24 provides that the number of House of Representatives seats
allocated to each State shall be in proportion to their populations, indicating an
intention to give voters in different States votes of equal weight. Again, there is little
difference in substance between voters in different States and voters in different
electorates having votes of unequal weight. This provision of s 24 could be seen as
designed to do no more than protect State interests by ensuring that each State has fair
representation in the House. The interests of a State may not be protected, however, if
electorates are malapportioned such that the elected representatives do not reflect the
wishes of the majority of the people of that State. In contrast, the fact that the
Constitution grants each State equal numbers of Senators, and guarantees all original
States five lower house seats,173 clearly creates exceptions to the equal value principle
resulting from political compromises necessary to achieve federation.
Another reason against one vote one value is that the courts have no accepted legal
standards to draw upon in implementing the principle. 174 Yet, as Ely responds, the
practicable equality requirement in America has proved an easily administrable
standard. 175 Indeed, if the right to vote is recognised, then clearly (as McT~eman,
Jacobs and Mason JI realised) there must be some limit on inequality of voting weight,
otherwise some people could in substance be denied a meal1ingful vote. The question
then becomes one of drawing a line. Any such line, other thWn practical equality, will
be arbitrary.176
Perhaps the strongest objection is that to require one vote one value is simply to
impose a particular political philosophy.177 Connected with this view is the belief that
there are other legitimate factors in electoral distributions, such as ensuring effective
168 (1975) 135 CLR 1 at 36 and 61.
169 McKinlay (1975) 135 CLR at 23, 36-7, 45-7, 57 and 62-3; Reference re: Electoral Boundaries
170
171
172
173
174
175
176
177
Commission Act (1991) 81 DLR (4th) 16 at 37-38.
L F Crisp, above n 65 at 138-140.
Section 66.
McKinlay (1975) 135 CLR at 72 per Murphy J.
Sections 7 and 24 respectively.
Baker v Carr 369 US 186 (1962) at 268 per Frankfurter J (dissenting).
J H Ely, above n 113 at 120-121.
Ibid at 123-5; McKinlay (1975) 135 CLR at 70 per Murphy J.
McKinlay (1975) 135 CLR at 17, 21, 46 and 57-58; Baker v Carr 369 US 186 (1962)at 300 per
Frankfurter J (dissenting); Wesberry v Sanders 376 US 1 (1964) at 30 per Harlan J
(dissenting).
62
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Volume 23
representation for sparsely spread (rural) populations, or taking account of community
of interest. 178 The effective representation point can be dealt with by providing better
resources for rural members. Democracy is rule of the people: "Legislators represent
people, not trees or acres".179 This point is supported by the words "directly chosen by
the people" in ss 7 and 24 of the Constitution. Community of interest can be taken into
account, as in the United States, by justifying population deviations as achieving some
legitimate goal. 180
The suggested requirement may involve a value judgment, but it can be justi~\ed by
democratic theory and experience. The right to vote is undoubtedly fundamenill in a
democracy,181 being the principal way in which the people participate in government.
The premise of political equality supports the requirement that all electors have equal
voting weight. Further, the idea of majority rule necessarily involves a majority being
able to rule, a result which will not automatically follow if votes have different
weights.182
One of the traditional justifications for the lack of constitutional protection of rights
in Australia is that individual liberties are sufficiently protected by responsible
government. 183 This justification assumes that individuals have a meaningful right to
vote, for otherwise the political process may be unlikely to protect their interests (this
point also supports the universal adult franchise). There is less impetus for democracy
to be self-correcting in this area as those who are denied a meaningful right to vote
have little political power to remedy the situation. 184 Australian experience provides
another eYrsuasive reason. Commissioner Fitzgerald, in his inquiry into corruption in
Queensland, warned that without free and fair elections a government can become
complacent about losing power, producing a degeneration of public administration. 18S
It is implicit in his cohUnent that the notorious malapportionment and gerrymandering
in Queensland bore some responsibility for the corruption in that State.
I agree that the Constitution does not provide "a judicial remedy for every political
mischief".186 But for the above reasons, and because the right to vote goes to the core of
a democracy, I think this is a case where a constitutional remedy is justified. It is thus
my view that representative democracy, as embodied in the Constitution, prima facie
requires equality of voting weight for electors within each State, as nearly as is
practicable. McKinlay should be overruled. If my view is accepted then two key
sections of the Commonwealth Electoral Act may be invalid. Section 66 would be
invalid to the extent that it allows deviations of up to 10 per cent either way from the
relevant State or Territory average following a redistribution. That the section
178
179
180
181
182
183
184
18S
186
Reference re: Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16 at 36 and 38.
Reynolds v Sims 377 US 533 (1964) per Warren CJ (for 6 judges) at 562.
Reynolds v Sims 377 US 533 (1964) at 577-580; Karcher v Daggett 462 US 725 (1983) at 730-731.
Wesberry v Sanders 376 US 1 (1964) at 8; Reynolds v Sims 377 US 533 (1964) at 555; Reference
re: Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16 at 22 per Cory J (and 2 other
judges, dissenting) .
Reynolds v Sims 377 US 533 (1964) at 565.
Eg, W Harrison Moore, above n 88, 2nd ed, at 78; Sir Owen Dixon, above n 92 at 101-102; R
Menzies, Central Power in the Australian Commonwealth (1967) at 54; McKinlay (1975) 135
CLR at 24 per Barwick CJ.
McKinlay (1975) 135 CLR at 71-72 per Murphy J.
G E Fitzgerald, above n 128 at 127.
Baker v Carr 369 US 186 (1962) per Frankfurter J (dissenting) at 270.
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Constitutional Implications from Representative Democracy
63
incorporates the aim that there be no greater than 2 per cent deviation in three and half
years after the redistribution does not save it. Section 24 of the Constitution requires
that the number of members of the House of Representatives in each State be in
proportion to the respective populations. In McKinlay a majority held that this
provision required that the appropriate allocation of seats be checked before every
scheduled election, and not just once every five years. 187 So, too, the electoral system
should meet the implied constituti»\al requirements at every scheduled general
election. For this reason, s 59 of the Act would also be invalid. It provides that a
redistribution need only occur if necessitated by a reallocation of seats amongst the
States, if more than one third of the seats in a State or Territory deviate from the
relevant average by more than 100/0, or every seven years since the last redistribution.
Gerrymandering
Gerrymandering is the practice of shaping electoral boundaries to concentrate, and
thus waste, the voting support of political opponents. In substance the result is the
same as for malapportionment, as the effective weight of the affected electors' votes is
reduced. Judicial intervention is thus justified in principle for the above reasons. The
problem is that whereas malapportionment can be tested against a mathematical ideal,
gerrymandering requires qualitative analysis. The _, difficulty in setting judicially
administrable standards is illustrated by a recent United States Supreme Court
decision, where three judges held the matter non-justiciable, and the other six split on
the appropriate approach. 188 The test set by four of those six judges was that the
distribution had the purpose and effect of discriminating against an identifiable
political group by consistently and substantially reducing its oPEortunity to influence
the political process, without a justifying legitimate state interest. 89 I would accept this
test except in one crucial respect: I would look to the purpose or effect, with primary
emphasis being on purpose. By focusing on the purpose, through analysis of the process
of bOlLl1dary-setting, the courts can significantly reduce the need for qualitative
analysis. If the process is independent, and is guided by the criteria of nondiscrimination and substantive equality of voting weight, then the distribution could
be presumed fair. If the boundaries were set by a partisan body, then irrlproper
purpose could reasonably be assumed. 190 Because even an apparerltly fair process can
be subverted, the courts should also be able to review for discriminatory effect but with
very clear evidence of discrimination required. This approach protects the democratic
process but largely avoids the difficulty of qualitatively reviewing electoral boundaries
and results.
Other possible implications
An argument can be made that at least some of Australia's constitutional conventions
are essential to representative democracy191 and thus are potentially justiciable. The
apparent powers of the Governor-General, for instance, are near dictatorial. Any
exercise of power by the Governor-General (except the reserve powers) other than on
187 (1975) 135 CLR at 28-33, 51-54, 60 and 63.
188 Davis v Bandemer 478 US 109 (1986).
\
189 Ibid at 127-133 and 141-142 per White J (joined by Brennan, Marshall and BlacJ.<munJJ).
190 Ibid at 128-129.
191 G Maddox, above n 57 at 425-426.
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Volume 23
the advice of Ministers would be inconsistent with the doctrines of representative and
responsible government, and thus might be seen as unconstitutional. 192 This point
might become more significant if, sometime in the future, the Constitution or a statute
were to provide that the Governor-General or the head of State could not be removed
by Executive action alone.
Numerous activities can be said to be conducive to the efficacy or responsiveness of
democracy. Access to government information has been said to be important to
democracy.193 So, too, has the prevention of conflict of interest in political
representatives. 194 More broadly, a number of writers have seen a minimal level of
education in the populace as desirable for democracy to work effectively.195 These
arguments illustrate that if the High Court was to adopt a broad view of what is
essential to the operation of democracy, or adopt a test of less than essentiality, then the
range of activities and freedoms the courts might have to supervise could be enormous,
extending potentially even to social and economic rights. Craig makes the point that
social and economic inequalities may constitute blockages to the effective operation of
the political process as significant as lack of freedom of speech or association. 196 The
ability of the courts to deal with such matters based merely on an underlying
constitutional doctrine, let alone the desirability of this, must be doubted.
Arguments can be made that some very broad rights or doctrines should be
implied, based on the requirements of representative democracy. An argument
possibly could be constructed that the basic premise of political equality supports a
doctrine of substantive legal equality.197 Or it could be argued that the separation of
powers (possibly binding on the States) or some doctrine of due process is required.
Without these protections, it might be said, the government could interfere in the
political process by imprisoning or seeking to discredit "political opponents and
dissenters".198 It is certainly plausible that governments should be restrained from such
direct interferences. But all of these broad doctrines are well removed from the
everyday operation of the political system. The legitimacy of reading in such doctrines
based on a slender link to democracy is questionable.
John Hart Ely has mounted a case for strict judicial scrutiny of legislation which
harms the interests of minority groups.199 He equates such review with judicial review
to protect rights such as free speech because both seek to remedy malfunctions in the
process of democracy.200 His argument may be inapplicable to the Australian context
192 Note comments in the principal cases: Political Advertising (1992) 177 CLR 106 at 137 per
Mason CJ; Nationwide (1992) 177 CLR 1 at 71 footnote 25 per Deane and Toohey JJ.
193 I Thynne and J Goldring, Accountability and Control (1987) at 237; G E Fitzgerald, above
n 128 at 124, 126 and 129.
194 R Cranston, Law, Government and Public Policy (1987) at 98.
195 C K Allen, Democracy and the Individual (1945) at 15-17; L F Crisp, above n 65 at 127;
Howard, The Constitution, Power and Politics (1980) at 177.
196 P P Craig, above n 59 at 100-101 and 114; see also R Bassett, above n 98 at 106-107.
197 Cf Leeth v Commonwealth (1992) 174 CLR 455 at 475 per Brennan J, at 485-489 per Deane and
Toohey JJ.
198 See Victoria v ABCE & BLF (1982) 152 CLR 25 at 110-112 per Murphy J.
199 J H Ely, above n 113, ch 6; see also US v Carolene Products Company 304 US 144 (1938) at 152
footnote 4; W Sadurski "Last Among Equals: Minorities and Australian Judge-Made Law"
(1989) 63 ALI 474.
200 J H Ely, above n 113 at 103.
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Constitutional Implications from Representative Democracy
65
given his reliance on the equal protection clause in the United States Constitution,
although it might be possible to replace this with the democratic premise of equality. A
response is that protection of minority interests is not an essential condition per se of
"government by the people". His argument is similar to the one I addressed in Part
Two, above. To argue that the democratic process by itself may not protect minority
rights is simply to express an opinion about the substantive results of the system.
Furthermore, as a number of critics have shown, Ely's approach in this area requires
substantive value judgments and assessments of government policy at every stage of
application, especially in deciding which minorities are in need of special protection. 201
Given this fact, and given that the task of evaluating the acceptability of treatment of a
group is - at best - distant from the task of protecting the operation of democracy,
this strand of Ely's argument should not be accepted here. Of course, legislation that
restricted the essential democratic freedoms of minorities would be constitutionally
suspect in the same way as legislation of general effect.
Commonwealth powers
A case can be made that the Commonwealth must necessarily have the power to
protect those freedoms seen as essential to representative democracy. Just as in Smith v
Oldham 202 the High COllrt indicated that the Commonwealth could protect its electoral
processes from fraud, intimidation, bribery and coercion, so the Commonwealth
should be able to protect those freedoms necessary for its electoral and governmental
processes to work effectively. This power could form a partial basis for a legislative Bill
of Rights.
4
REASONS FOR RESTRAINT
Whilst a very broad range of limitations could be implied in the Constitution from
representative democracy there are compelling reasons why the High Court should be
cautious in accepting such implications. If the Constitution is not to be just "what the
judges say it is",203 there must be limits on what judges can legitimately find to be
implied in the Constitution. This belief is reflected in the High Court's long-established
reluctance to find and apply constitutional implications. The decision of the framers of
the Constitution not to include broad individual rights is also, to some extent, a factor
weighing against implied democratic limitations. Further, there can be difficulties in
drawing logical limits to constitutional implications based on general doctrines. Most
importantly, to imply limitations based on individual freedoms is to impose a
particular restrictive political philosophy on the community. This is of questionable
legitimacy in a democratic society.
201 R Dworkin, above n 59 at 510-516; T Sandalow "The Distrust of Politics" (1981) 56 New York
University LR 446 at 461-468; L Tribe, above n 163 at 1072-1079.
202 (1912) 15 CLR 355 at 358, 360 and 362-363"
203 Charles Evans Hughes, quoted in J Thomson, "Principles and Theories of Constitutional
Interpretation and Adjudication" (1982) 13 MULR 597 at 599.
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Judicial attitudes to constitutional implications
The Engineers case204 established a literalistic and legalistic approach to
interpretation. 205 Soon afterwards, however, Dixon J indicated that this did not
prohibit constitutional implications. 206 Isaacs J himself, the author of the Engineers
majority judFent, found the doctrine of responsible government implied in the
Constitution. 07 And it is now well accepted that some constitutional limitations are
implied by the federal nature of the Constitution. 20B Despite these implied limitations,
and despite some dicta indicating a readiness to make implications,209 the spirit of
Engineers has lived on in the Court's general caution in this area. The federalism
limitations have only twice been used to invalidate Commonwealth laws. 210 Some
judges have gone to great lengths to avoid recognising these implications at all by
employing a distinctive characterisation approach to protect the States. 211 The
implication of responsible government has never been used to limit the
Commonwealth's legislative power. 212 And some members of the High Court have
shied away from the view that the innocuous nationhood power has an implied
basis. 213 This weight of Court practice is one reason that the present High Court should
be cautious in drawing implications from representative democracy.
In the principal cases there appears to be a division in the judges' readiness to imply
limitations on Commonwealth power. Mason CJ says implications from the structure of
the Constitution should only be made if "logically or practically necessary for the
204 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
205 G Craven, "The Crisis of Constitutional Literalism in Australia" in H P Lee and
G Winterton (eds) Australian Constitutional Perspectives (1992) at 1-4; L Zines, above n 61 at
340-341.
206 West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 681-682; Australian National
Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 85; Essendon Corporation v Criterion
Theatres Ltd (1947) 74 CLR 1 at 22-23.
207 Engineers (1920) 28 CLR 129 at 146; Commonwealth v Colonial Combing, Spinning and Weaving
Co Ltd (1922) 31 CLR 421 at 446; Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926)
37 CLR 393 at 411-413.
20B Re limitations on the Commonwealth, see, eg: R v Coldham; Ex parte Australian Social Welfare
Union (1983) 153 CLR 297 at 313; Queensland Electricity Commission v Commonwealth (1985)
159 CLR 192 at 205, 217, 226, 231, 247 and 260-262; Re possible limitations on the States,
see, eg: Commonwealth v Bogle (1953) 89 CLR 229 at 259-260 per Fullagar J; Uther v Federal
Commissioner of Taxation (1947) 74 CLR 508 at 527-530 per Dixon J; Commonwealth v
Cigamatic Pty Ltd (1962) 108 CLR 372 at 377-378 per Dixon CJ; cf A v Hayden (1984) 156 CLR
532.
209 Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 411-412 per
Isaacs J; Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 85 per
Dixon J; Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193 per Dixon J;
Lamshed v Lake (1958) 99 CLR 132 at 144-145 per Dixon CJ.
210 Melbourne Corporation v Commonwealth (1947) 74 CLR 31(hereafter State Banking);
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192.
211 Eg, State Banking (1947) 74 CLR 31 at 61 per Latham CJ; West's case (1937) 56 CLR 657 at
668-669 per Latham CJ; Victoria v Commonwealth (1971) 122 CLR 353 (hereafter Payroll Tax)
especially at 372 per Barwick CJ (and Owen J), see also McTiernan J.
212 L Zines, above n 61 at 338-339.
213 Davis v Commonwealth (1988) 166 CLR 79 at 103 per Wilson and Dawson JJ, at 117-119 per
Toohey J.
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Constitutional Implications from Representative Democracy
67
preservation of the integrity of that structure". 214 Brennan and Dawson JJ both state
that implications can only be found from within the text of the Constitution and not
from outside sources. 215 McHugh J seems to be aligned with these judges, given his
cautious ap~roach in only implying the guarantee from ss 7 and 24 of the
Constitution. 16 In contrast, Deane and Toohey JJ seem very willing to draw
implications, on a range of possible bases. 217 Similarly, Gaudron J shows a willingness
to confine the limiting effect of the Engineers case on constitutional irnplications. 218
Mason Crs suggested test picks up a regular judicial theme that constitutional
implications must be necessary or logically required. 219 This view is attractive but
flawed. The Engineers approach itself was not demanded by the text. 220 Nor are the
federalism limitations logically or practically' required by the Constitution. 221 As
indicated in Engineers, invoking "necessity" does not avoid subjective judgments. 222
Similarly, Brennan and Dawson Jrs approach is questionable if it suggests that judges'
external values can play no role in drawing implications. The idea that interpretation
can be value-free is fallacious. 223 However, the comments of these three judges do
support the view that constitutional implications, to be legitimate, must be well
grounded in the text or the structure of the Constitution. As Mason CJ states, "any
implication must be securely based" .224
Deane, Toohey and Gaudron JJ have referred to the doctrine of the separation of
powers as a precedent for constitutional implications. 225 The full doctrine is perhaps
not required by the Constitution. 226 Nevertheless, there is clearly some express basis
for it in the text and structure of the Constitution. The foundational decision in R v
Kirby; Ex parte Boilermakers Society of Australia was not seen as based on implications. 227
214
215
Political Advertising (1992) 177 CLR 106 at 135.
Nationwide (1992) 177 CLR 1 at 42-44 per Brennan J; Political Advertising (1992) 177 CLR 106
at 181 and 186 per Dawson J; see also Brennan J in Queensland Electricity Commission v
Commonwealth (1985) 159 CLR 192 at 231.
216 Political Advertising (1992) 177 CLR 106 at 230-232.
217 Nationwide (1992) 177 CLR 1 at 69; see also Leeth v Commonwealth (1992) 174 CLR 455 at 483485 per Deane and Toohey JJ.
Political Advertising (1992) 177 CLR 106 at 214-215.
Engineers (1920) 28 CLR 129 at 155; Australian National Airways Pty Ltd v Commonwealth
(1945) 71 CLR 29 at 85 per Dixon J; State Banking (1947) 74 CLR 31 at 83 per Dixon J; Payroll
Tax (1971) 122 CLR 353 at 401-402 per Windeyer J, at 417 per Gibbs J; Queensland Electricity
Commission v Commonwealth (1985) 159 CLR 192 at 212 per Mason J, at 231 per Brennan J;
Leeth v Commonwealth (1992) 174 CLR 455 at 486 per Deane and Toohey JJ.
220 See Payroll Tax (1971) 122 CLR 353 at 396 per Windeyer J; L Zines, above n 61 at 11-15.
221 G Sawer, "Implication and the Constitution" (1948) 4 Res ludicatae 15; L Zines, above n 61 at
345-346; S Gageler, "Foundations of Australian Federalism and the Role of Judicial Review"
(1987) 17 FL Rev 162 at 180-181.
222 (1920) 28 CLR 129 at 142 and 145.
223 M Coper, "The High Court and the World of Policy" (1984) 14 FL Rev 294 at 295-6;
S Gageler, above n 221 at 178-181; Sir Anthony Mason, liThe Role of a Constitutional Court
in a Federation" (1986) 16 FL Rev 1 at 5; L Zines, above n 61 at 381-382.
224 Political Advertising (1992) 177 CLR 106 at 134.
225 Leeth v Commonwealth (1992) 174 CLR 455 at 485 per Deane and Toohey JJ; Nationwide
(1992) 177 CLR 1 at 69-70 per Deane and Toohey JJ; Political Advertising (1992) 177 CLR 106
at 209-211 per Gaudron J.
226 R v loske; Ex parte ABCE and BLF (1974) 130 CLR 87 at 90 per Barwick CJ.
227 (1956) 94 CLR 254 at 271-278 (High Court); (1957) 95 CLR 529 at 537 (Privy Council).
218
219
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Indeed, Deane, Toohey and Gaudron JJ seem to accept that the doctrine itself is not just
an implication. 228 As for the need to assign conte~t to the doctrine, this revolves
around the need to define the words "judicial power" in s 71. This task is quite different
from implying restrictions without reference to any particular text.
Another claimed precedent229 for implied limitations is Dixon J's reading down of
the Commonwealth's powers against subversion by reference to the rule of law, in
Australian Communist Party v Commonwealth. 23o Yet Dixon J emphasises in the relevant
passage that the powers are incidental (and purposive) ones. His approach is thus
analogous to the modem reasonable proportionality requirement, used to prevent the
unjustifiable infringement of common law rights by incidental powers. 231 This
approach does not support implied limitations on the central area of Commonwealth
powers.
Framers' intentions and theories of constitutional interpretation
As four of the judges acknowledge in the principal cases,232 the framers of the
Constitution deliberately decided not to include broad guarantees of individual rights
in the Constitution. 233 This fact has previously been seen as an "almost impenetrable
barrier" to the finding of implied individual freedoms. 234 The Court's attitude to the
intentions of the founders is currently somewhat ambiguous, as is perhaps the Court's
whole theory of interpretation. 235 The post-Engineers approach to constitutional
interpretation has been to give the words of the Constitution their natural meaning in
context,236 albeit with the grants of Commonwealth power being read broadly.237 This
approach involves an objective ascertainment of the founders' intentions from the
words of the Constitution. 238 Recently the Court has allowed itself to look to the
convention debates about the Constitution. 239 The Court has limited the purposes for
228
229
230
231
232
233
234
235
236
237
238
239
See above n 225.
Eg Miller v TeN Channel Nine Pty Ltd (1986) 161 CLR 556 at 581 per Murphy J.
(1951) 83 CLR 1 at 192-194.
Eg, Nationwide (1992) 177 CLR 1 at 29-34 per Mason CJ, at 101-105 McHugh J; see also Davis
v Commonwealth (1988) 166 CLR 79.
Political Advertising (1992) 177 CLR 106 at 135-136 per Mason eJ, at 182-183 per Dawson J,
at 228-229 per McHugh J; Nationwide (1992) 177 CLR 1 at 43-44 per Brennan J, cf Leeth v
Commonwealth (1992) 174 CLR 455 at 484-485 per Deane and Toohey JJ.
See eg Official Record of the Debates of the Australasian Federal Convention, 3rd Session, (1898)
Vol 1 at 664-691; W Harrison Moore, above n 88, 1st edition at 327-329, 2nd ed at 612-616;
J A La Nauze, The Making ofthe Australian Constitution (1972) at 227-232.
J J Doyle, "Constitutional Law: 'At the Eye of the Storm' " (1993) 23 UWAL Rev 15 at 23.
G Craven, "After Literalism, What?" (1992) 18 MULR 874 at 893 and 898.
Engineers (1920) 28 CLR 129 at 148-149 and 152.
Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368 per
O'Connor J, approved R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR
297 at 313-314; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National
Airways Pty Ltd (1964) 113 CLR 207 at 225, approved New South Wales v Commonwealth
(1990) 169 CLR 482 (hereafter Incorporation case) at 498 and 506.
Sir Daryl Dawson, "Intention and the Constitution - Whose Intent?" (1990) 6 Australian
Bar Review 93 at 94; G Craven, above n 205 at 2.
Cole v Whitfield (1988) 165 CLR 360 at 385-392; Port MacDonnell Professional Fishermen's
Association Inc v South Australia (1989) 168 eLR 340 at 376-378; Incorporation case (1990) 169
CLR 482 at 501-503.
1995
Constitutional Implications from Representative Democracy
69
which this can be done, and has denied that this involves an assessment of the
founders' subjective intentions. But it is difficult to see how the uses made of the
debates can be distinguished from taking account of subjective intentions. 240 In any
case, the framers' intentions are relevant to some extent, even if only as objectively
ascertained from the lack of a Bill of Rights. These intentions thus constitute another
reason for judicial restraint in implying constitutional limitations from democracy.
The question then arises as to why the majority judges implied the freedom of
political communication in the principal cases. The decisions are revolutionary,
accepting the type of argument rejected by majorities in McKinlay241 and in Miller v
TeN Channel Nine Pty Ltd. 242 It is difficult to reconcile them with the orthodox
approach of reading Commonwealth powers broadly. A reasonable argument can be
made that the decision to exclude broad guarantees of liberty in the Constitution
assumed the effective working of the democratic process,243 and thus some protection
of the integrity of the process is justified. But this argument does not explain the
.
change in view.
The decisions are perhaps best understood as an example of what Craven calls a
"progressivist" approach to interpretation, where the Constitution is interpreted in light
of the perceived needs and values of the time, with less emphasis placed on the literal
meaning of the text. 244 As Doyle argues, there is evidence of a shift in the judges'
conception of the Court's role, with a new-found determination to protect individual
rights from government interference. 245 Such an approach raises the fundamental issue
of the legitimacy of tIle judiciary moving away from the constitutional text to read in
implications based on their own values.
The question of legitimacy
The primary objection to implied constitutional limitations is that they involve
unelected and substantially unaccountable judges imposing their personal social and
political philosophy on the community, and that this is illegitimate and undemocratic.
A rejection of legalism does, admittedly, require an acknowledgment tl-lat judges IT1USt
make choices based on their own values. But there is a difference between imposing
implied constitutional limitations and making ordinary judicial choices, for three.
reasons.
First, enforcing implied constitutional restrictions involves overruling the elected
legislature, unlike common law or statutory interpretation issues. Of course, all
constitutional law questions can involve the invalidation of statutes. But constitutional
prohibitions create areas of activity where Parliament cannot legislate, something the
Courts should be slow to do. 246 This objection is less potent if the States are held not to
240 G Kennett, "Constitutional Interpretation in the Corporations Case" (1990) 19 FL Rev 223 at
238-241; Sir Daryl Dawson, above n 238 at 101.
241 (1975) 135 CLR 1.
242 (1986) 161 CLR 556 at 569 per Gibbs CJ, at 579 per Mason J, at 592 per Wilson J, at 615 per
243
244
245
246
Brennan J, at 636 per Dawson J.
Note, eg, Engineers (1920) 28 CLR at 151-152; see also above n 183.
G Craven, above n 235at 874-882; see also Sir Anthony Mason, above n 223 at 5 and 23.
JJ Doyle, above n 234 at 29-30.
50S (Mowbray) Pty Ltd v Mead (1972) 124 CLR 529 at 574-575 per Windeyer J.
70
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Volume 23
be bound by the democratic freedoms, thus potentially filling any gap in
Commonwealth power.
Secondly, where Parliament is dissatisfied with a court's development of the
~mmon law or interpretation of a statute it can legislate to overturn that view. It
cannot do this with constitutional decisions. The only potential remedy (other than
seeking to reargue the point) is a referendum to change the Constitution. 247 Justice
Toohey has said that this remedy is "far from merely theoretical".248 Yet trying to
~verturn or encapsulate constitutional interpretations can be a difficult and messy
business. The longest section in the Constitution, s 15, is just such an attempt. Events
have proved that even this attempt has not solved all the problems in filling casual
vacancies in the Senate. It is surely undesirable that the Constitution develop like some
bloated statute. Furthermore, seeking to have any referendum question passed is not
only very expensive but notoriously difficult. It is doubtful that the only reason for the
high failure rate is that a majority of voters have in fact, on each of the occasions and
after careful consideration, decided that the particular proposed change was
undesirable. A proposal which a majority might otherwise be thought to support will
not necessarily be passed at a referendum. Constitutional decisions are practically
immutable, thus there is good reason to temper the judicial activism that might be
justified or desirable in other areas of the law.
A third reason for distinguishing judicial choices in this area from those in other
areas is that issues arising in relation to individual liberties are centralI.ls political ones.
Some judges have argued that all constitutional issues are political. 2 9 This claim is
correct in the sense that constitutional decisions are themselves an exercise of power,
that they affect the exercise of political power by governments, and that they may be
based on policy judgments. The difference in individual freedom questions is one of
degree rather than kind. 250 In most constitutional problems there is some guidance
from the text and structure of the Constitution, even if judicial values and discretions
are also required to interpret or apply the text. In contrast, to talk of "freedom of
speech" and such like is to use catchphrases for complex concepts which have little
determinate content. 251 To say that freedom of speech should not be unjustifiably
infringed, for instance, is not to set a legal test but to establish a vague policy goal.
Achieving that goal necessitates giving content to the concept of free speech, which in
turn requires an assessment of general community needs and a balancing of other
values, rights and goals. These assessments and balances go to the heart of what
governing the community is about. They involve the application of judicial value
judgments to a much greater extent than that normally involved in constitutional
247 Constitution, s 128.
248 Justice Toohey, above n 62 at 173.
249 State Banking (1947) 74 CLR 31 at 82 per Dixon J; P N Bhagwati (former Chief Justice of
India), "The Role of the Judiciary in the Democratic Process: Balancing Activism and
Judicial Restraint" (1992) 18 Commonwealth Law Bulletin 1262 at 1265; see also Sir Anthony
Mason, above n 223 at 4-5 and "A Bill of Rights for Australia?" (1989) 5 Australian Bar
Review 79 at 82.
250 J J Doyle, above n 234 at 27; D J Galligan, "Judicial Review and Democratic Principles: Two
Theories" (1983) 57 ALJ 69 at 69; J Goldsworthy, "The Constitutional Protection of Human
Rights in Australia" in G Craven (ed), Australian Federation: Towards the Second Century
(1992) at 162; Sir Anthony Mason, above n 249 at 82.
251 T D Campbell, above n 113 at 200-201.
1995
Constitutional Implications from Representative Democracy
71
interpretation. As five judges recognised in Castlemaine Tooheys Ltd v South Australia,
the decision as to what provisions are necessary or desirable for the common good is
"in large measure a political question best left for resolution to the political process".252
Furthermore, issues that arise in the context of individual freedom cases are often
some of the most fundamental and divisive issues in the governance of the
community.253 McHugh J has asserted that the "formulation of legal rules in respect of
matters on which the community is deeply divided is better left to the legislature".254
He was speaking in the context of the development of the common law; his view has
even greater force in the constitutional sphere where judicial decisions are effectively
unchangeable.
Judges inevitably impose their own social and political philosophies in deciding
questions involving the protection of individual freedoms. They may claim to base
their decisions on natural law, reason, tradition, or consensus. But as Ely convincingly
shows, these concepts have no objectively ascertainable content and their invocation is
a cover for the judges' own decisions or values. 255 The widely accepted international
covenants might arguably reflect some international consensus on protecting
individual rights. 256 Yet such a consensus exists only because of the vagueness of the
concepts which they embody. It is in the application of such protections that important
value judgments have to be made.
Some Australian judges have suggested recourse to contemporary "community
values".257 In a pluralist multicultural society such as ours it must be doubted whether
there is any consensus of values, at least on controversial questions. It is reasonable to
say that community values do change and develop, even if there is no consensus. But
this fact does not make the exact nature and extent of community values ascertainable,
nor does it determine what should flow from these developments. Brennan J was right
in
that commwlity attitudes to race have changed significantly since last
century,25 for example, but the reaction to Mabo indicated that the community differed
on what should result from the application of such new values. A judge's
understanding and application of community values will thus almost inevitably be
shaped by the judge's own values. 259 Insofar as community values are ascertainable, it
is doubtful that judges are better-placed than politicians to assess what they are,260 and
it would be a brave political party which went against such values. Indeed, Terrance
Sandalow argues that the principal objection to the "constitutionalization" of law is that
thinkinf
252 (1990) 169 CLR 436 at 473 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ; see also
Griswold v Connecticut 381 US 479 (1965) at 511-513 per Black J (dissenting).
253 Sir Anthony Mason, above n 249 at 81.
254 Justice McHugh, "The Law-making Function of the Judicial Process - Part II" (1988) 62 ALl
116 at 122.
255 J H Ely, above n 113, ch 3.
256 Eg, Universal Declaration of Human Rights; International Covenant on Civil and Political
Rights; International Covenant on Economic, Social and Cultural Rights.
'
257 Sir Anthony Mason, above n 223 at 5 and 23; Mabo v Queensland (No 2) (1992) 175 CLR 1 at
42 per Brennan J.
258 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42.
259 McHugh, above n 254 at 122.
260 J H Ely, above n 113 at 63-68; 5 Lee, "Comment" [1985] PL 632 at 633.
Federal Law Review
72
Volume 23
it weakens the responsiveness of the law to the wishes and the values of the
community.261
In Political Advertising, five of the judges effectively made a judgment to value
liberty and formal equality over substantive political equality by rejecting the
Commonwealth's argument that the scheme promoted substantive equality of access to
the media, regardless of wealth. 262 This decision is not surprising given the courts'
traditional emphasis on protecting individual liberty.263 But this liberal philosophy
certainly does not command universal acceptance. 264 Thus Political Advertising must be
seen as an example of judges implementing, to some extent, their own social and
political philosophy.
The courts have recognised the illegitimacy of imposing subjective judicial
philosophies to restrict significantly the powers of government. The Lochner265 doctrine
of substantive due process, applied by the United States Supreme Court in the first part
of this century to strike down a range of economic and social legislation, is now
generall~ condemned as an illegitimate interference in the ability of legislatures to
govern. 66 One of the reasons for the High Court's reinterpretation of s 92 in Cole v
Whitfield 267 was almost certa~ concern about the Court imposing "laissez-faire
notions of political economy".2 8 There is no apparent reason why imposing an
economic philosophy is any more objectionable than imposing a social or political
vision.
An aspect of this objection is that judicial review of legislation is undemocratic in
that the will of the people, as expressed through Parliament, can be overridden by
unelected and unaccountable judges. This objection applies even more forcefully to
judicial review based on constitutional implications rather than on the express
requirements of the Constitution. The latter type of review is, at least, directed to
imposing the requirements of the clear text of the democratically accepted
Constitution.
The response of some proponents of constitutional rights is to attempt to show that
protecting individual freedoms can actually enhance the principles or practice of their
model of democracy and is thus not undemocratic. 269 It is true that representative
democracy covers a spectrum of possible models and in the context of some of these
261 T Sandalow, above n 201 at 459.
262 K D Ewing, above n 113 at 241-242 and 255-256; P Creighton, "The Implied Guarantee of
Free Political Communication" (1993) 23 UWAL Rev 163 at 168-169.
263 T R S Allan, above n 84 at 119; T D Campbell, above n 113 at 208; K D Ewing, above n 113
at 242.
264 Eg, A C Hutchinson and A Petter, "Private Rights/Public Wrongs: The Liberal Lie of the
Charter" (1988) 38 University of Toronto LJ 278.
265 Lochner v New York 198 US 45 (1905).
266 Eg, Ferguson v Skrupa 372 US 726 (1963) at 730; Griswold v Connecticut 381 US 479 (1965) at
482 per Douglas J (for five judges); see also J H Ely, above n 113 at 14.
267 (1988) 165 CLR 360.
268 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 571 per Mason J; see also Miller at
618 per Deane J; 50S (Mowbray) Pty Ltd v Mead (1972) 124 CLR 529 at 574 per Windeyer J;
North Eastern Dairy Co Ltd v Dairy Industry Authority of N5W (1975) 134 CLR 559 at 615 per
Mason J; Buck v Bavone (1976) 135 CLR 110 at 132-133 per Murphy J.
269 Eg, R Dworkin, above n 71; D Feldman, "Democracy, the Rule of Law and Judicial Review"
(1990) 19 FL Rev 1; Justice Toohey, above n 62; J Whyte, above n 66.
1995
Constitutional Implications from Representative Democracy
73
judicial review may not be undemocratic. But to argue that it is democratic to impose
liberal restraints by reference to a model which is based on liberal premises is circular.
If one looks to the core meaning of democracy rather than to self-selected models,
constitutional judicial review is undemocratic. For appointed judges to invalidate
legislation made by the elected and accountable representatives of the people is
inconsistent with the notion of rule by the people. This fact does not change even if the
particular judicial review is designed to enhance the democratic process, for instance
by protecting free political communication. Judicial review in this context can thus
simultaneously enhance democracy, by protecting the effective operation of the
political process, and diminish it by having judges invalidate the choices of the people's
elected representatives.
Some judges have pointed out that the actions of Parliament do not always reflect
the wishes of the majority.270 This fact does not make judicial review any more
democratic, and certainly does not mean the judiciary is more representative than the
legislature. 271 Justice Toohey has argued that, given such Parliamentary behaviour,
judicial review "is a vital vehicle for upholding the majority will".272 One can only
speculate how it is that judges are better placed than politicians, who depend for their
survival on the popular will, to ascertain what the majority wants. 273 Further, that
judges are appointed by elected officials may arguably give them something of a
democratic mandate, but one much weaker than that of a government regularly elected
on the basis of its policies.
It is often stated that judges are accountable in that they have to give reasons for
their decisions which can be scrutinised by other judges, by the legal profession and by
the public. 274 This point, whilst important, does not overcome their lack of ultimate
democratic accountability to the people. The very criterion that sets judges apart in our
system of separation of powers is their security of tenure. 275
Logical limits and the process/substance distinction
Another objection to judges implying constitutional protections of individual freedoms
is that when such limitations are not based on any specific provisions there is "no
logical limit to their ambit". 276 This problem certainly arises for the substantive view of
democracy discussed above in Part Two. The concept of liberalism is so broad and
vague as to allow judges who accepted this or similar views to impose whatever limits
they personally thought desirable. The objection is less strong for limitations based on
protecting the process of democracy. There are disagreements about what the process
requires but clearly not every possible desired individual freedom can be justified on
this basis.
270 Sir Anthony Mason, above n 249 at 81; Justice McHugh, above n 254 at 123; Justice Toohey,
271
272
273
274
275
276
above n 62 at 172-174.
J Goldsworthy, above n 250 at 170-171.
Justice Toohey, above n 62 at 173.
Griswold v Connecticut 381 US 479 (1965) at 519 per Black J (dissenting).
M Coper, above n 95 at 191; Justice McHugh, above n 254 at 121-122.
Constitution, s 72.
BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 405 per Kirby P; see also
G Winterton, above n 67 at 234 and 239; L Zines, above n 98 at 51; Nationwide (1992) 177
CLR 1 at 44 per Brennan J.
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Process-oriented views of democracy have been advocated before as a basis for
judicial review,277 and have been subject to much criticism. The main criticism has
been that the process view does not avoid the need to make substantive value
judgments, the aim of proponents of the process view such as Ely.278 Tribe goes so far
as to argue that a process view "by itself determines almost nothing".279 Tribe's view is
too limited. If it is accepted that ultimate power is vested in the people and is exercised
through their elected representatives, some principles flow logically from this. For
example, there is clearly a requirement that there be elections. For elections to be
meaningful - that is, for power to be meaningfully vested in the people - the
elections must be regular, free and fair, and certain individual freedoms must attach to
the process. That there is such broad agreement about these matters280 supports the
logical nature of these inferences.
The critics are right to assert that a process-oriented basis for judicial review cannot
be developed and applied without making substantive value judgments. For instance,
as discussed above, the concept of free speech cannot be assigned content without such
judgments. As I showed in Part 3, plausible arguments can be made that general
freedom of speech is necessary for the effective operation of representative democracy.
But whether such a view is persuasive depends on one's values, one's understanding of
the operation of society and the weight attached to free speech as against other
goals."281
I
The benefit of process-oriented review is that it significantly reduces the need for
substantive value judgments. It gives a clear focus for the review. Rationally assessable
arguments can be made as to what is essential to the effective operation of the process
of democracy. Evidence can be presented, albeit political, historical and sociological
evidence. Process-oriented review does not negate the reasons for judicial restraint in
this area. But such an approach does pay significantly more heed to appropriate
restraints than would be the case if a substantive conception of democracy was taken as
a basis of judicial review.
It has been asserted that no clear line can be drawn between value judgments
related to process and those related to substantive political visions. 282 Tribe states that
there is an "absence of any plausible stopping point".283 In contrast to the process view,
however, matters going to the definition of the concept of representative democracy
are almost purely in the realm of political theory and assertion. Evidence could not be
presented to "prove" which definition of democracy was preferable, for example.
Even if no clear line can be drawn, this does not justify despairing of the task of
attempting to confine judicial review in this area. For all areas of judicial review it is
surely now accepted both that judges cannot avoid making value judgments and that
such value judgments cannot be completely at large. In all areas of judicial review
judges must seek to balance these two ends. In this area, I submit that process-oriented
277 Eg, J H Ely, above n 113; US v Carolene Products Company 304 US 144 (1938) at 152 footnote
278
279
280
281
282
283
4.
P P Craig, above n 59 at 101; R Dworkin, above n 59 at 502-510.
L Tribe, above n 163 at 1064.
See above n 98.
D Galligan, above n 250 at 77-78.
P P Craig, above n 59 at 114.
L Tribe, above n 163 at 1078.
1995
Constitutional Implications from Representative Democracy
75
review is the appropriate way to achieve this balance. That the task may not be easy or
clear is not a reason to despair of it.
5
BALANCING AIMS: APPROPRIATE IMPLICATIONS FROM
REPRESENTATIVE DEMOCRACY
The High Court cases of Australian Capital Television Pty Ltd v Commonwealth (No 2) and
Nationwide News Pty Ltd v Wills have established a precedent for constitutional
implications based on representative democracy. My final task is to give my own view
of the appropriate balance between the possible ramifications of the precedent
established and the reasons for restraint.
The balance can be drawn firstly by the High Court implying only those attributes
which can reasonably be seen as essential or necessary to representative democracy. To
employ a lesser standard, or to apply the essentiality standard loosely, would be to
open the door to the implication of a wide range of concepts of limited relevance to
democracy. Were the Court to take this step, it would move into areas of substantive
philosophies which it has no legitimate role in applying.
Secondly, in implying freedoms and requirements from representative democracy,
the Court should focus on protecting the effective operation of the process of
democracy. The Court should not impose limitations based on some model of liberal
democracy. The only essential elements of the definition of representative democracy
are those in the core definition. Further, an approach based on liberal democracy
would allow the Court to impose constitutional limitations with no logical limit. Given
these factors, to take a substantive approach could only be characterised as a wholesale
imposition of the Court's own political and social philosophy.
Thirdly, the Court should be cautious even in protecting those conditions essential
to the effective maintenance of the process of democracy. The focus on process
significantly reduces, but does not avoid, the need for value judgments. Judicial review
is undemocratic, even when seeking to preserve democracy. As the aim in this area is
to protect democracy, the question should always be whether there is a net democratic
benefit. In other words, the C01Irt should ask whether the democratic gain in
invalidating some undemocratic statute outweighs the diminution of the democratic
process that is involved in overruling the decisions of the reople's elected
representatives. This question necessitates an assessment of how central or proximate
the regulated activity is to the effective operation of the democratic process.
As for the task of deciding what is essential to the process of democracy, evidence
can be presented and rational arguments made. Of course, in the face of disagreement
in the ranks of political ~cientists and historians the Court must make its own
assessment. But in doing so it should be cautious. Whilst unanimity of argument and
evidence cannot be expected, for the Court to find that something was essential to the
operation of democracy when there was significant disagreement would indicate
imposition of personal philosophies.
In my view the constitutional implications that can reasonably 'be based on
representative democracy are the following: freedom of political communication,
freedom of assembly for political purposes, freedom of association, freedom of
movement related to political matters, access to government, and regular, free and fair
elections as defined in Part Three. As I indicated at the beginning of P'art Three, most of
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these are well-accepted as necessary minimum conditions of representative democracy.
They can be supported by arguments based on theory and historical experience. These
implications are not necessarily exhaustive - some of the constitutional conventions
should also perhaps be justiciable, for instance.
The freedoms of communication, assembly and movement should be limited to
political matters. It is arguable that protecting commercial or artistic free speech, for
example, may enhance the democratic process to some small extent. But such matters
are not sufficiently central to the operation of the democratic process to justify the
judicial review of laws in such areas. The test I suggested in Part Three should be
applied to distinguish political from other matters, with only the former being
constitutionally protected.
The most controversial of the implications I suggest are undoubtedly those of a
universal franchise and of equal voting weight. These aspects would not have been
seen as indispensable to the operation of democracy in 1900. As I have argued,
however, the appropriate context for assessing the essential conditions (as opposed to
the core definition) of representative democracy is contemporary Australia, not the
Australia of 1900. Given this, and given the strong range of arguments' that can be
made for these requirements, I believe they can be justified.
Finally, my focus in this article has been on the implication of constitutional
limitations. A related and crucial issue is the practical application of those limitations
found to be implied. The reasons for judicial restraint apply just as much to the latter
issue as to the former. In deciding when a prima facie breach of an implication can be
justified as pursuing a legitimate interest, therefore, due deference should be paid to
the judgment of the Parliament on these centrally political matters.