Abstract
The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.
I Introduction
Gageler J argued that High Court judges should approach judicial review under the Australian Constitution (‘Constitution’) 1 as though they were a ‘referee whose extraordinary constitutional responsibility is for the game itself rather than a linesman whose only responsibility is to call in or out’. 2 This characterisation of the judge’s role as having broader institutional responsibility resonates with the process-based theory of judicial review advocated by John Hart Ely in the United States, 3 who argued that courts should correct failures in the majoritarian political process by ensuring the ‘channels for political change’ remain open, rather than interfering with the outcomes of that process. 4 A similar concern can be detected in the Australian High Court’s protection of democratic norms found to be entrenched in the Constitution, such as by ensuring that citizens can properly engage in representative and responsible government through electoral enfranchisement and open political discourse. 5
Yet while a key element of Ely’s process-based theory of judicial review was that courts should apply heightened scrutiny to laws which affect ‘discrete and insular minorities’, 6 a concern for minority rights protection has been notably absent from the High Court’s consideration of constitutional rights and freedoms. By drawing upon Ely’s concern for the disadvantaged political position of minority groups in majoritarian democracies, this article will argue that, properly understood, the Constitution should be seen as responding to equality concerns through its entrenchment of representative and responsible government. I argue that this entrenchment involves more than simply a constitutionally recognised right to vote or free political speech and requires judicial intervention to actively protect minorities in the face of their systemic under-representation in democracies.
First, I explain Ely’s process-based theory and assess the critiques of his ‘discrete and insular minorities’ formula as a mechanism for promoting substantive equality. I explore the resonance of Ely’s process-based theory with the High Court’s protection of structural norms in the Constitution and discuss how this theory could be adapted to protect minority rights in the Australian context, which has already been demonstrated by Gageler J. I then discuss the systemic reasons why a recognition of representative government calls for the active judicial protection of minority interests, before exploring the avenues by which minority rights protection could be constitutionally recognised in Australia. I suggest that although the strongest form of minority rights protection would arise under an implied guarantee of equality, this is unlikely to be supported by the text and structure of the Constitution. Consequently, I consider weaker available forms of protection through a judicial recognition of the constitutional value of equality which could arise in existing areas of constitutional doctrine such as proportionality analysis or the implied incidental power.
II Ely’s Process-Based Theory
Ely’s process-based theory sought to resolve the democratic tension between substantive judicial review and political accountability as enacted through simple majoritarianism. He was critical of the undemocratic character of constitutional interpretation in American jurisprudence which he regarded as falling on the extremes of ‘clause-bound’ originalism 7 or progressive ‘non-interpretivism’ that allowed unelected judges to undermine legislative judgements by ‘finding’ substantive values in the United States Constitution (‘US Constitution’). 8 Ely’s via media sought to avoid the democratic deficit in each of these approaches by leaving the selection of substantive political values to elected officials and restricting the court’s role to protecting the existing avenues for democratic accountability by facilitating ‘broad participation in the processes and distributions of government’. 9 For Ely, this form of review was more attuned to the spirit of the US Constitution, which placed its trust in democratic institutions to make value determinations and enabled majoritarian ‘disapproval’ through electoral accountability. 10
Ely’s theory was not an academic invention but drew on the famous justification for degrees of constitutional review buried in footnote four of United States v Carolene Products Co (‘Carolene Products’), 11 a case concerning the validity of a statute prohibiting the interstate shipment of filled milk. In footnote four, Stone J held there were certain categories of laws which should be subject to stricter scrutiny under the US Constitution’s Due Process and Equal Protection clauses, including those which restricted political processes or were directed against particular racial or religious minorities. 12 His Honour also noted that prejudice against ‘discrete and insular minorities’ may be a special condition which calls for a ‘more searching judicial inquiry’ of the law’s justification. 13 This approach sought to address the ‘counter-majoritarian difficulty’ 14 that arose in the Lochner era of American constitutional review in the 1930s, in which the Supreme Court interpreted individual property rights afforded by the Due Process and Equal Protection clauses broadly in order to invalidate progressive social legislation introduced under President Roosevelt’s majoritarian political mandate. 15 The solution offered by Carolene Products recognised that the Due Process and Equal Protection clauses should be applied deferentially to ordinary legislation (such as where federal law restricted the sale of certain kinds of milk) except where the process established by the US Constitution itself was threatened. It therefore attempted to limit judicial review of the potentially open-ended inquiries invited by the ‘Due Process’ and ‘Equal Protection’ constitutional standards. 16
Ely interpreted footnote four as encouraging the court to focus not on the importance of a particular ‘fundamental value’ but rather on whether the opportunity of particular groups to participate in the political process had been ‘unduly constricted’.
17
Drawing out this theme, Ely identified two key malfunctions that render the democratic process as ‘undeserving of trust’ and which place a corresponding duty on the court to undertake stricter judicial scrutiny: 1. the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out; or 2. though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest thereby denying that minority the protection afforded other groups by a representative system.
18
Ely believed that judges could intervene to correct these malfunctions in a manner consistent with their deferential position in a constitutional democracy. With regard to malfunction 1, Ely argued that judges are in a superior position to objectively identify defects in the political process given that they are ‘comparative outsiders in our governmental system’, unlike elected representatives with a vested interest in ‘clogging the channels of political change’. 19 Put more simply: ‘[w]e cannot trust the ins to decide who stays out’. 20 This form of review was therefore important in monitoring legislative attempts to constrain mechanisms for political accountability such as electoral restrictions and malapportionment. 21
In terms of malfunction 2, Ely saw the court’s role as policing the ‘pluralist’s bazaar’ 22 of democracy by ensuring that a particular minority group was not consistently excluded from the bargaining process between the ‘unstable coalitions’ that constitute pluralist democracies. 23 Ely figured that minority groups failed in their attempts to effectively bargain with potential allies because the in-group suffered ‘empathy failure’ towards them as a result of the distorting lens of social prejudice. 24 These prejudicial stereotypes resulted in legislators overestimating the dangers posed by the minority group and underestimating their ‘overlapping interests’. 25 The disadvantaged bargaining position of minorities thus constituted a failure in the democratic political process that weakened the ‘channels of political change’ and justified more exacting judicial review.
In identifying unacceptable legislative stereotypes without simply assessing their descriptive accuracy, 26 Ely suggested that courts must be attuned to the political status and power held by the burdened group compared to the legislators. 27 For example, laws burdening African-Americans relative to white people should be scrutinised closely, whereas laws burdening white people are less suspicious because it is safe to assume that predominantly white legislatures would not apply negative stereotypes to themselves without careful thought. 28
For the same reason, the court should apply a low level of scrutiny to laws which lack the ‘unusual danger of self-serving generalization’. For example, a statutory distinction between the qualifications of optometrists and opticians relies on a ‘they–they’ contour in which members of the legislature feel no more affinity to one group than the other. 29 Such a law is clearly distinguishable from those relying on suspect classifications such as aliens or homosexuals, towards whom the legislature is much more likely to suffer ‘empathy failure’ due to a lack of social intercourse. 30 The discreteness and insularity of that group crystallises the nature of their suspect categorisation under the law and allows the court to interrogate the formal or effective blocks on their opportunities to counter—through example or argument—the stereotypes that the legislature has relied on. 31
Consequently, Ely argued that judges must self-consciously reinforce the representation of such minorities in order to correct the processual failure of their exclusion from the centres of democratic decision-making. 32 This linking between social bias and the democratic process thus expanded the notions of political equality and representation beyond their formal institutional boundaries. 33 Yet, intervening to correct these malfunctions allows the court to take the neutral ‘high ground’ of correcting democratic procedure rather than substantive outcomes, given that, in Ely’s view, it is the legislature which has created a ‘legitimacy deficit’ in the majoritarian system. 34
III Discrete and Insular Minorities As a Model for Substantive Equality?
A Critiques
Any contemporary consideration of process-based theory must take seriously the two key strands of academic critique that have been levelled at Ely. The first strand questioned the purported neutrality of process-based judicial review and the second problematised the utility of the ‘discrete and insular minorities’ formula in addressing structural barriers to political participation. This critique is especially important, given that understandings of minority rights and intersections between forms of political powerlessness have evolved greatly since the publication of Democracy and Distrust in 1980.
With regard to the first strand, Laurence Tribe has compellingly challenged the capacity for process-based theory to be truly neutral, given that even the judicial protection of process involves ‘profoundly substantive questions’. 35 For example, he pointed out that the seemingly straightforward protection of voting rights is not simply about procedural fairness but requires an engagement with the contested idea of who constitutes a political community and has the right to participate. 36 Further, Tribe argued that a judicial conclusion regarding a suspect classification reveals a substantive disagreement with the judgements underlying the law’s stereotype, rather than with the political process itself. 37 Similarly, Jane Schachter queried whether the substantive content of Ely’s choice to protect particular democratic values such as fair representation could be removed simply by wrapping his analysis in the ‘soothing language of proceduralism’. 38 This resonates with the critiques of both Bruce Ackerman and Daniel Ortiz, who argued that the judicial determination of whether legislative distinctions are prejudiced or principled necessarily relies on substantive moral differences. 39
Yet while these arguments valuably challenge Ely’s justification of his theory as a means of enabling judicial neutrality, they do not undermine his more significant concern with the flaws in majoritarian political processes. Indeed, the fact that Ely tasks a judge with correcting the outcomes of a malfunctioning majoritarian process means it is unavoidable that they will have to engage with the substantive (as opposed to formal) structural barriers faced by minority groups and make value judgements as to the unacceptability or otherwise of a suspect classification. Once we accept that a judge’s role in correcting democratic defects does not rely on their objective neutrality in order to be legitimate, Ely’s theory withstands this strand of academic criticism.
Secondly, there has been critical questioning of whether the ‘discrete and insular minorities’ formula is actually useful in identifying and dismantling barriers to political participation faced by minority groups. In particular, Ackerman has queried whether the fact of being ‘discrete and insular’ is a meaningful proxy for political powerlessness. He argues that even if we accept Ely’s claim that democracies operate according to pluralist bargaining principles, the fact a particular group is in the minority does not explain why this should be transformed into a constitutional right assuring them substantive ‘victories’ from the legislative process all the time. 40 More importantly, Ackerman argues that groups which are organised and visible enough to be considered ‘discrete and insular’ in fact have far greater bargaining power than other disadvantaged people in a pluralist democracy, due to their lower organisational costs and consolidated potential for greater political influence. 41 Consequently, he concludes that the concerns underlying footnote four of Carolene Products should in fact motivate judges to protect groups that are ‘anonymous and diffuse’, such as the poor, uneducated or homosexual who are far more disadvantaged in their ability to consolidate their membership into a political agenda. 42 Ackerman therefore gives us cause to consider whether discreteness and insularity should be defined as the ‘decisive disadvantage’ in a pluralist democracy, and whether judicial review should instead be attuned to the systemic inequalities of pluralist bargaining. 43
Another issue with Ely’s formula is that it is unclear whether it extends to groups who have been systematically excluded from political decision-making but are not a statistical minority such as women. Kenji Yoshino makes a similar argument about shaping this formula to fit homosexuals as a uniform category, given that those who are ‘closeted’ may not disclose their homosexuality and could therefore be considered ‘diffuse and anonymous’. 44 On the other hand, homosexuals who are ‘out’ and have formed social or political alliances could be accurately described as ‘discrete and insular’. 45 These factors suggest that in the exercise of judicial discretion, Ely’s ‘discrete and insular’ test must be attuned to the complex intra-group factors which constitute the political powerlessness of a group and the reasons for their exclusion from pluralist bargaining in majoritarian democracies.
B Usefulness
While acknowledging these criticisms, I argue that the ‘discrete and insular minorities’ formulation is nonetheless valuable because, unlike other constitutional baselines for protecting equality, it invites a substantive and context-driven approach to the political disadvantages suffered by minority groups.
Ely’s formula is far more substantive than the formalistic approach that has recently been adopted by the Canadian Supreme Court’s treatment of equal protection claims. In particular, Rosalind Dixon has criticised the Court’s reliance on abstract criteria such as ‘immutability’ as a decisive factor of political powerlessness, as the immutability of an individual characteristic in most cases is only tangentially relevant to the more important indicators of ‘political power, visibility or centrality’. 46 She observes a similar problem in the South African Supreme Court, which has adopted broad and abstract criteria in order to determine grounds for unfair discrimination, 47 such as whether it was based on ‘attributes or characteristics which have the potential to impair the fundamental dignity of persons’. 48 These abstract criteria invite an unhelpfully universalist approach rather than addressing the particular structural barriers that have excluded a group within their specific political context.
On the other hand, the ‘discrete and insular minorities’ formula has allowed courts to adopt an explicitly substantive approach to equality. For example, under its formerly ‘generous’ 49 approach to the Canadian Charter’s guarantee of equality and freedom from discrimination evident in Law v Canada, 50 the Supreme Court held it was relevant to consider whether a group was a ‘discrete and insular minority’ as a ‘contextual factor’, allowing it to undertake a more grounded analysis of the historical disadvantage, prejudice and stereotyping suffered by the category of people affected by the law. 51 Similarly, the US Supreme Court’s consideration of discrete and insular minorities under the Equal Protection clause has allowed it to move away from formal inequalities such as direct exclusion from the electoral process, and towards more significant indicators for substantive barriers to political participation, such as whether a particular group is able to attract the attention of lawmakers. 52
I acknowledge that Ackerman’s alternative suggestion that courts focus on the more ‘decisive disadvantage’ in pluralist democracies similarly invites these substantive considerations. However, this suggestion arose from Ackerman’s rejection of the ‘discrete and insular minorities’ baseline on the basis that such groups are capable of coalescing to form an effective and homogenous political agenda. This characterisation may be unrealistic in that it does not cohere with the persistent marginalisation of minorities such as Indigenous peoples in the United States and Australia. Similarly, while a ‘decisive disadvantage’ may be identified by a descriptive account of a groups’ lived experiences, such an approach fails to address Ely’s more fundamental concern with the social prejudice and ‘empathy failure’ of legislators that contribute to a minority’s political exclusion in more subtle ways.
It is also important to recognise that factors such as poverty or gender may intersect with minority group status to create even greater forms of marginalisation, meaning it may be inaccurate and reductionist to assign a single causative ‘decisive disadvantage’. Instead, a recognition of the discreteness and insularity of an excluded group invites a consideration of the intersecting causes which contribute to their disadvantage in the more diffuse sense with which Ackerman was concerned. In this way, I argue that a concern for discrete and insular minorities remains an important heuristic to address the systemic exclusion of minorities in pluralist democracies.
IV Process-Based Theory in Australia
A The Dangers of Theoretical Transplantation
Before exploring how aspects of process-based theory could be ‘applied’ to the Australian context, it is necessary to address the issues of coherence that arise when transplanting a constitutional theory which has been shaped by the politico-legal factors of its original context. In particular, Claudia Geiringer observes that Ely’s claim for process as opposed to policy-based judicial intervention was not created in a normative vacuum but was based on a close-reading of the US Constitution which left the selection of substantive values ‘almost entirely to the political process’. 53 In addition to this textual contingency, Democracy and Distrust was designed to be an explanatory theory of the US Constitution rather than constitutional law generally whereby Ely sought to reconcile the civil rights interventions of the Warren Court’s interpretation of the text within its broader constitutional tradition. 54
Nonetheless, process-based theory has had international appeal as a theory of constitutional review. This is attested to by international symposia on the globalised reach of Ely’s ideas, 55 and on the direct influence of process-based concerns in specific constitutional contexts such as in the development of the New Zealand Bill of Rights. 56
Thus, while it was originally developed as a descriptive account of a period in American constitutional history, the principles of Ely’s theory nonetheless provide an attractively restrained institutional role for constitutional courts in liberal democracies, by concentrating the judicial inquiry onto the processes created by a constitution rather than intervening in its substantive outcomes or deciding rights-based questions on bare policy preference. 57 While this does not mean that Ely’s theory can be uncritically transplanted into other contexts, it does suggest that it carries significance beyond the text and context of the US Constitution. 58
B The Role of Representation Reinforcement in the Australian Context
The High Court’s protection of the broad structural norms of the Constitution as opposed to individual rights means there is a clear resonance between Ely’s justifications for representation-reinforcement and the High Court’s existing approach to constitutional review. Gabrielle Appleby and Rosalind Dixon have noted that the Court has been consistently willing to ‘draw and enforce a broad range of structural constitutional implications’ such as representative government and the separation of judicial power from the structure and text of the Constitution. 59 Meanwhile, it has rejected most rights-based implications beyond those ‘core political rights’ associated with representative democracy such as the right to vote. 60 Appleby and Dixon observe that this approach reveals a representation-reinforcing approach in which the Court’s function is to ‘police the boundaries of the political process’ rather than adjudicate on the substantive merits of legislation. 61
This Elyian concern to keep open the channels of political change was especially evident in the Court’s reasoning in favour of an implied freedom of political communication. For example, in Australian Capital Television v Commonwealth of Australia (‘ACTV’), 62 the Court accepted that free political discourse was an essential and implied element of representative government entrenched in the Constitution so that citizens could keep politicians accountable and properly exercise their popular sovereignty at elections. 63
Consequently, the ‘participatory goals’ in the US Constitution which justified a representation-reinforcing approach to political processes and minority rights are evidently consistent with the High Court’s recognition of the democratic process guarantees embedded in the Australian Constitution that seek to enlarge and enable popular sovereignty. 64
A further and under-explored examination of process-based concerns in the Australian context is in the jurisprudence of High Court judge, Gageler J. Gageler J studied at Harvard Law School in the 1980s 65 and has acknowledged the influence of Ely on his vision for a restrained constitutional review in which the High Court defers to the legislative will and ‘places representative government at the centre of the Constitution’. 66 For Gageler, this deference naturally arose from the character of the Constitution as articulated in the Engineer’s Case 67 as an ‘instrument [of] the political compact of the whole of the people of Australia’, 68 meaning that the political process acts as the primary mechanism of constitutional constraint. 69
The logical connection between representation-reinforcement and the protection of entrenched democratic norms in the Australian Constitution is even clearer in Gageler J’s adoption of a ‘calibrated’ approach to assessing laws which burden the implied freedom of political communication. The now-orthodox test of assessing a burden on the implied freedom was fully articulated by a plurality of the Court in McCloy v New South Wales (‘McCloy’) 70 and requires the Court to identify an effective burden on the implied freedom, test the compatibility of the law’s purpose with the constitutional system of representative government and then undertake proportionality testing to determine whether the means are suitable, necessary and adequate in the balance. 71
On the other hand, Gageler J objects to the uniform application of this test regardless of the extent of a law’s burden on the implied freedom. 72 Consonant with his recognition of the need for stricter scrutiny where laws impede the ordinary political working of the Constitution, Gageler J has argued that the sufficiency of a justification for a law burdening the implied freedom must be ‘calibrated to the nature and intensity of the burden’. 73 His Honour prefers the ‘reasonably appropriate and adapted’ formula, which should be ‘calibrated’ according to the Court’s decided precedent and its institutional role in protecting responsible and representative government. 74 In his implied freedom of political communication judgments, Gageler J has also demonstrated a range of context-specific factors that can be taken into account when adopting this calibrated Lange test, such as asking whether a legislative restriction was content-based, neutral or ‘singled out’ particular speakers based on the unpopularity of their views. 75 In his Honour’s view, these restrictions would require close scrutiny consistent with a search for a ‘pressing and substantial’ public interest. At the other end of the spectrum, a lesser burden may only require a rational basis between the means and legitimate ends of a law. 76
Gageler J robustly justified this ‘calibrated’ approach to judicial scrutiny in McCloy by drawing on the Engineer’s Case to emphasise that the ‘extravagant use of granted powers’ under the Constitution was intended to be restrained by public accountability and electoral choice, 77 meaning that the role of the Court was to protect the open quality of these mechanisms. Consequently, Gageler J rationalised the implied freedom as a limitation on legislative power due to the paradox in the majoritarian political system whereby information that underpins an informed electoral choice is ‘peculiarly susceptible’ to distortion by the vested interests of those in power, 78 which aligns with Ely’s concern that the ‘ins’ should not decide who stays out.
The importance of protecting the integrity of the political process under Gageler J’s constitutional vision explains his dissents from the plurality, whose ‘prescriptive’ 79 approach his Honour regards as insufficiently sensitive to the strengths of the Constitution’s institutional structures for democratic accountability, and less attuned to the circumstances in which this accountability might be threatened. 80 Gageler J’s clear justification for tiered scrutiny in order to most effectively protect democratic processes also clearly aligns with Ely’s justification for corrective judicial intervention to ‘clear the channels of political change’. In this way, Gageler J’s reasoning demonstrates how the principles of representation-reinforcement are entirely consistent with a faithful interpretation of the text, history and structure of the Constitution.
V Why Minority Rights in Australia Must be Reinforced by Judicial Review
So far, I have demonstrated how the justifications for representation-reinforcement are consistent with the High Court’s commitment to clearing the channels of political change. However, the Court has been reticent to engage with minority rights or equality concerns, which were key issues in Ely’s process-based theory. The next half of this article will argue how minority rights protection is not only consistent with, but is actively required by, the High Court’s recognition of the constitutional entrenchment of representative and responsible government.
A Context: The Australian Position on Minority Rights
The possibilities raised by an explicitly representation-reinforcing approach to constitutional review are particularly significant in the Australian context due to the distinct gap in its protection of minority rights. The High Court has taken a very narrow view of the protection granted by the few rights that are enumerated in the Constitution and has deferred the determination of their substantive content to the legislature. 81 This approach, along with the textual limits of the Constitution, has provided very limited scope for the judicial protection of individual or minority rights even where such issues have been a salient feature of the case at hand. In Kartinyeri v Commonwealth (‘Kartinyeri’), 82 the High Court considered whether the Hindmarsh Island Bridge Act 1997 (Cth) was supported by the races power in s 51(xxvi) of the Constitution. The law repealed provisions of the Heritage Protection Act 1984 (Cth) which would have permitted legal challenge to the construction of the Hindmarsh Island Bridge on the basis of protecting an Indigenous heritage site, in response to the strong opposition to the Bridge’s construction by the Ngarrindjeri People on whose traditional and sacred land it was to be built.
Although the case directly engaged the Constitution’s potential for negative racial discrimination against a disadvantaged minority, a majority of the Court declined to even substantively engage with these implications. Brennan CJ and McHugh J upheld the law on the formalistic basis that the amendments were supported by the constitutional validity of the original Act and held it would be ‘misleading’ to further examine the precise nature of the power or its potential for negative discrimination. 83 The premise of their Honours’ decision was that Parliament cannot ‘deny or qualify the power of itself or a later Parliament’ to exercise its power to repeal a law. 84 This highlights an overlaying concern for parliamentary supremacy which further complicates the potential for values-based rights protection by judges in Australian constitutional practice.
While Gummow and Hayne JJ did directly consider the races power, their Honours avoided engaging with its substantive implications by deferring to the formal text of the races power, which they read as specifically contemplating a differential operation on members of a particular race. 85 On the other hand, Gaudron J held that the differential treatment to a racial group must be appropriate and adapted to a relevant difference between the people of the race to whom the law is directed. 86 Notwithstanding her Honour’s more substantive approach, the overall precedent set by the case allows the High Court to overlook the adverse consequences for the racial group which is burdened by the impugned law, so long as it singles out a particular race for differential treatment.
The disadvantage and political marginalisation suffered by Australia’s Indigenous people provides a very clear example of a ‘discrete and insular minority’ as conceived by Ely in the Australian context. Despite this, the High Court’s orthodox approach to constitutional interpretation has prevented it from engaging with the disproportionate impact of laws on Indigenous Australians or values-based arguments as to minority rights.
B Why Judges Must Reinforce Minority Rights in a System of Representative Government
Properly understood, the structural entrenchment of representative and responsible government in the Constitution demands the judicial ‘reinforcement’ of minority rights.
As discussed above, in cases such as ACTV and Murphy v Electoral Commissioner (‘Murphy’), the High Court accepted that the constitutional guarantee of representative government concomitantly requires the judicial recognition of substantive rights that citizens need to meaningfully participate in that system, for example, equal access to the electoral franchise and freedom of political communication. However, the proper functioning of representative government requires more than a vote and a voice. The exercise of political sovereignty to ensure accountable representation of ‘the people’ is a core constitutional requirement recognised by the High Court. 87 Yet this system is not properly functioning if it overlooks the systemic exclusion of minorities from substantive political participation.
There are systemic reasons why minority interests are not properly represented in a representative democracy. In Jeremy Waldron’s framework, minorities can be considered ‘insular’ where they are members of both the ‘decisional’ and ‘topical’ minorities of a competitive democracy—meaning they are outside the decision-making centre of power but also do not share interests with non-members that would enable them to build coalitions in order to promote their interests. 88 This is exacerbated in circumstances where the decisional majority is indifferent or hostile to members of that group. 89 Yet Waldron believed that such situations (eg, where legislatures are indifferent to individual and minority rights) were outside the norm for liberal democracies, or his ‘core case’ against judicial review, and that for the most part the ‘decisional majorities’ in elective institutions could be trusted to represent the interests of ‘topical minorities’. 90
However, Rosalind Dixon has persuasively argued that barriers to the representation of minority interests are not aberrations in representative democracies but arise as the result of ‘ordinary institutional and partisan political dynamics’ such that they can be described as ‘routine and predictable’ even in well-functioning democratic systems. 91 For example, Dixon draws on the scholarship of Guido Calabresi to point out ‘legislative blind spots’, whereby legislatures acting in response to crisis or who simply lack time will overlook opportunities for the accommodation of individual or minority rights. 92 More relevantly, the time-consuming nature and capacity constraints on legislative processes means that there is ‘little reason—or space—for legislative majorities to give priority to rights-based claims which are advanced by a relatively small minority, if those claims do not command strong majority support’. 93
These ‘burdens of inertia’ naturally arise in a competitive democracy in which legislators prioritise issues that are of greatest concern to the majority of citizens. An example of legislative inertia occurred in the background to Roe v Wade, 94 in which laws providing access to abortion were slow and limited to a narrow range of circumstances despite the majority electoral support for expanded access to abortion. 95 These are complemented by coalition-driven forms of inertia whereby legislators have a greater incentive to maintain electoral party coherence by keeping a contentious minority issue that may cause internal disagreement off the legislative agenda. 96
By contrast, there are logical and institutional reasons why courts are better placed than legislatures to take account of, and protect, minority interests. Both Waldron and Kent Roach make the practical observation that unlike elected representatives, judges have no particular interest in minimising the rights of unpopular minorities and are less vulnerable to public anger or attacks on their professional reputation. 97 Dixon similarly recognises that courts as institutions do not suffer the same blockages as legislatures because they have greater scope to consider issues affecting relatively small minorities and can weigh the priority of such issues based on moral and political significance as opposed to ‘immediate electoral salience’. 98 Moreover, she argues that courts do not need to self-consciously engage in a process of overcoming these blockages, they must simply reach a result that ‘effectively overcomes relevant blind spots’ rather than needing to be committed to targeting them, as was the case in Roe v Wade. 99
Consequently, there are persuasive systemic reasons to believe that representative government requires more than simply enfranchising citizens and creating a system of open political discourse in order to function effectively. Rather, in order to coherently promote the participatory goals of the Constitution secured by the entrenchment of representative government, the political sovereignty of minority interests must be protected through judicial reinforcement. This protection aligns with the existing justifications for High Court judges to enforce the core rights of representative democracy and, in doing so, to uphold an entrenched structural guarantee of the Constitution.
C A Demonstration of Minority Rights Representation-Reinforcement by Gageler J
Gageler J’s sensitivity to representation-reinforcing concerns means that his reasoning in certain cases illustrates how minority rights protection is consistent with current Australian constitutional practice. In Murphy v Electoral Commissioner (‘Murphy’), 100 Gageler J held that a law restricting new applications for the electoral roll 101 was constitutionally valid under a lower tier ‘rational basis’ test because it imposed a minimal burden on the electoral franchise. 102 His Honour distinguished this case from Roach v Electoral Commissioner (‘Roach’), 103 finding that strict scrutiny could have been employed in that case, given that the impugned law would have resulted in the disenfranchisement of up to 10 000 people, ‘many of whom were Indigenous’. 104 For Gageler J, Roach exposed the tendency of disenfranchisement to ‘freeze out of the political process discrete minority interests’, which undermines a core constitutional requirement that political representatives are directly chosen by the people. 105 This reasoning demonstrates how the special protection of minority interests comfortably fits within existing Australian constitutional practice, given that it ensures excluded and disadvantaged minority groups can properly participate in the ‘ordinary constitutional working’ of electoral accountability.
VI How Could Minority Rights Be Supported by the Constitution?
Accepting that the judicial protection of minority rights should be seen as a core requirement of representative government, the focus of this section is on how such concerns could be supported in a manner which is analytically consistent with the text and structure of the Constitution. Specifically, this section will explore whether protection of discrete and insular minorities might arise through a freestanding guarantee of equality or alternatively as a value that is weighed into existing constitutional doctrine.
It is important to note that the conclusion as to whether minority rights protection could arise through these avenues will necessarily depend on the broader interpretive theory which is adopted. It is unlikely that an originalist 106 reading of the Constitution would accept any historical or textual basis in favour of minority rights protection. Similarly, orthodox textualist judges would likely dismiss the task of implying equality guarantees as a viable approach to constitutional interpretation. 107 However, a more supportive reception may be found in liberal purposive approaches such as that advocated by Aharon Barak, who argued that constitutional interpretation should give weight to the interests, goals, values and policies that a democratic constitution is supposed to actualise. For Barak, these should be seen as the ‘objective purposes’ of a constitution which constitute ‘society’s basic normative positions’ as they have evolved. 108 His purposive approach therefore prioritises contemporary public values giving effect to a constitution’s ‘objective purposes’ at the time of interpretation as opposed to the subjective views of its original authors. 109
A more openly values-based approach would also likely be supported by the ‘functionalist’ constitutional interpretation advocated by Rosalind Dixon. 110 This approach is more closely aligned with the orthodox constitutional method of the High Court by demanding that any reliance on ‘values’-based arguments must be sourced in the text, history and structure of the Constitution, along with the High Court’s prior decisions. 111 In particular, Dixon has argued that closer attention to constitutional values can help to identify the ‘legislative aims entitled to greatest weight in the process of constitutional balancing’ which is undertaken when applying the ‘adequacy in the balance’ stage of proportionality testing. 112 Rather than weighing legislative means and purposes against concerns which are external to the Constitution and thus determined in a normative vacuum, a ‘functionalist’ approach would focus on those values which underpin the constitutionally prescribed system of representative and responsible government. 113 This approach also reduces the potential for subjective judicial judgment in constructional choices arising in constitutional interpretation. 114 For example, in ‘constitutional balancing’ under the implied freedom of political communication, a functionalist approach would consider core values such as government accountability, and intermediate values such as a ‘well-regulated marketplace of ideas’. 115
The High Court recently demonstrated such functionalist reasoning in determining whether legislative restrictions on protests near abortion clinics contravened the implied freedom of political communication. 116 In Clubb v Edwards, the plurality held that objective of the law should be assessed according to its resonance with constitutional values, finding that the burden imposed by the law on the implied freedom was ‘justified by the very considerations of the dignity of the citizen as a member of the sovereign people that necessitate recognition of the implied freedom’. 117 Their Honours repeated this analysis when assessing the ‘adequacy in the balance’ of the law, 118 thus demonstrating how values sourced in the constitutional text and structure can properly be used to determine limits on constitutional rights and freedom.
A Freestanding Guarantee of Equality
The most robust form of minority rights protection under Australian constitutional law would be through the judicial implication of a guarantee of substantive equality among citizens. As I have argued, this is most logically derived from the High Court’s existing implication of representative government, which is not a freestanding implication in its own right but is limited to those specific aspects that can be identified in the text or structure of the Constitution. 119 In Lange v Australian Broadcasting Corporation (‘Lange’), 120 the High Court sourced this implication in the Constitution’s provision of periodic elections, responsible ministerial government and amendment procedure via popular referendum. 121 Consequently, the concomitant freedom of political communication did not give effect to a general right of free speech but was recognised to the extent that it was necessary to enable those identified aspects of representative government to function. 122
Lange therefore established a precedent for deriving implications from the Constitution that are necessary in order to protect the essential features of representative democracy. 123 Consequently, in the same way that the implied freedom of political communication protects the citizens’ ability to meaningfully exercise their electoral choices, a guarantee of substantive equality could be justified as essential in order to protect citizens’ ability to meaningfully participate in the constitutional processes of political accountability. Jeremy Kirk has argued against this derivation of broader rights from the liberal democratic values of representative democracy. 124 In particular, he argues that substantive equality has only a ‘slender link’ to democracy 125 and contends that the Lange implication was confined to procedural aspects of democracy rather than instantiating a constitutional vision of liberal society. 126
However, this objection overlooks the fact that the implied freedom of political communication has far more substantive facets than Kirk, or the High Court itself, acknowledges. Stone argues that the High Court’s strictly textual basis for the implication has failed to justify its vision of representative government and how a freedom of political communication might support this system. 127 It is impossible to justify a coherent standard of judicial review for restrictions on political speech without such theorising, because the purely textual basis for the freedom could plausibly enable an American ‘marketplace of ideas’ with an unfettered flow of political information. 128 By adopting the ‘safe harbour of constitutional text’, Stone argues that the High Court simply avoids the inherently substantive questions about what particular values and institutions are required by a system of representative government. 129
Notwithstanding this lack of explicit theoretical engagement, the implied freedom jurisprudence implicitly acknowledges the need to protect the substantive values underpinning a well-functioning liberal democratic society. For example, in McCloy, the majority held that the ability of the wealthy few to make large political donations was antithetical to ensuring each citizen had an equal share in political power which led them explicitly defend ‘equality of opportunity to participate in the exercise of political sovereignty’ as an aspect of representative democracy. 130 Tham argued that the majority failed to clarify the precise institutional implications of this ‘abstract egalitarian ideal’, 131 and queried whether such a value can be properly supported by the text and structure of the Constitution, 132 as required by the Court’s orthodox approach to the implication. While this incoherence can be attributed to the Court’s lack of theoretical engagement with the concept of representative government, its recognition of broader values like political equality nonetheless reveals its principled acceptance of substantive, liberal democratic goals in enforcing limits on legislative power.
If the Court embraced this broader approach, it could justify an implied equality guarantee as enabling ‘the people’ to meaningfully exercise their sovereignty under the Constitution by removing the barriers to their equal citizenship and full political participation.
(i) Applying an Equality Guarantee to Australian Constitutional Law and Practice
An implied equality guarantee would have significant implications for how the High Court engages with discrete and insular minorities such as Indigenous Australians. For example, if the guarantee had been recognised in Kartinyeri, the Court would not have been bound to an abstract engagement with the law’s treatment of racial groups. Instead, it could have interrogated the effect of the Hindmarsh Island Bridge construction on the Indigenous community which was differentially impacted by the law as compared to other citizens. In doing so, the Court could have meaningfully engaged with the history of Indigenous disadvantage and in particular the deleterious impacts of colonial dispossession on traditional land and cultural rights.
Granted, it is difficult to reconcile such an egalitarian approach with the ongoing inclusion of the races power in the Constitution, which specifically contemplates racially differential treatment and is facially neutral as to whether it requires legal burdens or benefits. 133 While an implied guarantee of equality could strengthen the likelihood of a beneficial interpretation of the races power, this would rely on necessarily circular reasoning regarding the more general presence of non-discrimination values in the Constitution. It is also possible that the races power provides textual support for racist discrimination, as indicated by the Constitution’s drafting history 134 and various provisions which can be read together as entrenching Indigenous dispossession. 135 On the other hand, Dylan Lino has insightfully observed how the egalitarian values sourced from the 1967 referendum, which removed the explicitly racist provision in s 127, 136 lend analytical support to an interpretation of the races power as limited to positive discrimination, as was adopted by Kirby J in Kartinyeri. 137
The extent to which this more liberal reading can be accepted is again a matter of interpretation. Weis notes that three judges in Kartinyeri rejected the 1967 referendum as a source of constitutional meaning and held that its egalitarian intent could not override its minimalist change to the constitutional text, 138 with Gummow and Hayne JJ finding that Parliament would have put to the referendum an amendment that included a reference to ‘benefits’ rather than remaining facially neutral if this had been intended. 139 This demonstrates how a formalistic reliance on the constitutional text reduces the potential for a normatively appealing reading of the races power that would align with substantive equality values. Nonetheless, Kartinyeri was decided at a time when a range of post-1967 Indigenous achievements such as native title rights were under attack from a hostile federal government, giving Lino reason to believe that ‘different judges and a different political climate’ would reach another conclusion. 140 In this way, the existing textual barriers to an egalitarian reading of the Constitution are not entrenched, but may be reinterpreted to give greater weight to factors which could permit the consideration of substantive equality values and minority rights.
(ii) Against a Freestanding Guarantee
Although it is arguable that a guarantee of equality could be implied from the system of representative government, there is limited support for this implication in the text, structure and history of the Constitution. 141
The first argument against such a liberal values-based implication is that the interpretation of the Constitution has relied on a substantially textualist approach with limited recourse to extraneous materials or principles, 142 due in large part to the interpretive influence of the Engineer’s Case, which emphasised that judgments must be ‘strongly grounded in constitutional text and structure’. 143 The inclusion of express provisions that protect individual rights in the Constitution could also justify an expressio unius presumption that such guarantees were intended to ‘cover the field’. 144 This is reinforced by the fact that other provisions of the Constitution prevent discriminatory conduct by state governments in the federal context, which militates against a general implication of equality for citizens. 145 On the other hand, although s 41 of the Constitution contained an express (albeit narrow and transitional) right to vote, this did not preclude the High Court from implying a broader protection of the electoral franchise from the constitutional system of representative government. 146
Nonetheless, the likelihood of an implication of an equality guarantee must be balanced against the fact the framers of the Constitution considered but rejected the inclusion of an American-style Equal Protection clause. 147 The framers were suspicious that constitutional rights protection would undermine parliamentary supremacy, 148 and some delegates were openly concerned to protect the ability of states to discriminate migrant workers on the grounds of race. 149 This notwithstanding, Kirk has cogently argued that the framers may not have thought through the full implications of their decisions, as demonstrated by the entrenchment of representative democracy which has created imperatives that have conflicted with the plenary powers of the Commonwealth in unforeseen ways. 150 It is the role of the Court to resolve internal tensions in such circumstances, which lends support to the judicial implication of new constitutional rights or principles.
However, this potential is likely outweighed by the High Court’s emphasis on the structure and text of the Constitution, which provide limited support for an active judicial protection of individual rights. Following the orthodoxy of the Engineer’s Case, the High Court has willingly enforced a range of structural implications from the Constitution while carefully framing any rights-based implications (such as the freedom of political communication) as limitations on legislative power in a thin proceduralist sense, as opposed to justiciable individual rights. 151 This explains to some degree why the Court has been reticent to derive further implications from the constitutional imperative of representative democracy, seen most recently in its refusal to recognise freedom of association as a freestanding guarantee. 152 Further, Amelia Simpson has analysed the Court’s jurisprudence on the Constitution’s existing non-discrimination guarantees—such as that against discrimination based on state residence in s 117—and concluded that the prevailing interpretation is intended to sustain a harmonious federal union rather than protecting individuals from discrimination. 153
The final objection to an implied equality guarantee arises from the fact the High Court has explicitly rejected one already. The plurality in Kruger rejected the argument that the government’s policy of forced removals of Indigenous children from their families contravened an implied guarantee of substantive equality. 154 Similarly, in Leeth v Commonwealth (‘Leeth’), 155 the majority held that the differential treatment of Commonwealth offenders under state parole regimes was a type of discrimination directly contemplated by the federal structure of the Constitution. 156 Although Simpson has observed that the reasoning in these cases could be distilled to support a narrowly confined guarantee of equal treatment of individuals before the law, 157 this could only manifest as an aspect of the existing restrictions on judicial power and would enable formal rather than substantive equality for individuals.
The text, structure and history of the Constitution as well as the High Court’s decided precedent therefore suggests that it would require a ‘radical shift in accepted methodology’ for Leeth or Kruger to be revisited, 158 meaning it is highly unlikely a guarantee of substantive equality could be implied as a mechanism to protect discrete and insular minorities.
B Proportionality Testing
(i) Equality as a Constitutional Value
A weaker yet viable alternative to a freestanding guarantee would be to integrate a concern for discrete and insular minorities by protecting equality as a value within existing areas of constitutional doctrine. As discussed above, the High Court has explicitly recognised the ‘dignity of the people of the Commonwealth’ as a constitutional value, 159 and various commentators have identified the High Court’s reliance on values such as the rule of law and government accountability in weighing burdens on the implied freedom of political communication. 160
Apart from its connection with representative government as outlined above, a value for equality can also be sourced in the Constitution’s non-discrimination clauses. 161 The High Court’s interpretation of these clauses has not solely confined their scope to federalism guarantees, as indicated by the different judicial approaches which have been adopted according to the purpose served by the particular provision. For example, in Street v Queensland Bar Association (‘Street’), 162 Gaudron J adopted a progressive, living constitutionalist approach to s 117 and interpreted discrimination consistently with the contemporary legal value of equality and non-discrimination in which the interests of the individual (as opposed to federal harmony) are central. 163 Although this interpretation may not have been supported by orthodox constitutional interpretation, Gaudron J’s approach supports Simpson’s argument that the relationship between specific provisions and understandings of equality might shift, so that a provision that is aligned with ‘formal equality among polities’ is not a static connection, but might be reimagined as securing a guarantee of substantive individual equality. 164 While contested, there is therefore precedent for the notion that individual freedom or political equality among citizens is an implicit value supported by the terms of the Constitution. 165 A recognition of this value could then inform the interpretive choices faced by judges in other constitutional freedoms and legislative limits.
(ii) The Implied Freedom of Political Communication
A judicial concern with the value of equality could inflect the High Court’s existing jurisprudence on the implied freedom of political communication. As noted by Dixon, the plurality’s recent refinement of the Lange test into a structured judicial inquiry invites a more open engagement with constitutional values, especially at the stage of considering whether an impugned law is ‘adequate in the balance’, where the Court undertakes a value judgement as to its restrictiveness on protected constitutional imperatives. 166 More relevantly, Gageler J’s comments in Murphy reveal how the burden on the implied freedom could be regarded as more significant where it disproportionately excludes minorities from the political process and would justify subjecting the law to stricter scrutiny.
While the High Court’s jurisprudence on the implied freedom of political communication has not provided an opportunity to recognise discrete and insular minority concerns, it is possible to discern how this might arise under an equality-focused approach to judicial review through a re-analysis of previous decisions. In Coleman v Power, 167 a provision of the Vagrants, Gaming and Other Offences Act 1931 (Qld) was read down by a majority of the High Court not to apply to the case at hand and was ultimately found to be valid. However, the Court found the provision was not valid insofar as it applied to general insulting language, as such a ban may have impermissibly extended to political speech contrary to the implied freedom of political communication. 168 This meant that the prohibition on insulting language only applied when such words were directed to inciting physical violence, rather than ‘uncivil’ speech. 169 Mr Power was a white university student who was charged with an offence under that provision after protesting against police corruption and so the Court’s analysis of the Court was generally confined to the role of ‘civility’ in Australian public discourse. 170 However, regardless of the plaintiff’s identity, a judicial concern with equality might have considered the impact of the law in permitting police discretion to regulate racial discourse, and in turn the capacity for members of minority groups to express frustrations with the police force having regard to their historical relationship. While the outcome of the case may not have changed, this analysis would have likely caused a judge adopting this approach to find that the law could operate more harshly on minorities when burdening the implied freedom and therefore required a ‘compelling justification’. 171
Conversely, in Monis v The Queen (‘Monis’), 172 a provision of the Commonwealth Criminal Code 173 which prohibited menacing, harassing or offensive communication was ultimately found not to infringe the implied freedom of political communication. 174 The plaintiff was convicted for an offence against the provision after sending highly offensive letters to the families of deceased Australian soldiers criticising Australian military involvement in Afghanistan. 175 Crennan, Kiefel and Bell JJ held that the provision went no further than was reasonably necessary to achieve the protective purpose of preventing unsolicited abusive communications. 176
This justification becomes even more persuasive when considering how such abusive communications would impact on already-marginalised minority groups and their willingness to participate in public discourse to challenge the legislative ‘empathy failure’ with which Ely was concerned. These considerations are particularly important in judicial engagement with norms of civil speech, as feminist theorists such as Iris Marion Young have noted the potential for masculinised standards of combative discourse (which were defended by the male judges in Monis) to silence and devalue voices of the ‘other’ (non-white male). 177 In particular, Young argues that the social power dynamics which prevent people from being ‘equal speakers’ in public discourse derive from an ‘internalized sense of the right one has to speak’, 178 which is clearly exacerbated when legal systems permit invective in the spirit of robust political debate. 179
Conversely, civility norms can also operate to exclude marginalised minorities. In particular, Wendy Brown has observed how discourses of tolerance and the closely linked notion of civility articulate normative concepts of ‘belonging and marginality’ 180 in ways that preserve hegemonic identities and power in the liberal public sphere. Young similarly explains that when civility is legally regulated in order to preserve politeness or formality, unorthodox or minority voices are excluded as ‘radical’ from mainstream public debate. 181
In proving how public order offences differentially burden minority groups, whereas private abuse offences may have a protective function, minority groups might submit empirical evidence from criminology studies about how they are disproportionately targeted in private ‘hate crime offences’, yet conversely how police more frequently target minorities in regulating public order. 182
A consideration of how minorities are more likely to be disenfranchised from public discourse would allow for a judicial engagement with these exclusionary norms when considering which forms of public speech should be constitutionally protected. As above, it is possible that these considerations would lead a judge to consider whether the desirability of invective in public discourse provided a sufficiently compelling justification for the law’s increased marginalisation of minority groups from the public sphere.
The above examples demonstrate how a sensitivity towards issues of substantive equality might enable the Court to consider a broader range of potential impacts of an impugned law, and in so doing, correct the ‘majoritarian defects’ that differentially impact minority groups and contribute to their exclusion from the political process.
(iii) Chapter III Detention Jurisprudence
The High Court’s jurisprudence regarding Ch III constraints on judicial and executive detention has engaged with laws which traditionally target politically vulnerable and unpopular groups 183 and so intuitively raises discrete and insular minority concerns. However, this section will explain why process-based theory’s justifications for protecting discrete and insular minorities do not ineluctably extend to the groups impacted by this area of constitutional law.
As a starting point, it is logical and worth considering how purposive exercises of legislative power impact upon non-voting minorities such as asylum seekers who have been subject to executive detention for the purpose of immigration processing. As Rosalind Dixon and Brigid McManus observe, non-citizens do not have the right to vote and lack the ‘public square’ necessary to advocate for their own rights. 184 On one view, this political vulnerability suggests that strong forms of judicial review are necessary with respect to laws which allow the detention of non-citizens. 185
This notwithstanding, it is unclear whether the High Court has embraced proportionality analysis in relation to Ch III constraints that would permit the judicial consideration of equality values. Support for the recognition of proportionality considerations can be found in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Chu Kheng Lim’), in which the plurality held that the test for whether an impugned law detaining an alien or citizen was a proper exercise of judicial power was whether it was ‘reasonably capable of being seen as necessary’ 186 or ‘appropriate and adapted’ 187 to a non-punitive purpose. 188 These formulae would have allowed the Court to weigh the effects of the law on a politically powerless group against the valid non-punitive purposes of detention. However, since Al-Kateb v Godwin (‘Al-Kateb’), 189 the High Court has not endorsed proportionality testing in similar cases. In Re Woolley; Ex parte Applicants M276/2003 (‘Re Woolley’), 190 the majority held that the only restraint in such cases arises in the statutory construction of the law’s purpose, which must not go beyond what is necessary to achieve a non-punitive object, rather than invoking proportionality-style balancing. 191 More recently, the Court has explicitly rejected the relevance of proportionality analysis to the determination of whether a law for the detention of non-citizens contravenes Ch III, given that such an inquiry only arises in relation to a constitutionally guaranteed freedom. 192 This likely precludes the judicial capacity to consider equality and discrete and insular minority concerns in the manner proposed by this article.
In any case, it is unlikely that non-voting groups such as asylum seekers could be considered ‘discrete and insular minorities’ in the sense envisioned by Ely. While acknowledging the political vulnerability of non-citizens because they are ‘literally voteless’, 193 Ely argued that minorities who are ‘technically represented’ have a more compelling claim to protection from the ruling majority than the non-citizen, given that these minorities are members of the community that is ‘doing them in’. 194 Despite having the right to vote, such groups have been persistently unable to protect themselves from ‘pervasive forms of discriminatory treatment’, which led Ely to believe they suffered a more pernicious form of disenfranchisement that was deserving of special judicial treatment. 195 In this way, Ely’s theory should not be understood as securing general rights-based judicial protection, but as a way to supplement the representation of minority groups who suffer inherent disadvantages in their ongoing participation in the political process.
It is also clear that different legal considerations apply to this minority group in a way that reduces the capacity for judicial rights protection. First, states have a recognised sovereign power to exclude and deport aliens, which may place the legislative treatment of such non-citizens beyond the scope of substantive judicial review. Moreover, comparative constitutional analysis undertaken by Dixon and McManus reveals how weaker forms of judicial review in countries such as the UK have promoted meaningful legislative deliberation on asylum seeker policy and resulted in the stronger protection of individual rights. 196 This suggests that the protection of non-voting minorities can be effectively ensured by the legislative process without the need for a process-based judicial intervention that is aimed at more subtle majoritarian defects.
For similar reasons, ‘discrete and insular minority’ concerns should not be factored into the High Court’s Ch III jurisprudence which has upheld state laws providing for the preventative detention of serious offenders based on the Kable doctrine. 197 Although serious offenders and criminal groups can be considered ‘unpopular minorities’ 198 this does not mean they are prima facie a ‘suspect class’ on account of a prejudicial legislative process. Ely argues that while there is ‘widespread societal hostility’ towards the minority group of burglars and laws comparatively disadvantage their lifestyles, there is so clearly a ‘substantial goal’ of community protection behind the law and a close fit between the goal and classification that any initial suspicion raised by the group’s differential treatment is allayed. 199 In a similar way, the goals behind the preventive detention of dangerous sexual offenders seen in Fardon 200 can be clearly justified by the legitimate purpose of protecting the community if the individuals are proved to be recidivist and dangerous offenders. 201
This analysis is not to say that legislation affecting asylum seekers or serious offenders is not worthy of careful scrutiny in order to protect arbitrary interferences with individual rights. Rather, I suggest that the lack of clear proportionality testing under Ch III limits on detention and the misalignment between the characteristics of these groups and Ely’s conception of suspect classifications means that it may not be the most appropriate area in which to integrate discrete and insular minority concerns.
(iv) Implied Incidental Power
Although it is not regularly engaged, the test of ‘reasonable necessity’ that is used to determine whether a law falls within the scope of the implied incidental scope of a legislative head of power could also be used to integrate the judicial protection of equality. 202 Dixon CJ invited proportionality testing in this area when he held that the incidental power extends to ‘everything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfilment of the legislative power’. 203
The role of broader values in ‘reasonable necessity’ analysis was illustrated by Nationwide News Pty Ltd v Wills (‘Nationwide News’), 204 in which three judges held that a law prohibiting critical commentary of the Industrial Relations Commission was outside the incidental scope of the Industrial Relations power. 205 In holding that the law went beyond what was reasonably necessary for the achievement of its objects, Mason CJ held that it was material to ascertain whether the law infringed fundamental values of the common law such as freedom of expression. 206 This demonstrates how the test of reasonable necessity allows the Court to weigh the harms of the law against constitutional values. In principle, this could include a value of substantive equality where a law has adverse or undue consequences for a minority group. It is difficult to foreshadow the type of circumstances which might justify such analysis, because the subject matter of the incidental power is as wide and varied as the legislative heads of power themselves. This difficulty is augmented by the peripheral nature of this area of jurisprudence and its infrequent judicial consideration. This notwithstanding, the incidental power demonstrates a further possible way in which discrete and insular minority concerns may meaningfully inform existing approaches to constitutional interpretation.
VII Conclusion
In its robust protection of representative government as an entrenched structural guarantee of the Constitution, the High Court has demonstrated a ‘representation-reinforcing’ approach that aligns with Ely’s process-based theory. In doing so, it has assumed that the system of representative government is sufficiently enabled by an electoral franchise and free political speech and has refused to engage with equality or minority rights concerns. In this article I have argued that the High Court’s protection of representative government means that it is also required to consider and reinforce minority rights. I have explored the systemic reasons why competitive representative democracies fail to represent minority interests and that, properly understood, the concept of popular sovereignty in the Constitution necessitates judicial intervention to reinforce those interests overlooked by elective institutions. This approach is entirely consistent with the Court’s implied protection of the other substantive rights underpinning constitutionally prescribed political processes—such as an open electoral system and free political discourse. An example of the coherence of this reasoning within existing constitutional practice has already been provided by Gageler J, who has recognised that the ‘channels of political change’ are particularly susceptible to interference by decisional majorities, and carry a systemic tendency to disenfranchise minority interests.
I have not sought to prescribe exactly how this aspect of process-based theory should be recognised in the Australian context but have explored different ways in which it could be achieved. In particular, given the unlikelihood of a freestanding guarantee of equality, I have suggested that a concern for discrete and insular minorities could be enlivened as a constitutional value of equality that operates as a gloss on existing areas of constitutional interpretation. However, my analysis of the Court’s Ch III jurisprudence emphasises how discrete and insular minority concerns cannot be uncritically transplanted to all laws affecting politically unpopular or vulnerable groups but must be attuned to the subtle majoritarian defects with which Ely was concerned.
By drawing attention to this gap in understandings of the High Court’s implicit acceptance of process-based judicial review, I hope to indicate an available avenue to integrate a more robust protection of individual rights and minority interests in the Australian constitutional context.
