Letter to the Editor

Kirk, R. L.; Vos, W. A. G. H.

doi:10.1111/j.1423-0410.1964.tb03780.x

Cited by 1 publication

(1 citation statement)

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“…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.…”

Section: A Freestanding Guarantee Of Equalitymentioning

confidence: 99%

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

Loughland¹

2020

Federal Law Review

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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.

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Section: A Freestanding Guarantee Of Equalitymentioning

confidence: 99%

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

Loughland¹

2020

Federal Law Review

View full text Add to dashboard Cite

show abstract

Letter to the Editor

Cited by 1 publication

References 5 publications

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

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

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