Distinctiveness

This topic asks whether the Australian Constitution is distinctive, and whether anything follows if it is. Three recent articles answer differently. One judgment covers the same ground and never speaks of constitutional identity. The distance between the articles and the judgment is where the work of this topic lies.

What this guide says about the state of the writing is current as at the 2024 publications listed at the end. Several pieces those articles rely on were unpublished at the time, so read later work alongside them.

Unit 1: Two pictures of the same document

Stone sets out two accounts of the Constitution. She treats both as descriptions rather than as judgments about its worth.

The first she calls the small brown bird: a modest document, admired or regretted for its plainness, containing almost nothing describable as a right in conventional terms, with the freedom of political communication as her own qualified exception. On this account the Constitution is a schedule to a United Kingdom Act, born of a federation movement working within existing legal constraints rather than of a revolution. Reading it is a technical job, done through the legalism associated with Dixon CJ. Goldsworthy studied six constitutional democracies. He found Australian judges the most likely to treat the Constitution as a set of written provisions that bind because they were enacted, and the least likely to treat it as resting on ideas about political morality (Stone, 128 to 130).

The second account is of a robust if imperfect democracy and a socially progressive, active state. Stone builds it from four things: the egalitarianism she reads into the freedom of political communication cases, the franchise cases, Australia's record of electoral innovation including the secret ballot and compulsory voting, and the liberalism and social progressivism of the founding (Stone, 130 to 136). She closes by naming the flaw the second account has to carry, which is that Australian democracy was racially exclusionary from its inception (Stone, 138 to 139).

Gageler covers the same ground through time. He tracks how opinion of the Constitution moved from confidence to disparagement and back. Bryce called the Constitution the high-water mark of popular government and said it was penetrated by the spirit of democracy; Harrison Moore identified its great underlying principle as securing the rights of individuals by giving each an equal share in political power; by the 1970s the Constitution was routinely described as a product of the horse and buggy age (Gageler, 203 to 210). He then names a new body of writing that recovers the earlier view (Gageler, 202, 214) and asks what is Australian about the Australian Constitution (Gageler, 215).

Partlett argues from the text and its history. His claim is that the drafters broke with British political constitutionalism by giving the people a direct role, secured above all in s 128 and s 57 (Partlett, 156, 164).

Unit 2: What the franchise cases decide

Both Stone and Partlett lean on the franchise cases. The reasons are worth reading for yourself.

Rowe v Electoral Commissioner (2010) 243 CLR 1, High Court of Australia. Amendments made in 2006 to the Commonwealth Electoral Act 1918 (Cth) provided that a claim for enrolment must not be considered from 8 pm on the date of the writ, and a claim for transfer of enrolment from 8 pm on the date of the close of the rolls, fixed at the third working day after the writ. The rolls had previously closed seven days after the writ. The plaintiffs were an elector who had turned eighteen in June 2010 and an elector who had changed address in March 2010. Evidence from the Deputy Electoral Commissioner was that approximately 100,000 claims for enrolment were received after the cut-off dates, and evidence that those claims could have been processed within the statutory timetable for the election was not controverted. The Court declared the provisions invalid by majority on 6 August 2010 (Rowe at [317] to [323] and note 299).

The prescribed range is Crennan J's reasons at [324] to [347], and they run in four steps. First, method: the text is construed having regard to the historical setting in which the Constitution was created, including the colonial suffrages of 1900 (at [324]). Second, allocation: the qualification for the franchise and the method of election are left to the political choice of Parliament, so long as the system adopted stays within the range by which Houses may be composed of members "directly chosen by the people" (at [325]). Third, constraint: the historical circumstances and the stage reached in the evolution of representative government show that the relevant words have always constrained Parliament, congruent with Gleeson CJ's conclusion in Roach that those words have come to be a constitutional protection of the right to vote (at [326] to [328]). Fourth, content: the Constitution "does not subscribe to any political philosophy, or theory of government", and "choice by the people" is a constitutional notion signifying individual citizens having a share in political power through a democratic franchise (at [347]).

The history in between is long and specific: the Putney debates and the Levellers' Agreements of the People, the Reform Acts of 1832, 1867 and 1884, the People's Charter of 1838 with its demand for a vote for every man of sound mind and for a secret ballot, and the colonial franchises of the 1850s, including the Ballarat Reform League and the digger franchise that preceded manhood suffrage in Victoria (at [333] to [343]). Her Honour also records that the expression "chosen ... by the People" appears in Art I, s 2 of the American Constitution but has its own distinctive history in Australia, grounded in British constitutional history and colonial politics (at [330]).

Roach v Electoral Commissioner (2007) 233 CLR 162 is the case Rowe builds on. It concerned the disqualification from voting at federal elections of all persons serving a sentence of imprisonment, and the majority held those provisions invalid, a disqualification requiring a substantial reason consistent with choice by the people (Rowe at [404], Kiefel J), while the pre-existing disqualification of prisoners serving three years or longer was upheld (Stone, 132).

Read Rowe in full within the prescribed range. This short account helps you find your way around the report. It does not replace it. The same goes for Roach, described here only through what Rowe says about it.

Unit 3: Distinctiveness and imported concepts

The practical question is whether a distinctive constitutional system should resist ideas developed elsewhere. Two ideas are worth following.

The first is dignity. Partlett objects that Australia's system does not protect individual rights, so protecting individual dignity is not a compelling purpose for it, and he directs the objection at the plurality in Clubb v Edwards (Partlett, 172). Clubb v Edwards (2019) 267 CLR 171, High Court of Australia, concerned a challenge by Mrs Clubb to s 185D of the Public Health and Wellbeing Act 2008 (Vic), inserted by the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic), which prohibits, in certain circumstances, communicating by any means in relation to abortions within a safe access zone; the conduct must be reasonably likely to cause distress or anxiety (Clubb at [2] and [58]); the appeal was dismissed so far as it had been removed into the Court. The reasoning Partlett cites appears at [51], where the plurality localises the concept: within the present constitutional context, the protection of the dignity of the people of the Commonwealth, "whose political sovereignty is the basis of the implied freedom", is a purpose compatible with the constitutionally prescribed system. The same anchor recurs at [98] and [99], where a law calculated to maintain the dignity of members of the sovereign people is said to accord with the political sovereignty which underpins the implied freedom. Whether that answers his objection, or only gives it a new name, is the arguable point.

The second is structured proportionality. This objection is separate, and nothing said about dignity meets it. His difficulty is with the third stage. He asks why a test taken from systems that protect individual rights is used here, where the point of the Constitution is to keep Parliament answerable to the people. He prefers the calibrated scrutiny test he adopts from Gageler and Gordon JJ, closely examining laws that burden core aspects of popular political constitutionalism and deferring to laws that do not (Partlett, 172 to 174).

The orthodox proposition both objections sit on is that the implied freedom is not a personal right. In McCloy v New South Wales (2015) 257 CLR 178, High Court of Australia, the plaintiffs challenged New South Wales provisions capping political donations and making it unlawful for a prohibited donor, defined to include a property developer, to make one; the Court held that the provisions did not impermissibly burden the implied freedom, Nettle J dissenting as to the property developer prohibition. The plurality reasoned that an argument treating the freedom as a personal right mistakenly equates it with a right such as the First Amendment confers, and that guaranteeing the ability of a few to make large donations to secure access to those in power would be antithetical to Harrison Moore's great underlying principle (McCloy at [27] to [30]).

Stone is cautious in the other direction, and it is worth setting her caution beside Partlett's. She sees the appeal of using constitutional identity to strengthen the foundation of the freedom of political communication. She resists it. The line between an implication drawn from the structure of the Constitution and a constitutional right is blurred, and the move risks bringing the Australian Constitution much closer to a typical rights-based constitutional order (Stone, 137).

Read Clubb and McCloy in full before relying on either. Both are prescribed later in this subject. What is said here covers only what they add on distinctiveness.

Unit 4: What a distinctiveness claim is a claim about

Distinctive means distinctive from something. A claim cannot be tested until two things are named: what the Constitution is being compared to, and how it differs. The reading set uses at least three comparisons for the same word. Stone's is the post-World War II democratic world, against which Australian exceptionalism about rights marks a real difference (Stone, 130). Partlett's is British political constitutionalism and the unlimited legal sovereignty of Parliament (Partlett, 156, 157). Crennan J's, in the one judgment prescribed, is the American usage of "chosen ... by the People" (Rowe at [330]).

Gageler's three-way split keeps these apart. Comparative work collects similarities and differences between constitutions and between the ways courts read them. Pan-constitutional work sets out deep principles they share. The new writing draws on both and belongs to neither. It asks what is Australian about the Australian Constitution (Gageler, 214 to 215). An argument that shows Australia differs from another country has answered the first question. It has not answered the third.

A third thing decides whether the claim matters rather than merely being true, and that is what follows from it. Stone says plainly what follows from hers: the effect on how the Constitution is read is small, and the effect on political culture may be much larger (Stone, 138). What follows from Partlett's is a test for courts, the calibrated scrutiny he adopts from Gageler and Gordon JJ (Partlett, 174).

Where a writer and a judgment say different things, quote both exactly and say so rather than smoothing it over. Stone reads the franchise cases as rare judicial ventures into constitutional identity, even where the judges do not see them that way (Stone, 132). Crennan J says the Constitution subscribes to no political philosophy and no theory of government (Rowe at [347]). Both can be quoted accurately. No source in this reading set says when a court's account of its own reasoning may be set aside.

What to be able to reproduce

Provisions

• Constitution ss 7 and 24: Houses composed of members "directly chosen by the people".
• Constitution s 57 (deadlock, double dissolution and joint sitting) and s 128 (alteration by referendum) as the provisions Partlett identifies as securing the direct role of the people.
• Commonwealth Electoral Act 1918 (Cth) ss 102(4), 102(4AA) and 155, as amended in 2006 and impugned in Rowe.
• Public Health and Wellbeing Act 2008 (Vic) s 185D, impugned in Clubb.

Authorities

• Rowe v Electoral Commissioner (2010) 243 CLR 1, especially Crennan J at [324] to [328], [330], [347].
• Roach v Electoral Commissioner (2007) 233 CLR 162: disqualification requires a substantial reason.
• Clubb v Edwards (2019) 267 CLR 171 at [51], [98] to [99]: dignity anchored in the political sovereignty underpinning the implied freedom.
• McCloy v New South Wales (2015) 257 CLR 178 at [27] to [30]: the implied freedom is not a personal right.

Positions, with their pinpoints

• Gageler CJ, 214 to 215: the three enterprises, and the emergent scholarship's subject.
• Stone, 128 to 136: the two accounts; 137 to 138: muted interpretive consequences and the institutional dimension.
• Partlett, 156 and 164: the break with British political constitutionalism, secured in ss 57 and 128; 172 to 174: the objections to dignity and structured proportionality, and the calibrated scrutiny test adopted from Gageler and Gordon JJ.

Four questions to argue

Four questions written for teaching, on the ground the readings cover. None of them is anyone's assessed question. Each carries the questions the readings raise, a clue under each question, what the readings say about it, and what the readings leave open. The three demonstrations at the end belong to the topic rather than to any one question.

Prompt 1

Crennan J in Rowe v Electoral Commissioner reasoned from the British and colonial franchise debates of the nineteenth century to the conclusion that ss 7 and 24 have always constrained the Commonwealth Parliament, while also stating that the Constitution "does not subscribe to any political philosophy, or theory of government".

Discuss her Honour's reasoning from the standpoint of the claim that the Australian Constitution carries a distinctive constitutional identity. In doing so:

(i) identify what work the historical material does in the reasoning; and

(ii) assess whether reasoning of that kind can supply evidence of constitutional identity.

Scope note. This question does not ask whether Rowe was correctly decided, and it does not ask for an account of the implied freedom of political communication or of structured proportionality. The reasoning of other members of the Court is within scope only where it is expressly compared with Crennan J's.

1. 1What is the historical material for? Crennan J takes it as interpretive context, construing the text "having regard to the historical setting in which the Constitution was created", including the colonial suffrages of 1900 (Rowe at [324]). The passage does not say whether context of that kind fixes what the words mean, or says something about the country that adopted them.

   Clue

   The history runs from [333] to [343]. The conclusion drawn from it occupies a single sentence at [328]. The distance between the two is where part (i) sits.

   Where the readings point

   Crennan J sets out the history at length: the Putney debates and the Levellers' Agreements of the People, the Reform Acts of 1832, 1867 and 1884, the People's Charter of 1838, and the colonial franchises of the 1850s including the Ballarat Reform League and the digger franchise (Rowe at [333] to [343]). The conclusion drawn from it is stated in one sentence. Her Honour says the historical circumstances and the stage reached in the evolution of representative government "assist in exposing the bedrock" and show that the relevant words "have always constrained Parliament" (Rowe at [328]). That is a conclusion about what words mean. The passage does not ask whether reasoning of that kind also says something about the character of the country.

2. 2Can a judgment that disclaims political philosophy evidence constitutional identity? At [347] her Honour states that the Constitution "does not subscribe to any political philosophy, or theory of government", while giving "choice by the people" the content of individual citizens sharing political power through a democratic franchise. Stone anticipates the difficulty, describing the franchise cases as judicial forays into constitutional identity "even if the judges do not conceive of them this way" (Stone, 132).

   Clue

   Stone's qualification at 132 carries the weight, and she writes it in before the objection can be made. Nothing in the reading set says when a court's account of its own reasoning may be set aside.

   Where the readings point

   Stone's answer is that what judges say about their own reasoning does not settle the matter. She writes that qualification in before the objection can be made (Stone, 132). The sentence at [347] states what the phrase means: a share in political power through the vote. Neither source says what a claim about identity adds once that meaning is stated, or what would show the addition to be right.

3. 3Distinctive against what? Crennan J notes that "chosen ... by the People" appears in Art I, s 2 of the American Constitution but has "its own distinctive history in Australia", grounded in British constitutional history and colonial politics (Rowe at [330]). Distinctive there means grown locally inside a tradition Australia inherited. Partlett claims a break from that tradition (Partlett, 156).

   Clue

   Three comparators are in play across this topic: the post-war democratic world, Britain, and the United States. No account is confined to one of them: Stone uses all three (Stone, 128, 129, 130).

   Where the readings point

   Gageler's three-way split helps here. Comparative work asks how constitutions differ from each other. Pan-constitutional work asks what deep principles they share. The new writing does neither, and asks what is Australian about the Australian Constitution (Gageler, 214 to 215). The third draws inspiration from the first without being concerned with comparing national constitutional systems (Gageler, 215). Rowe at [330] supplies one comparator, the American usage, and Partlett supplies another, Britain. Partlett relates the two, arguing that the implications drawn from ss 7 and 24 must be theorised in their own right, outside the concepts and categories of both American and British constitutionalism (Partlett, 173).

4. 4How much does the disclaimer constrain? At [325] the Constitution is said to leave to Parliament, within the limits it fixes, the prescription of the form of representative government. Whether that leaves room for a claim about identity to do further work is the live question.

   Clue

   Hold [325] beside [347]: the allocation to Parliament and the disclaimer of philosophy sit at the two ends of the prescribed range.

   Where the readings point

   Stone's own conclusion runs the same way as [325]. She calls the effect of her account on how the Constitution is read "somewhat muted" (Stone, 138). She warns that using constitutional identity to strengthen the freedom of political communication would bring Australia much closer to a typical rights-based constitutional order (Stone, 137). Partlett takes the opposite view, that the Court could have gone further by explaining that the implication rests on the direct role of the people (Partlett, 171).

Prompt 2

Partlett writes that "Australia's constitutionally prescribed system of popular political constitutionalism does not protect individual rights", and concludes that "[p]rotecting individual dignity is not a compelling purpose for such a system" (Partlett, 172).

Discuss that proposition. In doing so:

(i) state the purpose the plurality in Clubb v Edwards identified and the constitutional warrant given for it; and

(ii) assess whether the proposition is an objection to that reasoning or to a characterisation of it.

Scope note. This question does not ask whether s 185D of the Public Health and Wellbeing Act 2008 (Vic) is valid, and it does not ask for an account of the three stages of structured proportionality. Comparative material on dignity in other jurisdictions is within scope only where it is expressly compared with the reasoning in Clubb.

1. 1What did the plurality actually rest dignity on? Partlett cites Clubb at 196 [51] for the plurality's reliance on dignity and on Barak (Partlett, 172). The sentence in which that reliance appears supplies its own constitutional anchor, so the question is whether the objection is to the concept or to its justification.

   Clue

   The sentence cited at [51] carries its anchor in its second half. The same anchor returns at [98] and [99].

   Where the readings point

   In Clubb v Edwards Mrs Clubb challenged s 185D of the Public Health and Wellbeing Act 2008 (Vic), which bans, in certain circumstances, communication about abortions inside a safe access zone, where it is reasonably likely to cause distress or anxiety (Clubb at [2] and [58]). The appeal was dismissed so far as it had been removed into the Court. The judgment ties dignity to the Constitution in two steps. At [49] protecting the privacy and dignity of women accessing abortion services is identified as an aspect of the prohibition's purpose. At [51] the reasoning is tied to the Australian setting: "[w]ithin the present constitutional context", the protection of the dignity of the people of the Commonwealth, "whose political sovereignty is the basis of the implied freedom", is a purpose compatible with the maintenance of the constitutionally prescribed system (Clubb at [49] to [51]). At [98] and [99] the plurality reasons that it is inconsistent with the dignity of members of the sovereign people to hold them captive to an uninvited political message, and that a law calculated to maintain that dignity "accords with the political sovereignty which underpins the implied freedom" (Clubb at [98] to [99]).

2. 2Does where an idea came from decide what work it can do? At [50] the plurality quotes Barak extra-judicially for the proposition that dignity is the source from which other human rights are derived (Clubb at [50]). Whether an idea with that history brings the assumptions of a rights system with it, when used in an implication drawn from the structure of the Constitution, is what this question turns on.

   Clue

   McCloy at [29] to [30] settles what the implied freedom is not. Whether it also settles the vocabulary in which a legislative purpose may be described is a further question, and the passage does not reach it.

   Where the readings point

   The proposition Partlett relies on is orthodox. In McCloy v New South Wales, where the plaintiffs challenged New South Wales provisions capping political donations and prohibiting donations by property developers and the Court held that the provisions did not impermissibly burden the implied freedom, Nettle J dissenting as to the property developer prohibition, the plurality held that the implied freedom is not a personal right, and that an argument treating it as one mistakenly equates it with a right such as the First Amendment confers (McCloy at [29] to [30]). What that proposition does not decide is whether a purpose may be described in the vocabulary of dignity while being justified structurally; the passages at [51] and [98] to [99] bear on whether the two can come apart.

3. 3Is the objection to the purpose or to the method? Partlett makes two criticisms in one passage. One is about dignity as a purpose. One is about structured proportionality, a test taken from the European system for protecting individual rights (Partlett, 172 to 173). Each can succeed or fail without the other.

   Clue

   Two criticisms occupy one passage at 172 to 173. Separating them is the whole of part (ii).

   Where the readings point

   The objection to structured proportionality stands on different ground. Partlett's difficulty is with the third stage, asking why a test taken from the individual rights context is used where the constitutional purpose is to guarantee a system through which the people hold Parliament to account (Partlett, 172 to 173). That objection is directed at a method of reasoning rather than at a legislative purpose, and the reading set does not say whether an answer given in terms of purpose can reach it.

4. 4What follows for the wider distinctiveness claim? Gageler CJ has the emergent scholarship drawing on comparative constitutionalism and pan-constitutionalism while being concerned with neither (Gageler, 215), so borrowing and distinctiveness evidently coexist. What is unfixed is how much borrowing a claim of distinctiveness can carry.

   Clue

   Two treatments of an import sit in the reading set: Partlett at 173 rejects one class outright, and Clubb at [51] shows one being localised.

   Where the readings point

   How much borrowing a claim of distinctiveness can carry is not fixed at large. Partlett fixes it for one class of concept, requiring the implications drawn from ss 7 and 24 to be theorised in their own right, outside the concepts and categories of both American and British constitutionalism (Partlett, 173).

Prompt 3

Gageler CJ describes an emergent body of constitutional scholarship as "bent on exploring the distinctiveness ... of the Australian Constitution", its Australianness (Gageler, 215). A claim of that kind becomes assessable once three things are fixed: the comparator it is run against, the respect in which the difference is said to lie, and the consequence said to follow.

Taking that framework as given:

(i) identify the comparator, the respect and the consequence in Stone's account of Australian constitutional identity; and

(ii) assess whether the three, as she states them, belong to a single claim.

Scope note. This question does not ask for a survey of the scholarship Gageler CJ lists, and it does not ask for a history of changing perceptions of the Constitution. Partlett's account is within scope only where it is expressly compared with Stone's.

1. 1What does Stone compare the Constitution to? She adopts one comparison as her measure at 130. An open contrast with the United States at 128, and the framers' preference for British institutions at 129, also do work.

   Clue

   Only the comparison at 130 is adopted as the measure. The contrast at 128 is open on the page; the one at 129 is not.

   Where the readings point

   Stone names her comparison: Australian exceptionalism about rights marks a real difference between the Australian Constitution and most others in the post-World War II democratic world (Stone, 130). Two more do work without being adopted as her measure. At 128 the document is set against the United States Constitution in an open contrast: born of a revolution where the Australian Constitution was a schedule to a United Kingdom Act. At 129 the absence of a bill of rights is attributed to the framers' preference for British institutions. Partlett states his openly. It is British political constitutionalism, and in particular a Parliament with no legal limit on its power (Partlett, 156, 157, 160).

2. 2Are the differences of one kind? No bill of rights is a fact about the text. The depth of Australian legalism is a fact about what courts do. Electoral invention is a fact about legislation (Stone, 129, 130, 133).

   Clue

   Read 129, 130 and 133 asking of each: a fact about what? The answer changes each time.

   Where the readings point

   Stone states each difference and gives a source for it. The Constitution includes almost nothing describable as a right in conventional terms, with the freedom of political communication as her own qualified exception (Stone, 129). The Australian devotion to legalism is distinctive in depth, Goldsworthy's study of six constitutional democracies having identified Australian judges as the most inclined to conceive of the Constitution as a set of discrete written provisions whose authority derives from formal enactment (Stone, 130). The tradition of electoral innovation includes the secret ballot, preferential voting, Saturday voting and compulsory voting (Stone, 133).

3. 3What is the consequence, and is it a constitutional one? Stone states hers against her own interest, describing the interpretive consequences as somewhat muted and the consequences for political culture as potentially much more significant (Stone, 138).

   Clue

   Stone at 138 and Partlett at 174 each state a consequence. Set them side by side and ask whether they are of the same kind.

   Where the readings point

   Stone describes the interpretive consequences of her account as somewhat muted and the consequences for political culture as potentially much more significant (Stone, 138). Partlett's consequence is doctrinal, being the calibrated scrutiny test he adopts from Gageler and Gordon JJ, under which laws burdening core aspects of popular political constitutionalism attract higher scrutiny and others attract deference (Partlett, 174).

4. 4Do the three belong to one claim? Stone names one comparison and uses two more in passing. She gives three kinds of difference. She gives one thing that follows.

   Clue

   No author states a requirement that each respect and each consequence be paired with the comparison it is drawn against.

   Where the readings point

   Gageler CJ's taxonomy keeps the enterprises apart. Comparative constitutionalism collects similarities and differences across comparable jurisdictions, pan-constitutionalism expounds deep principles common to them, and the emergent distinctiveness scholarship draws on both while being concerned with neither (Gageler, 214 to 215). Partlett requires the implications drawn from ss 7 and 24 to be theorised in their own right, outside the concepts and categories of both American and British constitutionalism (Partlett, 173).

Prompt 4

Stone concludes that the interpretive consequences of her account of Australian constitutional identity are "somewhat muted", while its consequences for political culture are, or have the potential to be, "much more significant" (Stone, 138).

Discuss that conclusion from the standpoint of a reader who asks what constitutional work an identity claim performs. In doing so:

(i) identify the interpretive work an account of constitutional identity could do; and

(ii) assess whether an account whose interpretive consequences are muted is doing constitutional work or work of another kind.

Scope note. This question does not ask for an account of the competing theories of constitutional interpretation, and it does not ask whether the freedom of political communication is correctly founded. Material on judicial method is within scope only where it bears on the identity claim.

1. 1Does restraint count? Whether giving a court a reason to hold back counts as work on the meaning of the Constitution is the question Stone's muted conclusion forces.

   Clue

   Stone at 133 to 134 already produces interpretive work of the ordinary kind, and Rowe at [326] shows the same method operating in the reasons.

   Where the readings point

   Stone's account already changes how the words are read, in one setting. Enduring legislative developments may in appropriate circumstances inform the meaning of the Constitution, forming a baseline from which the law may not depart without a substantial reason (Stone, 133 to 134). That method is visible in the reasons rather than only in the commentary on them. In Roach, on the disqualification from voting of all persons serving a sentence of imprisonment, where the majority held the provisions invalid (Rowe at [404], Kiefel J), Gleeson CJ treated long established universal adult suffrage as an historical development of constitutional significance, and concluded that the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote, a passage Crennan J sets out in Rowe (Rowe at [326]).

2. 2Why is Stone cautious? She gives her reason, and it is not modesty. She identifies a risk that the argument would bring the Australian Constitution much closer to a typical rights-based constitutional order (Stone, 137).

   Clue

   Her reason sits at 137, with Black's argument at its pivot, and runs into the two dimensions she names at 137 to 138.

   Where the readings point

   Her reason for caution is about the shape of the Constitution. Stone observes that the line between a structural implication and a constitutional right is blurry, Black having argued that a right to freedom of speech arose from the democratic nature of the United States Constitution even without the First Amendment, so that preferring an argument from structure tells very little about what the freedom covers (Stone, 137). She then states the tension in her own terms: Australian constitutionalism has a substantive dimension envisaging a wide franchise and egalitarian participation, and an institutional dimension preserving a strong and innovative state, and an expansion of the Constitution's limiting power ignores the second (Stone, 137 to 138).

3. 3Is Partlett's disagreement about kind or degree? He would have the Court say more about the people's direct role (Partlett, 171), yet the test he favours is itself deferential in a defined class of cases (Partlett, 174).

   Clue

   Partlett at 171 asks for more from the Court. Partlett at 174 defers in a defined class of cases. Part (ii) is what happens when those two passages are held beside each other.

   Where the readings point

   Partlett's position is that the Court could have gone further by explaining that the implication also rests on the special direct role the people play, which requires judicial scrutiny of laws threatening that system (Partlett, 171). The test he adopts from Gageler and Gordon JJ, however, would closely scrutinise laws burdening core aspects of popular political constitutionalism while deferring to laws that do not (Partlett, 174). He relates the two through a balancing rationale, warning that the Court must be careful not to go so far as to undermine the operation of political constitutionalism (Partlett, 172), and introducing the calibrated test as what that rationale suggests (Partlett, 174). What is not stated is a criterion for identifying a core aspect.

4. 4What do the reasons themselves allow? Crennan J records that the Constitution left it to Parliament, within the limits fixed by the Constitution, to prescribe the form of representative government (Rowe at [325]).

   Clue

   Crennan J's allocation at [325] sits beside Stone's stated consequence at 138 and Partlett's at 174.

   Where the readings point

   Rowe at [325] leaves the form of representative government to Parliament within constitutional limits, which is consistent with either account and decisive of neither. It does suggest that an identity claim asserting a direction for doctrine has to explain how it operates inside that allocation.

Handling the case

The paragraph below puts Rowe into ordinary prose: the principle first, then the case, what the amendments did, who sued, and what the Court decided. It shows what a case looks like when it is handled properly. It reaches no conclusion on any of the questions above.

The principle that longstanding historical development may fix the content of a constitutional expression is illustrated by Rowe v Electoral Commissioner, a decision of the High Court of Australia. Amendments made in 2006 to the Commonwealth Electoral Act 1918 (Cth) provided that a claim for enrolment must not be considered from 8 pm on the date of the writ, and that a claim for transfer of enrolment must not be considered from 8 pm on the date of the close of the rolls, fixed at the third working day after the writ, where the rolls had previously closed seven days after the writ (Rowe at [319] and [322] note 299). The plaintiffs were an elector who had turned eighteen in June 2010 and an elector who had changed address in March 2010, each obliged under the Act to enrol or to transfer enrolment (Rowe at [317] to [318]). Evidence from the Deputy Electoral Commissioner was that approximately 100,000 claims for enrolment were received after the cut-off dates, and evidence that those claims could have been processed within the statutory timetable for the election was not controverted (Rowe at [322]). The Court declared the provisions invalid by majority on 6 August 2010 (Rowe at [323]). Crennan J joined in those orders on the ground that the historical circumstances and the stage reached in the evolution of representative government show that the words of ss 7 and 24 have always constrained Parliament (Rowe at [328]). The Court divided four to three, French CJ, Gummow, Crennan and Bell JJ in the majority and Hayne, Heydon and Kiefel JJ dissenting (Rowe (2010) 243 CLR 1 at 2, headnote), which bears on how far the reasoning will be pressed in later cases.

Handling a counter-argument

The passage below shows an argument answering the strongest objection to itself. It comes from the reading set: Stone, having built her second account, raises the move that would extend it, states its appeal, and argues against it in place (Stone, 137 to 138). What follows names each step and where it happens. It reaches no conclusion on any of the questions above.

The extension on offer is attractive, and Stone states its attraction herself: constitutional identity could be used to shore up the foundations of the freedom of political communication and fill out its meaning (Stone, 137). Her answer opens by taking the extension seriously rather than by dismissing it. The line between a structural implication and a constitutional right, she observes, is rather blurry: Black had argued that a right to freedom of speech arose from the democratic nature of the United States Constitution even without the First Amendment, so a preference for structural arguments tells very little about the content or shape of the freedom (Stone, 137). From that she draws the consequence against the move: the extension would bring the Australian Constitution much closer to a typical rights-based constitutional order (Stone, 137). She then adds the reason resting on her own account: Australian constitutionalism has an institutional dimension, a strong and innovative state acting through the political branches, and an expansion of the Constitution's limiting power ignores that feature of the story and is potentially self-defeating (Stone, 137 to 138). The sequence is what the passage teaches: the attraction of the opposing move is stated first and at full strength, the answer engages its strongest form, and the conclusion rests on named features of the material rather than on assertion.

Recitation miss

The Australian Constitution has long been described in unflattering terms. Gageler CJ records that the "horse and buggy" metaphor was a constant motif in Australian constitutional discourse, and that Sawer had written in 1967 that Australia was constitutionally the frozen continent (Gageler, 203). Early scholars saw matters differently. Bryce described the Constitution as the high-water mark of popular government and as penetrated by the spirit of democracy (Gageler, 205). Harrison Moore recognised the great underlying principle to be that the rights of individuals are sufficiently secured by ensuring to each an equal share in political power (Gageler, 210). Gageler CJ then identifies a new body of scholarship concerned with the Australianness of the Australian Constitution (Gageler, 215).

Stone tells two stories. The first is the small brown bird, a modest document without a bill of rights, interpreted through the legalism associated with Dixon CJ (Stone, 128 to 130). The second is a robust if imperfect democracy and a socially progressive, active state, built from the freedom of political communication cases, the franchise cases, Australia's electoral innovations and the liberalism of the founding (Stone, 131 to 136). Partlett argues that the drafters broke with British political constitutionalism by guaranteeing the people a direct role, secured in ss 57 and 128 (Partlett, 156, 164).

In Rowe, Crennan J traced the franchise from the Putney debates through the Reform Acts and Chartism to the colonial franchises of the 1850s, and concluded that "choice by the people" signifies individual citizens having a share in political power through a democratic franchise (Rowe at [333] to [347]).

Each of these propositions is accurate and each is supported. None of them answers the question asked. This answer has surveyed the field the question named instead of asking what the historical material does in Crennan J's reasoning and whether reasoning of that kind can evidence constitutional identity.

Check the distinctions

Sources for this topic

• Stephen Gageler, 'The New Constitutional Scholarship in Australia' (2024) 48(1) Melbourne University Law Review 202.
• Adrienne Stone, 'More than a Rule Book: Identity and the Australian Constitution' (2024) 35(2) Public Law Review 127.
• William Partlett, 'Australian Popular Political Constitutionalism' (2024) 52(2) Federal Law Review 156.
• Rowe v Electoral Commissioner (2010) 243 CLR 1, focusing on [324] to [347].

Clubb v Edwards (2019) 267 CLR 171 and McCloy v New South Wales (2015) 257 CLR 178 are drawn on here because Partlett relies on them, and both are prescribed at later points in this subject.