Entrenching the Right to Non-Discrimination: A Defence
The Expert Panel on Constitutional Recognition of Indigenous Australians (‘Expert Panel’) has proposed inserting a constitutional right against racial discrimination. In this essay, I defend the efficacy of a constitutional right to non-discrimination against arguments made by ‘democratic critics’ of constitutional protections. I conclude that the strongest objections made by one of the most influential of the democratic critics, Jeremy Waldron, fail to provide reasons to reject a constitutional right to non-discrimination in Australia. Technical details such as the precise wording of such a provision are beyond the scope of this essay. Instead, I focus on discussing a constitutional right to non-discrimination in more general terms.
That there should be a constitutional right to non-discrimination seems at first to be an uncontroversial proposition. But the democratic critics of constitutional rights raise a powerful challenge that must be addressed. The purpose of this essay is to answer that challenge and justify the entrenchment of a constitutional right to non-discrimination.
2. The Proposal
Almost all Australians now recognise that some racial groups, Indigenous Australians especially, have been harmed by racist policies and practices. The Stolen Generations and the White Australia policy are two oft-cited examples of such racist policies. Fortunately, Australia’s attitude towards racial minorities is now more tolerant, as indicated by the Newspoll surveys on constitutional recognition of Indigenous Australians. In the modern political climate, it seems unthinkable that practices as repugnant as the Stolen Generations or White Australia policy could be approved by Parliament. But the only legal guarantee that such practices will not be repeated are subject to the will of Parliament.
The Expert Panel proposes the insertion of a new section of the Australian Constitution prohibiting the governments of Australia from discriminating on the basis of race except for the purposes of “overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group”. They hope that this constitutional provision will provide additional protection to racial minorities that will last even if the political attitude towards racial minorities takes a turn for the worse.
As the Expert Panel points out, Australia’s commitment to non-discrimination is already expressed through legislation: the Racial Discrimination Act 1975 (Cth) prohibits various forms of racial discrimination, and because of Section 109 of the Constitution, the state and territorial parliaments are prohibited from passing legislation inconsistent with the Racial Discrimination Act. Yet there is nothing stopping the Commonwealth Parliament from repealing the Act and abrogating the right against racial discrimination. This possibility is the concern motivating constitutional entrenchment of a right to non-discrimination.
Constitutionally entrenched rights cannot be abrogated at Parliament’s pleasure. There are only two means by which the effect of a constitutional provision can be changed: its wording can be directly altered by referendum, or the High Court can adopt a different interpretation of the provision. For this reason, the Expert Panel hopes, a constitutional right will grant additional protection to minorities – protection that will endure even if the political climate changes for the worse. However, opponents of constitutional rights have questioned whether entrenching such a right will grant any real protection to racial minorities.
3. Political Inequality
The democratic critics’ first argument against constitutional rights hinges on the power of the High Court. For most disputes about rights within society, the judiciary is the first stop. However, if the legislature believes that the judicial decision leads to an undesirable result, they can always override it through legislating to the contrary. The judiciary is limited to interpreting the legislation passed by legislatures. This is not the case when the rights being disputed are constitutionally entrenched.
This is because the High Court is empowered to both strike down legislation that contravenes the Constitution and to determine when the Constitution is contravened. Should the High Court exercise these powers, Parliament is not able to override its decision. Consequently, when Parliament and the High Court have differing views about the exact nature of constitutional law, the High Court’s view prevails over Parliament’s. As Waldron argues, the system of judicial review allows revision of constitutional law by the judiciary and disallows such revision by Parliament, resulting in a “striking political inequality” in favour of an elite group of jurists.
Opponents of constitutional protection for racial minorities can argue that this political inequality is unlikely to provide any additional protection to Indigenous Australians. Judiciaries are capable of making unjust decisions, and they have done so before. Critics can further argue, as Waldron does, that the traditional argument for judicial review – that the electorate might make decisions out of self-interest rather than based on good faith beliefs about rights – is no justification for giving power to the judiciary over the electorate, because judges are also entirely capable of making selfish decisions. For these reasons, they may argue, a constitutional right to non-discrimination will not prevent Australia from repeating its past mistakes.
In summary, this critique of constitutional rights, then, relies on the following proposition:
POLITICAL EQUALITY. The judiciary has no better claim than the legislature over the determination of issues relating to rights, so the protection of rights should not be placed in the judiciary’s hands.
The following section will argue that POLITICAL EQUALITY provides no reasons for the rejection of constitutional rights that do not also support the rejection of other legal rights.
4. Legal and Constitutional Rights
The argument behind POLITICAL EQUALITY is premised on an alleged difference between the process for changing legal rights and the process for changing constitutional rights. While legal rights are revised by representative bodies, democratic critics claim that the primary body responsible for revising constitutional rights is the High Court. They justify this claim by arguing that referenda are too rare to be considered the main process by which constitutional rights are revised. The intended effect of this argument is to demonstrate that constitutional rights are essentially undemocratic because the body that exercises the most control over them (the High Court) is unelected.
But this argument rests on a false assumption about the difference between legal rights and constitutional rights. For one, the content of many legal rights is determined by the judiciary more than by legislation. Common law rights, for example, are entirely determined by the judiciary. Even legislative rights can be heavily influenced by the judiciary – consider the example of R v Davidson, which changed the effect of s 65 of the Crimes Act 1958 (Vic) to decriminalise abortion in some circumstances.
The result of R v Davidson was a substantive change in women’s rights, but the legislature had no involvement in the issue until almost 40 years later – the Crimes Act declared abortion to be an offence until the Abortion Law Reform Act 2008 (Vic). Of course, the legislature could legislate to override the judiciary’s decision at any time, but this does not change the fact that in practice, the judiciary effectively determines the content and extent of many legal rights. While the High Court might be the primary means of changing constitutional rights, the judiciary is also the primary means for changing many other legal rights. Constitutional rights, then, are no less democratic than legal rights.
Further, the High Court’s power over constitutional rights is more heavily restricted than Parliament’s power over legal rights because courts cannot actually alter the wording of constitutional provisions. Although the High Court has created some substantive rights from interpreting constitutional provisions, and it has long been accepted that the text of the Constitution might support multiple incompatible interpretations, the High Court is still restricted to interpretations supported by the text. Parliaments and referenda face no such limitations, so it is inappropriate to claim that the High Court’s power over constitutional rights is analogous to Parliament’s power over legal rights.
5. Justifying Constitutional Rights
This section puts forward a positive argument for establishing constitutional rights. In the course of the argument, I address another of Waldron’s objections to constitutional rights. The objection is as follows:
- . Entrenching constitutional rights will result in the nation being bound by conceptions of those rights which it cannot easily change, and there is no justification for this.
Waldron mentions a potential argument against INFLEXIBILITY that attempts to show that INFLEXIBILITY is false by justifying the difficulty of changing certain rights. The argument draws on an analogy with the concept of a pre-commitment in personal ethics. A pre-commitment is a self-imposed constraint on future action – the classic example is Ulysses ordering his crew to bind him to the mast of his ship to prevent him from falling prey to the charms of the sirens. By establishing a constitutional right, the argument goes, a nation establishes a pre-commitment to not violating that right. The analogy fails, Waldron argues, because there is no reason to uphold a nation’s pre-commitment. There is a reason to uphold the Ulysses’ pre-commitment because it involves the man, in his lucid and rational moments, willing that he be prevented from succumbing to irrationality. But nations are always equally rational, so there is no justification for respecting the nation’s will at one point in time over its will at a later point.
Waldron is right that the analogy is imperfect, but it is not flawed in the manner he suggests. It is flawed because upholding a constitutional right does not involve respecting the nation’s will at an earlier point (rational or not) over the nation’s point over a later point. Instead, it involves respecting the nation’s will over Parliament’s will. By entrenching a constitutional right, the nation is effectively saying that the matter dealt with by that right is too important to be left to party politics. Instead, the matter should be changeable only when such a change is genuinely supported by the nation. This requires both bipartisan support and open consultation with the public to ensure the subject of the referendum is well-understood. Acts of Parliament require neither – many pass with only the support of a simple majority in Parliament and without much notice from the rest of the nation.
For practical reasons, much of the law is dealt with by Parliament alone and not by the entire nation in a process of direct democracy. Parliamentary democracy has its flaws, since it is only an approximate representation of the will of the nation, but it would be impractical to decide every legislative issue by direct democracy due to issues of time and cost. But there are also some issues that are so important that we want to ensure as far as possible that they are addressed correctly. By requiring that those issues be dealt with by direct democracy (i.e. referenda) only, we ensure that they will not be negatively affected by the flaws of representative democracy. This concern provides a clear reason to uphold the will of the nation as manifested in referenda over the will of Parliament as manifested in legislation.
Another issue with Waldron’s argument is that it is possible to distinguish between how ‘rational’ a nation is at different points in time just by judging how healthy its political climate is. Such a judgement can be based on the level of polarisation and deadlock in politics, as well as popular perceptions of democracy. Based on these factors, Australia is currently doing well: satisfaction with democracy has seen a gradual increase since the 1975 dismissal of the Whitlam Government. Further, the general requirements of a referendum – bipartisan support and wide understanding – will help ensure that constitutional changes are only made when the political climate is healthy: in periods of political polarisation and dissatisfaction, proposals on important issues generally will not receive bipartisan support.
As counterexamples to the above argument, opponents of constitutional rights might point out that many of Australia’s racist policies were implemented during periods of relative political health. But this does not prove that constitutional rights would have failed to protect racial minorities. Those policies were implemented in the absence of a constitutional right to non-discrimination, which, had one existed, may have actually prevented them from being implemented. The Intervention, for example, required for its implementation the suspension of the Racial Discrimination Act on an ad hoc basis. A government would have significantly more difficulty circumventing a constitutional right to non-discrimination compared to legislative rights, so it would have significantly more difficulty implementing such a policy.
6. The Place of Constitutional Rights in Australian Law
This section will focus on explaining the role of constitutional rights in Australian law and the reasons for making a non-discrimination right a constitutional right rather than a mere legislative right.
Section 4 argued that it is inappropriate to see constitutional law as being uniquely undemocratic compared to legislation. All areas of law are ultimately controlled by the will of the Australian people. What is unique about constitutional law, then? The main distinguishing feature of constitutional law is how difficult it is to change. As discussed in Section 5, referenda require the genuine support of the nation to pass, and are instances of direct democracy rather than representative democracy. Rights covered by the Constitution, then, should be the sorts of rights that are either fundamental to the functioning of democracy and thus should be relatively stable over time (so we ensure that they are difficult to change) or the sorts of rights that protect the interests of those who are too easily marginalised by party politics and simple parliamentary majorities (so we ensure that they only change with the nation’s genuine support).
Protecting racial minorities clearly falls in the latter category. Entrenching a right to non-discrimination serves the purpose of ensuring that any legislative action taken in relation to minorities is carefully considered and succeeds only when the entire nation is genuinely in support of it. A final argument that might be made by critics of constitutional protection might be that minorities’ rights may still be undermined if the nation genuinely supports undermining those rights. But this is a flaw of democratic systems that no political theorist has yet found a solution for; it certainly is not unique to constitutional democracies. A constitutional right to non-discrimination will not give perfect protection to minorities, but it is the best protection that we can feasibly establish at this point.
8. Concluding Remarks
I have argued that the democratic critics’ objections to constitutional rights do not provide good reasons for rejecting a constitutional right to non-discrimination and I have established a positive case for entrenching a constitutional right to non-discrimination. But constitutional change should not be taken lightly. It still requires a careful consideration of the wording of a constitutional right to non-discrimination, accompanied by open consultation and a campaign to educate the public on the nature of the change. Only after the nation is fully informed and satisfied with the change, and the proposed section has received ample opportunity for criticism and improvement, should the change proceed.
Cases and Legislation
Abortion Law Reform Act 2008 (Vic)
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Dietrich v The Queen (1992) 177 CLR 292
Koowarta v Bjelke-Peterson (1982) 153 CLR 168
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Nationwide News Pty Ltd v Wills 177 CLR 1
Northern Territory National Emergency Response Act 2007 (Cth)
R v Bayliss and Cullen (1986) 9 Qld Lawyer Reports 8
R v Davidson  VR 667
R v Wald  3 DCR (NSW) 25
Scott v. Sandford 60 US (19 How) 393 (1857)
Unions NSW v New South Wales  HCA 58
Australian Electoral Commission, ‘Costs of elections and referendums’, <http://www.aec.gov.au/Elections/australian_electoral_history/Cost_of_Ele...
Australian National University, Public Opinions Towards Governance: Results from the Inaugural ANU Poll (2008)
Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012)
Locke, John, Second Treatise of Government (1690)
Paxton, Robert, ‘The Five Stages of Fascism’ (1998), 70(1) The Journal of Modern History 1
Waldron, Jeremy, ‘A Right-Based Critique of Constitutional Rights’ (1993), 13(1) Oxford Journal of Legal Studies 18
Waldron, Jeremy, ‘The Core of the Case against Judicial Review’ (2006), 115(6) Yale Law Review 1346
Williams, George and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010)
Zines, Leslie, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’ (2002), 5(2) Constitutional Law and Policy Review 21
 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (‘Final Report’) (2012) 167.
 Consider the widespread consensus revealed by the Newspoll survey: ibid 157.
 Ibid 129.
 Ibid 173.
 Ibid 157.
 Australian Constitution s 109 allows state legislation that conflicts with federal legislation to be declared invalid to the extent of the inconsistency.
 Australian Constitution s 128 outlines the procedure for holding referenda, the only means of altering the Constitution’s wording. Referenda require the support of a two-thirds supermajority in Parliament as well as support from a double-majority of the population (a majority of voters overall and a majority of voters in a majority of states).
 Australian Constitution s 76.
 Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993), 13(1) Oxford Journal of Legal Studies 18, 25.
 Waldron uses Scott v. Sandford 60 US (19 How) 393 (1857) as an uncontroversial example of the United States Supreme Court making an unjust decision.
 Waldron, above n 9, 35–36.
 For the purposes of this essay, the phrase ‘legal rights’ includes legislative and common law rights, but specifically excludes constitutional rights.
 Common law rights dominate the areas of contract and tort law, and are even present in areas of law covered by legislation – for example, the majority in Dietrich v The Queen (1992) 177 CLR 292 addressed common law rights in criminal law, which is covered by the Crimes Act 1958 (Vic).
  VR 667. See also the New South Wales case of R v Wald  3 DCR (NSW) 25 and the Queensland case of R v Bayliss and Cullen (1986) 9 Qld Lawyer Reports 8, which changed the law on abortion in those jurisdictions following the lead of R v Davidson.
 In other states, abortion is decriminalised at common law but remains an offence under legislation: see, eg, Crimes Act 1900 (NSW) ss 82, 83, and 84, compared to R v Wald.
 See, eg, the implied right to political communication developed through the cases of Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Australian Capital Television v Commonwealth (1992) 177 CLR 106, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, and the more recent Unions NSW v New South Wales  HCA 58, among others.
 Leslie Zines, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’ (2002), 5(2) Constitutional Law and Policy Review 21, 23.
 A variation of this argument appears in Waldron, above n 9, 41.
 Ibid 47.
 George Williams and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010) 252-4 identify these as two necessary conditions for the success of referenda.
 Consider, eg, the cost of the 1999 referendum, estimated at almost AU$67 million: Australian Electoral Commission, ‘Costs of elections and referendums’, <http://www.aec.gov.au/Elections/australian_electoral_history/Cost_of_Ele....
 Both these factors were identified in Robert Paxton, ‘The Five Stages of Fascism’ (1998), 70(1) The Journal of Modern History 1, 13 as important factors in the success of popular fascist movements.
 Australian National University, Public Opinions Towards Governance: Results from the Inaugural ANU Poll (2008) 8.
 See, eg, the Northern Territory National Emergency Response Act 2007 (Cth) (‘the Intervention’) and Koowarta v Bjelke-Peterson (1982) 153 CLR 168.
 The earlier policies were also implemented without universal adult suffrage. Democratic critics cannot use these policies as counterexamples because, as Waldron admits in Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006), 115(6) Yale Law Review 1346, 1360, their argument also depends on a nation with universal adult suffrage.
 See, eg, Australian Constitution chapters I, III, and V.
 See, eg, John Locke, Second Treatise of Government (1690) chapter XI, who argued for a check on the majoritarian nature of democracy to protect individual rights. This check is now taken to be provided by constitutionalism.