Question: Has liberalism become obsolete and outlived its purpose in the West through the shutting down of unpopular opinions and views?  How does our Constitution protect liberalism, and does it remain appropriate for it to do so today?

THE CONSTITUTION OF LIBERTIES: AUSTRALIAN CONSTITUTIONAL HISTORY AND LIBERAL PHILOSOPHY

1. Introduction

While liberalism may not have a single, unchanging[1] essence, it has a history:[2] this history is one of great length, complexity, and diversity. The liberal edifice is a modern hecatoncheir:[3] it has multifarious limbs, offshoots, and at times contradictory interpretations. In interrogating the relationship between the Commonwealth Constitution and liberalism, the critical question is not whether the Constitution protects liberalism, but rather which variegation of liberalism it does protect. The various strands of liberalism are examined in Part II as a necessary step in determining the ways in which the Constitution is protective of freedom. A common criticism of the liberal edifice –– that it is value monistic, resulting in an erasure of moral, cultural, and political pluralisms –– is interrogated in Part III. Finally, the mechanisms by which the Constitution fosters liberal ideals are identified in Part IV.

It is submitted that folded into the very core of liberalism is a respect for contrasting comprehensive doctrines, for the accretion of experience and knowledge through the process of public reason. Fostering individual capacity; ensuring equality and equity; enabling the individual to deploy their potential, utilise reason and pursue their individual conception of the good life: these are the objects of liberalism. In this sense, it has not fallen into desuetude, and it is appropriate –– indeed exigent –– that these ideals are protected. The Constitution, as a social contract generative of the Australian body politic, is a fundamentally liberal document. However, in many ways it does not go far enough to protect liberal ideals.

1. Semantics: A Liberal Rorschach

To adumbrate, a liberal is someone who believes in liberty.[4] Axiomatically, the fundamental principle of liberalism[5] is therefore that any restrictions on liberty must be justified.[6] A government must accordingly be restrained from interfering with the liberty of its subjects,[7] given that the people make a limited grant of sovereign power to their rulers.[8] A mere belief in liberty, however, is insufficient to construct an entire ideological edifice. A necessarily imperfect and incomplete map of this edifice is sketched below. First, however, given that this essay situates liberalism within an Australian context, for the sake of clarity a distinction must be drawn between liberalism as a political or philosophical ideal, and the Liberal Party of Australia. The Liberal Party does not have a monopoly over liberalism, nor should it necessarily be seen as an example of liberalism par excellence –– or at all, depending on the strand of liberalism one prefers. 

On those variegations of liberalism, Grey identifies a quartet of characteristics present in all strands:[9] (1) individualism;[10] (2) egalitarianism; (3) universalism; and (4) meliorism. Central to most stands of liberalism –– and a remnant of its genesis during the Enlightenment^[11] –– is a commitment to human progress.^[12] This emphasis on moral primacy, unity and equality among individuals, and a belief in the corrigibility of human life, social institutions and political arrangements appears –– at least at first blush –– to be too optimistic a political philosophy to have been rendered obsolete.

Beyond this, in its classical formulation, liberalism sees liberty as fundamentally related to private property.[13] That is, an economic system predicated upon the ownership of private property is singularly conductive to liberty. However, this was generally envisaged to be achieved through the mechanism of a limited government,[14] or through the free market economy.[15] This preeminent concern with property rights has been questioned by modern strands of liberalism as generative of inequality.[16] Indeed, modern liberalism concerns itself with questions of distribution,[17] and government intervention in the interests of equal opportunity and fairness.[18]

What, then, is liberty? And how should it be realised?[19] The liberal edifice does not provide uniform answers to these questions.

1. ‘Two Concepts’ or a Litany of Liberties: What Does Liberalism Protect?

Notwithstanding its placement as the telos of liberalism, the term ‘liberty’ is porous:[20] there is little interpretation it is able to resist.[21] In its negative sense, political liberty is the arena in which the individual can act unobstructed by virtue of coercion,[22] domination or caprice,[23] cruelty,[24] or otherwise. For Hobhouse, this negative liberty –– or universal restraint –– is the first condition of universal liberty.[25]

In the positive sense, liberty involves the possession of individual autonomy or self-direction,[26] and an effective power or ability to pursue one’s ends.[27] Freedom qua effective power to act requires the material resources necessary to enable an individual to fully utilise their liberties.[28] For Rawls, the concept of effective power does not determine whether someone is free, but rather the worth of that freedom.[29] Freedom is devalued when theoretically it is available to an individual, but pragmatically that individual is precluded from ever attaining it. 

However, the distinction between negative and positive liberty is but one aspect of the taxonomy of freedom. Indeed, for Rawls there are many liberties possessed by a single individual which span the negative–positive spectrum that –– allowed to fully unfurl –– collide with one another.[30] Moreover, if every individual then has an equal, absolute claim to liberty, these multiple claims will often collide.[31] Indeed, absolute liberty collides with concepts of  security, justice, and equality, to name but a few.[32] The assumption, then, is that the rational ends of the individual must coincide to avoid such collision.[33] How this coincidence is achieved is, however, the source of much criticism.

1. Liberalism in the Public Sphere: Value Monism, Pluralism, or Universalism?

Liberalism –– just like any social world –– cannot exist without loss; without the exclusion of some ways of life.[34] In proclaiming the universality of its principles, liberalism has been widely criticized as involving an erasure of pluralisms, as prescribing a single correct or good way of life.[35] However, such a proclamation is demonstrably false:[36] human goals are not commensurable, indeed they often exist in rivalry with one another.[37] The placement of liberty as the only –– or primary –– good pursued by society is therefore overly monistic. Yet, few liberals would pursue liberty in such a monocular fashion.  In fact, the liberal emphasis on liberty qua autonomy and non-interference is indeed conducive to diversity and pluralisms:[38] liberty is necessary for the recognition and pursuit of all genuine human values.[39] Protection of minority opinions and cultures is therefore consistent with, and indeed required for, the promotion of individual autonomy.[40]

Indeed, political liberals in the Rawlsian sense do not censor minority or unpopular opinions and views. Rather, any individual committed to constructing terms of social cooperation, regardless of the popularity of their views, will be present in the legitimation pool.[41] Where these views form part of an individual’s comprehensive doctrine, they are distinguished from political conceptions, or public reasons[42] which require an overlapping consensus in order to form part of the political discourse.[43] The requirement of overlapping consensus expressly addresses incommensurable ideals, and accommodates pluralism. Comprehensive views may still be debated freely, albeit not in the public arena where constitutional essentials are concerned.[44] In fact, the pluralism of liberalism is inherent in the placement of toleration as a cardinal virtue of the tradition.[45]

1. The (Commonwealth) Constitution of Liberty

The Constitution was drafted at the apogee of liberalism.[46] By providing for a dispersal of power –– both horizontally,[47] as a result of federalism,[48] and vertically, as a result of the separation of powers[49] –– establishing a constitutional rule of law,[50] and its protection of a number of liberties –– express and implied, positive and negative –– the Constitution is the ‘most substantial statement of Australian liberalism’.[51]

By founding the Australian body politic, the Constitution is a social contract generating a political community. In doing so, the functioning of the Constitution is contingent upon public deliberation and reasoning.

1. The Constitution and Social Contractualism

From its outset, the Commonwealth Constitution embodied notions of social and moral contractualism in a Kantian[52] or Rousseauan[53] sense. Indeed, according to Alfred Deakin, the Commonwealth Constitution ‘proceeds from the people of the whole continent’ and ‘draws its authority directly from the electors of the Commonwealth’[54] –– a conclusion that has been affirmed by the High Court.[55] In this sense, the Constitution was generative of a civil society of the kind envisaged by Edmund Burke: a compact between those who are living, those who preceded them, and those who will follow.[56]

The Constitution is not an agreement between rationally self-interested interlocutors: it is an agreement between morally motivated actors.[57] Indeed, this position was adopted by Edelman J in Hocking:[58] simply by virtue to the reference of the ‘indissoluble Federal Commonwealth’ –– a nod to liberal social contractualism[59] –– the Constitution circumscribes legislative potential to fracture or exclude individuals from this social contract: it proscribes restrictions upon popular participation. Accordingly, the Constitution is protective of the negative liberty of each member of the body politic.

1. The Constitution, the Separation of Powers, the Rule of Law and the Protection of Liberties

The history of liberalism is a history of opposition to various tyrannies,[60] achieved through inter alia the separations of powers, representative and responsible government, and the rule of law.[61] Accordingly, the object of the doctrine of the separation of powers is to guarantee liberty,[62] given the tendency towards usurpation or aggrandisement of power by those wielding it.[63] In this sense, its legal entrenchment in the triadic structure of Chapters I, II and III of the Constitution[64] is thus protective of this liberal ideal.

Moreover, the High Court has affirmed that the Constitution is framed in accordance with the rule of law.[65] Notwithstanding the ambiguity with respect to the conception of the rule of law that is protected by the Constitution, the rule of law is a fundamentally liberal concept.[66] Indeed, it is predictability –– a characteristic of rules of law both thick and thin –– that liberals think is necessary for autonomy.[67]

1. Constitutional Liberties

Notwithstanding the absence of a Commonwealth Bill of Rights, the Constitution is nonetheless protective of a number of express and implied rights. Indeed, the very absence of a Bill of Rights may be demonstrative of the classical liberal leaning of the framers of the Constitution: as Professor Irving opines, the tendency of the liberal drafters of the Constitution was to respect rights and freedoms, ensure their negative protection, but abstain from declaring them positively.[68] This belief in the ability of the existing constitutional mechanisms to protect fundamental rights[69] coheres with classical, libertarian liberalism. These existing mechanisms include the common law, which is to be applied in the interpretation of the Constitution,[70] and entails a number of significant protections of individual rights.[71] Indeed, often when the framers were silent on an issue, it was due to the belief that the common law provided adequate protection to rights and liberties.[72]

It is perhaps due to the liberal origin of the Constitution that the High Court has been able to imply rights into its text. Indeed, Murphy J made a similar point: because ours ‘is a Constitution for a free society’, laws infringing upon the freedom of the individual would be ‘incompatible with a fundamental basis of our Constitution’.[73] The various protected liberties are interrogated below.

1. Sections 7 and 24

An important liberty protected by liberalism is what Hobhouse terms ‘personal liberty’: liberty of thought, speech, writing, printing, and peaceable discussion.^[74] In the Australian context, representative parliamentary democracy[75] ensures freedom of communication of information and opinions about matters relating to the government of the Commonwealth.[76] These matters are necessarily broad, including those which may call for, or are relevant to, political action or decision.[77] Sections 7 and 24 of the Constitution do not, however, confer positive rights on individuals, but rather protect the curtailment of the freedom of political communication by the legislature or the executive.[78] The Constitution is thus protective of negative personal liberty.[79]

The implication of this freedom into the Constitution brings with it the attendant freedoms of association and movement,[80] which, while not freestanding rights, are necessarily facilitative of the freedom of political communication.[81] Furthermore, there is no express protection of the freedom of speech, it has been suggested that it too results from representative government[82] as a highly valued element of the Australian political system.[83]

1. Section 51(xxxi)

Often cited as an example of an express constitutional right,[84] the proscription of Commonwealth acquisition of property absent just terms compensation was originally inserted into the Constitution not to protect civil liberties, but to ensure that the Commonwealth had power to do so.[85] It has thus been described as a power allocating federal measure as opposed to a civil liberties provision.[86] However, the provision extends to a very broad range of ‘innominate and anomalous interests’,[87] including tangible and intangible property.[88] The generous interpretation[89] of Section 51(xxxi) has the effect of guaranteeing protection of property rights, and in this sense it is also protective of liberalism.

1. Section 80

Occasionally, the right to trial by jury for any trial on indictment of any offence against any law of the Commonwealth has been said to be a liberal constitutional protection. While it was initially envisaged as a liberal protection,[90] this was undermined during the course of the Convention Debates.[91] Furthermore, the High Court has held that the right is only available where the Commonwealth elects to proceed on indictment. Section 80 becomes a hortatory protection of liberty at most.[92]

1. Section 116 and 117

In a similar manner to the protections derived from Sections 7 and 24 of the Constitution, Section 116 is expressed as a limitation upon Commonwealth legislative power to infringe upon the free exercise of religion.[93] Freedom of conscience is an essential liberty[94] and fundamental human right[95] for both the religious and those who have no religion.[96] Given its narrow interpretation by the High Court,[97] and the ability for the States to enact precisely such legislation,[98] the freedom of religion is perhaps more hortatory than constitutive.  Its presence within the Constitution, however, is protective of liberalism –– albeit minimally.

Similarly, Section 117 of the Constitution is designed to prevent a State from imposing any ‘disability or discrimination’ on residents of another State by reason of their interstate residence.[99] The provision purports to protect the negative liberty of subjects of the Queen.[100] Where it applies, it renders an individual immune against such disability, thereby leaving the impugned law valid, but its operation in the individual case averted.[101] Attempts by the framers of the Constitution to extend the ambit of the provision to the protection of life, liberty and property were struck down on the basis that no State had ever acted so illiberally.[102] However, those present at the Convention appeared to agree that Section 117 sought to protect liberty.[103]

1. Conclusions

While the Commonwealth Constitution is a fundamentally liberal document –– in terms of its express provisions, implications, and even its silences –– it protects a very limited, classical concept of liberalism. In the pursuit of freedom, equality, equity, self-development and progress, liberalism can be pluralistic, and indeed is a vehicle through which these public goods can be attained. Liberalism has not been rendered obsolete: it is ever evolving. The critical question, therefore, is how change in the Australian constitutional context can facilitate a modern, progressive liberalism and its attendant public goods.

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1. Books

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Gerangelos, Peter, ‘Section 61 of the Commonwealth Constitution and an ‘Historical Constitutional Approach’: An Excursus on Justice Gageler’s Reasoning in the M68 Case’ (2018) 43(2) University of Western Australia Law Review 103

Ivison, Duncan, ‘Liberty and Government: Hindess and the History of Liberalism’ (2011) 36(1) Alternatives: Global, Local Political 10

Latham, John, ‘Australia’ (1960) 76 Law Quarterly Review 54

Leane, Geoffrey, ‘Testing Some Theories About Law: Can We Find Substantive Justice Within Law’s Rules’ (1994) 19(4) Melbourne University Law Review 924

Levy, Ron, Neomal, Sivla and Saunders, Benjamin, ‘Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value’ (2017) 28 Public Law Review 41

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Haig Patapan, ‘The Dead Hand of the Founders – Original Intent and the Constitutional Protection of Rights and Freedoms in Australia’ (1997) 25(2) Federal Law Review 211

Pettit, Philip, ‘Freedom as Antipower’ (1996) 106 Ethics 576

Rawls, John, ‘Justice as Fairness’ (1985) 14(3) Philosophy and Public Affairs 223

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Stone, Adrienne, ‘The Common Law and the Constitution: A Reply’ (2002) 26(3) Melbourne University Law Review 646

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Waldron, Jeremy, ‘The Rule of Law in Contemporary Liberal Theory’ (1989) 2(1) Ratio Juris 79

Wesson, Murray, ‘The Limits of Constitutional Justice’ (2018) 29 Public Law Review 63

Winterton, George, ‘The Concept of Extra-Constitutional Executive Power in Domestic Affairs’ (1979) 7(1) Hastings Constitutional Law Quarterly 1

1. Cases

 Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116

Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529

Attorney General (Cth) v The Queen [1957] AC 288

Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CRL 559

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Australian Communist Party v Commonwealth (1951) 83 CLR 1

Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120

General Practitioners Society v Commonwealth (1980) 145 CLR 532

Gould v Brown (1998) 193 CLR 346

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1

Health Insurance Commission v Peverill (1994) 179 CLR 226

Hocking v Director-General of the National Archives of Australia [2020] HCA 19

ICM Agriculture v The Commonwealth (2009) 240 CLR 140

Kruger v The Commonwealth (1997) 190 CLR 1

Krygger v Williams (1912) 15 CLR 366

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

McCloy v New South Wales (2015) 257 CLR 178

McGinty v Western Australia (1996) 186 CLR 140

Momcilovic v The Queen (2011) 245 CLR 1.

Mulholland v Australian Electoral Commission (2004) 220 CLR 181

Nationwide News v Willis (1992) 177 CLR 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Wakim; Ex parte McNally (1999) 198 CLR 511

Rowe v Electoral Commissioner (2010) 243 CLR 1

R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369

Smith Kline and French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87

Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104

Wainohu v New South Wales (2011) 243 CLR 181

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

1. Other

Deakin, Alfred, ‘The Keystone of the Federal Arch’ (Second reading of the Judiciary Bill, House of Representatives 18 March 1902)

French, Robert, ‘Liberty and Law in Australia’ (Speech, Washington University in St Louis School of Law, 14 January 2011)

Murray Gleeson, ‘The Rule of Law and the Constitution: A Country Planted Thick with Laws’ (Boyer Lectures, 19 November 2000)

Official Report of the National Australasian Convention Debates, Melbourne, 25 January 1898

Official Report of the National Australasian Convention Debates, Melbourne, 7 February 1898

Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898