Most commentators agree that, if Australia is to adopt a charter of rights, such a charter should so far as possible involve a ‘minimalist’ form of constitutional change. It should both be enacted by ordinary statute and seek to preserve broad scope for the Commonwealth Parliament, in appropriate cases, to override the interpretation of non-Constitutional rights by the High Court. When it comes to questions of form and enforceability, the thinking is that it should be modelled on either the Human Rights Act 1998 (UK) c 42 ('UK HRA’), and the largely equivalent state statutory charters in the ACT and Victoria, or on the Canadian Bill of Rights, SC 1960, c 44 ('CBOR’).

Not only would a statutory charter of this kind be easier to adopt than a more entrenched model of charter, such as a charter modelled on the US Bill of Rights, the Canadian Charter of Rights and Freedoms 1982 (the second and later of Canada's two operative human rights charters) ('Canadian Charter’), or Constitution of the Republic of South Africa 1996.

Judicial remedies are the critical means by which courts worldwide enforce and implement constitutional rights. Yet constitutional remedies were largely overlooked by early political process theorists, such as John Hart Ely. Contemporary comparative political process theory (CPPT) or comparative representation-reinforcing theory (CRRT) pays much greater attention to remedial questions, including the use of a range of ‘weak’ judicial remedies. These CPPT/CRRT scholars have highlighted the risks as well as advantages associated with the use of such remedies, but they have not reached any consensus on how to strike this balance and optimise their use. The article therefore draws on one specific recent version of CPPT/CRRT, namely the theory of ‘responsive judicial review’, to propose one way to strike this balance, namely: In cases impacting the ‘democratic minimum core’, courts should generally prefer strong remedies, with delayed relief only applied for prudential reasons; for other cases, courts should deploy more dialogic remedies, but generally these delayed or suspended remedies should be accompanied by a judicial statement of pre-defined strong remedies that take effect automatically in the event of legislative inaction. In this way, this article suggests that courts can give weak remedies ‘bite’, and hence promote actual legislative debate and dialogue, rather than incentivise legislative inaction after their rulings.

A ‘functional’ approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

Responsive constitutionalism is a theory of constitutionalism that starts from the idea that democracy involves two overlapping commitments — to a relatively thin ‘minimum core’ set of norms and institutions and thicker, more contestable set of rights and deliberative commitments. It then proceeds to affirm a commitment both to legal and political constitutionalism. This article explores the relevance of this theory for Australian constitutionalism and suggests that it in fact has strong resonance with the Australian constitutional tradition. First, the capital ‘C’ Constitution gives strong legal protection to the ‘minimum core’ of democracy in ss 7, 24 and the High Court’s decisions on the implied freedom of political communication and access to the franchise. Second, the small ‘c’ constitution adopts norms that help protect the democratic minimum core and advance a responsive approach to thicker democratic commitments to rights. Third, there are important connections between the idea of responsive constitutionalism and limits on the scope legal constitutionalism and judicial review in Australia. Yet, there are also ways in which a responsive approach points to potential reforms of the Australian constitutional model — to include more robust rights-based constitutional protections, albeit in ways that are premised on a notion of shared legal and political authority and enforcement, and therefore involve a ‘weak-form’ national rights charter or extended principle of legality.

The High Court currently applies two different tests to determine the validity of laws that effectively burden the implied freedom of political communication (‘IFPC’) under the Constitution—a test of ‘structured proportionality’ and one of ‘calibrated scrutiny’. Both tests have potential advantages, and disadvantages, but there is also a case that, over time, the Court should again adopt a single approach to assessing the validity of laws burdening the IFPC. The article therefore explores what it might mean to create a true hybrid between the two current approaches—that is, a test of ‘calibrated proportionality’. Such an approach, it suggests, should be understood as having three key dimensions: first, explaining how and when certain context-specific ‘calibrating’ factors could usefully inform a test of ‘necessity’ and ‘adequacy in the balance’ under a test of structured proportionality; second, showing how attention to constitutional values can help calibrate the intensity of the Court’s application of the tests; and third, suggesting a well-identified continuum for calibrating the intensity of judicial review, based on four broad categories of case.

The Scottish Poverty and Inequality Commission (hereafter ‘the Commission’) is a relatively new fourth branch institution with responsibility for addressing both poverty and inequality in Scotland. Nonetheless, it has made important, if modest and incremental, inroads in achieving these objectives, by encouraging the collection and use by government of relevant data in policy-formation; and the expansion and acceleration in the roll-out of important substantive policies focused on alleviating child poverty. The question this raises is what underpins this institutional success. The article draws attention to three key factors: the Commission’s distinctive combination of independence and a collaborative approach to policymaking, supported by a ‘triangular’ relationship between the government, Commission and civil society; its expertise and perceived legitimacy; and the unique policy context presented by the COVID-19 pandemic. These factors, it suggests, also offer useful lessons for constitutional and institutional designers elsewhere — about both the promise and contingency and four branch solutions to problems of economic exclusion and disadvantage.

Federal systems are often compared based on their history or origins: Riker famously distinguished between ‘coming together’ and ‘holding together’ forms of federalism. Federal systems can also be viewed as serving a variety of potential purposes: they may help promote government closer to the people, greater democratic experimentation, forms of vertical as well as horizontal political accountability, and the accommodation of diversity.

This special issue of the Federal Law Review (‘FLR’), on ‘the theory and practice of federalism in deeply divided societies’, explores those federations that originate from ‘holding together’ rather than ‘coming together’ processes, and that are designed to respond to a range of ethnic, religious, racial and territorial cleavages. There is a growing comparative literature on constitution-making and practice in ‘divided societies’, which includes attention to federalism. But there is still important work to be done understanding when and how federalism succeeds in managing social and political conflict, and promoting peace, stability and democratic resilience, especially in the Asia-Pacific. This volume thus seeks to fill this gap—by encouraging a wide-ranging exploration of these issues and contributing to a global debate on constitutionalism and constitutional design.

There has long been debate about the capacity of the US Supreme Court to achieve “progressive” social change. Recent decisions of the court also point to a new worry for American progressives: the court may not only have a limited capacity to drive such change. In some cases, it may actively stand in the way of such change or help reverse it. This invites us to rethink when, or under what conditions, courts are likely to be effective in driving change—whether in a positive, dynamic, or else more obstructionist or regressive direction.

In this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile’s parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

How should the constitutional reform in Israel be assessed in comparative terms? Comparative constitutional understandings point to the centrality of three key sets of norms as part of the ‘democratic minimum core’: (i) commitments to free and fair, regular multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to maintain (i) and (ii). Any change in judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances.

We claim that recent changes in Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes in the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either ‘abusive’ or ‘proto-abusive’ in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system and, hence, the ‘democratic minimum core’ in Israel.

In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.

This brief essay contrasts two modes of constitutional change: abusive constitutional projects that seek to erode democracy and restorative constitutional projects that aim to repair eroded democratic constitutional orders. Constitutional democracies are eroded and restored via the same mechanisms: formal processes of constitutional amendment and replacement, legislative amendment, changes to executive policies and practices (or respect for conventions), and processes of judicial decision-making. Under the right conditions, abusive uses of these mechanisms for antidemocratic ends can be reversed by prodemocratic or restorative uses. The more difficult question is what kinds of political discourses are most likely to sustain successful processes of democratic rebuilding. In recent work, we have pointed to the role sometimes played by liberal democratic discourses as purported justifications for processes of abusive constitutional change: we label this the rise of “abusive constitutional borrowing.” Less well understood are the kind of discourses likely to sustain successful democratic healing or rebuilding. Often, the most popular discourse is a restorative one, which focuses on repairing damage caused by authoritarians and returning to a constitutional status quo ante. In this essay, we discuss the advantages and disadvantages of restorative constitutionalism as a response to prior episodes of democratic erosion.

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.