A New Australian Constitutionalism? Constitutional Purposes, Proportionality and Process Theory

Australian constitutional law rests on a foundation of settled principle, including the idea that Australian constitutionalism comprises a mix of legal and political, negative and positive, and fixed and dynamic, constitutional commitments. It also depends on a series of settled substantive principles. Beyond this, there is greater contest between three rival visions of constitutional reasoning: legalism versus purposive or ‘functionalist’ approaches to interpretation; autochthonous versus proportionality-based tests of constitutional validity; and context-invariant versus process-sensitive or ‘representation-reinforcing’ approaches to construction. This essay explores these three dimensions of contest, and argues for the benefits of the newer approach within each of these dyads. Each of these approaches is conceptually and empirically distinct. But each offers important benefits from a democratic and rule of law perspective, and has affinities from a conceptual and comparative viewpoint. The essay therefore argues for a new purposive, proportionality-based and process-sensitive approach to constitutional construction, as a unified approach to constitutional construction in Australia. It also notes the incipient support for each element of this approach within the judgment of members of the High Court of Australia in recent Ch III cases.