The American innovation on English Constitutionalism was that there is fundamental law - expressed in the constitution - that cannot be ignored by the executive and cannot be statutorily pasted over by the legislative. The Americans called them natural rights and entrenched those political rights in their federal and state constitutions.
Where an English judicial had to be activist, the American judicature could be constructionist. The English judicial established Habeas Corpus as accepted practice through activism two hundred years before it was legislated in 1679. The American judicial had a series of ongoing and increasing 'rights' laid out in fundamental law for them to protect from executive and legislative over-reach.
Despite having 130 years to digest and deliberate on the American innovation Australia did it half-arsed. Ingliss-Clark had a bill of rights in the first draft of his Washminster constitution, but this was taken out apart from a protection for religious freedom. Consequently the constitution has not been able to inform judicial doctrine like it has in the United States. So we get a half-arsed and often seemingly arbitrary judicial doctrine that gives tips of the hat to the English style of executive/legislative dominance and at other times the American style of fundamental law.
In the past the High Court has adopted the American style and argued that political speech is protected as fundamental law as the constitution is a democratic one and without freedom of political speech the constitution is non-functioning. However;
THE High Court today overturned changes to federal government legislation made last year which bars prison inmates from voting. However, the court upheld earlier legislation which stipulated any prisoners serving a jail term of three years or longer could not vote.Is enfranchisement protected as fundamental law or not? By that ruling it kinda is and kinda isn't. That is half-arsed and goes back to the basic problem with the Australian Constitution. It is not one or the other. Is it based on English Constitutionalism or American Constitutionalism? It is not an Australian innovation, so it can't be that. Civics matter and our constitution is a half-arsed mess by bearded men that were incurious to constitutional philosophy. Fortunately it is an easy fix. A constitutionally entrenched Bill of Rights would stop this judicial doctrine confusion.
