THE RULING by the High Court yesterday on the Western Australian electoral system and the Langer case show the role of implied rights in the Constitution to be more restricted than first thought.
The court ruled that implied rights did not mean that electorates for the Western Australian Parliament must have roughly equal numbers; they could be vastly different, as they are.
There was no implied right of one vote, one value. In the Langer case it ruled that provisions of the Electoral Act making it an offence to encourage people to vote in a prima-facie informal way were valid.
The court restricted the ambit of implied rights. In the words of Chief Justice Gerard Brennan, “”Implications are not devised by the judiciary; they exist in the text and the structure of the Constitution and are revealed or uncovered by judicial exegesis.”
It means that the court cannot develop a political theory that Australia should have representative democracy and then ask whether laws passed by parliaments are consistent with what is generally meant by representative democracy. Rather, it means that the judges must return to the text of the Constitution each time, to look at its text and structure.
The upshot is unfortunate. In an environment of increasing executive and parliamentary restrictiveness and lack of political will to put a decent bill of rights to the people, the best avenue to protect rights now appears narrower than many had hoped.