Federalism and Rights Deliberation

Abstract

The relationship between federalism and rights is an understudied aspect of Australia’s constitutional system. It is rarely analysed in detail because the premise of most theories, which are drawn from the United States, is that federalism alters substantive outcomes on rights. These theories do not connect to Australia’s constitutional experience because the country’s federal system produces a large degree of policy uniformity.

In this paper, I argue that Australia’s federal system has a substantial impact on legislative deliberations of rights issues. Even when policy uniformity results, federalism introduces additional actors and alternative viewpoints into the lawmaking process, altering patterns of discourse. I employ three case studies — counter-terrorism, same-sex marriage and organised crime — to highlight and analyse the connections between federalism and rights deliberation. This understanding of the relationship has implications for the place of federalism in Australia’s constitutional system, which is often undervalued, and the country’s approach to rights protection, which relies extensively on a deliberative process that is attune to rights issues.

Keywords: Federalism, Rights, Australia, Deliberation, Constitutional Law

JEL Classification: K00