Political Equality as a Constitutional Principle: Cautionary Lessons from Mccloy v New South Wales

In Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018)

Posted: 1 Mar 2018

Date Written: February 01, 2018

Abstract

The High Court’s decision in McCloy highlights how open reliance on a constitutional value – political equality in this case – does not necessarily align with other features of functionalism. It illustrates how such reliance can result in less clarity and indeterminacy; how it can fail to be properly anchored in the text and structure of the Constitution, giving rise to problems of legitimacy; and how it may undermine the realisation of the value itself.

This chapter begins with a brief summary of the judgments in McCloy with a focus on how the judges characterised political equality as a constitutional principle. This is followed by a three-part analysis examining the question of the meaning of this principle; the question of its legitimacy in terms of this principle being adequately supported by the text and structure of the Constitution; and its effectiveness in advancing the broader project of political equality.

This chapter’s key arguments are that the High Court in McCloy failed to provide sufficient clarity in terms of the meaning of this principle; that the High Court’s characterisation of political equality as a constitutional principle is not properly sourced in the text and structure of the Constitution; and that this characterisation risks injuring the project of political equality because of a presumption against discriminatory laws and the unresolved balance between legislative competence and judicial oversight.

Suggested Citation

Tham, Joo-Cheong, Political Equality as a Constitutional Principle: Cautionary Lessons from Mccloy v New South Wales (February 01, 2018). In Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018). Available at SSRN: https://ssrn.com/abstract=3127270

Joo-Cheong Tham (Contact Author)

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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