Justice Gaudron and Constitutional Rights

Abstract

Justice Gaudron’s elevation to the bench occurred just before the High Court began its reinvigoration of some of the express constitutional rights, its development of the freedom of political communication (which, despite some skittishness about the term, can accurately be described as a constitutional right), and its exploration of the power of Ch III of the Constitution to protect rights.1 So, any commentary on Justice Gaudron’s judicial career cannot overlook her contribution to the development of constitutional rights. As I will show, moreover, it is a field in which she has been an important and at times distinctive voice. Given the length of her Honour’s career, I will not attempt a full survey of Justice Gaudron’s judgments on these matters. Instead, I will reflect on a few key judgments principally those concerning rights implied from representative and responsible government. Many of my comments will draw on Justice Gaudron’s judgment in Kruger v Commonwealth (1997) 190 CLR 1, which contains a particularly full and interesting statement of her views.

Keywords: constitutional law, constitutional rights, constitutional interpretation, Justice Gaudron

JEL Classification: K00, K19, K39