Comparative Law in Australian Constitutional Jurisprudence
Aroney, Nicholas, University of Queensland Law Journal
Comparative constitutional law is a complex, multi-faceted and contested undertaking. The very possibility of meaningful comparison is sometimes doubted and its legitimacy is often contested. Even among those who support its use, there is disagreement as to its rationale and method. In some countries its use is disputed; in others its use is taken for granted but the manner of its use is contested; in still others its use is widespread but largely unexamined.
Australia falls principally into the latter category. Comparative law is frequently used in Australian constitutional law, and its use is not especially controversial, but close analyses of its use are rare. General comparisons between the constitutions and constitutional law of Australia and other countries have certainly been undertaken (1) and specific issues have been examined in comparative perspective. (2) Sometimes the particular use to which comparative constitutional law is put has been criticised. (3) But the way in which comparative constitutional law is used in Australia has rarely been examined. (4) More controversial, and more often discussed, has been the use of international law, especially the law of international human rights, in Australian law. (5)
The reason why the use of comparative law in Australian constitutional jurisprudence has not been particularly controversial and rarely examined--in the context of controversy and passionate disagreement elsewhere--no doubt has to do with Australian conceptions of our place in the world and the unique way in which these conceptions filter into the attitudes and practices of Australian lawyers, judges and elected representatives. And yet, the Australian experience--perhaps like the experience of other countries within the British Commonwealth--is especially instructive, not least because the stated reasons why comparative jurisprudence has been readily admitted in Australia are surprisingly diverse. For instance, the High Court of Australia has appealed to the universal applicability of certain fundamental constitutional principles, the existence of functional equivalents in other constitutional systems, similarities of constitutional text and structure, the capacity of comparative constitutional law to furnish critical insights into Australian law, the rule (in the past) that the decisions of superior courts within the imperial hierarchy are authoritative precedents and, finally, the belief that the use of certain comparative materials is actually consistent with the intentions and expectations of the framers of the Constitution.
When placed into the context of debates in other countries concerning the use of comparative constitutional law, this is not only a diverse list, but an apparently self-contradictory one. Who would have thought, for example, that an argument from universal constitutional principles could stand alongside of--indeed, be articulated in the very same case as--an argument from the expectations of the framers? (6)
In this article, I seek to explore the use of comparative constitutional law in Australia, understood itself in comparative perspective. It is sometimes pointed out that the Australian High Court is open to comparative constitutional jurisprudence to an extent much greater than the United States Supreme Court. (7) This is true, but it is so for particular reasons which do not necessarily reflect the degree to which there is openness, in principle, to comparative law in each country. Rather, I argue, it has more to do with the context in which the two Constitutions came into being and have continued to operate. As noted, the grounds upon which the use of comparative constitutional law in Australia has been defended are diverse. Some of these grounds are certainly controversial when judges appeal to them in the United States, but these very same grounds have been controversial when used in Australia as well. When we compare the use of comparative constitutional law from one country to another we need, in other words, to take account of the context of each constitutional system. …