Social Equality in Australia: the Constitution that Time Forgot

Australia's constitutional order stands apart from those of other liberal democracies. It fails to protect, in any comprehensive way, the individual rights that are typically safeguarded by the constitutions of otherwise comparable nations. That is not to suggest that those rights including social equality are unrecognised in Australian law or society. This article explains that the value of social equality does find expression within Australian law, albeit in mostly non-constitutional settings. Australia provides, in fact, an interesting case study in what happens to a societal value such as social equality how it might manifest in the absence of any constitutional guarantee. The Australian experience shows that a certain type of social equality one with an egalitarian, utilitarian flavour can thrive in the absence of formal constitutional guarantees. However, to the extent that the concept of social equality anticipates protection of minority groups having little political power, the Australian model is a failure. In Australia, the numerically strong and organised groups demanding social equality rights workers and, more recently, women have extracted the most extensive protections from democratically elected legislatures. Meanwhile, more marginalised groups which have less political clout including Indigenous peoples, immigrants, and the disabled have been much less successful in working legal and political levers to secure their human rights. It is likely that this under-protection of marginalised groups will persist in Australia, unless and until there is some significant depoliticising of the task of defining and securing social equality. One way in which this might happen is for amendments to be made to the text of the Australian Constitution, to guarantee certain individual rights and to confer upon the judiciary the leading role in articulating the substance of those rights. This proposal has been discussed at length in recent years but has struggled to achieve a critical mass of support. Improving awareness in Australia of how other democracies protect vulnerable minorities, and the pivotal role that constitutional guarantees often play in securing advances in social equality, might be a first step towards change for the better.