Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

Abstract

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.