Responsive constitutionalism is a theory of constitutionalism that starts from the idea that democracy involves two overlapping commitments — to a relatively thin ‘minimum core’ set of norms and institutions and thicker, more contestable set of rights and deliberative commitments. It then proceeds to affirm a commitment both to legal and political constitutionalism. This article explores the relevance of this theory for Australian constitutionalism and suggests that it in fact has strong resonance with the Australian constitutional tradition. First, the capital ‘C’ Constitution gives strong legal protection to the ‘minimum core’ of democracy in ss 7, 24 and the High Court’s decisions on the implied freedom of political communication and access to the franchise. Second, the small ‘c’ constitution adopts norms that help protect the democratic minimum core and advance a responsive approach to thicker democratic commitments to rights. Third, there are important connections between the idea of responsive constitutionalism and limits on the scope legal constitutionalism and judicial review in Australia. Yet, there are also ways in which a responsive approach points to potential reforms of the Australian constitutional model — to include more robust rights-based constitutional protections, albeit in ways that are premised on a notion of shared legal and political authority and enforcement, and therefore involve a ‘weak-form’ national rights charter or extended principle of legality.

Foreign interference is a growing threat to all liberal democracies, including Australia. To respond to this growing threat, the Department of Home Affairs has developed a complex ‘Counter-Foreign Interference Strategy’ (CFIS). At the heart of the strategy lies a suite of interlocking and overlapping legislation, including the Foreign Influence Transparency Scheme Act 2018 (FITS Act), the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Electoral Funding Act). The aim of this paper is to explain and clarify the legislation and the free speech burdens it imposes, and determine whether the laws are suitably targeted at foreign interference without unduly limiting legitimate communication activity. We argue that the current criminal law regime is ineffective in addressing the problem because foreign interference is a complex and pervasive phenomenon taking many different forms — from espionage on university campuses to anonymous and targeted social media campaigns. The legislative scheme is not properly tailored to tackle foreign interference as it actually occurs.

Does the Constitution protect the ability of an Australian to enter the country? This article investigates that question. Whilst the Constitution provides no express guarantee of a citizen’s right to enter Australia, a series of recent cases — particularly Love v Commonwealth1 and Alexander v Minister for Home Affairs2 — give occasion to consider whether a freedom of entry forms an implied part of Australia’s constitutional framework. Early scholarly attempts to establish a freedom of entry have relied upon the definition of non-alienage to ground this implication. This article commences by reviewing the effect of the High Court’s recent alienage jurisprudence on these arguments. After concluding that fatal difficulties attend this approach, I investigate an alternative foundation for an implied freedom of entry: an implication drawn from a constitutional principle of popular sovereignty. Focusing on a recent thread of High Court jurisprudence which has placed an increasing emphasis on the constitutional protection afforded to popular sovereignty, I conclude that this alternative basis provides a viable foundation upon which an implied freedom of entry could be recognised in the Constitution.