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Rights Review in the High Court and the Cultural Limits of Judicial Power

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.