Robert G. McCloskey argues that for the judicial branch to be constitutionally complete it must establish in "theory and practice" the doctrines of: judicial independence, judicial review and judicial sovereignty.

Judicial independence is well established through English law practices and hasn't been an issue in Australia. However, one draft of the Australian Constitution by Samuel Griffiths placed the judicial under the power of the legislative, rather than being independent. That unwise relationship was removed at the next constitutional convention.

Judicial review is the doctrine whereby the High Court has the power to "refuse to enforce" an unconstitutional law. This leads to the doctrine of judicial sovereignty where a "law may be held unconstitutional if the Court thinks it is, even though the case may not be plain" and the Court's decision is binding on the other branches of government.

There are other issues surrounding these especially in constitutionally based liberal democracies and republican systems. The presence of a constitution means the government is based under the doctrine of "limited government' and has competing components of 'fundamental law' and 'popular sovereignty'.

Constitutionally limited government is an innovation of American Constitutionalism. The constitution is a restriction on government based in fundamental law. Where the fundamental component - the constitution as a written document only alterable by referendum - is greater than statutory law. This easily establishes judicial sovereignty as this branch becomes the only branch constitutionally able to interpret the constitution. The legislative's power ends with statutorial bills/acts.

Fundamental law and popular sovereignty often butt heads over the definition of constitutionally limited government.

The absence of fundamental law is found in unwritten constitutional system such as English Constitutionalism. Under these systems the constitution is either constructed of conventions, practices and norms - such as the Roman system - or contains some statutory documents which can be amended by the legislative at will. Western Australia, Tasmania and South Australia are good examples of English Constitutionalism.

American Constitutionalism took the fundamental law component further and entrenched natural rights into the constitution. These become liberties that government cannot intrude into no matter how strong the executive's and/or legislative's popular sovereignty is.

Australian High Court practice, like the Australian Washminster Constitution, has adopted a mixed American/English approach to judicial review of fundamental law. For instance the High Court has protected political speech as a fundamental law.

Now, there is no bill of rights in the Australian Constitution other than a clause on religion. There is no explicit protection of speech or political speech.

This is where it gets weird. The High Court argued that because Australia has a constitution which outlines a democratic system - the fundamental and inherent nature of Australian limited government - then the constitution is incomplete and incapable of functioning as a democratic system unless political speech is protected as fundamental law.

The republican response to all that judicial weaving is that a constitution and limited government is incomplete without a Bill of Rights which places explicit and absolute restrictions on the executive and legislative in relation to political rights.

The counter to fundamental law is the conservative approach which argues that popular sovereignty of the executive is the dominant legal component of the government. We have seen John Howard argue this several times. More recently in his youtube debut:

The Australian people are not especially concerned about theories of governance when it comes to the delivery of basic services such as health and education.

Howard is claiming executive/legislative popular sovereignty over the fundamental law of the constitution. This effectively breaks limited government and the policy of recent weeks has shown little care for vertical separation of powers.

The Australian Washminster system is a problem for the judicial. It is neither an American nor an English system, and unfortunately it is not a unique Australian innovation either, as the mix has meant that decisions often appear adhoc or ludicrous when either an American or English approach is taken. Australia has not innovated beyond the American system and instead we have just ended up with highly nationalised constitutional law rather than federalised law.

Australian republicans have the same constitutional decisions to make as the bearded men did in the 1890s: Adopt American Constitutionalism which is now 230 years old in practice and innovated beyond the English system. Or adopt English Constitutionalism, which is much older, and incompatible with republicanism in many areas. Another alternative is to innovate a purely Australian Constitutional system.

The worst of all worlds is a compromise between the American and English constitutionalism which we have in the Washminster mutation.

More Reading on American constitutionalism

• American Constitutionalism
• English Constitutionalism
• Washminster Mutation
• Robert G. McCloskey
• American Constitutionalism
• Judicial Doctrines
• Confused Constitutionalism