The phrase ‘Australian exceptionalism’ is most often used these days in relation to Australia's stand with the United States in the war against terror and the Australian government's attitude to international human rights law. Australia is exceptional also in being now the only English-speaking democracy without a judicially enforceable bill of rights at the federal level. Although not unrelated, here I want to explore whether the part of Australian public law that deals with judicial review of administrative action is also ‘exceptional’. I will identify the features that are commonly said to set Australia apart from other common law jurisdictions and justify Australia taking a different path in the elaboration of the principles of judicial review of administrative action.

The concept of equality has been a familiar tenet of democratic theory since antiquity, but it has always been a skewed notion. In Athens, the birthplace of democracy (demokratia: the power of the people), women and slaves were excluded from ‘the people’ so far as life in the polis was concerned. Aristotle believed that this exclusion was justified because women and slaves were inferior in phusei (by their natures). The idea that ‘justifiable’ discrimination may be invoked selectively to derogate from equality continues to be the case today. What is justifiable is determined by those with power, just as it always has been. Equality between human beings, therefore, is a contingent and permeable notion; absolute equality belongs only in the world of the quantifiable and the mathematical. While women and Others have been ‘let in’ to public life, the heritage of the past continues to lie like a dead weight on equal participation.

On 9 February 2007, all State Premiers, in the Council for the Australian Federation, agreed that a constitutional convention should be held in 2008 to propose reforms to Australia's federal system. The need for a Constitutional Convention to improve the operation of the federal system has been supported by a broad coalition, ranging from business groups, to local government, academics and the media. Bob McMullan, in his former role as Shadow Minister for Federal/State Relations, stated that the idea was ‘worthy of serious consideration'. The 2020 Summit, held in April 2008, also proposed the holding of a constitutional convention to reconsider the allocation of powers and functions across all tiers of government and the finances needed to fund them.

There has recently been a minor research and publishing boom in the field of refusals of royal assent to Bills in Australia. When in the throes of finalising my own contribution to this outburst of scholarship, I discovered that the figurehead German Federal President had just refused his assent to two government Bills passed by the Bundestag (the lower house of Parliament). In the two cases, which occurred in October and December 2006, the Federal President acted because he thought the proposed statute unconstitutional. Further research revealed that these were the seventh and eighth refusals of assent by a Federal President against the government's wishes since the foundation of the Federal Republic in 1949. As a result, there is a long-running academic debate in Germany about the circumstances in which the figurehead Federal President may refuse assent. Some scholars even permit the Federal President to assess every proposed law to ensure that it complies with the constitutional charter of rights, while others take a more restrictive view and confine his task to errors of parliamentary procedure and/or restrictions on law-making power other than those to be found in the charter of rights.