Legacies of Luck: Australia's Constitution and National Identity in the 1990s (original) (raw)

Australia's Constitutional Identity: a Conundrum for the 21st Century

Sir Edmund Barton Lecture No, 2001

What do we see when we look in our constitutional mirror? Is it a familiar face, one we know well, and have known for many years? A reflection that speaks to us of a long, but useful lifetime, its features clear and instantly recognisable? Or do we stare at it and find only ...

The Concept of “One Australia” in Constitutional Law and the Place of Territories

Federal Law Review, 1997

This paper argues that there is a fundamental concept implicit in the interpretation of the Australian Constitution which postulates that that document should be approached from the perspective of what I have called for convenience "One Australia". It is a concept which suggests that the Australian courts should, where appropriate, take into account that Australia is one nation and one people operating under a "unitary" system of Australian domestic laws. It arises from the evolution of Australian nationhood and from the increasingly interdependent nature of Australian society. It is suggested that this concept is already exerting an influence on judicial decision-making in this country, to be balanced with other constitutional fundamentals, including that of the federal system. However it is also asserted that the full implications of "One Australia" have not as yet been determined. This is particularly so in relation to Commonwealth territories and their residents. The latter have in the past been generally regarded as being of little importance, both constitutionally and otherwise. Recent developments in some of these Territories, and their growing importance within the Australian nation, directly raise the question of the applicability of the concept of "One Australia" to them, particularly as it might be held to impinge on the constitutional place of such territories in Australia and on the constitutional rights of their residents. At present it can be said that there are two classes of Australians in constitutional terms, those in the territories and those in the States, with those in the former having an inferior position in this regard. The question raised is whether Australian courts will seek to address this constitutional form of disadvantage, in so far as it is within their capacity to do so, by having regard to the premise of "One Australia". That there could be such an implication is not a novel concept. It is well established that there are certain fundamental concepts or principles inherent in or implied into the Australian Constitution which are not, or not fully, expressed in the written text. The concepts of responsible government, 1 and representative democracy,2 are good 1

Arguments on constitutional recognition for Indigenous Australians

The culmination of the recent Referendum Council (2017) was the Uluru Statement from the Heart, which called for ‘constitutional reforms to empower our people and take a rightful place in our own country’. The available arguments on constitutional recognition can be examined through the historical, political and legislative challenges faced by Indigenous Australians, and the pathways to sovereignty through agreement and treaty making in settler nations historically and politically similar to Australia. The development of a position for recognition and constitutional change emerges through consideration of the extensive consultation already put forward by Australia’s Indigenous peoples, and in their resultant recommendations. Deciding if Australian society is ready or able to consider these changes, can be observed in the achievements to date towards the re-establishment of an Indigenous presence in everyday contemporary life, and through stated support of constitutional change through opinion polls.

An Australian Constitutional Experience

Cross Sections: The Bruce Hall Academic Journal, 2006

The Australian Constitution has been labelled at various times unsatisfactory, frustrating and ineffective. Australia’s experience with Constitutionalism rests, principally, on two foundations: Judicial review and Federalism, both entrenched in a written document. With reference to both the illusory notion of a supreme Parliament and the existence of limitations on legislative power pre Federation, this paper argues that a constitutionally protected Federation affords some protection to citizens, while judicial review ensures that Parliaments of the day do not step over the grant of authority given to them by their agents, the people. It is the conclusion of this paper that, far from being an unsatisfactory document, Australia’s Constitution provides sufficient powers to ensure effective democratic government while protecting the rights of the Courts, Parliament and People. Australia’s Constitution is a continuation of the historical progression from arbitrary and unlimited rule, to a system where the rule of law controls the exercise of power.

Remembering Australian Constituent Power

Melbourne University Law Review, 2023

The constituent power of the Australian people has long been neglected. This article will turn to the transnational history of the Australian founding period to provide a clearer understanding of Australian constituent power. This history shows that the Australian framers adopted a version of constituent power borrowed from the American tradition of constituent power and which gives the people legal sovereignty to alter constitutional law outside of Parliament but in a way regulated by law. Remembering this constituent power tradition holds both conceptual and practical lessons for the way we understand Australia's constitutional order and the way that the Australian people exercise their constituent power to alter their constitutional order. In particular, it shows the importance of separating Australian constitution-making from ordinary, parliamentary politics. It therefore suggests that a fully-elected convention for drafting proposed constitutional amendments could revitalise the people's role in constitutional change. Furthermore, it also demonstrates the broader importance of theorising a constituent power tradition that allows the people to make constitutional law outside of Parliament but in a cooperative process regulated by ordinary law and institutions.

Still Call Australia Home: The Constitution and the Citizen's Right of Abode

Comparative & Non-U.S. Constitutional Law eJournal, 2008

The Australian Constitution contains no express references to Australian citizenship. Despite this, the constitutional validity of Commonwealth citizenship law is not in doubt. Until 2005, citizenship was largely regarded as a statutory matter, and the Commonwealth Parliament was considered free to define citizenship as it wished. Recently, however, a shift has been signalled, with McHugh J's suggestion in Hwang v Commonwealth that citizenship law is shaped and limited by the Constitution itself. The question now arises: what is the constitutional character of Australian citizenship? In this article, I argue that the constitutional concept of citizenship is defined, specifically, by the right of abode in Australia. This is not a freestanding concept, but is grounded in the constitutional heads of power that the High Court has, from time to time, identified as supporting citizenship laws, namely, the 'aliens' and 'immigration' powers (respectively, ss 51(xix) and ...

Australian Indigenous Constitutions: Recognition and Renewal

Federal Law Review, 2016

The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of ...

The small brown bird: Values and aspirations in the Australian Constitution

Icon-international Journal of Constitutional Law, 2016

This article addresses the disinclination of Australians to treat their Constitution as a source of shared values or aspirations. In this article, the authors argue that there is, nonetheless, a meaningful way that the Australian Constitution articulates the values of the Australian people. Moreover, it is argued that recent movements for constitutional reform suggest a shift in Australian constitutional culture towards an acceptance that the Constitution does and should define the values of the Australian people.