Essay

Looking at the big picture

The constitution and 'the vision thing'

THEY WRITE MUSICALS about it in the US; swear by it in Canada; swear about it in Australia; and use as it as a weapon in Sri Lanka. Constitutions matter. But right now they seem troublingly fragile. Governments impose states of exception at will. Basic legal norms are under attack. Authoritarian populists mount brazen assaults on judicial independence, the rule of law and human rights. What difference can a document from another era make?

Constitutions are not just legal structures. They are ‘soft power’. In other countries, constitutional courts have from time to time been prepared to articulate a broader vision of democratic rights and legal values. These visions are not just reliant on written bills of rights. They also draw on underlying legal principles that give those texts a deeper meaning – the inaugural president of the Hungarian Constitutional Court called it the ‘invisible constitution’. Many Australians think of our constitution as little more than a division of power. But where does its legitimacy come from, and what does it stand for?

In 1901, the answer seemed simple. The Constitution of Australia was an Act of ‘the mother Parliament’, passed according to ancient traditions, themselves largely ‘invisible’. Tom Roberts, one of Australia’s most famous painters, was present at the opening of the first Australian parliament, and recorded the event for posterity. The Big Picture, as it is commonly called, shows the Duke of York, the future King George V, reading the official proclamation (see the artwork online here). His authority is burnished by the pageantry of the official party and the giant crown that looms over them like the crown jewels of some modern Leviathan. Today, the Roberts painting has pride of place in our Parliament House. But it is only on loan – the royal family still owns it.

The question of the constitution’s legitimacy cannot simply be answered by reference to its imperial origins. The Big Picture stages a dramatic contrast between dark and light. The official guests are dressed in black, in mourning for Queen Victoria, who had passed away only months earlier after a reign of sixty-three years. The choir, on the other hand, is all in white. They stand for the Australian people – for the future, not the past. The Duke’s proclamation catches a shaft of the sunlight that, pouring in from the windows high above, bathes the chorus. This is the light of God, which binds the official document to the Australian people – indeed, transforms them from a crowd into a nation. Remarkably, Roberts did not sign the painting. What, after all, is a signature? It is a constitutive act, indicating both the presence of an author and the authority of a presence. Ultimately, the nation signs its name – the maker and the marker of its own identity.

As devotees of The Crown know, the constitution has both an ‘efficient part’ and a ‘dignified part’. The sociologist Paul Blokker, for example, writes about two different ‘constitutional imaginaries’, two different ways of imagining the relationship between these aspects. The conservative or narrow imaginary treats the constitution as nothing but a machine to solve conflicts and allocate power. But without its ‘democratic’ ideals, some more expansive vision of Australia’s journey – a story of citizenship, nationhood and becoming – it cannot inspire allegiance. Unfortunately, the Roberts painting works better as a document than as an epic. It is grand, but rather lifeless. When it comes to the constitution, Australians have sometimes found it hard to see the big picture. The question is how a more liberal or expansive vision of our constitutional values might change how we think about our legal system – and, for that matter, how courts go about interpreting it.

 

THE AUSTRALIAN HIGH Court is one of the most conservative in the developed world. As long ago as 1952, Chief Justice Owen Dixon made this famous statement:

It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

The task of the judge is rendered purely technical, divorced from broader considerations of policy or purpose.

In the 1980s and 1990s, the High Court began to steer a new course. Under Sir Anthony Mason and others, it self-consciously forged a new relationship between law and contemporary Australia. In many areas, the court profoundly altered the law. It paid growing attention to norms of international law and to principles of human rights and justice. It developed ‘implied rights’ that, while not expressly mentioned in the constitution, were nevertheless part of its ‘invisible constitution’, its ‘democratic imaginary’. In hindsight, the 1992 Mabo case reads as the high-water mark of these developments. Mabo concerned the common law rather than the constitution, narrowly understood. Nevertheless, in Mabo the High Court laid out a big picture of the role of a final court in the life of the nation. Overturning 200 years of legal assumptions, the leading judgment delivered by Justice Gerard Brennan at long last recognised Aboriginal native title, and defended this seismic shift using the language of ‘justice and human rights’ and ‘the aspirations of the contemporary Australian legal system’. For Brennan, the legitimacy of the legal system was underpinned by an unwritten vision of constitutionalism.

But Mabo was controversial. The court came in for much criticism. Some judges – including Justice Brennan in other cases – actively resisted the movement of the court towards a more ambitious ‘constitutional imaginary’. Over time, the court steadily retreated to more orthodox practices and even reversed its previous decisions. The so-called ‘Mason revolution’ ground to a halt.

 

FOR TWENTY YEARS, with notable exceptions, the High Court has shown considerable reluctance to enter upon questions of history and politics. This model of judicial restraint has many defenders, who fear the intrusion of the judiciary into politics. But while the benefits of the court’s conservatism are well understood, there has been little reckoning of the costs. Without the support of a more liberal court, human rights discourse in Australia seems to have set down only shallow roots. In 1997, for example, the Human Rights Commission’s report on the Stolen Generations encouraged Aboriginal people to seek legal redress for Commonwealth policies it clearly branded genocide. But the High Court that heard Kruger v Commonwealth the same year was very different from the one Sir Ronald Wilson, Chair of the Commission, had left in 1989. In Kruger’s case, eight members of the Stolen Generations argued that the laws that authorised their removal from their families were unconstitutional and genocidal. But the court refused to hear the evidence brought to establish the racism of these policies, as well as to testify to their experiences as children. It divorced its textual analysis from any inquiry into the social realities and cultural assumptions behind the Commonwealth’s laws and policies, interpreting words such as ‘protect’ and ‘care’ without regard to the grim history that gave those words an insidious cast. The claim of genocide was not only dismissed, it was considered constitutionally irrelevant. In Mabo, the legitimacy of Australian law, particularly in the eyes of Aboriginal people who had so long been victims of it, was a key consideration. In Kruger, it did not enter into it.

To take a more recent example, consider Plaintiff M68/2015 v Minister for Immigration and Border Protection. The plaintiff was an ‘unauthorised maritime arrival’ from Bangladesh who was detained on Nauru pending determination of her refugee claim. She sued the Commonwealth, claiming that her detention was not a valid exercise of power under the constitution. Here too the issue was the difference between abstract legal language and the real world. The Commonwealth asserted that the sovereign government of Nauru, not Australia, was responsible for detaining the plaintiff. The minister assured the court that the policy was a temporary administrative convenience, not a punitive measure. The court took those legal arguments at face value, turning a blind eye to the political realities they blatantly distorted. As the United Nations High Commissioner for Refugees has insisted with increasing urgency, the Australian Government is entirely responsible for the treatment of refugees offshore. Only the sole dissenting judge, Justice Michelle Gordon, took seriously the social and political context that cast real doubt on the bona fides of the Commonwealth’s position, a doubt openly expressed everywhere except where it really mattered – in the High Court.

 

THE HIGH COURT’S bone-dry formalism was once more evident in the recent ‘dual citizenship’ cases, which concerned the right of Members of Parliament to be elected in situations in which they were or may have been citizens of another country as well as of Australia. Re Canavan (2017) dealt with seven related cases, including those of Nick Xenophon, Matt Canavan and Barnaby Joyce. It offered a technical reading of section 44(i) of the constitution. The subsequent case of Re Gallagher (2018) emphatically confirmed the court’s approach. Katy Gallagher had initiated the process of renouncing her British citizenship according to British law well before successfully competing in the 2016 federal election. She had done everything required of her, submitted all documents and paid all fees. She was only waiting for the wheels of the British bureaucracy to process her application; a waiting period over which she had no control and that can take up to six months. Yet the High Court still held her ineligible to sit in parliament, basically leaving her political fate in the hands of a foreign government.

There is no doubt that the language of the constitution created problems for the court, and its retreat to strict legalism was its way of avoiding controversy. But that is what makes the cases interesting. The High Court’s conservative ‘constitutional imaginary’ – its technical minimalism – came face to face with the realities of contemporary democracy in a multicultural society. In ignoring those realities, the court’s decisions have had serious political and social consequences, and reveal, it seems to me, the limits of their cautious constitutional imaginary.

Since 1945, immigration has profoundly changed Australia. Our laws have gradually adapted to these developments. Half the population now has at least one parent born overseas; almost as many may be ‘dual citizens’. These changes have turned a minor provision of the constitution into a major hassle:

44. Any person who –
(i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power…shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

According to the High Court, this places a heavy burden on a large proportion of Australia’s population to divest themselves of their foreign citizenship before standing as a candidate. Both your legal status and how to get rid of it are determined by the rules of another country, whose government you may fear, whose language you may not speak, whose legal system you may know nothing about. In many cases, mixed parentage might raise complex questions not just concerning one country but two or three. Yet far from cutting the Gordian knot, the court left it up to each and every citizen to unpick it themselves.

The court allowed only one exception: if another country makes it impossible ever to give up your citizenship, or refuses to do so. But if a foreign law merely ‘presents an obstacle to a particular individual being able to nominate for a particular election’, tough luck. Senator Katy Gallagher did exactly what the British process required to divest her British citizenship. She remained ineligible to sit in parliament because the process, which can take six months, ‘remain[ed] incomplete’ at the time of her election victory. Elections are like buses, apparently: if you miss one, another one will come along. But that is not how democracy works. Elections are called on short notice. The nomination period is very short. The political stakes are sometimes high and urgent. While the court said it was protecting our ‘participation in representative government’, it set no store by whether actual citizens could participate in actual elections.

The then Attorney-General, George Brandis, described Re Canavan as ‘a very strict, almost brutal literalism’, taken ‘without regard to the purpose or history of the provision’. The echo of Sir Owen Dixon’s words was no coincidence. Repeatedly, the court insisted that section 44(i) must be given its ‘ordinary and natural’ meaning. ‘Any person’ who, as a matter of plain fact, is ‘a subject or a citizen…of a foreign power’ cannot be elected to parliament. That’s the ‘ordinary and natural meaning’ of the words: end of story.

Except, of course, it wasn’t. The court faced a problem. ‘Strict legalism’ did not solve it – on the contrary, it created it. Read literally, it meant any foreign country could pass a law bestowing citizenship on Australians, thus preventing them, at the stroke of a pen, from standing for election. That may sound like a good idea for a Gilbert and Sullivan operetta, but not for Australian democracy. The High Court might have reconsidered the interpretative assumptions that led to this bizarre result. Instead, Re Canavan doubled down. It defended its literal reading of section 44(i), carving out only the narrowest of exceptions, as we have seen. It surely begs the question to assert, as the High Court did, that such an outcome ‘could not have been intended’. The whole point of a literal or ‘legalist’ reading is to avoid making judgment calls or engaging with questions of legislative intention.

There could be another way. In Canada, for example, the Supreme Court interprets the constitution as ‘a living tree’, not a petrified forest. Blokker’s liberal ‘constitutional imaginary’ insists that courts should read the text before them as an organic social contract informed by ‘contemporary legal values’. After all, that was the approach Mabo took. But in Re Canavan, the court barely considered the purposes of section 44(i). It spoke of those who had a ‘loyalty’ or ‘obligation’ or ‘allegiance’ or ‘obedience’ to a foreign country – words that might well describe only a small subset of dual citizens. It did not consider whether a strict literal reading was the best way to meet those concerns, particularly given the make-up of Australia in 2017. Or how section 44 might be reconciled to the democratic values underpinning the rest of the constitution. No doubt devising a workable set of criteria would have been a very difficult task. But it is exactly the kind of task the court undertakes in other areas of the law.

Such an argument raises the spectre of ‘judicial activism’. That courts should consider that the purposes, social contexts and norms surrounding a legal text are not simply a licence for judges to do whatever they like. Rather, a particular word or phrase cannot be given meaning without taking into account the fabric of law and society in which it is being read. Every sentence in Re Canavan and Re Gallagher betrays the High Court’s anxiety at having to tamper with the ‘natural and ordinary’ meaning of the words. It tried to interpret the constitution as little as possible. Perhaps it should have interpreted it better, reading it not just with the aid of a dictionary but in light of the purpose of the law in the radically changed context of contemporary Australian life. The court claimed it had to give section 44(i) its ‘natural and ordinary’ meaning. It was merely following the law. But did it really have no choice?

The first thing the High Court did in Re Canavan and Re Gallagher was gut the earlier case of Sykes v Cleary, which arose after Phil Cleary won the seat of Wills following Bob Hawke’s resignation in 1992. The key word in that case was ‘reasonable’. Sir Anthony Mason, John Toohey and Michael McHugh had insisted ‘it would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance… What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case… What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connexion [sic] between the individual and the foreign state.’

Yet in 2017 and 2018, the High Court paid no more than lip service to the idea of ‘reasonable steps’. In practice, the High Court identifies only two ways out of the dual citizenship trap: (1) if the candidate has actually managed to renounce their foreign citizenship; or (2) if the citizenship is ‘irremediable’ – ‘an insurmountable obstacle…with which compliance is not possible’, like a stain that won’t come clean. In fact, in a faintly Kafkaesque move, the taking of ‘reasonable steps’ by a candidate will only be relevant if those efforts ultimately prove fruitless.

Second, the High Court insisted that whether a person is a foreign subject or citizen ‘necessarily depends upon the law of the foreign power’. But it’s not that simple. The question is not whether a person is a subject or a citizen for the purposes of that foreign country’s own laws – for example, in order to apply for a passport, own property or live there. The question is whether that citizenship should be recognised for the purposes of Australian law. And that’s a question for our legal system, not theirs.

Justice Mary Gaudron explained the point in Sykes. Under Australian law, the general rule is if the Swiss think you’re Swiss, you’re Swiss enough for us. But only up to a point. Recognition of foreign status, she said, ‘is understandable’ if there are ‘no consequences for citizenship of the country whose courts are considering the matter, or for the rights ordinarily attaching to citizenship of that country’. But what if the recognition of foreign citizenship comes at the expense of domestic rights? That, explained Gaudron, is a different kettle of fish. In that case, ‘every consideration of public policy and commonsense tells against the automatic recognition and application of foreign law’. It is entirely possible to have a different test for the determination of foreign citizenship in relation to section 44 than in relation to other legal issues. But Re Canavan and Re Gallagher (apart from Justice Edelman) largely ignored this analysis. They treated the candidate’s foreign legal status as if Australian law had no say in the matter. That can’t be right.

 

THE COURT IS clearly worried about problems of proof if the question of foreign citizenship came down to one’s belief or knowledge about one’s legal status. Of course, those concerns are understandable. The court didn’t want to open a can of worms. Nevertheless, the court has developed complex tests in other areas – notably, quite recently, concerning the freedom of political communication – and might have done so here. The constitution states that ‘trade commerce and intercourse among the states…shall be absolutely free’; it gives the Commonwealth power to legislate with respect to ‘external affairs’. These simple words disguise complex problems, and over many years the court has built up a highly sophisticated framework to deal with them. That framework has itself developed in response to new cases, new contexts and a changing world. In the Tasmanian Dam case, the court famously expanded Commonwealth power to prevent the construction of a large hydro-electric dam in south-west Tasmanian wilderness areas, on the basis of its international obligations under the World Heritage Convention. To come to that decision, the High Court took into account dramatic changes in Australia’s social and geopolitical context and its international relations. In other areas of constitutional law, the High Court has been prepared to bite the bullet; but not this time.

The constitution did not paint the High Court into a corner. It did that all by itself. It’s not that values have no place in the court’s ‘objective’ reading; the question is what those values were. What constitutional vision justified their choices? In Re Canavan, the court stated that its goal was ‘the stability of representative government. Stability requires certainty.’ Accordingly, the court adopted a bright line rule, no matter how many Australians found themselves on the wrong side of it. In Re Gallagher, the majority refused to read section 44(i) ‘so that its effects are more generally ameliorated so as to ensure the ability of foreign citizens to nominate’. But at no point did the court explain why the ‘stability of representative government’ was more important than the representativeness of representative government – why it was prepared to trade an ounce of democracy for a pound of certainty.

The court’s narrow exception to section 44(i) was said to stem from a ‘constitutional imperative’. The court has frequently used this phrase to express the more liberal and expansive aspects of its constitutional imaginary. Examples include ‘the maintenance of a system of representative government’, ‘the principle of representative democracy’, the separation of powers, ‘freedom of communication’, the federal balance and ‘choice by the people’. These are all broad democratic and legal commitments, embedded deep in the structure of our constitution even where they are not explicit. ‘Constitutional imperatives’ is High Court-speak for the ‘vision thing’. Yet although the phrase is repeated no less than forty times in Re Gallagher, the court turned its meaning upside down. What was previously ‘the big picture’ became a kind of limited statutory exception applicable if and only if an Australian citizen would otherwise ‘be irremediably prevented by foreign law from participation in representative government’. Like a fairytale in reverse, the High Court turned a carriage back into a pumpkin.

Justice Edelman, the most recent appointment to the court, acknowledged that this narrow reading would not prevent ‘arbitrary and discriminatory effects’. He evidently felt he bore no responsibility for the adverse consequences of his own interpretation. Indeed, Senator Gallagher’s argument for a broader constitutional imperative appears more in line with previous decisions of the court. Her argument failed only because the High Court invented, declared and ultimately fetishised a much narrower vision of the constitution.

Unusually, Re Canavan was decided ‘per curiam’: the whole court authored a single, collective judgment. Like Tom Roberts, the members of the court did not sign their own names but cloaked themselves in the authority of the institution instead. In a major speech delivered earlier that year, Chief Justice Susan Kiefel had urged a greater use of single majority judgments, fewer individual opinions and the adoption of a ‘collegiate approach’. Her legal imperatives appear to be efficiency, clarity and authority. She describes diversity in judgments as inconvenient at best, narcissistic at worst. She concludes that ‘the “vanity judgment”…is not the voice of the court, it is the sound of self’. While this no doubt shields the court from unwelcome criticism, it ignores the traditions of the common law. The High Court is not infallible. It does not just decide cases and announce the result. Diverse individual opinions, enriched by judges’ unique voices and perspectives, provide nuances and leeway that set the stage for the future development of the law. This is not ‘the sound of self’ – it is the sound of the court as a rational, organic, responsive institution.

 

ADMITTEDLY, SECTION 44(i) poses complex problems surrounding the development of alternative interpretations. The point is that the judges who decided Sykes v Cleary did not all speak with one voice or point in one direction. The High Court in 2017 had the opportunity to pick up one of any number of threads woven into the previous decision. The High Court preferred not to, instead cleaving to the narrowest reading of the narrowest judgment.

The consequences for Australian democracy are serious. Fifteen MPs have resigned. But it won’t stop there. A 1987 Parliamentary Library report warned that section 44(i) ‘poses a problem which goes right to the heart of a representative democracy’. Since then, politicians of all stripes have sat on their hands, hoping the whole problem would go away. In 2017, it blew up in their faces. But the High Court’s self-characterisation as blameless technician lets it off too lightly. The test in Re Canavan is easy to follow, but fiendishly difficult to apply. The problem of how to actually live with a nineteenth-century constitution in a twenty-first century world has not gone away. The High Court’s mantra of ‘stability and certainty’ merely ensured that it wouldn’t have to deal with it. For everyone else, the mess just got worse. A legal minefield now faces millions of Australians, should they ever wish to stand for parliament. Dual citizens are becoming second-class citizens.

Re Canavan argued that ‘a candidate need show no greater diligence’ than their opponents. That is not the case. Allegations are easy to raise and hard to shake. Risk-averse political parties may decide it is better to be safe than sorry, and preselect candidates from less diverse backgrounds. Meanwhile, nominees will rack up thousands of dollars and hundreds of hours looking into their own background: dredging up old documents; working out the often-giddy complexities of ‘foreign law’; making applications to foreign governments; trying to get answers from recalcitrant or uninterested officials; translating and retranslating documents. Tim Hollo is an Australian-born citizen who stood for the Greens in the 2019 federal election. His story is a good example. According to a report in The Sydney Morning Herald in February of this year, it ‘involves fourteen months of legal wrangling, thousands of dollars and a seventy-five-year-old Hungarian wedding certificate. “I knew it was going to be complicated; I had no idea how difficult, how long, how costly it was going to end up being,” Mr Hollo said.’

Smaller parties and independents will be far less able to navigate the Byzantine complexities raised by each unique case. Many may decide to give up.

Senator Gallagher fulfilled all the legal steps asked of her. The problem was that the UK authorities did not process her application in time. The court dismissed her argument that by leaving her to the whims of a foreign bureaucracy, the way was open to ‘arbitrary results’. But the court missed the point. Perhaps British public servants are not subject to party political influence. But governments or bureaucrats could say no. They could take their time. What if the candidate was a populist – a Trump, a Bolsonaro, a Pauline Hanson? In our mediatised, global world, the political weather in other countries exerts a real influence on local politics, and vice versa. Could the actions of a Chinese official never be swayed by a candidate’s attitude to Taiwan or Tibet? What of the decisions of a politically reactionary government like Hungary? What if someone sits on an application for six months or a year? When will the law step in? Will the court require evidence proving political interference? This, not ‘stability and certainty’, is the High Court’s legacy. A vital aspect of Australian democratic life is now a hostage to fortune.

The May 2019 federal election did not suggest that these problems had gone away. The Australian Electoral Commission issued a ‘section 44 checklist’ that candidates were required to complete, but no enforcement mechanisms were put in place to prevent ineligible candidates from standing. Among other question marks, at least nineteen candidates who stood for Clive Palmer’s United Australia Party submitted incomplete or inconsistent information. According to Professor George Williams, Australia’s leading constitutional lawyer, the fact that an ineligible candidate did not win a seat in the new parliament does not necessarily mean the election result is immune from challenge: in a preferential system, even losing candidates can affect
the result.

True, many remain wary of the judiciary taking an active role in the defence of rights. Strong courts, as Stephen Gardbaum – MacArthur Foundation professor of international justice and human rights at UCLA – argues, pose a danger to ‘new democracies’, where the lines between judicial and executive power are already grey. Ideas of democratic nationhood and community aspiration can be, and have been, hijacked by authoritarian and/or populist movements in recent years. Nevertheless, these concerns do not take into account the particular constellation of forces gathering around us – the fragility of rights, legal principles and democratic reason on the one hand, and unbridled executive power on the other. The problem goes beyond politics. We are losing trust in our key institutions: banks, government, public service, the church. Australian civil society is under siege – fractured, fractious and paralysed.

In recent years the law, of course, has not been doing so well, either. ‘Black holes’ of executive power engulf more and more people: refugees and asylum seekers, Indigenous people, suspected terrorists and their ‘associates’, Islamic sympathisers. Journalists and activists are increasingly being singled out. Legal, political and technological developments undermine the rule of law and compromise fundamental principles. But resilient legal institutions still have the potential to defend core legal and social values. The High Court could play a pivotal role at the intersection of public life, legal legitimacy and social discourse. At the moment it does not seem inclined to.

Noted Australian novelist Richard Flanagan wrote in The Guardian in August 2018: ‘The world is being undone before us. If we do not reimagine Australia, we will be undone too.’ This might be a good moment to reassess whether adherence to a lofty judicial legalism, unanchored by any deeper normative principles, is the best we can do. It all comes back to constitutionalism, properly understood – ‘the big picture’. A technocratic approach to decision-making, accompanied by thin conceptions of legitimacy, right and the letter of the law adds little fibre to our public diet. Law is at risk of being reduced to an empty shell that, as the anthropologist Clifford Geertz warned in Local Knowledge (Basic Books, 1983), ‘leaves law the most powerful where the least needed, a sprinkler system that turns off when the fire gets too hot’. The idea of a liberal or democratic constitutional imaginary, on the other hand, evokes a more resilient and holistic vision of the law – a better sprinkler system to help us put out the spot fires that keep flaring up.

Judges rely on reason and principle, and do not simply resort to emotion or instinct or political expediency – that is still, in this country, one of the most impressive and important contributions of Australia’s legal system to our public life. It is certainly worth protecting. Liberal constitutionalism is not about abandoning our commitment to the rule of law. The American legal philosopher Lon Fuller made the same point in the pages of the Harvard Law Review way back in 1958. In ‘Positivism and Fidelity to Law’, a much-quoted essay, he argued that finding out what the law really means ‘so that we may know truly what it is’, and connecting it to our deepest legal and social values, are not opposites at all. They are two sides of the same coin. The true ‘fabric of thought’ of the law, he went on, is both something we discover and something we are actively involved in building and creating ‘as we strive to make the constitution a coherent, workable whole’. This process does not just happen once, but constantly. By strengthening the ligaments of legal interpretation, we embed law and rights more deeply into our social fabric. The ‘constitutional imaginary’ does not just matter to lawyers and judges. It has a wider relevance to how all of us see our relationship and our commitment to law.

Aboriginal groups have been at the forefront in trying to build alternative public sites of constitutional discourse. The Uluru Statement from the Heart spoke of sovereignty as a ‘spiritual’ rather than just a legal notion, and invited the Australian community as a whole to ‘walk with’ Indigenous people in a movement to breathe new life into our constitutional relations. The Referendum Council proposed enshrining an ‘Indigenous voice’ to the Australian parliament. Regrettably, the Turnbull Government could only see these claims as undermining its minimalist understanding of the constitution. The disagreement essentially reflected two different constitutional visions – what it is, where it comes from and why it matters.

The council proposed that parliament’s consideration of the Indigenous ‘voice’ should be ‘non-justiciable’. There is nothing peculiar about this. Legal requirements for non-binding consultation with stakeholders are common features at all levels of government. But I wonder why, after wide-ranging consultations with Aboriginal people, they chose to keep the High Court out of it. Was this an effort to reassure white Australia, or did it also reflect an underlying distrust of the court? The betrayal felt by Aboriginal communities in the wake of the Kruger case and others may have left their scars.

Rejuvenating civil society and public life is everyone’s responsibility. But the High Court seems reluctant to enter the fray. Section 44 is a case in point. In the wash-up of its recent decisions, attention has focused almost exclusively on what to do about the constitution. But the problem is not just the text from another century; it is also how the High Court chooses to interpret it in this one. If Mabo came before the High Court today, would it be decided in the same way? Or – in the interests of ‘stability and certainty’ – would the legal travesty of terra nullius be left untouched? That seems to me a fair question. Tom Roberts’s painting reminds us that the constitution is a historical document: a man in formal attire reading from an arcane text. But it is also the light that illuminates it, then and now. Ignoring the big picture is like trying to read the constitution in the dark.

 

 

Select references

Blokker, Paul. ‘The imaginary constitution of constitutions’. Social Imaginaries 3.1 (2017): 167-193.

Dixon, Sir Owen. 1965. ‘Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April’, (1952) 85 CLR xi. In Owen Dixon, Jesting Pilate and Other Papers and Addresses, edited by J. Woinarski, 247. Melbourne: Melbourne University Press

Gardbaum, Stephen. ‘Are strong constitutional courts always a good thing for new democracies’. Columbia Journal of Transnational Law 53 (2014): 285.

Geertz, Clifford. Local knowledge. Basic books, 1983.

Karp, Paul. 2017. ‘Brutal literalism’. The Guardian Australia, October 29 (quoting George Brandis)

Commonwealth v Tasmania (Tasmanian Dams case) [1983] HCA 21, (1983) 158 CLR 1

Kiefel, Susan. 2017. ‘Judicial Methods in the twenty-first century’. Supreme Court Oration, Banco Court, Supreme Court of Queensland, 1 at 9

Sykes v Cleary (1992) 176 CLR 77 at 135 per Gaudron

 

A full list of references is available from the author on request.

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