21/06/2011

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Topic One
Introduction to
constitutional law
What is constitutional law?
British professor A V Dicey, wrote that the term
constitutional law has traditionally been used to
describe rules which directly or indirectly affect the
distribution of the sovereign power in the state
Blackshield and Williams observe that
Constitutional law thus describes that body of rules
according to which a state is constituted or governed,
the way in which the organs of government are
structured and defined, and the way in which these
organs relate to one another and to citizens.
Wide or narrow definitions
The definitions given above are reasonably
wide in that they do not presuppose that
constitutional law is confined to a specific
document called a constitution, in brief
constitutional law is simply laws that relate to
how sovereign power is established,
maintained, regulated and administered
Many such laws may actually be found outside
of the written constitution itself
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A narrower view
In your text, the authors state that:
the Constitution provides the source and authority for
the exercise of public power, and circumscribes the
limits of that power. Constitutional law regulates the
relationship of the various arms of government with
each other and the relationship of those arms of
government with the governed.
Well thats certainly what the Australian constitution
does, but it would be circular to define constitutional
law by reference to one constitution alone
Arcane and high falutin?
Constitutional law, especially in Australia tends to
be cloaked in a rarefied atmosphere, but does
this mean its any harder to learn or know than
ordinary law?
Not really, in fact because it changes so slowly its
actually easier to learn and know
It may be about important matters but this does
not necessarily make it more complex than say
corporations law or administrative law for
example
Australias limited constitution
Australia's constitution is a very modest
document.
It is basically a compact of federation between
the original states
It contains no grand vision for a nation and
It does not concern itself with the protection
of the fundamental rights of citizens
It also has very little to say about the process
of democracy, elections or freedom of speech
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Australia's positivist obsession
One explanation for how Australia can have
such a minimalist constitution is that it had a
minimal purpose, a compact of federation
Yet Australian legal and political culture
almost obsessively confines constitutional
discourse to the text of the single document
called the constitution
It is interpreted conservatively and applied in
a very literal and legalistic way
Other approaches
Australias stiffness about the constitution is at
odds with the approach of other common law
jurisdictions
The privy council for many years has adopted
a more flexible approach to constitutional
interpretation treating constitutions as living
changing documents that are meant to reflect
national aspirations as they change over time
The public perception
The deeply conservative approach of Australian
lawyers, judiciary and commentators to
constitutional law has also penetrated the public
psyche
Despite being able to change the constitution by
referendum Australians have proved themselves
too timid to embrace even minor change on most
occasions
Australian even have a tendency to model this
restrictive attitude to private constitutions
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Features of Australian
constitutionalism
A limited constitution dealing mainly with
issues of federation
A focus upon a single document
A literal approach to interpretation
A lack of vision for a nation
A lack of vision for social justice or rights
constitutionalisation
Professor Margaret Thornton has criticised the process of
constitutionalisation which
typically involves the treatment of issues at a very high
level of abstraction so that distinctive private or
subjective features are sloughed off.
She points out that:
along with the body of the litigant, the materiality of
discriminatory harm and knowledge of systemic
injustice, constitutionalisation also sloughs off
affectivity whether it be passion, pain, anger, desire or
care which is deemed to belong more properly to the
private sphere and to be of no interest to law.
Sacred text
Associate Professor Greta Bird suggests that there are three
levels of sacred texts in the discourse of constitutional law.
On the first level is the Constitution itself, the text which
has barely been altered in the last one hundred years.
The second level contains the High Court judgements, in
which the High Court judges, sacred guardians or high
priests of the Constitution, interpret the constitutional text.
The third level contains the academic commentary in the
form of well-known constitutional textbooks and articles.
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Disconnection between the issue and
the point of law
Constitutional litigation tends to abstract a real
life issue way from its context and into a rarefied
examination of fine legal points that bear little
resemblance to the circumstances of the case for
example:
The Tasmanian Dam case
The Stolen Generation case
Even these popular names reflect the popular
interest in these cases, rather than in the fine
legal points upon which such major issues stood
or fell
Tasmanian dam case
Despite the massive popular sentiment and concern,
and the results of recent national election, the legal
issue that determined the case was only about the
scope of the external affairs power
In Kruger despite the suffering of several generations,
the case was restricted an examination again of
commonwealth federal powers as against the states.
Time and again the real issues in Australian life are
transported and converted to be about the power
struggle between states and the commonwealth
government
What makes it sacred?
To witness the extreme reluctance of Australians
to consider constitutional change by referendum
reveals some incredible faith placed in the
original writers of the document
Where they really wise fair founding fathers or
this a myth, were they after all simply politicians
no better or worse than our current crop?
Why do we trust a small group of wealthy 19
th
century men so deeply?
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Who wrote it, who interprets it
the Convention delegates were not
representative of the wider Australian
community
They did not include women or men other
than professionals or landed gentry.
The same group of white upper middle class
men of property is disproportionately over-
represented in the High Court judiciary
What voices were/are excluded?
Women
Indigenous people
Racial minorities
The earth and nature
Working classes
Why dont substantive issues get
raised in cases?
Haig Patapan has written that it is because we
have no Bill of Rights that political, moral and
ethical questions are raised indirectly, not as a
matter of general rights such as equality before
the law, but as a question of federalism:
For example: whether the Commonwealth Sex
Discrimination Act prevails over the State
Infertility Treatment Act.
See Re McBain; Ex parte Australian Catholic
Bishops Conference; Re McBain; Ex parte Attorney
General [2002] HCA 16)
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Challenges facing women in politics
For the first time we have a female prime
minister but not without a large amount
public comment about her childless status
We have recent examples of speakers of
parliament objecting to politicians
breastfeeding in parliament
On one hand the Pm is criticised for being
childless, yet it is seems unlikely that she
would be the PM if she were not childless
Indigenous voices ?
The Constitution is remarkable for its failure to acknowledge the
existence of indigenous people, to recognise their prior occupation
of Australia, and to offer them any form of constitutional
protection.
Originally there were exclusions of indigenous people for example :
S 127.In reckoning the numbers of the people of the
Commonwealth, or of a State or other part of the Commonwealth,
aboriginal natives shall not be counted.
And s51 granted legislative power to the commonwealth but excluded
indigenous people
S51(26) the people of any race , other than the aboriginal race in any
State, for whom it is deemed necessary to make special laws;
S 51(26) was designed to facilitate commonwealth discriminatory
laws
S127 was repealed in 1967 and s 51(26) was amended.
Discriminatory legislation
The Hindmarsh island case confirmed that the
constitution provides no general protection
against racially discriminatory legislation.
Although the court left open the possibility
that there could be some limitations where
there was not a reasonable necessity to
make special laws.(Gaudron J) or the laws
amounted to manifest abuse (Gummow,
Hayne JJ)
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Terra nullius
Of course deeper than the constitutional
document itself is the legal fiction upon which
the whole of the British claim of sovereignty
was built
Even though the Mabo (no 2) case revealed
the falsity of the doctrine of terra nullius it
also re-confirmed the validity of the act of
state of claiming sovereignty
Of course this is just the common law
recognising itself, it is circular
The ecological perspective
Excluded by silence as well is the ecological
perspective
Nationhood sovereignty and law are assumed
to take place on an entirely passive landmass
in which nature and the planet are viewed as
a mere stage for human actors and their legal
fictions
This anthropocentric view of reality is not only
empirically unsupportable it is the cause of so
much of the current global ecological crisis
Humans and their recent fictions
Humans and the elaborate abstract systems
they have projected onto the natural world
represent a milli-second in geological time
Abstract systems such as law, economics,
corporations and international finance
continue to be constructed upon the basis of
unscientific assumptions the real relationship
between humans and the rest of the natural
world
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The laws of nature and physics
There is a system of natural law located within
the very physical evolution of the planet and
universe around us and to the extent that we
breach these laws our systems are terminal
Following an earlier lead by Ecuador Bolivia is
set to pass the world's first laws granting all
nature equal rights to humans. The Law of
Mother Earth.
The law of mother earth
Bolivias law will establish 11 new rights for
nature. They include:
the right to life and to exist;
the right to continue vital cycles and processes
free from human alteration;
the right to pure water and clean air;
the right to balance;
the right not to be polluted; and
the right to not have cellular structure modified or
genetically altered.
Ecologically sustainable
development
Controversially, it will also enshrine the right of
nature "to not be affected by mega-infrastructure
and development projects that affect the balance of
ecosystems and the local inhabitant communities".
"It makes world history. Earth is the mother of all",
said Vice-President Alvaro Garca Linera. "It
establishes a new relationship between man and
nature, the harmony of which must be preserved as
a guarantee of its regeneration."
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Ecuador
Ecuador, which also has powerful indigenous
groups, has changed its constitution to give
nature:
"the right to exist, persist, maintain and
regenerate its vital cycles, structure, functions
and its processes in evolution".
So what is lacking in our
constitution?
A modern recognition of ecological inter-
connectedness
A commonwealth environmental head of power
A recognition of indigenous prior sovereignty and
any form of accommodation between the two legal
systems
A Bill of rights reflecting internationally agreed
fundamental rights (to vote, to non-discrimination
etc)
Fear of change
As indicated earlier Australians suffer from an
extreme reluctance to consider constitutional
change, it is a specifically Australian cultural
inhibition
Even the republic which enjoys significant
support cannot make headway
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Constitutional
referendum:
VOTE NO !
or a big snake will
eat up all of your
children!
Reform suggestions
Other suggestions include:
a revised preamble, in which the prior ownership
and occupation of Aboriginal people is
acknowledged and their continuing rights
recognised
a constitutional prohibition on racial
discrimination
treaty with indigenous people
A republic
Consequences of public apathy
Whilst Australia has survived as a nation the
failure of the public to take ownership and be
enthusiastic about constitutional change has
meant that we are stuck with a frozen and
dated document
Also the necessary process of adaptation over
time has been left almost exclusively to the
high Court.
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Conclusion
constitutional law has an immediate relevance over
and above its lofty connection with public power.
There are alternative frameworks or perspectives
which can provide different insights into traditional
constitutional discourse.
In weeks to come, as you read High Court
judgements it may prove helpful to keep these
alternative perspectives in mind.