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Short Essay: The Australian Constitution: historical origins, and adequacy as a ‘superior law’

The Australian constitution is over one hundred years old, and reflects its historical origins in a number of ways.  Is it possible that this document still reflects Australia?  Taking an overall view, it can be said that it is adequate, however could also benefit from clarification.

A number of key players in the push for federation had ostensibly saw a need for ‘joining forces’ in areas of common interest, but were willing to accept compromises that would get the ball rolling; perhaps not expecting that the constitution would remain relatively unchanged for this length of time.  When the colonies first considered the constitution, they were highly supportive of the British parliamentary system; however an admiration for America’s constitutional changes had an effect on the way the founders’ considered the future of Australia.  While the founders’ did not wish to break British ties as America did, they saw benefits to the American system of ‘federalism’, since none of the colonial politicians were particularly willing to give much ground in the granting of power to the central government, instead preferring to retain their power, and limiting the national government to specific areas. However federalism and the British parliamentary system of responsible government do not always fit together, which can lead to the electorate losing faith in government, since it is the conventions of responsible government ‘that predisposed the electorate to have faith in government’ (Bagehot, as cited in Cornford, 2005).  The implementation of federalism was a measure of political compromise, since the colonial governments had already rejected or delayed the ‘federation project’ several times.  They were aware that there may be conflict with federalism and the Westminster system, but considered that the ‘unwritten conventions’ that they were adopting would provide sufficient guidance to manage them.

The constitution also suggests its origins through the features it lacks (see Aitken & Orr, 2002, Ward & Stewart, 2010, Singleton et al., 2003).  There is no recognition of rights, as the founders’ largely considered that common law would best protect rights, making a separate ‘Bill of Rights’ unnecessary; it contains no confirmation of commitment to democracy; and no provision of universal suffrage, since there were no women in the constitutional delegations, and they only had the right to vote in two states.  However, the constitution did include two references to Indigenous Australians, which pointed to its origins – the references were ‘dismissive’ (Aitken & Orr, 2002), and were removed by an overwhelmingly supported referendum in 1967.

The constitution itself is a highly legalistic document which is vague on details, which makes its’ adequacy as the body of superior law in Australia debatable.  Additionally, much of our society and government has been changed by events since the constitution was written.  The shaping of the constitution itself meant it was also necessary to create an adjudicator, the High Court, who manages disputes between States and the Commonwealth.  They have come under fire in recent years, being accused of ‘activism’ by interpreting the law away from strictly black letter law, to a more socio-political interpretation (see Ward & Stewart, 2010, Singleton et al., 2003, Galligan, 2003, Aitken & Orr, 2002).  In light of these factors, several calls have been made to modernise the constitution.  There have been calls for a Republic; attempts to reduce Senate power; clarification and codification of ‘implied’ features like reserve powers and some conventions; calls for centralisation, either through disbanding or replacing states with lesser powered ‘regional’ governments; clarification or redefinition of state and commonwealth powers; and calls to introduce a specific ‘Bill of Rights’ as constitutions in other nations provide for (Ward & Stewart, 2010, Aitken & Orr, 2002, Singleton et al., 2003, Galligan, 2003).

However, changes to the constitution have historically been hard to make.  This may point to its wide acceptance by the community, but may also reflect another, less benign reason.  Ward and Stewart (2010) point out that one intended design feature of the constitution, s. 128, is seemingly ‘undemocratic’.  This section requires a ‘double majority’ – a vote must be carried by a ‘democratic’ majority of all voters, across a majority of states.  This was intended to ensure that the ‘majority’ populated states could not overpower the ‘minority’ populated states.  It is interesting to note that this is considered blatantly undemocratic by some, but others consider it akin to extra-democratic in its ‘protection’ of minority populations (Galligan, 2003, Singleton et al., 2003, Aitken & Orr, 2002).

Possibly due to its vagueness giving rise to flexibility in interpretation, the constitution has stood the test of time, and still maintains its relevance today; however with society ever changing, it is important to ensure the ‘superior body of law’ continues to reflect the nation.  The possibility of reform should not be discarded.

 

Bibliography

Aitken, G. & Orr, R. (2002) Sawer’s: The Australian Constitution 3rd ed., Canberra:Australian Government Solicitor.

Cornford, I. (2005) ‘Changes to the Australian Public Service: Some Deleterious Effects Upon Political Accountability and VET Policy Formation and Implementation’, AARE 2004 Conference Papers,  available: http://www.aare.edu.au/04pap/cor04940.pdf.

Galligan, B. (2003) ‘Federalism and the Constitution’ in The Cambridge handbook of social sciences in Australia,Cambridge: Cambridge University Press.

Singleton, G., Aitken, D., Jinks, B. & Warhurst, J. (2003) Australian political institutions, 7th ed., Frenchs Forest, N.S.W.:Pearson Education.

Ward, I. & Stewart, R. G. (2010) Politics One, 4th ed., South Melbourne:Palgrave Macmillan Australia.

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