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At some point in the next few years, Australians are likely to vote in a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. The exact timing of the referendum is currently unclear, as is the form of the proposed amendment. It seems that, at the very least, Australians will vote on whether to remove s 25 (which envisages that the States may disqualify people from voting on the basis of their race) and s 51(xxvi) (which authorises the Commonwealth Parliament to legislate with respect to ‘the people of any race for whom it is deemed necessary to make special laws’) from the Constitution. The proposed amendment will also include some form of positive recognition of Indigenous people and their cultures, coupled to a grant of law-making power to the Commonwealth Parliament to make laws with respect to Aboriginal and Torres Strait Islander peoples. (For an earlier post on this process, see here.)
There is contention, however, about whether the proposed grant of law-making power should be accompanied by a constitutional non-discrimination guarantee. In other words, should the Constitution seek to ensure that the Commonwealth uses its new power for the benefit, as opposed to the detriment, of Indigenous peoples? The Expert Panel on Constitutional Recognition of Indigenous Australians recommended that the Constitution should be amended so as to prohibit any Australian Parliament – Commonwealth, State, or Territory – from discriminating on the basis of race, colour or ethnic or national origin. This proposal is supported by Opposition leader Bill Shorten, who has argued that a purely symbolic change to the Constitution would be regarded as insufficient by most Indigenous peoples. However, it was emphatically rejected by Prime Minister Tony Abbott, otherwise a firm supporter of constitutional recognition of Indigenous Australians, on the basis that it would amount to a ‘de facto Bill of Rights.’ The Prime Minister’s view reflects the deep aversion to constitutional rights protection that exists in many sectors of Australian society. Others, such as the Joint Select Committee on Constitutional Recognition, have recommended that the proposed non-discrimination provision be narrowed so as to apply only to Aboriginal and Torres Strait Islander peoples. Seeking a compromise, Aboriginal lawyer Noel Pearson has advocated a constitutional requirement that Indigenous peoples be consulted in laws and policies made about them.
Unsurprisingly, there is considerable concern that the campaign to constitutionally recognise Indigenous Australians may become mired in disputes such as these and lose the bipartisan and popular support that is regarded as necessary to amend the Australian Constitution via the referendum procedure set out in s 128 (see George Williams and David Hume, People Power: The History and Future of the Referendum in Australia (UNSW Press, 2010)). However, in this piece I step back from these debates and consider the extent to which the proposed amendment – whatever form it may finally take – raises fundamental questions about the purpose of constitutions, or why they exist in the first place.
A good starting-point for this discussion is the theory of constitutionalism that emerges from the work of Russell Hardin (see Liberalism, Constitutionalism, and Democracy (OUP, 1999)). In a nutshell, Hardin contends that constitutions exist for the purpose of coordination, or to organise politics and society. Establishing a constitution is itself an act of coordination, which if successful establishes a convention on the part of government officials to act accordingly. Whether the constitution, and the system of government established by it, then successfully coordinates society depends on the people adopting a second convention to acquiesce to the constitutional order (see the discussion in Denis Galligan and Mila Versteeg ‘Theoretical Perspectives on the Social and Political Foundations of Constitutions’ in Denis Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (CUP, 2013)).
In developing the notion of acquiescence from the work of David Hume, Hardin is setting his theory against contractual accounts that envisage actual agreement to the terms of the constitution, and quasi-contractual theories such as that of John Rawls which contends that representative persons would converge upon Rawls’s principles of justice behind the hypothetical ‘veil of ignorance’ (A Theory of Justice (OUP, 1972)). Instead, once the constitution and its attendant conventions are in place, the cost of departing from these conventions is such that it is more likely to be in the interests of people to support the constitution than to organise themselves to displace it. In Hardin’s words, for people unsatisfied with the constitution, ‘obedience to the constitutional order has more the quality of surrender than of glad acceptance’ (‘Why a Constitution’ in Denis Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (CUP, 2013) 61).
Hardin also argues that constitutions exist for the purpose of mutual advantage. At first glance, this may seem at odds with the claim that most people do not agree to the terms of the constitution. How can mere acquiescence be mutually advantageous? However, it is clear that Hardin has in mind the mutual advantage of ‘politically effective groups’ (see Liberalism, Constitutionalism, and Democracy (OUP, 1999) 105). The constitution may or may not serve the interests of politically ineffective groups and individuals. Either way, to the extent that such groups and individuals submit to the constitutional order, this is a matter of acquiescence.
Hardin’s coordination theory of constitutionalism is not without its critics. Jeff King, for example, argues that the thesis ‘undersells the potential of constitutionalism as an instrument for liberal statecraft’ (‘Constitutions as Mission Statements’ in Denis Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (CUP, 2013) 73, 79). In King’s view, constitutions are able to function as ‘mission statements’ inasmuch as they set out core values and commitments that constitute or form part of the purposes of the state. Constitutions may seek to advance the position of politically marginalised groups and individuals, and may also seek to reset existing power relations in society. For King, this sits uneasily with Hardin’s emphasis on constitutions existing for the mutual advantage of politically effective groups.
As examples of mission statement provisions, King points to basic organising principles of the state; bills of rights; directive principles of state policy; preambles; and ad hoc statements of principle (including acknowledgements of the status of aboriginal peoples). Mission statement provisions may be specific or abstract, and need not be subject to judicial enforcement. Even purely symbolic provisions may serve expressive and legitimating functions. They may also serve remedial functions to the extent that they supplement claims in the courts or other institutions. King’s account clearly has much in common with the idea of ‘transformative constitutionalism’, which Karl Klare describes in terms of a constitutional commitment to ‘transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’ (‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 150).
What does all of this have to do with the Australian Constitution, more specifically the debate surrounding recognition of Indigenous Australians? As it stands, the Constitution is an almost textbook example of Hardin’s thesis. The delegates to the constitutional conventions that were held in the 1890s were mainly concerned not with questions of social justice but instead with the financial and trade issues arising from Federation. A particular concern was how to secure the ‘mutual advantage’ of the small states against those of the more populous states in the new Federal Parliament.
The attitude of the Australian people, especially Indigenous people, towards the Constitution is also probably best described in terms of ‘acquiescence.’ The Constitution was not drafted through an inclusive or participatory process but instead by small, privileged sectors of society. Admittedly, the Constitution was approved by referenda in the various colonies but large sections of society were excluded from voting including most women and many Indigenous people. To this day, public knowledge of the Constitution is low.
The Constitution was then passed by the British Parliament in s 9 of the Commonwealth of Australia Constitution Act 1900. The Act contains a preamble but the Constitution itself does not. It is also well-known that the Constitution does not contain a Bill of Rights. The Constitution includes a handful of provisions that approximate rights but these are mainly framed in terms of limits on Commonwealth legislative competence e.g. s 116 on freedom of religion. There are also implied limitations relating to the separation of powers and freedom of political communication (see generally George Williams and David Hume, Human Rights under the Australian Constitution (OUP, 2nd edn, 2013). Overall, however, the Constitution is short of ‘mission’ provisions and can instead be persuasively understood as a device for securing the mutual advantage of the groups represented at the constitutional conventions, coupled to the ongoing acquiescence of the Australian people.
Against this background, the significance of the referendum to recognise Aboriginal and Torres Strait Islander peoples is that it promises to introduce an element of mission to the Australian Constitution. At 3% of the population, Indigenous Australians are, in the words of Noel Pearson, an ‘extreme minority’ and therefore a prime example of a politically ineffective group (see ‘A Rightful Place: Race, Recognition and a More Complete Commonwealth’ (2014) 55 Quarterly Essay 38). Even purely symbolic recognition would mark a break with the exclusionary practices of the past and signal a determination not to overlook the needs of Indigenous Australians in political decision-making. A non-discrimination provision would go further and make the eradication of racial discrimination part of Australia’s constitutive identity. Both measures would deepen the legitimacy of Australia’s constitutional order by seeking to cater to the needs of individuals and groups who do not typically wield much influence in the political arena. In short, if and when a referendum on constitutional recognition is held, Australians may not be voting for a different type of constitution, but they will be voting for a developed understanding of what the constitution is for.
Murray Wesson is a Senior Lecturer at the Faculty of Law, University of Western Australia.
(Suggested citation: M. Wesson, ‘What Is the (Australian) Constitution For?’ U.K. Const. L. Blog (27 Mar 2015) (available at https://ukconstitutionallaw.org/))