Critique this statement: Australias Constitution has served the nation well and does not require updating

Critique this statement: Australias Constitution has served the nation well and does not require updating

The Australian Constitution was drafted in the late 1890s by figures of political influence from the then six separate colonies of the British Empire. On January 1st 1901, the Commonwealth of Australia came into being with the Constitution providing the structure and rules for governance of the new Federation (Singleton et al. 2012 p.56). Within the Constitution, section 128 specifies the process of amendment, the framers providing a clear mechanism for this to occur. Since 1901 the Constitution has only been amended 8 times suggesting that it is a practical and robust document that embodies the values and needs of the Australian nation and its people. This is demonstrated by Williams (2001, p. 35) as he discusses that a century is a remarkably long time for any framework of government to endure largely unchanged. The process of referendum has not been without its challenges, with only 8 of the 44 proposed amendments accepted by the Australian people (Singleton et al. 2012, p.75). Harris (2015, p. 13) argues that in the matter of Constitutional reform, there must be better education of the Australian people, as they are reluctant to change something that they inherently do not understand. Over the century there have been 6 different Parliamentary reviews of the Australian Constitution, all utilising differing methods but what is similar is that the majority of their recommendations have not been acted upon (Parliament of Australia 1988, p. 1). The most recent in 2008 Reforming our Constitution: A roundtable discussion was an initiative of the then Gillard government (Parliament of the Commonwealth of Australia 2008).

As a result it has fallen upon the High Court, in the absence of Constitutional reform, to legislate on matters and interpret the Australian Constitution (Williams 2001, p.46). There are many matters in this modern day that are under-represented within the Constitution and the Australian people have to rely on the High Court, a judiciary not elected by the Australian people, to interpret them in any case of challenge. This essay will set out to discuss the issues of relying on judicial interpretation on matters within the High Court and in particular will look at three contentious areas of potential Constitution reform.

In contrast to comparable democracies, Australia does not have a Bill of Rights or a Human Rights Act (Williams 2015, p.1). Human Rights protections must instead be found in its Constitution as well as within various legislation passed at the Federal, State and Territory level (Australian Law Reform Commission 2015, p.2). The five rights that do exist within the Australian Constitution are thus, the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117) (Australian Parliament 2021). The onus therefore rests with the High Court of Australia to apply other areas of Constitutional law, which may indirectly resolve matters of human rights, if they do not pertain to the five rights listed within the Constitution.

During 1950, a time of increasing fear around Communism, the Liberal Prime Minister Menzies introduced theCommunist Party Dissolution Act 1950. The Act had far reaching powers and gave the Commonwealth the ability to dissolve the Communist Party and confiscate all its property without compensation. It allowed the Governor General, in consultation with the federal cabinet, to name organisations and businesses that it felt were affiliated with communists, as well as individuals, restricting their employment in some workplaces and industries (Australian Constitution Centre 2021). Due to the lack of democratic rights embedded in the Constitution, a human rights emphasis during the Australian Communist Party v The Commonwealth (1951) case was not possible. Instead the focus was on the defence power (section 51(vi)), laws incidental to the executive power (sections 51(xxxix) and 61), or an implied legislative power (Australian Constitution Centre 2021). The High Court decision forced the government of the day to heel, exercising its power of judicial review, to abide by the statutes set out in the Constitution upholding the rule of law (Rule of Law Education Centre 2016). Although the High Court held the Communist Party Dissolution Act invalid in its entirety Williams (2015, p.7) explains this finding did not depend upon the Act having breached any constitutional guarantee protective of human rights.

The protection of human rights remains a fortuitous conclusion in the Australian Communist Party v The Commonwealth (1951) case. However in others, even when considerable abuses of human rights occur, favourable outcomes can prove impossible when constitutional remedies are non-existent (Williams 2015, p.8). In the ruling of Al-Kateb v Godwin (2004) in the absence of constitutional human rights, the High Court was unable to define an indefinite detention of asylum seekers as an abuse of basic human rights. Al-Kateb was stateless when he arrived in Australia by boat with no passport or visa in 2000. His application for a protection visa was denied by the Department of Immigration and Multicultural and Indigenous Affairs and subsequent legal challenges of the Migration Act 1958 were also dismissed (Boyle 2005, p. 119). Al-Katebs position was untenable, as a stateless person he was unable to be deported, as no other country would take him. It fell to the High Court in 2004 to deliberate whether a person could stay in mandatory detention indefinitely when there was no hope of removal (Boyle 2005, p. 120). The High Courts ruling was that indefinite detention was allowable under the Migration Act 1958 and that the provision within Chapter III of the Constitution had not been exceeded in the use of judicial power. Williams (2015, p.4) observes that textual amendments to the Constitution are necessary as many issues are outside of the High Courts elucidation.

In 2016 a Special Rapporteur for the United Nations, Crepeau, noted that some of the migration polices of Australia have increasingly eroded the human rights of migrants, in contravention of the countrys international human rights and humanitarian obligations (United Nations (Human Rights Council) 2017, p.1). An addition of a Bill of Rights within the Constitution would update it with an emphasis for the 21st Century and possibly bring Australia into line with the international human rights treaties it has signed. This idea is reinforced by Harris (2016) in An Argument in Favour of Constitutional Reform which highlights a disparity between Australia as an international signatory of Human Rights with a Constitution that has an absence of comprehensive rights protection. Kirby (2012, p. 6) goes further Australia must be one of the few nations on earth that has a constitutional provision designed for the apartheid era of White Australia.

There is no doubt that the Australian Constitution discriminated against the First Nation peoples from its conception to implementation. Australias Constitution was crafted without Aboriginal input, its history dominated by white men who held money, power and status Williams (2001, p.39). Attwood & Markus (2007, p.10) observe Aboriginal people had no political power and most settler Australians presumed they were a dying race. Aboriginal people were barely mentioned in the Constitution; s 51 (xxvi) gave the Commonwealth power to make laws with respect to people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws known as the races power; and s 127 provided that in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted (Williams, 2001 p.39). The First Nations people were not recognised as part of Australia in the Constitution and were not afforded the same rights as their white colonists. It took 66 years for the Constitution to be amended in the 1967 Referendum, removing the discriminatory s 127 and amending s 51 (xxvi) to remove other than the Aboriginal race. This positive outcome where 89.34 per cent of Australians voted yes meant now the Commonwealth would be able to make laws for Aboriginal people (Kirby, 2012 p.5).

The journey of Kartinyeri v Commonwealth (1998) began in the early 1990s opposing the building of a bridge over to Hindmarsh Island in South Australia by the Ngarrindjeri women claiming to be the custodians of secret "women's business" on the island (Australian Indigenous Law Reporter 1998). Subsequently the Hindmarsh Island Bridge Act (1997) was passed through Federal Parliament to facilitate the bridge build and was unsuccessfully challenged in the High Court in Kartinyeri v Commonwealth (1998). When discussing the 1967 amendment of s 51 (xxvi) in respect to the Aboriginal people Williams (2001, p. 40) observes the change may actually have enabled the Commonwealth to pass laws that impose a disadvantage upon them. The races power was exposed. Kirby (2012, p. 5) notes when discussing Kartinyeri v The Commonwealth (1998) and Wurridjal v The Commonwealth (2009) In each of these cases, laws restricting and curtailing the rights of Aboriginals under the Constitution were upheld. Conversely Mabo v Queensland (no.2) (1992) highlights the capriciousness of High Court decisions in relation to Australias First Nation people. On colonisation in 1788 Australia was thought of as terra nullius rendering any existing land rights null and void, appropriating land ownership to the Crown. Eddie Koiki Mabo began his legal challenge in 1982 along with four others to have the land rights recognised of the Meriam people, traditional owners of the Murray Islands in the Torres Strait. The Mabo decision in 1992 was a defining moment in the recognition of First Nation peoples land rights and gave rise to the Native Title Act (1993) (Australian Institute of Aboriginal and Torres Strait Islander Studies 2021). The Native Title Act (1993) appeared a fair and reasonable conclusion in the wake of the Mabo decision, however it may not have been as repentant as first thought. The Act also gives security and acknowledgement of the land rights to the pre-existing non-indigenous stakeholders too, empowering them to contest native title challenges should the necessity occur (Chamarette 2000, p. 167). Williams (2001 p. 41) argues for Constitutional change on the matter of Indigenous history, in order to adequately reflect their history and status as the First Nation people.

Environmental rights do not feature in the Australian constitution. The protection of the environment was an inconceivable concept to the Constitution framers in the late 1890s, the emergence only gaining traction in the 1970s (Pointon & Bell-James 2019, p. 76). Commonwealth v Tasmania (1983) known as the Tasmanian Dam case, highlights an environmental issue that was challenged utilising constitutional law and was seen by many as a fundamental shift in power to the Commonwealth at the cost of the States (Blow 2015). The Tasmanian Government proposed to build the Franklin Dam which would cause the flooding of a large section of the Franklin River and surrounding areas, an area declared a World Heritage site. It was clearly a controversial issue, Tasmania passing state laws allowing the dam to go ahead and the Commonwealth passing the World Heritage Properties Conservation Act 1983 legitimising the World Heritage site status, to block the Tasmanian Government. The Tasmanian Government challenged the Commonwealth, arguing they did not have the power under the Constitution to stop the dam. The successful outcome of Commonwealth v Tasmania (1983) stopped the proposed dam, the seven judges of the High Court split 4:3 in determining that the Commonwealth had the power under s 51 (xxix) external affairs of the Australian Constitution based on Australia's international obligations under the World Heritage Convention (Environmental Law Australia 2021). In the introduction to his Honours judgment, Gibbs CJ stressed the impartiality of the court with regard to economic versus environmental issues concluding, we are concerned with a strictly legal question whether the Commonwealth regulations and the Commonwealth statute are within constitutional power (Tasmanian Dam Case 1983, cited in Williams 2015, p.10). What is clear is that environmentally, there is no recourse in the Australian Constitution. In light of the recent IPCC report 2021 regarding climate change and the future impact on the environment it would seem prudent to include a provision in the Constitution to bring Australia in line with the international treaties it has signed (United Nations 2021). Pointon & Bell-James (2019 p. 76) observe in fact, Australia is one of only 15 countries that have not yet included the right to a healthy environment in our constitution.

Much has changed globally and domestically transforming Australias identity, culture and experience since the Constitution was implemented in 1901. Conversely the Australian Constitution has remained relatively unchanged in 120 years, the last successful referendum occurring 44 years ago. It would seem that the referendum process has proven to be an impediment to constitutional progression. The defence of human rights in the High Court appears to be unpredictable, limited by the potential need to use alternative areas of constitutional law, where vindication is a side-effect (Williams 2015, p. 8). Its been 54 years since our Constitution was amended with regard to our First Nations people. The 1967 amendment s 51 (xxvi) once so hopeful has highlighted some troubling disparities, the Constitution continuing to enable a White Australia and variable High Court decisions (Kirby 2012, p. 16). The success of Mabo v Queensland (no.2) (1992) laid bare the lie of terra nullius however after nearly 30 years there has not been a successful constitutional response regarding our First Nations people. Environmentally the world has shifted, with global consequences that will impact Australia. As was made plain in the Tasmanian Dam case the High Court was unable to make a judgment on environmental protection. What is clear, in the absence of constitutional reform, is Australias reliance on the creativity of the lawyers and judges to navigate the constitutional doctrine in the High Court (Kirby 2012, p.9). It appears imperative that the Australian Constitution be updated to address these present-day dilemmas.

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Reference List:

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Boyle, C 2005, Executive detention: a law unto itself? A case study of Al-Kateb v Godwin, University of Notre Dame Australia Law Review, vol. 7, no. 7, pp. 119126.

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Williams, G. Chapter 1: Five Reasons to Rewrite the Constitution [online]. In: Patmore, Glenn (Editor); Jungwirth, Gary (Editor). Big Makeover: A New Australian Constitution: Labor Essays 2002, The. Annandale, NSW: Pluto Press in association with the Australian Fabian Society, 2001: 35-47. Labor essays ; 2002. Availability: <https://search.informit.com.au/documentSummary;dn=053606465523007;res=IELHSS>

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Essay Plan POLI1008

The Essay Plan: Continuous assessment 2 total max 850 words

Your interpretation and understanding of the chosen essay topic 350 words max

The internal structure of the essay including key themes, issues, and arguments you propose to include in your essay 500 words max

A list of resources (a beginning reference list)- Not in the word count