Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

The pulse returns for prodigal songs… Does Australia lack a constitutional imagination?

Prof George Williams wrote an opinion piece for The Australian about the need for constitutional change in Australia. The problem with the article is that the most interesting part is the part that is developed the least:

Australia needs a circuit breaker when it comes to constitutional change. One option would be for parliament or an independent body to hold a review of the Constitution. This has been done roughly every 30 years since Federation in 1929, 1959 and 1988. The next 30-year review is overdue. This could be one way of educating the community and drawing them into a conversation about how the Constitution can reflect their aspirations for the nation.

I generally roll my eyes whenever somebody proposes an independent body to review the Constitution.  Independent bodies are proposed when we don’t trust democracy.  The public simply cannot be trusted to vote correctly — see, for example, Donald Trump and Brexit — and therefore we need an independent body to fix our Constitution, make decisions for us, and scrutinise our political representatives.

But, perhaps, there is a different role that an independent body could perform: public leadership of discussions about constitutional issues.

The Australian public has a very poor constitutional imagination.  Americans have a mythic imagination of their constitution.  Even if they haven’t read it to uncover what Bagehot would describe as the ‘efficient’ elements of their Constitution, they are completely enthralled by that which Bagehot would describe as the ‘dignified’ aspect: the parts which ‘which excite and preserve the reverence of the population’.  Americans get teary eyed with jingoism when they think about their Constitution.

Australians don’t.  We have a very efficient Constitution which sets out the basic playing rules of our system of government and then exits silently to let us get on with governing.  The dignified aspects of our Constitution are in institutions: every part of our political system, from judges to senior bureaucrats to police and to the military, are held in fairly high regard by the public, with the sole exception of politicians themselves, who are usually down the bottom end of the scale with journalists and used car salesmen.

And what that means, in practice, is that Australians are much more likely to have their imaginations about the Constitution hijacked by American pop culture.  We have people in Australia attempting to plead the Fifth, for example, because they saw it on police dramas.  Worse, the majority of our Constitutional discussion is occupied with comparisons to the US Constitution: we don’t have rights, and we are the only Western democracy in the world not to have explicit consitutional rights.  Of course, we need only look at those countries with constitutional protections of rights to see that this is a good thing: Canada came one judge-width away from protecting the rights of teachers to teach antisemitic conspiracy theories to children.

An independent body to lead public debate and to show how reasonable people can disagree about fundamentals of our constitutional structure would, undoubtedly, be a good thing for reforging an Australian constitutional imaginary.

Unfortunately, we know that any such discussion is going to be hijacked by the same old tired ideas: constitutional rights, the federal balance, section 44, and the Republic.  We need fresh ideas.  New visions.  New debates and new ways to debate them.

We should pause here briefly to note that George Williams’ argument really only holds if you ignore all the excellent work being undertaken by those seeking changes to the Constitution (and to our constitutional landscape) to recognise Indigenous Australians within our legal framework.  Williams did not mention that work at all in his argument, and it is not clear why.  Perhaps it is because Indigenous leaders and academics are successfully melting the glacier without the need for an Independent Constitutional Body.

But we return to his argument.  We could imagine some kind of unelected body of experts who guide public discussion, provoke new ideas, and raise awareness about constitutional issues.  Clearly, it would be taxpayer funded and would need administrative support to take care of the overheads.  Oh!  And we could fund it to undertake research projects of particular interest to the body of experts.  Perhaps instead of ‘independent constitutional commission’ we could call it ‘law faculty of a university’?

Barely a week goes by without something occurring in the news that does not have a legal (if not constitutional) dimension.  But where are all our taxpayer funded legal theorists to help guide public discussion?  The Legal Theory in Australia blog semi-regularly posts links to upcoming conferences related to legal theory, but doesn’t disseminate any outcomes from those discussions or provides a pathway for the latest research to reach public audiences.  Sure, George Williams and Prof Anne Twomey are regularly in the media discussing legal issues, but dozens of legal academics across the country with a wide variety of opinions.  Each year, Australia hosts dozens more international leaders in legal scholarship.  But from how many of these dozens upon dozens does the average Australian sitting in front of the television of an evening actually hear?

Instead of asking the government to establish a new independent commission, George Williams has the power, today, as the Dean of one of Australia’s leading law faculties, to make significant changes to the way that legal issues are debated in Australia.


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