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September 24, 2003
One way to find our way into the thicket of the relationship between the Australian constitution and citizenship is with Chief Justice Murray Gleeson's recent Boyer lectures. What better guide than a Chief Justice, who understands the tensions between federalism, democracy and responsible government? What better place to look than a popular lecture series on the Constitution that addresses his fellow citizens on a text that structures our political being?
The second Boyer lecture is promising as it is entitled Becoming One People. In his account of the movement to federation in 1900 Gleeson mentions republican sentiment, Australia being part of the British Empire and the White Australia Policy. All these circle around citizenship
So we can ask: We became one people and a multicultural nation but did we become citizens? That is the question being posed to Gleeson's text. It is a reasonable question because this lecture is sketching a picture of greater changes in public policy over the 20th century. It is offering us an account of the history that has made us who are today.
And what does this text tell us?
It mentions the big public policy changes such as a less exclusive immigration policy and a national fiscal policy. But no citizenship. Yet somewhere in the 20th century we Australians shifted from being British subjects to Australian citizens. Is that not a momentous change in political language?
Gleeson does address one of the intractable problems of a written Constitution:
"It is designed and interpreted by people who know they cannot foresee all the changes in circumstances that will affect its practical operation. It is meant to last far into the future; and it is meant to be difficult to change. Insofar as it is expressed to reflect the values of its framers, or insofar as it is interpreted to reflect the values of its interpreters, those values, at least in some respects, are certain to be different from those of future generations. This makes it important to distinguish between values and fashions. Some values are enduring, and others change over time. Fashions alter rapidly. A constitution in some respects necessarily reflects the values of its time, and the legal capacity to interpret and apply it in a manner reflecting changed values may depend upon the flexibility of its language. But it can never be interpreted and applied according to fashion. Acts of Parliament may sometimes reflect a passing trend, but they are relatively easy to change. A Constitution is an instrument of a different order."
Citizenship is more an enduring value than a fashion. So we need to develop the capacity to be able to interpret and apply the language of the Constitutional text in a manner reflecting the changed values of becoming Australian citizens.
What then is this language? Gleeson does not explicitly say. He says that the process of federation:
"...was not simply a question of deciding to form a union. A federation requires formal written agreement upon the terms of a constitution. Important issues of principle had to be settled, and the settlement had to be expressed in a legal form that would constitute an instrument of government. As has been noted, it was to endure into a future that was certain to be different in many respects from the context in which it was being written."
Nothing about citzenship. It looks increasingly like it is the hollow centre.
However, Gleeson promises that his future lectures will examine some of the terms upon which the people of Australia agreed to unite. Surely one of those terms would have to be citzenship? If the people of Australia agreed to unite were they not acting as good citizens? Consider this account of republican citizens:
"Civic republicans put an emphasis upon citizens exercising their public responsibilities or civic duties, and having concern with the public or common good. Ideally, civic republicanism is characterised by a strong sense of belonging to a political community in which individuals are encouraged to share in a common civic life. For civic republicans, an interest for the common good and one's civic duties tend to override one's private individual interests and the concerns of one's private life which are seen as secondary. In this tradition, citizenship is understood as direct participation in a self-governing community, along the lines evident in ancient Athens."
In federating did not Australian citizens citizens exercise their public responsibilities or civic duties, and have concern with the public or common good? Did they not express a strong sense of belonging to a political community and encourage one another to share in a common civic life?
The very process of federation is premised on the exercise of citizenship. Yet interpretors of that process, such as Chief Justice Gleeson, appear to be blind to the role of "the people" when they were acting to form a nation.
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