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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx

Australian Constitution & citizenship « Previous | |Next »
October 1, 2003

The third lecture in Chief Justice Murray Gleeson's Boyer lectures deals with federalism and adapting the Australian Constitution to changing times.These would be suitable themes for recover the silence about citizenship in the Constitution despite the emergence of a democratic public that supported federation.

In contrast to those who understand the Australian polity in terms of it being just a Westminster system of responsible government, Gleeson rightly places an emphasis on federalism. He says:


"The union to which the people of what were formerly self-governing colonies agreed was a federal union, and the colonies became States of the new federation.1 Each State retained its own Constitution and its own organs of government: legislative, executive and judicial. This division of power between a central government and the governments of the State or provinces is the essence of a federation."

The US provided the model of federation as it assigned specified powers to the central government and left the remaining powers to the States. Gleeson says that there were two principal features that distinquished the United States Constitution from the Australian one.

First, the United States was a republic. Even though there was some republican sentiment in Australia at the time, most of the people in the Australian colonies regarded themselves as British, and their loyalty was to the Empire which, in turn, offered them protection in a potentially threatening international environment. Second, the United States did not have the Westminster system of responsible government under which the executive was responsible to parliament, and in which Ministers were ordinarily members of Parliament, holding office only as long as they enjoyed the confidence of Parliament or, more precisely, of the popularly elected house of the parliament, which, in Australia, was to be the House of Representatives. Australia was to have a monarch, not an elected President and-although the formal head of the Federal Executive was to be the Governor-General as the representative of the monarch-it was contemplated that, as in the United Kingdom, practical executive power would rest with a Prime Minister and a Cabinet made up of members of Parliament. The Governor-General, like the monarch he or she represented, would exercise formal powers and functions upon the advice of Ministers responsible to Parliament.

Gleeson lets republicanism glide out the door without mentioning the republican conception of active citizenship as a shared identity in which we, as citizens, are united in the pursuit of the common good of a just and sustainable society.

So what has happened to the democracy bit in the Constitution? Democracy does not seem to be an issue in terms of Gleeson's reflection on the Constitution. It is not a considered part of the political education provided by Gleeson.

His attention is tuned to a conceptual problem that troubled some of those involved in the negotiations for Federation, and in drafting the federal compact, was how to reconcile the Westminster system of responsible government with federalism. He asks:


"What exactly was the problem? It had to do with the power of the Senate, representing the States in the Federal Parliament, which were seen as essential to securing agreement on federalism. There was a major difficulty in relating this, conceptually, to a system of responsible government. Since their executive government was not responsible to parliament, the difficulty did not arise in the United States. They saw a potential inconsistency between the power of the Senate, demanded by federalism, and the power of the House of Representatives, demanded by responsible government."

He says that no one found a neat solution to the problem. The Constitution does not contain any clear formulation of the principle of responsible government, any more than it contains any comprehensive expression of the content of representative democracy. The problem was left for posterity to sort out, this being an area in which convention and practical politics would be as influential as legal prescription.

Gleeson then mentions effect of party politics upon the role of the Senate and the substantial increase in Commonwealth power at the expense of the power of the States. No mention of citizenship. Thus we are tacitly left with passive citizenship primarily expressed in the activity of voting. This conception of citizenship starts with a form of equal standing in politics underwritten by institutional guarantees of a set of rights and entitlements. For those whose conception of citizenship stops here, the main purpose of these rights and entitlements are to allow people to pursue their private ends. The forms of participation is voting at regular elections and law abidingness. This passive conception of citizenship is fundamentally about upholding the character of political institutions rather than being about changing citizens' relationships with other citizens.

Glesson then turns the need for a Constitution to address and adapt to changed circumstances and says that its language has to respond to altered historical conditions and require interpretation accordingly. He then touches a theme close to our hearts--the silences in the Constitutional text.

Gleeson argues that Australians are controlled, not only by what the founders said in their written document, but also, and perhaps even more comprehensively, by what they did not say.


"In a sense, a good deal of argument about the scope for interpretation is relatively marginal. Silence, whether deliberate or not, binds us conclusively. Concern about how much importance attaches to what the founders meant to say may be trivial compared to the importance of the subjects that they left untouched."

He then asks: How is the (national? political?) community to respond to this?

In terms of our concerns this means: How do we respond to the passive conception of citizenship and the silence about more active forms of political and civic engagement?

Gleeson disappoints here. He talks about contitutional change through the mechanism of referendum rather than the active interpretations of the High Court.

So Gleeson leaves us with the predominance of the private realm, the retreat of the public realm, consumerism and the extension of the reach of the market. Since the main form of public interaction between Australians is now through the market, the scope for the exercise of public reason and public justification is limited. So, for most us, it is consumer identity that is more constitutive of how we see ourselves than citizenship. We are active consumers and passive citizens.

As a public reason legal reason is letting us down with respect to what goes into a democratic mode of governance. We seem to have forgotten the five core elements of a democratic social order: a public, unified by a common civic identity, engaging in self-governance by citizens making informed decisions based on easily accessible information.

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| Posted by Gary Sauer-Thompson at 8:23 PM | | Comments (3) | TrackBacks (3)
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what is the name of the australian constitution?

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