|
October 6, 2003
The fourth Boyer lecture by Chief Justice Murray Gleeson examines some of the issues involved in the debate over whether or not a Bill of Rights would benefit our society. He also addresses concerns in the community about the judiciary, its seeming encroachment on public policy and the assertion that judges, being unelected, are unrepresentative and unresponsive to public opinion. It can be interpreted as a defence of the role of the High Court in a federal polity; a defence that is continued here by Justice Kirby.
Gleeson starts off well by contrasting the US and Australian constitutions. He says:
"The Australian Constitution, as a plan of government for a federal union, is largely concerned with pragmatism rather than ideology. It does not take the form of a Bill of Rights. Yet it would be a mistake to think that it does not contain guarantees of rights, freedoms and immunities.
The establishment of representative parliamentary democracy as the method of government for our Federation has been held to carry implications for freedom of political debate and comment."
What is left unsaid is who carries on this political debate and comment. The silence around who speaks is disturbing. Perhaps that will come up latter. Chief Justice Gleeson does begin to give a sketch of the terrain. He implies that there are many voices from the principle of federalism:
"The structure of the Constitution reflects the principle of the separation of legislative, executive and judicial powers.... It has major consequences because it denies complete power to any one arm of government. One of the most effective restraints upon power is a division of authority, so a constitution is important not only for the power it gives, but also for the power it does not. A constitution that vests legislative, executive and judicial power in different organs of government, and makes them institutionally separate, builds into the system a constraint on power."
Gleeson also implies that these voices within a federal system of government in Australia presupposes the principle of equality:
"Some members of the High Court have discerned in the Constitution implications of equality and, in particular, equality before the law...most Australians share a belief that all people are equal - and they are right. This is because the proposition that people are equal is not a statement about a fact; it is an expression of an ethical principle. It reflects a value, not an observation...Whatever the source [of equality] the value of equality before the law is deeply ingrained in our legal system, and in the Constitution. As with other such values, it is imperfectly realised, and its practical implications may lead to legitimate disagreement."
This brings us to the interface between political and judicial power. It is here that the subject who speaks in a democracy---citizens--makes a belated appearance. However, it is a very quick appearance. There is little connection to republican ideas of citizenship, civic virtue and popular sovereignty since the focus is on constitutionalism, or the limitation of government power by a set of constitutional law.
At this point in the lecture Gleeson is considering judicial power that is established in the Constitution. (s. 71) He says:
"...the judicial power of the Commonwealth is to be vested in the High Court of Australia...[and other federal & state courts]... This means that a citizen cannot be subjected to the exercise of Commonwealth judicial power except by a court. This, coupled with the principle of separation of powers, and the independence of the judiciary, denies to Parliament and the executive government the capacity to administer civil or criminal justice. It is an assurance of due process. It means, for example, that a citizen cannot be tried and punished for an offence by an officer of a government department. It means that disputes about civil rights and obligations, including disputes between citizen and government, can be conclusively determined only by an independent judiciary."
Citizenship is crucial because there is a big difference between being a "subject of the Queen" in the British empire that was used instead of "citizen" in the Australian Constitution; and being a citizen of Australia which implies that Australia is a separate nation-state with its own membership and identity.
What then are the roles, rights and responsibilities of citizens in a democratic Australia. The Constitution is silent. What is bequeathed to us is an unresolved matter of the meaning of citizenship in our legal system. Now Gleeson implies that Australian citizen is a legally recognised concept; but was not so in the Constitution which only recognized Australians as the subjects of the Queen. So how did we become citizens? When was being the subject of the Queen abolished? What is the substantive nature of citizenship in a federal Australia?
Given the silence of the constitution one presumes that Parliament introduces the category of citizen into our legal political discourse. How is this done?
Gleeson does not address the unresolved matter of citizenship. He is more concerned with judicial power. He points out that judicial power is important because in a federal system, such as Australia's, there is no sovereign Parliament. He says that the law-making power of Australian parliaments, Federal and State, is limited by the Constitution and that, if there is a dispute about those limits, then it is determined by the courts, in particular by the High Court. Presumably democracy----as majority rule ---is also constrained by the Constitution. No one is above the law.
What is disappointing is that when Gleeson come to talk about rights and the Constitution the language of citizens drops away to be replaced by individuals and minorities. Gleeson says that the electoral process is designed to ensure that governments are responsive to the wishes of the majority; but since majorities cannot always be relied upon to be sensitive to the interests and the legitimate concerns of minorities so human rights are needed to institutionalise the protection of legitimate minority interests.
Gleeson sees the law as a constraint upon power of individuals or corporations or governments. The restriction on that power that comes from the law as a powerful civilising influence. There is nothing here about the rule of law enabling citizens to execise their capacities as citizens between the elections. There is a silence about about the rights and responsibilities flowing from citizenship.
What can we infer from all this? That the problem of citizenship in the Constitution is a problem today. It is a faultline.
previous next
|
