Australian Constitutional Identity – Complexity and Fluidity Elisa Arcioni Senior Lecturer in Public Law, Faculty of Law University of Sydney, Australia [email protected] International Association of Constitutional Law, IXth World Congress, Oslo June 2014. Workshop 9: Constitutional identity and constitutionalism beyond the nation state ConstitutionalIdentityofthePeople
Over the past few decades there has been resurgence in scholarly interest in the role and identity of people under a constitution. Work addressing ancient, medieval and more recent historical notions of ‘people’ under constitutional systems has been invigorated in the context of decolonisation, disintegration of empires, creation of supranational bodies, the movement of people across national borders and claims regarding membership and identity within legal systems. In Australia, proposals for constitutional reform to produce a Republic, to insert a new constitutional preamble and to recognise Indigenous Australians bring the role and identity of ‘the people’ to the fore of political, legal and constitutional debates. Legal theorists, constitutional theorists and constitutional lawyers are looking to what ‘the people’ means within constitutional structures and how that phrase can be brought to bear in various contexts. This can be seen as a sub‐set of the developing literature regarding constitutional identity.1 Within constitutional discussion today, ‘competing trends’ regarding constitutional identity are sometimes identified: on the one hand ‐ democratic constitutionalism; on the other ‐ a rise of ethnic or nationalistic claims. The trends converge when they are understood as related to the identity of ‘the people’ within a constitutional system. Democratic constitutionalism emphasises the political involvement of ‘the people’ within structures of government and constitutional amendment. Ethnic or nationalistic claims focus on the pre‐existing ethnic, cultural and/or linguistic groupings of ‘the people’ – their pre‐ or extra‐constitutional identity. Both ‘trends’ can be seen in the Australian context. While in Australia it is the democratic people which dominate in the legal conception of ‘the people’, issues of ethnic identity have played a role, and continue to do so. In this paper I demonstrate the complexity of constitutional identity in Australia. I outline a series of overlapping and intersecting categories of persons to make up the Australian constitutional people, as well as hierarchies and exclusions. The way in which the boundaries of membership are set says something about the centrality of the democratic people, but there is also an element of ethnic identity which affects the Australian constitutional identity. I also demonstrate the fluidity of constitutional identity in Australia. Constitutional change occurs in 1
Jose Luis Marti, 'Two different Ideas of Constitutional Identity: Identity of the Constitution v identity of the People' in Alejandro Saiz Arnaiz and Carina Alcoberro Llivina (eds), National Constitutional Identity and European Integration (Intersentia, 2013) 17. 1 at least two different ways – amendment of the constitutional text, and (re)interpretation of the existing constitutional text. Both forms of change involve the people and can lead to constitutional categories of persons shifting, expanding or contracting and hence the identity of the people also changing. This exploration of the Australian approach can be seen as a case study to assist in the understanding of how a national constitutional identity can work. In Part 1, I provide some general background regarding the Australian constitutional context. In Part 2, I explain the axes of analysis I adopt in relation to the identity of the Australian constitutional people. In Part 3, I provide an overview of the contours of the identity of the Australian constitutional people, drawing out the complexity of that identity.2 In Part 4, I move to a more in‐
depth consideration of one central aspect of the Australian jurisprudence to demonstrate the fluidity of the constitutional identity of the people. Part1–TheAustraliancontext
The Australian Constitution came into force on 1 January 1901. It is in the form of a statute, passed by the Imperial Parliament in the United Kingdom, but it was drafted by Australians over a number of years and approved by Australians at referenda.3 The Australian Constitution draws inspiration from the United Kingdom, the United States of America and other federal systems. It establishes a federal system of States and the Commonwealth, with legislative power given to both. The States were formerly British colonies, and in general terms they retain their identity and powers as existed prior to the Constitution (see ss 106‐108). There are also a number of Australian Territories (see s 122). Some of them were former British colonies, while others have been created since the enactment of the Constitution. The Commonwealth of Australia is a new entity created by the Constitution, which is given superiority in that its valid legislation overrides that of the States (s 109). The Commonwealth is also superior to the States because it has the financial advantage by being in control of the bulk of public revenue from income taxation. The Constitution identifies legislative, executive and judicial power at the national level. The Parliament is created with two Houses – the House of Representatives and the Senate, and is to operate in a system of representative government. The Constitution imposes some limits on the powers of the States and the Commonwealth and includes a method for changing the text of the Constitution. The words can only be changed by a process involving both the Federal Parliament and the electors, whereby the Parliament must pass a Bill with the proposed changes and then a majority of electors plus a majority of electors in a majority of the six States must approve the proposed changes through referendum (s 128). This has been done on only 8 occasions since 1901, despite 44 attempts to change the text. The meaning of the words, whether original or inserted or amended by referendum, is determined by the High Court of Australia: an institution created by the Constitution. The High Court determines the meaning of the text, and in doing so, determines membership of the constitutional community. 2
For details, see publications and presentations listed at: http://sydney.edu.au/law/about/people/profiles/elisa.arcioni.php and papers available at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1010215 3
For details of this history, see John M Williams, The Australian Constitution: A documentary history (Melbourne University Press, 2005). 2 onal text thatt helps identtify the relevvant constitu
utional comm
munity, it Focusingg now on thee constitutio
is of no
ote that therre is no mention of Ausstralian citizzens in the Constitution
C
. There is, h
however, mention
n of foreign ccitizens in s 4
44(i) in relation to basess for disqualification from
m being a meember of Parliameent. At the ttime of the d
drafting of th
he Constitution, the Australian colon
nies were paart of the British EEmpire. Shorrtly after federation, Ausstralia was one of the Do
ominions of tthe United K
Kingdom. Australiaans were not citizens but subjectss of the Qu
ueen. Citizen
nship now exists e
underr federal legislatio
on. In the absence of constitution
nal citizensh
hip, the bro
oadest term
m to identifyy the consttitutional commun
nity is the phrase ‘thee people’. ‘The ‘
people’ are mentioned in th
he preamblee to the Constitu
ution, as tho
ose who unitted to form the federal Commonwe
ealth. They aare mentioneed in the text of tthe Constituttion, where ‘the people’ directly cho
oose the mem
mbers of fed
deral Parliam
ment. The “people of the Statees” and the ““people of th
he Commonw
wealth” are m
mentioned, rreflecting the federal system ((ss 7, 24 resp
pectively). Th
hose ‘peoplee’ elect their members off federal Parliament and they are the same electors w
who vote in reeferenda to cchange the ttext of the Co
onstitution u
under s 128. In 1996,, a member o
of the High C
Court of Ausstralia said th
hat the phrase ‘the peop
ple’ was a “vague but 4
emotion
nally powerfful abstractio
on”. My wo
ork reveals that t
while th
he concept of ‘the peop
ple’ is to some exxtent unsettlled, it does h
have meanin
ng. It is a mu
ultifaceted co
oncept whicch includes aa number of categgories that overlap o
and intersect; so
ome groups are more att the centre of memberrship and others aare at the periphery. Part2
2‐Threeaxesofa
analysis
Considering the placce and identtity of the people p
under a constituttion raises a a series of qu
uestions. Three in
nter‐connected concerns are most prrominent. Th
he first is wheether ‘the peeople’ are deefined by 4
Langer vv The Commonw
wealth (1996) 1
186 CLR 302 at 3
342‐3 (McHugh
h J). 3 a racial, cultural, linguistic, ethnic basis (‘ethnos’) or by their involvement in political structures under the Constitution (‘demos’). I conclude that the Australian constitutional people are predominantly a demotic people, but that there are elements of an ethnic identity within the Constitution. This conclusion leads into the second issue, being the extent to which ‘the people’ exercise constitutive power. This directs attention to the roles played by ‘the people’, either at the moment of constitution‐making or in ongoing structures of government. I conclude that in Australia the people exercised, and continue to exercise, constitutive power. Discussions about constitutive power often include a distinction between the power to make a constitution and then the power as ‘constituted’ by the constitution in question. I turn this inquiry into my third question, which is how ‘the people’ are constituted by the Constitution. While constitutional identity is ascribed by legal categories, I argue that ‘the people’ have a power of collective self‐definition. That is, the people are involved in determining the contours of their constitutional identity. I call this a third form of constitutive power. The people – demos or ethnos? In Rosenfeld’s work on the identity of the constitutional subject, he identifies two prominent bases of constitutional identity ‐ the ethnos and the demos.5 These two can be seen amongst the seven constitutional models he sets up as “prototypes”.6 The ethnos foundation refers to a cultural identity, usually pre‐existing the constitution in question, on which the constitution is based. The ethnos foundation is often raised in relation to Germany and more generally in Europe.7 It assumes that there is a dominant cultural identity in a nation state that infiltrates the constitution. This leads to questions about how individuals or groups can legitimately be treated differentially on the basis of race, ethnicity, culture and language. By contrast, the demos foundation refers to an identity dependent on, and constituted by, political participation,8 with a deliberate ‘down‐playing’ of ethnic differences, or even rejection of any other aspect of identity other than civic participation.9 The demos is another way of referring to the national community which is represented within governmental structures. The significance of the system of representative government and the people acting as electors leads to a clear demotic foundation for the Australian constitutional people. Some ethnos elements can be seen in the Australian Constitution, but they are less prominent than the political components affecting the identity of the people. Constitutional patriotism, as a deliberate strategy to avoid either 5
These are not the only foundations for identity: Elaine R Thomas, 'Who Belongs? Competing Conceptions of Political Membership' (2002) 5(3) European Journal of Social Theory 323. However, they are the most prominent and relevant to the Australian example. 6
See Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community, Discourses of Law (Routledge, 2010), ch 5. 7
Michel Rosenfeld, 'The Constitutional Subject: Its other, and the perplexing quest for an identity of its own: a reply to my own critics' (2012) 33(5) Cardozo Law Review 1937 , relying on Preuss, cf Bernard Schlink, 'The Constitutional Subject and Its Identity: My German Experience' (2012) 33(5) Cardozo Law Review 1869. This has also affected debate regarding citizenship: see Liav Orgad, ''Cultural Defence' of Nations: Cultural Citizenship in France, Germany and the Netherlands' (2009) 15 European Law Journal 719. 8
Stephen Tierney, ''We the Peoples': Constituent Power and Constitutionalism in Plurinational States' in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2007) 229. 9
This is explained in relation to the ‘French model’ in Rosenfeld, above n at 156‐7 and generally, 5.2. 4 ethnos or demos,10 is a conception of constitutional identity which is absent from the Australian text, context, precedent and history and is not considered in this paper. The constitutive people – historically and ongoing Isolating the demotic character of ‘the people’ in the Constitution leads to a consideration of to what extent and how do ‘the people’ have constitutive power. The idea of the constituent or constitutive people is often traced to the Abbe Sieyes,11 writing in the 18th century with respect to the French Revolution. Sieyes argued that ‘the people’, who were known as ‘the Third Estate’ and ‘the nation’,12 were sovereign. They were the body who could create a constitution and therefore were the constituent power.13 This idea of the will of the people as the foundation for constitutions was taken up in American constitutional thought and has spread to become an imperative of “modern constitutionalism”.14 It reflects the commitment to popular involvement in the constitution‐making process, which leads to ‘the people’ being regarded as a source of authority for the constitution so made. The role of ‘the people’ in the making of the Australian Constitution gives them a historical constitutive role, even though they were not the only actors in the process of constitution‐making. While references to the constitutive or constituent people are usually to the people involved in a constitution’s origin,15 they are also used to refer to ‘the people’ having ongoing constitutional power.16 Ongoing constituent power is usually understood as the power to change a constitution, in a manner prescribed by the constitution itself.17 The idea of the ongoing constituent people in the Australian context focuses attention on what kinds of power are exercised by ‘the people’ within the Constitution. It is seen in the involvement of the 10
See especially the work of Jurgen Habermas. It has also been connected to the older history of English constitutional theory, although there the link between the people and the constitution was more indirect: Martin Loughlin, 'Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice' in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2007) 27. See also the 17th century pre‐cursors to Sieyes’ work outlined in Andreas Kalyvas, 'Popular Sovereignty, Democracy, and the Constituent Power' (2005) 12(5) Constellations 223 at 226‐7. 12
See Campbell, Peter, ‘Sieyes and What is the Third Estate?’ in Emmanuel Joseph Sieyes, What is the Third Estate? (M Blondel trans, Pall Mall Press, 1963) 3 at 10‐11, referring to Sieyes’ declaration that “These two terms [the people and the nation] must be synonymous”. This echoes Benedict Anderson’s work which defines a nation as “an imagined political community”, thus equating the people with the nation: see Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, Revised ed, 2006) at 5‐6. Anderson’s work is, in turn, influential in Rosenfeld’s account of constitutional identity. See: Rosenfeld, above n at 12, 18. 13
Sieyes, above n at 124‐5. 14
See Loughlin and Walker, above n at 1 and see the plethora of work addressing the concept of the constituent people, for example: Ulrich K Preuss, 'Constitutional Powermaking of the New Polity: Some deliberations on the relations between constituent power and the constitution' in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical perspectives (Duke University Press, 1994) 143, Richard Stacey, 'Constitutent power and Carl Schmitt's theory of constitution in Kenya's constitution‐making process' (2011) 9(3‐4) International Journal of Constitutional Law 587, Joel Colon‐Rios, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power, Research in Constitutional Law (Routledge, 2012). 15
See for example Martin Loughlin, The Idea of Public Law (Oxford University Press, 2003), ch 6 ‘Constituent Power’, where he argues for a return to the value and power of constituent power in the pre‐constitutional setting, rather than only in its form within the constitution once made. Stacey, above n . 16
See generally: Hans Lindahl, 'Constituent Power and Reflexive Identity: Rowards an Ontology of Collective Selfhood' in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: constituent power and constitutionl form (Oxford University Press, 2007) 9. 17
However, see also the contribution of Bruce Ackerman, who argues that ‘the people’ can, through constitutional ‘moments’, change the constitution through extra‐constitutional methods: Bruce Ackerman, We the people: Foundations (The Belknap Press of Harvard University Press, 1991). 11
5 federal electors in constitutional referenda and in the system of representative government where ‘the people’ choose the members of federal Parliament. Self‐identification I am focused on the legal conception of ‘the people’ in Australia. I therefore assume that the identity of the constitutional people is determined or constituted by law, specifically the Constitution. However, questions arise regarding how that text is interpreted in order to identify the constitutional people. I reach three conclusions regarding that process. First, ‘the people’ is considered as a collective rather than a collection of individuals. The dominant tenor of the case law is that rights, privileges and status of an individual are understood in the context of whether a person fits within a series of collective categories. Related to this collective characteristic is that individual subjective identification by a person that they are either a member of the constitutional people or outside that group has no impact on the constitutional conclusion of the Court. I term this a rejection of subjective self‐identification. I discern a stream of reasoning which means that the people have a collective power of self‐
identification. In brief, my argument is that the High Court, in interpreting the Constitution, is deferring to legislative indications of identity in determining the boundaries of membership. Given that ‘the people’ choose the members of Parliament and the Parliament is representative of the people, federal legislation can be viewed as the will or voice of the people. Therefore, by the Court deferring to legislative indications of identity, the Court is granting the collective people a measure of self‐identification. This is a third type of constitutive power, related but additional to the standard accounts of constitutive power introduced above, which I come back to in Part 4. With these axes of analysis introduced, I now outline the contours of membership of the Australian constitutional people. Part3‐Thecomplexcontoursofthepeople’sidentity
Many national constitutions refer to ‘the people’ in their text.18 Australia is one of them. A number of elements are relevant to the understanding of the Australian constitutional people – precedent, context and history. Central to Australian constitutional identity is the categories of persons and bases of discriminating between them that are made explicit in the constitutional text. Membership of a constitutional community is sometimes discussed in terms of citizenship, especially when the constitutional text in question uses that word.19 Citizenship is at the heart of an enormous field of literature. The Australian Constitution makes no reference to Australian citizenship, the drafters having deliberately excluded it from the text.20 At the time of the drafting of the Constitution, membership of the colonies which united to form the Commonwealth of Australia depended on 18
For a sample, see the list set out in Liav Orgad, 'The preamble in constitutional interpretation' (2010) 8(4) International Journal of Constitutional Law 714, fn 8 and Tom Ginsburg, Nick Foti and Daniel Rockmore, ''We the Peoples': The Global Origins of Constitutional Preambles' (2014) The George Washington International Law Review (forthcoming). 19
See Symposium: The evolving concept of citizenship in constitutional law, (2010) 8(1) International Journal of Constitutional Law 6. 20
Kim Rubenstein, 'Citizenship and the Constitutional Convention Debates: A Mere Legal Inference' (1997) 25(2) Federal Law Review 295. 6 British subject status. That status remained the relevant status throughout the drafting of the Constitution, with legislated citizenship being created only in 1948/49 by the federal Parliament.21 The phrase ‘constitutional citizenship’ has been used by McHugh J of the Australian High Court, as a synonym for ‘people of the Commonwealth’, and to indicate a protected position under the Constitution.22 This has not been adopted by the High Court as an indicator of membership of the constitutional people.23 I avoid the term ‘citizenship’ as a descriptor for such membership. Rather than including a definition of ‘the people’ or of Australian ‘citizens’, the Australian Constitution includes a series of categories of persons. People of the Commonwealth The Australian Commonwealth is a federal nation made up of the States and Territories. The “people of the Commonwealth” is the touchstone for the constitutional people, and with which each of the sub‐categories, considered below, interacts. The people of the Commonwealth are the national people but, as will be outlined below, that people is a multifaceted people with internal hierarchies and a series of overlapping constitutional categories. People of the colonies The peoples of the Australian colonies are the first ‘people’ mentioned in the Constitution Act. They are the historically constitutive people, who were transformed into the new people of the Commonwealth. The Australian Constitution exists as clause 9 within the Constitution of the Commonwealth of Australia Act. The preamble of that Act begins with a reference to the peoples of five of the six Australian colonies: (emphasis added) “Whereas the people of New South Wales, Victoria, South Australia, Queensland; and Tasmania, humbly relying on the blessing of the Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established …” The agreement referred to occurred through referenda in those colonies to approve the draft Constitution developed at the Australasian Federal Convention of 1897‐98. The people of Western Australia agreed to the Constitution Bill by voting in a referendum a few months later than the other colonies. The people of Western Australia were united with the other peoples of the Australian colonies. The colonial peoples exercised a classic constitutive power by voting to adopt the draft Constitution. The constitution‐making process was particularly democratic for the era, with electors in a majority of the colonies having elected their delegates to the Conventions which then drafted the Constitution that in turn went back to the people of every colony for approval. That political participation is then matched by the roles given to the people within the text of the Constitution (see below regarding the people as electors). 21
Nationality and Citizenship Act 1948 (Cth), which came into effect on 26 January 1949. See Singh v Commonwealth (2004) 222 CLR 322 at 378‐380 and Hwang v Commonwealth (2005) 222 ALR 83 at 87‐89, as discussed in: Elisa Arcioni, That Vague but Powerful Abstraction: the concept of ‘the people’ in the Australian Constitution (February 2009) <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/469_ElisaArcioni.pdf> at 6. 23
See Koroitamana v Commonwealth (2006) 227 CLR 31 at 42, 46 (Gummow, Hayne & Crennan JJ). 22
7 People of the States The people of the States are at the core of the Australian constitutional people. The colonies referred to in the preamble and in covering clause 3 of the Act became Original States at federation. The people of the colonies became people of those States. The existence of the States, their political institutions and their peoples is explicitly and implicitly assured by the Constitution. The people of the States are given privileges and protections not available to other groups.24 The people of the States are the constituent peoples of the federal Commonwealth, having dual identities (as in all federal systems) as of their State and of the nation. They have protected constitutive roles in representative government and referenda. This is seen particularly when comparing the people of the States with the people of the Territories. People of the Territories Australian Territories have been formed from territory of the Original States and also from external territory acquired or granted over time. The Australian Territories extend from the Antarctic almost to the equator. The trend in Australian jurisprudence is for the Territories, and their people, to be more integrated into the Commonwealth then previously. However, they remain at the periphery. The people in the Territories are less secure in their political participation through acting as federal electors. Their voting rights are derived from s 122, which grants the federal Parliament power to make law giving the Territories representation in the Parliament. The Parliament need not provide any representation. Any representation that is provided is only to the extent and on the terms that the Parliament thinks fit. Only once such representation is granted can electors in the Territories be eligible to vote in referenda, and that is only since 1977 when s 128 was amended to allow them such a vote. People in the Territories are also less secure in their civil status as members of the community. The Court has confirmed that the power of the Commonwealth to acquire Territories includes the power of the Commonwealth to divest itself of such Territories, including its people. The Commonwealth has done so in the past and may do so in the future.25 24
See for example s 117, which immunises peoples in the States from discrimination on the basis of out‐of‐State residence. For a detailed analysis of all these issues and more, that place the people of the Territories at the periphery of the constitutional people, see Arcioni, E. (2014). Identity at the edge of constitutional membership (Forthcoming). In Fiona Jenkins, Mark Nolan, Kim Rubenstein (Eds.), Allegiance and Identity in a Globalised World. Australia: Cambridge University Press. 25
8 he people off the States aand Territories are geoggraphically‐bo
ound. There are also The cateegories of th
constitutional categories which cut across those boundaaries, including the central demotic category of the peeople acting as electors. Electorss The Ausstralian constitutional peeople are primarily demotic in charaacter. This caan be seen ffrom the constitutional text and its interp
pretation by tthe Court. Th
he most sign
nificant refereences to ‘thee people’ are to th
he people accting as elecctors ‐ ‘the p
people’ choo
ose memberss of Parliameent (ss 7, 24
4), where that cho
oice occurs by election
n (ss 8, 30). Those secttions are th
he ‘bedrock’26 of the syystem of represen
ntative gove
ernment und
der the Consttitution. Thee mandate o
of choice by tthe people h
has been 27
used by the Court to
o invalidate legislation that limits th
he franchise and its exercise. The C
Court has implied a freedom of o political communicat
c
ion to ensurre an inform
med choice by b the peoplle.28 ‘The people’ as electors is a powerful jurispruden
ntial phrase aand concept. Electors also determ
mine whetheer proposalss by the Parrliament to alter the Co
onstitution are a to be adopted
d. Changes to
o the Constittution requirre at least on
ne House of P
Parliament to pass a proposal for 2
change.29
In order for f such a proposal p
to be b presented to the Go
overnor‐Geneeral for the Queen’s assent, iit must first b
be submitted
d to “the eleectors in each
h State and TTerritory quaalified to votte for the election of the Housse of Represeentatives”. A
A majority off electors votting in a majority of Statees, and a majorityy of electorss overall mu
ust approve the propossed change. If the proposal is to “increase, 26
Rowe v Electoral Comm
missioner (2010
0) 243 CLR 1, 12
2 [1] (French CJ), referring to R
Roach v Electora
al Commissioneer (2007) 233 CLR 162, 198 [82] (G
Gummow, Kirbyy and Crennan JJ). 27
Rowe v Electoral Comm
missioner (2010
0) 243 CLR 1; Ro
oach v Electorall Commissionerr (2007) 233 CLR 162. 28
Lange vv Australian Bro
oadcasting Corp
poration (1997) 189 CLR 520, rrecently invoked in Unions NSW v New South
h Wales [2013] HC
CA 58. 29
According to s 128, either both Housees must pass th
he proposed law
w for alteration of the Constitu
ution, or one House may pass it and
d, following two
o attempts of the other House
e to pass the prroposed law, th
he Governor‐Geeneral may put the proposal, with or withou
ut amendmentss, to the electorrs. 9 diminish, or otherwise alter the limits of the State”, a majority of electors in that State must also approve the proposed change (s 123). The people as electors is the demotic core of the Australian constitutional community. More of ‘the people’ have been given the constitutive role of acting as electors over time, and the Court has concluded that the broad franchise – all adult citizens ‐ is now constitutionally protected. The criterion of citizenship leads to a complicated area of Australian constitutional identity – the relevance of allegiance and how it is signified under the Constitution. Subjects (and aliens, immigrants and dual nationals) The legal status of Australians at the time of the passage of the Constitution was that of subjects of the Queen of the United Kingdom. Subject status appears in several places in the Australian Constitution. The drafters explicitly rejected the insertion of Australian citizenship into the constitutional text, assuming that the relevant status was that of subject of the Queen. In 1948/49 Australian citizenship was legislated, within the context of the increasing independence of former Dominions in the British Empire. Statutory citizenship has effectively replaced subject status in Australia. By 1986, the Australian Queen was no longer the Queen of the United Kingdom – the natural person was the same, but she now wears (at least) two separate Crowns. Questions remain regarding the relationship between constitutional subject status and statutory citizenship, as well as with respect to the interaction of both with a series of other constitutional categories. Alien status is recognised in s 51(19) of the Constitution, which confers power on the federal Parliament to make laws with respect to “naturalization and aliens”. This category has been understood as referring to a person with allegiance to a foreign power or no allegiance to any power (ie a stateless person). Since federation, dual citizenship has become accepted in Australia, such that there are (hundreds of?) thousands of Australians who are also foreign citizens. That dual identity raises questions as to whether such a person could also be an alien. There is no doubt that dual nationals are prevented from being members of federal Parliament – s 44(i) disqualifies anyone with a foreign allegiance or citizenship. The relationship between some of these categories depends on case law regarding migration and deportation. Migration legislation is currently based on the ‘aliens’ power, but was previously based on the federal power to make laws with respect to “immigration and emigration” in s 51(27). The status of ‘immigrant’ is different from aliens – while both aliens and immigrants are outside the constitutional people, the means by which a person ceases to be an alien differs from the way in which a person ceases to be an immigrant. 10 Race, Indigenous Au
ustralians, an
nd gender While I have stated earlier thatt the Australian constitu
utional peop
ple are primaarily demoticc, with a focus on
n the constitutive powerrs exercised b
by the people historically and in an o
ongoing sense, there is an eleement of an
n ethnic identity as welll. The categgories introd
duced so farr are determ
mined by geograp
phy (peoples of the colonies, States and Territorries), politicaal involvemeent in repressentative governm
ment (electo
ors) or ascrip
ption of civil status (sub
bject, alien, foreign citizzen, immigraant, dual nationall). In additio
on, the Consttitution refeers to catego
ories determ
mined by legaal ascription of race. These arre seen in ss 25, 51(26) aand 127. In the Co
onstitution aas enacted, ss 51(26) originally conferrred legislativve power on
n the Commo
onwealth Parliameent in relatio
on to “the people p
of an
ny race, otheer than the aboriginal raace in any SState, for whom itt is deemed
d necessary to make sp
pecial laws”. Section 127 stated thaat in “recko
oning the numbers of the peo
ople of the Commonwea
C
alth, or of a State or other part of the Commonwealth, aborigin
nal natives sh
hall not be co
ounted”. In 1
1967, by refeerendum, s 1
127 was deleeted and s 51
1(26) was amendeed to removve the referrence to “o
other than the t
aborigin
nal race in any State”, thereby expanding Commonwealth legislative powerr to cover thaat group. 3
Section 25 remains:30
“For the purrposes of thee last section
n [s 24], if byy the law of any State all persons of any race are disqualiffied from vo
oting at electtions for the more nume
erous House of Parliament of the State, then, in reckoning the number of the peeople of the State or of the Commonwealth, persons of that race resiident in that State shall n
not be countted.” 30
For detaailed analysis of this section an
nd s 127, especcially in their ap
pplication to Ind
digenous Austraalians, see Elisaa Arcioni, 'Excludingg Indigenous Au
ustralians from 'the people': A Reconsideratio
on of Sections 2
25 and 127 of th
he Constitution
n' (2012) 40(3) Fedeeral Law Review
w 287. 11 The constitutional text and its interpretation retains race as a distinguishing feature between groups of people, with the possibility of treating people worse than others on the basis of race. This is explicable because the Commonwealth was established as a White Australia. This involved an assumption that Australians were part of a “British race” at federation. Immigrants were encouraged if they were white and British. English‐speakers were favoured through the implementation of a dictation test for immigrants.31 The Policy also involved the exclusion or restriction of non‐white races. At the same time, there were specific legislative regimes, mostly at the State and Territory level, which restricted and discriminated against Aboriginal and Torres Strait Islander Australians. That history sits uneasily with modern notions of equality and non‐discrimination. The trajectory of constitutional change and jurisprudence has been a journey from exclusion, detrimental treatment and restriction, to a more neutral position. There are now proposals to remove all references to race, introduce a non‐discrimination clause and recognise Indigenous Australians as the First Peoples of the Commonwealth of Australia.32 While the issues of race generally and the specific position of Indigenous Australians each have an explicit foundation in the text, the issue of gender is more muted. The only explicit constitutional textual indication of gender is the mention of Queen Victoria, the female sovereign at federation. There is the historically unexceptional use of ‘he’ to cover all persons, even though some sections of the Constitution exist in their current form due at least in part to advocacy by women’s groups33 or out of a concern to maintain the political rights of women.34 The issue of gender in the Australian Constitution is one of historical effects, textual remnants but placed now in a context where gender would not be accepted as a valid basis for disadvantageous treatment under the Constitution. 31
See Immigration Restriction Act 1901 (Cth) s 3 (a). See Expert Panel on Constitutional Recognition of Indigenous Australians, 'Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel' (2012), the legislative recognition contained in Aboriginal and Torres Strait Islander Recognition Act 2013 (Cth) and ongoing work towards a future referendum: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Aboriginal_and_Torres
_Strait_Islander_Peoples/Role_of_the_Committee 33
For example, see s 113 regarding intoxicating liquids and the role of the Women’s Temperance Unions on its insertion into the draft Constitution – Helen Irving, 'Who are the Founding Mothers? The Role of Women in Australian Federation' (Parliament of Australia, 1995). 34
Especially s 41. See Anne Twomey, 'The Federal Constitutional Right to Vote in Australia' (2000) 28 Federal Law Review 125, Jonathon Crowe and P Stephenson, 'An Express Constitutional Right to Vote? The Case for Reviving Section 41' (2014) 36 Sydney Law Review and Arcioni, ‘R v Pearson: Feminism and the Franchise’ in Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter (eds) The Australian Feminist Judgments Project: Righting and Re‐writing Law (Hart, 2014 forthcoming). 32
12 e identity of the Australiaan constitutional people
e are compleex and have changed The contours of the
me. The peop
ple are constiituted by thee categories contained w
within the Co
onstitution. TThere are over tim
a series of hierarchiies within th
he Australian
n people – the people o
of the States are at the ccore, the people of the Territories closeer to the pe
eriphery and
d with preccarious political and com
mmunity memberrship. Acrosss those categories run th
he demotic people – thee people actting through, and as, electors. That group
p has changeed over timee, now moree inclusive than the passt. The peop
ple acting through electors haave been hisstorically constitutive in
n adopting the draft Constitution, and a have ongoingg constitutivee roles in eleecting memb
bers of Parliaament and voting in refeerenda to change the Constitu
ution. The underlying baasis of civil membership
m
p is allegiancce as subjects of the Qu
ueen – a sovereiggn who hersself has chan
nged in nam
me and title since the Co
onstitution was w drafted. Subject status iss today in a complex relationship wiith legislated
d citizenship
p and other ccategories reelated to allegiancce. While th
he Australian constitutional peoplee are primarrily demotic, there is an ethnic elementt, where cultture or race are ascribed
d by law and
d imposed to
o treat group
ps differentiaally. That elementt of the Australian constitutional iden
ntity is the su
ubject of onggoing discusssion for reform. I have vvery briefly introduced i
t contourss of Australian constituttional identitty. I now move to a the more in‐depth consideration of one part off the relevan
nt jurisprude
ence to demo
onstrate thaat, within those caategories of membership
p, there is flluidity in thee compositio
on of each ccategory. Speecifically, that dettermining wh
ho falls withiin a categoryy may changge over time. And, in recognising thee method by whicch membersship has changed, the Court has conferred upon u
the people an additional constitutive power –– that of self‐‐definition.
13 Part4–Fluidityandthepowerofself‐definition35
Constitutional change occurs in at least two ways in Australia – through amendment of the constitutional text via the procedure set out in s 128 (Parliamentary proposal of change followed by referendum), and (re)interpretation by the High Court of the existing text. Both methods of change have occurred and with an impact on the identity of the Australian constitutional people. As noted above, an amendment occurred in 1977 to allow electors in the Territories to vote in constitutional referenda. This change meant the people of the Territories could exercise a constitutive function previously unavailable to them. They came closer to full membership of the core demotic people under the Constitution. In 1967, two sections were changed (s 127 deleted and s 51(26) amended), with the overall effect of removing references to Indigenous Australians and therefore removing explicit exclusion from ‘the people’ on the basis of aboriginality. Both methods of change include the people. Referenda are an obvious form of constitutive power of ‘the people’ by giving them, through their representative electors, the determinative say in whether constitutional change goes ahead. Here I focus on the second method of constitutional change – judicial interpretation of existing text. I focus specifically on the category of federal electors and how its meaning has changed over time. As introduced at the beginning of this paper, I argue that the High Court, in interpreting the Constitution, is deferring to legislative indications of identity in determining the boundaries of membership and therefore granting ‘the people’ an additional form of constitutive power. The Court has accepted that, over time, the category of electors has expanded to be more inclusive. At federation, women were excluded from the federal vote in a majority of States and there were restrictions on the franchise on the basis of race. Today, there is an almost universal adult citizen franchise under federal legislation. In two recent cases, the Court has protected that franchise and in a way which confers significant power on ‘the people’ in determining their own constitutional identity. Those cases are Roach v Electoral Commissioner36 and Rowe v Electoral Commissioner.37 Roach was a challenge to the blanket disenfranchisement of prisoners from the federal franchise, on the basis that it breached ss 7 and 24 of the Constitution. The majority struck down the legislation. The majority reasoned that the power of the Parliament to determine the franchise was restricted by the requirement of ss 7 and 24 that parliamentarians be ‘directly chosen by the people’. Some disenfranchisement was allowed, but to disenfranchise all prisoners went beyond the justifiable limits on the federal franchise.38 Rowe was a case which challenged the timing of the closing of the electoral rolls prior to the 2010 federal election. Parliament had passed legislation which reduced the amount of time within which eligible persons could enrol to vote following the calling of an election. The Court, again by majority, 35
This section is derived from a forthcoming publication: Arcioni, ‘Democracy and the Constitution – the people deciding the identity of “the people”’ in Kim Rubenstein & Glenn Patmore (eds) Law and Democracy: contemporary questions (ANU Press, 2014 forthcoming). 36
Roach v Electoral Commissioner (2007) 233 CLR 162. 37
Rowe v Electoral Commissioner (2010) 243 CLR 1. 38
Prisoner disenfranchisement has been the subject of discussion in a number of countries and has come before the European Court of Human Rights – see Scoppola v Italy (No 3) 126/05 [2012] ECHR 868 (22 May 2012), Hirst v United Kingdom (No 2) 74025/01 [2005] ECHR 681 (6 October 2005) . 14 struck down the legislation as being inconsistent with the constitutional mandate of choice by ‘the people’. The detriment caused by the legislation outweighed any potential benefits of the early closing of the rolls. In those two cases, a majority of the Court used the notion of choice by the people to invalidate the laws in question. In working out the meaning of that phrase, and therefore who ‘the people’ are, the majority started from the position that a universal adult franchise is now protected by the Constitution. That is, that all capable adult citizens should have the right to vote. This was the baseline against which the Court in Roach determined whether it was justifiable to disenfranchise all prisoners, and against which the Court in Rowe determined whether the legislature could shorten the timeframe between calling the election and closing the electoral roll. Focusing on how the Court determined that such a broad franchise is protected reveals the significance of legislative indications of membership in defining the constitutional meaning of ‘the people’. Gleeson CJ is the most explicit in his use of legislation. He states that the universal adult franchise is protected by ss 7 and 24.39 This is because the “long established universal adult suffrage” is “an historical development of constitutional significance”.40 What that means is that because of changed historical circumstances, ss 7 and 24 “have come to be a constitutional protection of the right to vote”.41 Significantly, included in those historical circumstances is “legislative history”.42 The relevant legislative history addressed in the case is that relating to the federal franchise. Today there is an almost universal adult franchise, in the sense that adult citizens have a right to vote, unless they fall into a number of discrete and non‐arbitrary categories, and only a small, closed, category of adult non‐citizens have a right to vote.43 The remainder of Gleeson CJ’s judgment is about what exceptions are allowed from that general right to vote, and how they can be justified. The conclusion in this case was that the blanket disenfranchisement went too far, but that disenfranchisement of prisoners with a minimum sentence of three years was valid.44 The joint majority judgment of Gummow, Kirby and Crennan JJ displays the same method. They approach the question by looking at the central conception of representative government. The implied freedom of political communication, discussed above, is one aspect of that system. However, these judges say that voting is even more central; it is at the heart of the system of representative government. In identifying the centrality of voting to the constitutional system of government, they state that “Given the particular Australian experience with the expansion of the franchise in the nineteenth century, well in advance of that in the United Kingdom, this hardly could be otherwise.”45 This statement comes after their having outlined the details of the legislative changes from colonial times to today, with respect to the franchise. 39
Roach v Electoral Commissioner (2007) 233 CLR 162, 173‐4 [6]. Ibid 174 [7]. 41
Ibid. 42
Ibid. 43
See current manifestation in the Commonwealth Electoral Act 1918 (Cth). 44
This suggests something about the normative nature of ‘the people’, in privileging ‘good’ behaviour and penalising ‘bad’ behaviour – see the reference to “conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right” in Roach v Electoral Commissioner (2007) 233 CLR 162, 174‐5 [8] (Gleeson CJ). 45
Roach v Electoral Commissioner (2007) 233 CLR 162, 198 [80]‐[81]. 40
15 The joint judgment then moves to what was Gleeson CJ’s second step in his reasoning, by stating: “The question with respect to legislative disqualification from what otherwise is adult suffrage … thus becomes a not unfamiliar one. Is the disqualification for a substantial reason?”46 Thus, Gummow, Kirby and Crennan JJ also accept the ‘bedrock’ of universal adult franchise, which has become ‘bedrock’ due to changed legislation over time, and anything abrogating that rule must be justified. In the case of Rowe, which followed three years after Roach, the majority once again deferred to legislative indications of membership of ‘the people’. Chief Justice French was the most explicit about this. Early in his judgment, French CJ states: “The content of the constitutional concept of ‘chosen by the people’ has evolved since 1901 and is now informed by the universal adult‐citizen franchise which is prescribed by Commonwealth law.” He continued: the constitutional concept of choice by the people has acquired “a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished.”47 French CJ was indicating that the meaning of choice by the people has changed. But then he goes further and makes it clear that it is the changes in legislation over time that have determined the changed constitutional meaning. He refers to McTiernan and Jacobs JJ’s judgment in Attorney‐
General of the Commonwealth; ex rel McKinlay v the Commonwealth,48 which Gleeson CJ had referred to in Roach. The joint judgment in McKinlay had in turn referred to the constitutional meaning being linked to the “common understanding of the time”.49 French CJ states that “common understanding” is not “judicial understanding”.50 This seems to be a distinction between the views of the community generally, compared to the view of the judiciary, with the former being the ‘common understanding’. French CJ says that “durable legislative development of the franchise is a more reliable touchstone. It reflects a persistent view by the elected representatives of the people of what the term ‘chosen by the people’ requires.”51 Then, as in Roach, the remainder of his judgment is about whether the law in question breaches that command, which the majority in this case decides it does. The joint judgment in Rowe, of Gummow and Bell JJ, adopts the reasoning and conclusion of Gleeson CJ in Roach with respect to the universal adult franchise being constitutionalised.52 Crennan J, in her concurring judgment, also refers to Gleeson CJ in Roach.53 She combines the idea that representative government must be democratic, with the content of that democratic representation to come from the ‘common understanding’, which is to come from legislative development, to arrive at the conclusion that “a fully inclusive franchise – that is a franchise free of arbitrary exclusions based on class, gender or race” is now constitutionalised.54 46
Ibid 199 [85], emphasis added. Rowe v Electoral Commissioner (2010) 243 CLR 1, 18 [18]. 48
In Attorney‐General of the Commonwealth; ex rel McKinlay v The Commonwealth (1975) 135 CLR 1. 49
Ibid 35‐37. 50
Rowe v Electoral Commissioner (2010) 243 CLR 1, 18 [19]. 51
Ibid. 52
Ibid 48‐9 [123]. 53
Ibid 107 [328]. 54
Ibid 117 [368]. 47
16 Thus, all the majority judges, in both of the most recent cases concerned with the system of representative government and the phrase ‘chosen by the people’, have all used legislative indications of membership to determine who are ‘the people’ who should be doing the choosing. It is the pattern of membership that the judges see in legislation which provides the meaning of the phrase ‘chosen by the people’, and particularly, who are ‘the people’ who should be able to exercise a choice through a federal vote. This method of reasoning indicates that the Court is allowing ‘the people’ to determine their own constitutional identity, but in a constrained and mediated fashion. First, a reminder that the primary textual indications of ‘the people’ in the Constitution connect to the system of representative government – ss 7 and 24. ‘The people’ choose the Parliament, the Parliament therefore represents ‘the people’ and its legislation is deemed to be the will of ‘the people’ through that representative system. The choice by the people has been referred to as the constitutional ‘bedrock’ of representative government. Considered in this way, the legislation of federal Parliament is the voice of the people. Thus, the Court, by adopting, deferring to, or reflecting, legislative choices regarding membership of the constitutional people, is picking up on the people’s own view of themselves. The Court is adopting the people’s view of whom they want to be included in the constitutional community and whom they want excluded. The method of reasoning of the Court therefore has a measure of democratic legitimacy, by reflecting the constitutive power of the people to establish their own identity, through their representative institution, the federal Parliament. The Court is seeking the meaning of constitutional terms, and acknowledges that the meaning of those terms may change, or the application of the terms may change over time, due to social, political and legal developments within and outside of Australia. What could the Court look to in order to determine the changed meaning over time? A majority is using legislation. While not completely satisfactory, at least legislation is identifiable, and can be seen as a reflection of the Australian polity’s view of themselves. Conclusion
Constitutional identity of the people can be complex and fluid. The Australian story demonstrates both. The complexity of the identity of the Australian constitutional people is seen in the multi‐
faceted nature of that identity. Numerous categories combine to give the contours of the constitutional people. The people in Australia are both constituted and constitutive. The identity of the people is ascribed by law, but the reasoning of the High Court confers some limited power of self‐definition to the collective people through their representative Parliament. The Australian study also shows that both demotic and ethnic conceptions of a constitutional people can coexist. The former is dominant in Australia. The people historically exercised constitutive power in voting to adopt the Constitution. They continue to exercise constitutive power through the federal electors who choose members of Parliament and vote in referenda to change the Constitution. However, an ethnic identity remains, despite constitutional amendment and changes in social and legal views towards race, culture and discrimination since the drafting of the Constitution. Each constitutional category of persons which affects constitutional identity in Australia is subject to change. This occurs through various mechanisms of constitutional amendment – textual and interpretative. The people 17 are involved in both methods of change. Therefore, the future development of Australian constitutional identity is in the people’s hands. 18