Twomey on An Analysis of Pitt Cobbett's Portrait of Australia's Constitution from 1788 to 1919 @SydneyLawSchool

Anne Twomey, University of Sydney Law School, has published An Analysis of Pitt Cobbett's Portrait of Australia's Constitution from 1788 to 1919, in William Pitt Cobbett, The Constitution and Government of Australia, 1788 to 1919 (Anne Twomey, ed. The Federation Press, Sydney, 2019). Here is the abstract.

William Pitt Cobbett was Dean of the Sydney Law School from 1890 to 1910, throughout the period when the Australian Constitution was drafted and first interpreted by the Griffith High Court. Upon retirement he devoted the rest of his life to writing a grand opus on the Constitution and government of Australia. It analysed the development of Australia's constitutional system from British settlement to the enactment of the federal Constitution and its early operation, viewing it as a social compact based upon constitutional implications. The manuscript was left unpublished because shortly after Cobbett's death the High Court took a significantly different approach to constitutional interpretation in the Engineers case. A century later Cobbett's "The Constitution and Government of Australia, 1788-1919" has now been published by The Federation Press. It is an historic work of great importance to those looking to discern how constitutional provisions were originally believed to operate. This paper identifies and analyses the most important aspects of Cobbett's work, pointing out where he was prescient, what is surprising, what is dated and how Cobbett's voice still resonates today. It addresses a range of issues including: federalism, the separation of powers, executive government, defence, external affairs, race issues, the Senate's powers, vice-regal powers, elections and the Court of Disputed Returns.

Download the essay from SSRN at the link.

Wesson on The Limits of Constitutional Justice @MurrayWesson

Murray Wesson, The University of Western Australia Law School, has published The Limits of Constitutional Justice at 29 Public Law Review 63 (2018). Here is the abstract.

Especially in recent decades, in many jurisdictions there has been a shift away from a classical liberal conception of the constitution to a conception of the constitution as geared towards the alleviation of social and economic disadvantage. This development is the result of three interlocking trends: the growth of positive obligations; the embrace of substantive equality; and the proliferation of socio-economic rights. The article explores these developments from a liberal constitutionalist perspective, sourced in the work of John Rawls. With reference to A Theory of Justice, the article argues that liberal constitutionalism is not wedded to the classical liberal conception of the constitution and so is not inconsistent with these trends. However, in light of Political Liberalism, the article contends that the liberal understanding of the constitution as a social contract limits these developments by seeking the hypothetical consent of reasonable individuals. This results in an understanding of socio-economic rights as generating a social minimum, as opposed to more expansive forms of distributive justice; and an understanding of substantive equality as circumscribed by the need to maintain the hypothetical consent of reasonable individuals adversely affected by measures such as positive action. These arguments are illustrated with reference to decisions of the South African Constitutional Court.

Download the article from SSRN at the link.

Henckels on Dishonoring the Australian Flag

Caroline Henckels, Monash University Faculty of Law, is publishing Dishonouring the Australian Flag in volume 44 of the Monash University Law Review (2018). Here is the abstract.

Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The selective policing of flag use in Australia reveals much about the culture of flag veneration inculcated in Australian society during since the Howard era. Flag burners have been arrested and prosecuted for the offences of disorderly and offensive behaviour, but those who have employed the flag in support of nationalistic or anti-immigration causes have not attracted such opprobrium. Yet, successive attempts to criminalise flag burning have never resulted in the enactment of flag protection legislation – in part on account of a desire on the part of conservative politicians not to martyrise flag-burners, but also due to the vulnerability of such legislation to legal challenge for incompatibility with the implied freedom of political communication protected by the Constitution. High Court authority suggests that it would be difficult for such legislation to survive Constitutional scrutiny unless the relevant provisions were narrowly tailored to welfare concerns such as public safety or public order, and that an objective of preventing offence cannot be a legitimate reason to suppress political communication.

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Babie on Australian Religious, Legislative, and Judicial Protections for Religious Freedoms

Paul T. Babie, University of Adelaide, School of Law, is publishing Australia in the Encyclopedia of Law and Religion (2016). Here is the abstract.

This chapter, part of the Brill Encyclopedia of Law and Religion, outlines the principle [sic] features of the constitutional, legislative and judicial protection of religious freedom in Australia.

Download the essay from SSRN at the link.

Stone and Arcioni on Australian Constitutional Culture and the Social Role of the Constitution

Adrienne Stone, Melbourne Law School, and Elisa Arcioni, University of Sydney Faculty of Law, have published Australian Constitutional Culture and the Social Role of the Constitution as Sydney Law School Research Paper No. 16/01. Here is the abstract.

This article, a contribution to a Symposium on Australasian Constitutionalism, addresses the disinclination of Australians to treat their Constitution as a source of shared values or aspirations. In this article the authors argue that there is, nonetheless, a meaningful way that the Australian Constitution articulates the values of the Australian people. Moreover, it is argued that recent movements for constitutional reform suggest a shift in Australian constitutional culture towards an acceptance that the Constitution does and should define the values of the Australian people.

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Dabner on Multiculturalism and Legal Plurality in Australia

Justin H. Dabner, James Cook University, Cairns Campus, has published Multiculturalism and Legal Plurality in Australia. Here is the abstract.

The great multicultural experiment that is Australia has engendered a reconsideration of core values. Even the traditionally conservative legal system has not been immune. While the law remains anchored in its British Christian common-law traditions, the influence of other cultures and beliefs are emerging. The primary two instances of this are the partial accommodation of Indigenous customary law and a debate over the accommodation of Islamic law principles. The adoption of “foreign” legal concepts goes to the essence of what it means to be a liberal democratic society: does it mean wholesale legal plurality, or are there foreign legal principles excluded because they are unacceptable to a free and equal society? Putting this in the Australian context, should Australia accept the customary and religious laws of minorities, or is multiculturalism about establishing one legal framework that applies to all, equally, and without discrimination? This article explores the implications for the legal system of an increasingly multicultural Australia. It will be observed that legal plurality does exist in Australia but largely in the shadows where the vulnerable of society lack protection.

Download the article from SSRN at the link.

The Australian High Court's Use of Foreign and International Materials In Constitutional Decisions

Elisa Arcioni, University of Sydney Faculty of Law, and Andrew McLeod, Lady Margaret Hall, University of Oxford & University of Sydney Faculty of Law, have published Cautious but Engaged -- An Empirical Study of the Australian High Court's Use of Foreign and International Materials in Constitutional Cases at 42 International Journal of Legal Information 437 (2015). Here is the abstract.

The issue of whether constitutional courts should refer to foreign law has become the subject of debate and discussion around the world. In the US in particular, a heated judicial and academic debate on the issue has spilled into a political controversy extending to the introduction of federal and State Bills to prohibit judicial citation of foreign law and to Congressional proposals for such citation to be an impeachable offence. The use of foreign law, for some, is in tension with national sovereignty: one Congressman claimed that citation amounted to a surrender of lawmaking 'to the control of foreign courts and foreign governments', and potentially represented the start of an internationalist normative debates about foreign law play at best a muted role in Australian jurisprudential and political life, and we do not directly engage with them here. Rather, we consider to what extent, and how, Australian High Court judges engage with foreign and international legal materials in constitutional cases. In this article we track the frequency of citation in constitutional cases and provide a substantive analysis of the ways in which those materials are used. We find that the citation of foreign and international materials in constitutional cases is widespread, though it is issue-dependent and varies in both quantity and kind between judges. In general, the Court shows a willingness to consider foreign approaches to constitutional questions, even when they are ultimately found not to be directly applicable in the Australian context. Unsurprisingly, the Court's use of foreign precedents leans heavily towards nations with which it shares a common law heritage. We suggest that the highly context specific nature of constitutional law remains a significant factor shaping the Court's approach, and that this creates a barrier to the direct importation of foreign materials.

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Patriarchial Government and Aboriginal Peoples In Australian Law and Culture

Honni Van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Archiving the Northern Territory Intervention in Law, and in the Literary Counter-Imaginary in volume 40 of the Australian Feminist Law Journal (2014). Here is the abstract.

This article focuses on a figure archived in contemporary Australian law, a figure who is central to the state’s control of Aboriginal people. This figure, like her counterparts in earlier historical periods, is to be found in legislation and in case law, and in law’s supplementary genres, including welfare and indigenous policy, and Parliamentary second-reading speeches. This figure is the ‘abused Aboriginal child’, and she has been significant to the production of myths of the Australian nation-state, and to the rule of law. She is being used to justify the continued administration of Aboriginal communities, through simultaneously both the continuing suspension of the rule of law, and the violent instrumentalisation of law. This article examines the archive of the Northern Territory Intervention and subsequent Stronger Futures legislation, investigating the ways in which law’s violence masquerades as law’s care. I seek to explore the ways in which reading law as an archive opens up the possibility of a counter-archival practice that interrupts and disorients law’s claim to violent jurisdiction over Aboriginal people. The emphasis here is on reading law as archive — on taking up a position of readerly responsibility with respect to the practices of representation that constitute law’s archive, and on constructing counter-archival practices and imaginaries that resist and re-situate law’s authority. By way of example, I examine Alexis Wright’s most recent novel, The Swan Book (2013), which is read as an exemplary counter-archival text that interrupts law’s archival practices and claims.

Download the article from SSRN at the link. 

"The People" In the Australian Constitution

Elisa Arcioni, University of Sydney Faculty of Law, has published That Vague But Powerful Abstraction: The Concept of ‘The People’ in the Constitution as Sydney Law School Research Paper No. 14/15. Here is the abstract.

The concept of ‘the people’ in the Australian Constitution is undoubtedly unfinished constitutional business. The concept is “vague” due to a lack of development by the High Court but also because it is an inherently fluid concept. Yet it is also “powerful” because of what ‘the people’ has come to signify, which is something that I suggest should be further developed by the High Court. There are two questions that I consider in this paper. The first is: who are ‘the people’? The second is: what impact do they have on our understanding of the Constitution and constitutional terms?

Download the paper from SSRN at the link.

How Australia's Framers Used the U.S. Civil War

Helen Irving, University of Sydney Faculty of Law, has published Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution as Sydney Law School Research Paper No. 11/26. Here is the abstract.

Counterfactual history - the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events - is a controversial business. Among supporters, counterfactualism is defended as serving a valuable heuristic function, and furnishing questions to drive research. But can the knowledge generated by counterfactual history have a real-world, functional application? Is it possible to use what we learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Constitution-making provides us with one answer. This proposition is illustrated with a discussion of the use made of the American Civil War by the framers of Australia’s Constitution in the 1890s.

Download the paper from SSRN at the link.