Abstract
For many years, historical accounts of Australian Federation ignored the distinctive ideological origins of the Australian Constitution. From the mid 1980s until the 2000s, however, a generation of historians remembered how the Australian drafters built a distinctive constitutional democracy that combined trust in parliament with a direct constitutional role for a plural ‘people’: the people of Australia and the people of the states. Drawing on Chartist and American ideas of popular sovereignty, this system of popular political constitutionalism textually guarantees that ‘the people’ can ‘directly’ choose both houses of parliament, break deadlocks between these houses and make constitutional law. The definition of ‘the people’ in this distinctive form of constitutional democracy was, however, racially exclusive. In particular, First Australians were excluded from the plural people of Australia.
This intellectual history of the Australian Constitution, however, has had remarkably little impact on constitutional interpretation and discourse. This paper will begin the process of examining those implications. First, it will show how this history provides important contextual support and direction to the implied limitations on parliamentary power that stem from the constitution’s guarantee of representative democracy in sections 7 and 24 of the Constitution. Second, it will demonstrate how it aids in better understanding Australia’s unique constitutional system. To date, this system has remedied the racist roots of the original constitutional definition of the people largely through legislative reform. The constitutional recognition of First Australians is a critical step in acknowledging that First Australians are a distinct part of the plural Australian people. In the aftermath of the failure of the First Nations Voice to Parliament proposal, meaningful constitutional recognition for First Australians must address their structural exclusion from the plural Australian people.
‘Learned commentators observing the situation from a vantage point outside Australia wrote of the extremely “democratic” nature of the new Constitution, representing “the high-water mark of popular government”’.
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‘The great underlying principle [of the Australian Constitution] is, that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power’.
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In legal circles, the Australian Constitution is frequently viewed as a technical rule book that creates a form of representative democracy drawn from British parliamentary sovereignty. 3 Justice Keane of the Australian High Court, for instance, described the Constitution as a ‘small brown bird’ that is ‘modest’ and ‘in sober historical fact, a schedule to an enactment of the Imperial Parliament at Westminster’. 4 This article will argue that this understanding is underpinned by the fact that most historical accounts (even current ones) ignore the distinctive intellectual origins of the Australian Constitution. 5 This historical blind spot has allowed many Australian lawyers to (mistakenly) view the Constitution as a pragmatic and prosaic combination of federalism with British parliamentary sovereignty. 6
From the mid-1980s to the 2000s, a generation of Australian intellectual and cultural historians filled this blind spot. 7 They described the significance of Chartist constitutional ideas on constitution-making in the Australian colonies that occurred during the middle of the 19th century. 8 These Chartist ideas broke with parliamentary sovereignty and instead saw ‘fixed principles of fundamental law’ guaranteeing a central role for ‘the people’ in representative democracy. 9 These ideas shaped colonial constitutions and their near universal manhood suffrage for the lower house of Parliament. They also shaped section 41 of the Australian Constitution, which explicitly guarantees that this broad lower house franchise will apply in Commonwealth elections.
A group of ‘new federation historians’ described the influence of Swiss and American ideas of ‘the people’ in shaping Australian constitution-making in the 1890s, which involved a specially elected constitutional convention that produced a constitution ratified in state referendums. 10 This process helped create a unique constitutional system of ‘popular political constitutionalism’ that contained a number of innovative provisions that constitutionally guaranteed a direct role for the people in Australian representative democracy. 11 These innovative provisions included a flat ban on plural voting, the requirement that the people directly choose both houses of parliament, a referendum process to amend the constitution and a provision allowing immediate elections for both houses of Parliament if they were deadlocked on legislation. Moreover, the people in this constitutional democracy were not understood simply as a national majority; they were instead a plural people, comprising ‘the people of the States’ (section 7 of the Constitution) and ‘the people of the Commonwealth’ (section 24 of the Constitution). 12
This new intellectual and cultural history also described how the definition of the people was racially exclusionary. John Hirst described how the desire for democratic purity amongst early colonial Australians was linked with racial purity. 13 The Australian founders therefore shared a great deal with their racist contemporaries in the American progressive movement and the British labour movement. 14 This racism impacted the Constitution, which gave the Commonwealth vast power to make special laws for ‘the people of any race’. 15 The Constitution also failed to recognise First Australians as part of the plural Australian people that included both ‘the people of the states’ and ‘the people of the Commonwealth’. 16 Instead, the Constitution stated that First Australians ‘shall not be counted’ in ‘in reckoning the numbers of the people of the Commonwealth’. 17 Much as the American founders proclaimed individual rights as the founding value of the United States Constitution while practicing slavery, the Australian drafters committed themselves constitutionally to a distinctive form of ‘popular’ representative democracy but with a racist understanding of the people. 18
This intellectual history of Australian constitutional democracy, however, has had remarkably little effect on either constitutional interpretation in the High Court or constitutional discourse outside of the Court. This paper will begin the process of describing its impact. It will outline two key areas where this fuller history is particularly relevant. First, this history shows that sections 7 and 24 of the Constitution constitutionally guarantee a system in which ‘the people’ exercise sovereignty over Parliament through the vote. 19 This history therefore supports the implications the High Court has drawn from sections 7 and 24 and provides guidance on how they should be implemented. 20
Second, this intellectual history also has broader consequences for public discussions about Australia’s constitutional system. It shows that the Australian Constitution broke not just with the American tradition of individual rights grounded on distrust for legislative power. It also broke with the indirect political sovereignty of the people found in British parliamentary sovereignty. 21 The distinctive Australian system instead combined a belief in political constitutionalism with a constitutional guarantee that ‘the people’ could directly choose parliament, break deadlocks and make constitutional law. 22 Since Federation, this constitutionally guaranteed system of ‘popular political constitutionalism’ has continued to develop, including both formal constitutional amendments that increase the power of the people and legislative reforms that have increased the scope of franchise beyond white Australians. 23 Constitutional recognition for First Australians is another step in developing this unique system. After the failure of the Voice to Parliament proposal, meaningful constitutional recognition for First Australians must address their structural exclusion from the plural Australian people.
To make this argument, this paper will be divided into five parts. Part 1 will describe how historiography — the critical study of how history is written, remembered and applied — can help to expose and fill blind spots in history. Remembering the forgotten aspects of constitutional foundation can provide new historical context for better understanding constitutional law. Part 2 will explain how most of the differing historical accounts (including today) of Australian federation ignore the democratic underpinnings of Australian constitutionalism. Part 3 will describe how historians from the mid-1980s to mid-2000s filled this blind spot by remembering new historical facts showing the distinctive role of the people in Australian constitutional democracy. Part 4 will describe the significance of this fuller, intellectual history for constitutional interpretation. It provides important support and direction for the implications the Court has drawn from sections 7 and 24 of the Constitution. Part 5 will describe how this intellectual history also informs debates about constitutional amendment by showing the distinctiveness of Australia’s constitutional system. This historical context demonstrates the importance of meaningful constitutional recognition for First Australians in developing Australia’s distinctive constitutional system even after the failure of the First Nations Voice to Parliament proposal.
I Historiography, Blind Spots and Constitutional Law
This paper uses the methods of historiography — the critical study of how history is written and remembered — to examine how Australian constitutional democracy has been remembered. 24 Historiography critically focuses on ‘the minds and the writings of those who study the past’, seeking to understand the different accounts that writers of history give to a particular historical period over time. 25 At the centre of historiography is the critical study of how present-day concerns, questions or commitments drive the writing of history.
Historiography shows that all historical accounts have some relationship to contemporary context at the time they are being written. 26 As E H Carr wrote, history is ‘a continuous process of interaction between the historian and his facts, an unending dialogue between the present and the past’. 27 Some historical accounts will be consciously and strategically built to suit particular contemporary agendas or commitments. In this approach, the writer of history looks to history ‘produce the result intended because it is designed to do so’. 28 Others will be unconsciously shaped by less visible or unconscious commitments. These commitments often push historians to ask particular questions of history and to ignore or downplay others.
This critical insight does not mean that history is so contestable that it is unknowable or irrelevant to contemporary questions. 29 On the contrary, properly constructed historical accounts are frequently well accepted and, if used with caution, can and should inform present-day questions. But this critical insight does show that conventional accounts of the past often fall into patterns that include significant blind spots. These blind spots occur precisely because writers of history — consciously or unconsciously — ask particular questions of history, select particular historical facts or make assumptions to iron out contradictions and disharmonies in history. Finding these blind spots requires taking a critical position and identifying how contemporary commitments are driving the selection of particular historical facts. This process then allows the writers of history to broaden our historical understanding. Remembering these forgotten parts of history then provides important detail and often complexity to our understanding of history. 30
These methodological insights can have important consequences for law. History is an important source of facts in constitutional adjudication. As Justice Owen Dixon stated, it will often be necessary for courts to ‘use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians’. 31 Bradley Selway describes how the facts of history can appear and shape the practice of the Australian High Court in various ways. 32 A classic example of the impact of history is the effect of Henry Reynolds’ research on First Nations history in the High Court’s landmark decision in Mabo. 33 History is central to constitutional interpretation as well, helping to understand the context and therefore purpose of constitutional provisions. 34
History is also critical in understanding constitutional discourse outside of court. In particular, it plays a central role in helping to understand the historical period before and during constitutional foundation. 35 In Australia, the purposes and context of the constitutional text adopted in 1901 helps to understand the foundations of Australian constitutionalism itself. Moreover, by tracing its historical development from foundation to the present, we can begin to more deeply understand the distinctive features of Australia’s evolving form of constitutionalism.
The process of remembering historical facts from blind spots is therefore critical in providing a new or clearer understanding of the purpose of a constitutional provision or a particular constitutional system. The following two sections will critically examine how Australian constitutional democracy has been remembered. Part 2 will examine why the distinctiveness of Australia’s constitutional democracy has been a key blind spot in the conventional historical account of Australia’s constitutional founding. Part 3 will then explain how a generation of historians filled this blind spot in the 1980s and 1990s, remembering a constitutional system committed to a broad but racially exclusive role for the people. Parts 4 and 5 will then outline the consequences of this fuller history for constitutional interpretation and debate.
II A Blind Spot in Understanding Australian Constitutional Democracy
‘[T]he political servants of the bourgeoisie were about to draft a constitution to protect their interests for generations to come’.
36
Most historical accounts of Australian constitutional democracy over the years have ignored the constitution’s distinctive ideological origins. 37 This ignorance is a remarkable departure from the Federation period, when the founders tied emerging Australian nationalism to the progressive ideological underpinnings of the Constitution. 38 The democratic experimentation of the federation period faded quickly in the public imagination as the constitution’s status in Australia as embodiment of a distinctive Australian form of ‘civic’ nationalism receded. In its place, Australian national identity was replaced by the ‘martial nationhood’ of the bloodshed at Gallipoli in World War I. 39
Historians of Australian federation then turned to other aspects of federation. Imperial historians viewed federation as an imperial project meant to ensure Australia’s common defence. 40 Economic historians focused heavily on the financial purposes of federation. In perhaps the most influential constitutional history of the Australian Constitution produced prior to the 1980s, John La Nauze’s The Making of the Australian Constitution drew heavily on his background as an economist and closely analysed the fiscal components of Australian constitution-making. 41 Robert Parker’s research described how federation was driven by economic factors. 42 Other economic historians, such as Geoffrey Blainey, ignored federation altogether. Most notably, in the Tyranny of Distance, one of Blainey’s best known and most influential books, federation is not even mentioned. 43 Blainey later admitted this deficiency, describing the democratic aspects of the Australian Constitution to be a ‘huge, barely tapped area of research’. 44
Labour historians took a class-based lens to federation and the constitutional order. 45 They therefore described the Constitution as ‘just another form of self-interest’ bent on advancing the interests of a privileged few. 46 For instance, Fin Crisp described federation as the creation of ‘the big men of the established political and economic order, the men of property or their trusted allies’ who had a mission to make the Commonwealth ‘a splendid bastion of property’. 47 Manning Clark similarly described how the Constitution was drafted by the ‘political servants of the bourgeoisie . . . to protect their interests for generations to come’. 48
This narrative of the constitution as a self-interested enterprise has persisted into the present day. 49 Most recently, Stuart Macintyre has written that that the idea of a ‘popular movement’ underpinning Australian Federation involved ‘a sleight of hand’. 50 Others have expressed concern about the Constitution’s racist origins and the lack of entrenched individual rights protection in the Australian Constitution. For instance, George Williams argues that ‘[t]he making of the Australian constitution was neither representative nor inclusive of the Australian people generally. It was drafted by a small, privileged, section of society’. 51 He argues that formal constitutional change is needed for Australia’s ‘horse and buggy’ constitution. 52 Hilary Charlesworth argues that the Constitution’s refusal to include rights is an inherent reflection of the racism of the time. 53
These different historical accounts of federation have uniformly ignored the ideological ferment of the federation period and its influence on the new Constitution. With no background historical understanding of these distinctive ideas underpinning the Constitution, the Australian legal community has understood it as a thin and ‘prosaic document’. 54 For instance, Jeffrey Goldsworthy states the conventional view when he contrasts Australia’s value-free, ‘basic law’ Constitution with the United States’ ‘higher law’ constitution. 55 Elisa Arcioni and Adrienne Stone describe this dominant view of the Australian Constitution as one involving the ‘modest aspirations’ of the framers that helped to create ‘the narrow domain of the Constitution’. 56 This thin document, the dominant understanding goes, is a ‘lawyers’ document’ that combines American-style federalism with British parliamentary sovereignty. 57
This conventional story also reflects the persistent influence of British constitutional concepts in the Australian legal mind. In the post-WWI period, the Constitution’s status as a product of UK legislation was cited in a landmark case as the basis for a deferential form of constitutional interpretation that enabled the growth of the national government. 58 Since then, Australia’s devotion to ‘legalism’ and political constitutionalism in the face of American-style rights constitutionalism has led to the assumption that British concepts animate Australian representative democracy. 59
One of the most influential of these British concepts in Australian constitutional thought has been parliamentary sovereignty. 60 A group of distinguished legal academics argue that ‘parliamentary sovereignty’ is one of ‘at least five fundamental principles which underlie the Australian constitutional system’ though it has ‘a qualified meaning in Australia’ stemming from Australian federalism. 61 Further, in an influential book describing the Australian constitutional order, Leslie Zines argues that the Australia’s ‘tradition of parliamentary supremacy’ comes from Australia’s ‘British traditional heritage’. 62 Although the High Court as a whole has been largely silent on this issue, some Justices on the High Court have also taken this position. Chief Justice Barwick argued that Australia has a system of parliamentary sovereignty because (unlike the United States) Australia did not rebel against Britain. 63 More recently, then-Chief Justice Gleeson cited Barwick’s words as a useful example of the ‘historical facts’ that help determine the meaning of the Constitution. 64
III The Ideological Origins of Australian Constitutional Democracy
From the mid-1980s to the mid-2000s, however, a generation of intellectual and cultural historians worked to more fully understand the ideological origins of Australian constitutional democracy. They did this by immersing themselves in the constitutional ideas and practice of colonial and federation Australia. This historical work remembered the remarkable success of Chartist constitutional ideas in mid-19th century, colonial Australia. 65 It also remembered how the process of constitution-making in the 1890s was revitalised when the American idea of popular sovereignty led Australians to act outside of parliament through a specially elected convention and referendums. 66 This commitment to a direct role for the people in representative democracy was contested; in fact, many conservatives warned that these popular ideas were a radical departure from British practices of parliamentary sovereignty. 67 But these ideas were ultimately successful in informing the text of the Constitution that guaranteed a direct role for the people in Australian representative democracy. 68 This system included, however, a racist view of who comprised ‘the people’. 69
A Drivers of This Fuller History
This account of the distinctive nature of Australian constitutional democracy was itself the product of contemporary drivers. Perhaps the most important was a renewed search for a unique Australian civic identity grounded in the Constitution itself. From the mid-1980s to early 2000s, Australia underwent a significant political transformation. With the signing of the Australia Acts of 1986, Australia severed its final ties with the United Kingdom. Formal independence triggered the growth of civic nationalism linked to the Australian Constitution and the (ultimately unsuccessful) republic movement of the 1990s. Finally, in 2001, Australia celebrated the centenary of its Constitution. These events signalled an important shift in the view of the Constitution: it now clearly owed its legitimacy to the ‘authority of the people of Australia’. 70 As part of these changes, historians studied democratic innovation during the federation and its impact on the Constitution. 71
Another key driver was the turn away from economic, imperial and labour history towards cultural, transnational and intellectual history in professional history. This change turned Australian historians’ attention to the distinctive constitutional ideas underpinning Australian constitutionalism before and during federation. 72 This included the transnational flow of constitutional ideas from Britain, Switzerland and the United States to Australia. 73 The Australian drafters then combined these ideas in a distinctive system that guarantees that ‘the people’ would play a central role in parliamentary democracy. The significance of these radical ideas to the Australian Constitution shows the extent to which it broke with not just United States concepts of rights-based democracy but also British ideas of parliamentary sovereignty in which ‘the people’ only exercise a limited form of political sovereignty.
B The People’s Constitutionally Guaranteed Role in Australian Representative Democracy
This intellectual and cultural history remembered the distinctive constitutional ideas and practice of the colonial and federation period. 74 Irving describes how the decades before Federation were characterised by ‘social experiment’ in ensuring a more egalitarian and popular form of representative democracy powered by the working class. 75 This also included expanding the franchise to women.
These historians described the remarkable success of Chartist constitutional ideas in colonial Australia (in contrast with their failure in Britain). 76 For instance, Paul Pickering described how Chartist constitutional ideology had successfully embedded itself in the Australian colonies by the 1850s and was grounded on ‘a popular interpretation of Britain’s constitutional history’. 77 This Chartist constitutionalism rejected emerging conceptions of parliamentary sovereignty and instead argued that there were fundamental principles that placed limits ‘beyond which no parliament could reach’. 78 These principles — such as broad suffrage laws and the right for the people to peaceably assemble — ensured a form of ‘popular constitutionalism’ that guaranteed a central role for the people in parliamentary democracy. 79
These Chartist ideas shaped the nascent constitutional orders of the colonies in the middle of the 19th century, leading to the introduction of (almost) universal manhood suffrage in the lower houses of many Australian colonial parliaments. 80 This expansion of the franchise was particularly strong in South Australia, where both women and First Australians earned the right to vote by the late 19th century. 81 It is important not to overstate the influence of these ideas: the colonial constitutional orders retained upper houses that were either unelected or chosen by a very narrow group of propertied men. But these reforms were significant and were noticed outside of Australia. United States President Teddy Roosevelt declared Australia to be a ‘splendid object lesson’ in representative democracy. 82 These colonial constitutions served as a critical background for the federation movement in the 1890s; they were frequently mentioned as examples in the drafting discussions. Moreover, section 41 of the Constitution guaranteed that the broad franchise that had developed for these lower houses would apply to Commonwealth elections.
A group of ‘new federation historians’ then specifically focused on the distinctive role of ‘the people’ in Australian constitution-making in the 1890s. 83 They described how the initial constitutional draft of 1891 was produced by a process with little role for the people. The draft drew heavily on British parliamentary sovereignty and gave the people no guaranteed role in Australian representative democracy. 84 Furthermore, it included an appointed upper house and allowed ministers to sit outside parliament. It was, however, abandoned. 85
They then described how the federation movement was revived when a series of bottom-up federation conventions proposed to turn to ‘the people’ and ‘not politicians’. 86 A new process was devised in which the people would directly elect representatives to a new constitution-making convention. Hirst explains how this role for the people outside of parliament drew on American constitutional ideas that found their way to Australia through James Bryce’s influential book The American Commonwealth. 87 This book contained an entire appendix that described the ways that the people could act through conventions outside of the legislature. 88 Moreover, Irving describes how the concept of the ‘people’ acting outside of parliament helped ensure that ‘[t]he people had become the legitimizing force behind federation’. 89 For instance, women’s groups such as the Women’s Christian Temperance Union played an important role in restarting the federation process and petitioning the elected drafted convention. 90
The new federation history then explained how this popular process injected distinctive democratic ideas into the constitutional drafting process. The Victorian Premier (George Turner) at the first meeting of this elected convention set the tone by advocating a number of voting guarantees that ensured that ‘the people’ played a central role in Australian representative democracy. 91 These ideas were not uncontested; they drew criticism from delegates who wanted a system of democratic governance closer to the British model. 92
But ultimately these ideas found their way into the text of the Constitution. They were successful not just for ideological reasons; they were also practically important. A strong constitutional commitment to the people was crucial to the successful ratification of a constitutional system with an upper house that gave the smaller states equal representation. 93 The ‘yes’ vote in Victoria and NSW ultimately succeeded by stressing how the Constitution created the ‘most democratic’ federation in existence. 94 For instance, Alfred Deakin’s justification of the draft was grounded in its democratic exceptionalism: ‘you will look in vain for [a constitution] as broad in its popular base, as liberal in its working principles, as generous in its aim’. 95 Moreover, George Reid, the Premier of NSW, strengthened the role of the people in the draft constitution at a secret Premiers’ conference to ensure that the constitutional draft was successful in a second referendum in NSW.
The text of the Australian Constitution therefore reflected a distinctive combination of Chartist and American understandings of popular democracy. It included a number of systemic and structural provisions to guarantee a direct role for the people. 96 First, the preamble described ‘the people’ (and no longer ‘the Australasian colonies’) as creating the Constitution. 97 Second, it introduced a number of guarantees of popular control over parliament. Chapter I required the upper house of Parliament (the Senate) to be ‘directly chosen’ by the ‘people of the State(s)’ (section 7) and the lower house of Parliament (the House of Representative) to be ‘directly chosen’ by ‘the people of the Commonwealth’ (section 24). These provisions broke with the 1891 draft by providing the people with a constitutional guarantee of a ‘direct’ choice of their representatives in both the lower and upper house of Parliament. 98
Sections 7 and 24 also showed the plural nature of ‘the people’ in Australia: they acted not just as a national entity but also as the people of the states. This plural conception of the people was reflected in section 128 which gave ‘the people’ (and not parliament) the constituent power to make constitutional law — but only when a majority of the national people and the majority of people in a majority of states agreed. 99 This referendum process was widely assumed to be one that would allow the people to frequently amend the Constitution, 100 leading one commentator to worry that it would allow the ‘habit of tinkering’ with the Constitution. 101 This gave the Australian people (and not parliament) the legal sovereignty to alter their constitutional order through a referendum. 102
This plural understanding of the people — particularly when reflected in an upper house (Senate) that gave equal representation to all states — was criticised for rejecting a purely majoritarian form of democratic politics. This criticism was particularly strident from Australia’s emerging labour movement, which wanted fewer checks and balances on broad-based electoral majorities. 103 The rejection of majoritarianism, however, was defended as democratic by its supporters on the basis that it was more inclusive. For instance, Andrew Thynne in the 1891 Convention argued that ‘minorities’ deserved legislative protection against what he called ‘the tyrannic exercise of the power of temporary majorities’. 104 This desire to ensure minority representation triggered serious discussions of proportional representation voting rules for the Senate in the drafting conventions.
The Constitution also included key guarantees about the makeup of the plural Australian people. Sections 8 and 30 banned plural voting and section 24 required the House of Representatives (the more representative body) to be twice the number of senators. Section 41 also required that the franchise for both houses to be tied to that of the most progressive franchise, the lower house at the state level which had been transformed under Chartist ideology in previous decades. Section 28 also drew on a Chartist call for short parliaments by entrenching a requirement that the House of Representatives be elected every 3 years or less.
Finally, the Constitution included additional systemic mechanisms for ‘the people’ to ultimately resolve legislative deadlocks between the houses of parliament. 105 A critical new section gave the people the ability to break legislative deadlocks in a double dissolution election followed by a joint sitting of both houses. 106 George Reid described this provision in the convention debates using agency law terminology, explaining that the provision allowed the people as ‘principal’ to finally settle ‘what the agents cannot accomplish’. 107 Another delegate, William Trenwith, used similar language, arguing that when ‘the agents’ — that is, the houses of parliament — are unable to agree, they are ‘called upon by their principals to stand aside and refer that matter to the principals’. 108
This innovative constitutional system and its distinctive role for ‘the people’, however, was racially exclusive. 109 Helen Irving describes how Australians sought to purify their democratic exceptionalism from any contamination ‘that would come from coloured people in numbers’. 110 Democratic innovation did not extend to non-white Australians. Furthermore, the push for universal manhood suffrage in NSW, Victoria, Tasmania and South Australia meant that First Nations men technically had the franchise. 111 But this right to vote was extremely difficult to exercise, particularly as Australia’s growing nationalism was linked with race. 112 Patricia Grimshaw describes federation as a problematic ‘turning point’ in consolidating ‘white policies towards Aborigines that all but extinguished a promised path to citizenship’. 113
The text of the Constitution reflected the racist nature of the people in federation-era Australia. Although the Constitution recognised ‘the people of the States’ as part of the plural Australian people, it did not recognise First Australians. Instead, section 127 excluded First Australians from ‘the people’, stating that they were not to be counted ‘in reckoning the numbers of the people of the Commonwealth’. This exclusion accompanied decades of legal discrimination, starting with the Commonwealth Franchise Act that barred First Australians from voting. 114 More broadly, section 51(xxvi) gave the Commonwealth Parliament the power to make ‘special’ laws for ‘the people of any race’ (except for First Australians). Edmund Barton commented that this power was intended to ensure that the Commonwealth would ‘have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’. 115 Finally, section 25 stated that if particular ‘races’ were excluded from voting, they were not to be counted in the general ‘reckoning’ of the number of people.
The consequences of this fuller history of simultaneous democratic innovation and racial exclusion in Australian constitutional democracy have not been fully realised in Australian constitutional law or discourse. The following sections will explain these important consequences. First, this fuller history shows that the general purpose of sections 7 and 24 of the Constitution is to guarantee that ‘the people’ can control parliament through the vote. This constitutionally guaranteed form of popular political constitutionalism provides a new way of justifying the limitations the Court has placed on parliament on the basis of representative democracy (part 4). Second, it helps to understand the distinctiveness of Australia’s constitutional system and demonstrates why constitutional recognition for First Australians is an important step in further developing this system (part 5).
IV The Intellectual History of Australian Constitutional Democracy and Constitutional Interpretation
This intellectual history is significant for constitutional interpretation. Most notably, it provides important support for the implications the High Court has drawn from the constitutional guarantee of representative democracy in sections 7 and 24 of the Constitution. In a series of landmark cases, the High Court has argued that this guarantee necessarily contains implications that limit parliament’s ability to burden the electoral franchise or political communication. 116 These have generated criticism, with newly appointed Justice Steward recently writing that it is ‘arguable’ that the implied freedom of political communication ‘does not exist’. 117 In support, he argued that it is not sufficiently supported by the ‘text, structure and context of the constitution’. 118 Moreover, the High Court has struggled to define the precise nature of the Constitution’s guarantee of representative democracy. 119 Justice Gageler has described representative democracy as ‘a very large constitutional idea’ that defies easy categorisation. 120 Justice McHugh described the phrase ‘chosen by the people’ as ‘involving a value judgment’ and the term ‘the people’ to which that phrase refers as a ‘vague but emotionally powerful abstraction’. 121 Adrienne Stone has argued that this ongoing interpretive disagreement and uncertainty has in turn led to weak enforcement of these implied limitations on parliamentary power. 122
This section will describe how this intellectual history of Australian constitutional democracy both supports these implications and helps determine their scope. This history shows that sections 7 and 24 of the Constitution guarantee a system where ‘the people’ can directly choose their representatives and therefore hold parliament to account. These provisions therefore create a key constitutional limitation on parliamentary power. This constitutionally guaranteed form of popular political constitutionalism requires a limited but important role for courts in reviewing laws that threaten the popular accountability and representativeness of parliament.
A The Implications from Representative Government
In a series of cases, the High Court has held that sections 7 and 24 contain important implications that limit parliament’s power to pass laws that impact the franchise or political speech. These limitations on parliament have faced persistent ‘interpretive disagreement’. 123 This criticism is frequently underpinned by a key argument: these implications are not necessary to Australian representative democracy because they conflict with Australia’s commitment to parliamentary sovereignty. The implications, the argument concludes, are inappropriate and should be abandoned.
First, the Court has held that the constitutional guarantee of representative democracy requires Parliament to justify legislative burdens on political communication. 124 This implication has proven highly controversial. For instance, Justice Heydon has argued that the implied freedom of political communication ‘is a noble and idealistic enterprise which has failed, is failing and will go on failing’. 125 Nicholas Aroney has written that the implied freedom of political communication conflicts with ‘the prevailing wisdom among the framers of the Constitution . . . in favour of parliamentary sovereignty’. 126
Second, the Court has held that the constitutional guarantee of representative democracy requires Parliament to have a ‘substantial reason’ if it passes a law that burdens or limits the electoral franchise. 127 The Court has argued that ‘chosen by the people’ changes over time as Parliament expands the democratic franchise through legislation. The Court’s use of an evolving ‘legislative baseline’ to determine constitutionality has proven controversial. 128 For instance, Justice Hayne criticised the Court for linking the ‘ambit of constitutional power’ to what is ‘politically accepted’ in legislation. 129 Anne Twomey has argued that this approach is ‘radical’ and ‘not justified by the text or structure of the Constitution’. 130 In particular, she argues that it undermines ‘the principle of parliamentary sovereignty’ by allowing parliament to bind future parliaments. 131
B History, Cole v Whitfield and Sections 7 and 24
If Australia had adopted a federal version of British parliamentary sovereignty at federation, these are persuasive critiques of the implications the Court has drawn from representative democracy. An Australian form of parliamentary sovereignty would be fully ‘opposed to judges having power to protect them from legislation’ outside of the textual limitations largely stemming from federalism. 132 With this understanding of Australian representative democracy, therefore, the Court has gone astray and neither implication is appropriate.
But read in light of the intellectual history of Australian representative democracy described in part 3 above, it becomes clear why the text and structure of sections 7 and 24 necessarily require the implications the Court has drawn. Cole v Whitfield tells us how we use history to understand the meaning of constitutional text and structure. 133 In that case, a unanimous High Court described the role of history in understanding the meaning of constitutional text and structure. The Court stated that ‘reference to history’ is used to understand ‘the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged’. 134
The Cole formulation therefore explicitly includes an orthodox technique in interpreting legal text: using historical context to understand the general purpose or mischief to which the text is directed. In a leading case describing this technique, the High Court has explained that the modern purposive approach to textual interpretation uses history prior to adoption of the text in its ‘widest sense’ to understand ‘the mischief’ which the text was ‘intended to remedy’. 135 Cole signals adherence to this approach by describing constitutional interpretation in light of the ‘nature and objectives of the movement towards federation’ from which the Constitution emerged.
By directing the interpreter to understand constitutional text and structure in light of the nature and objectives of the ‘movement’ towards federation, Cole requires a wide understanding of the historical context prior to constitutional adoption. This includes an understanding of the direction of pre-adoption history and how the text fits into this broader constitutional movement. 136 Thus, in the Cole case itself, the Court seeks to understand the broader purposes to which the words ‘absolutely free’ in section 92 are directed by looking to the broader sweep of colonial and federation-era history. The Court describes how this history shows that section 92 was part of a general free trade movement. At the time, this was focused on forbidding particular burdens on inter-colonial trade such as customs duties. 137 It then, however, abstracts from this to a general purpose of blocking any ‘discriminatory burdens of a protectionist kind’, including those not understood at the time of constitutional adoption. 138 This was made clear in the Betfair case, when the Court invalidated a Western Australian law that banned internet-based betting exchanges. 139
The guarantee of representative democracy in sections 7 and 24 must be interpreted in the same manner. The intellectual history shows that sections 7 and 24 were part of a movement towards federation that sought to constitutionally guarantee a direct role for the people in Australian representative democracy. This history shows how sections 7 and 24 are part of a wider constitutional system that includes sections 8, 28, 30, 41 and 128. These other provisions reveal the general constitutional purpose of ‘directly chosen by the people’ is to mandate a constitutional system where the people can hold parliament accountable.
Read in line with Cole, therefore, sections 7 and 24 protect against laws that undermine the ability of the people to use the vote to exercise political control over parliament. Justice McHugh explains that sections 7 and 24 require a ‘process’ that enables the people to cast an ‘effective vote at election time’. 140 This explains why the implications the Court has drawn are necessary: they ensure that the people continue to play a central role in Australian popular political constitutionalism. This implication clearly requires a limited but important role for courts. As Justice Toohey describes it, the ‘essence’ of the constitutional guarantee of representative democracy remains ‘unchanged’ but the method of ‘giving expression to the concept varies over time’ as different challenges emerge. 141 Thus, for instance, as the democratic franchise and the definition of the people expands, courts must scrutinise laws that reduce the size of that franchise. Furthermore, as new legislative threats emerge to the system of political communication which undermine the ability of the people to choose their representatives, the courts must require parliament to justify these laws.
C The Implied Freedom of Political Communication
The intellectual history of Australian constitutional democracy has played little to no role in either justifying or shaping the implied freedom of political communication. In Australian Capital Television Pty Ltd v Commonwealth (‘ACTV’), for instance, the Court cited authorities such as the American Solicitor General, Archibald Cox, as the basis for the implication. 142 In Lange v Australian Broadcasting Corporation, the Court retreated from ‘political principles or theories’ extraneous to the Constitution and instead argued that the text and structure of the constitution alone justify this implication. 143
The intellectual history provides critical context for understanding why the text and structure of the Australian Constitution necessitate this implication. Initially, it refutes the argument that the implied freedom of political communication is illegitimate because Australian representative democracy reflects British parliamentary sovereignty. 144 Instead, this new intellectual history demonstrates that the sections 7 and 24 were part of a constitutional movement that constitutionally guaranteed ‘the people’ a role in Australian representative democracy. This constitutionally guaranteed form of popular political constitutionalism breaks with the absolute judicial deference in parliamentary sovereignty and instead requires courts to also play a role in scrutinising legislation that impairs the free flow of political communication necessary for the people to hold their representatives accountable through the vote. 145
This purposive approach to the interpretation of sections 7 and 24 also explains why the freedom of political communication is guaranteed despite the rejection of a bill of rights at federation. It shows that Australia’s movement towards federation had a unique conception of representative democracy and political constitutionalism that rejected individual rights in favour of a constitutional guarantee that the people can hold parliament to account through the vote. This special constitutional role for the people in the Australian legal system was obscured for many years by Australia’s ambiguous colonial relationship with the United Kingdom. After the Australia Acts of 1986, however, it was clear that Australia was a fully independent nation. 146 This shaped the High Court’s recognition of the role of the Australian people in the constitutional order and therefore the implied freedom. For instance, in an important early case recognising this implication, Chief Justice Mason argued that the Australia Act 1986 (UK) marked the end of the ‘legal sovereignty’ of Imperial Parliament and that ‘ultimate sovereignty’ now resided in the Australian people. 147
This history also helps support the Court’s doctrinal position that the freedom of political communication does not protect a ‘personal right akin to that created by the First Amendment’ but instead curtails the power of the legislature to limit political speech. 148 The Court describes how the freedom protects the flow of information to people about ‘the functioning of government’ and the ‘policies of political parties and candidates for election’. 149 Lael Weis describes the implication as an attempt to protect a ‘structural feature of the constitutional system’ by scrutinising laws that threaten a ‘system of government that is constitutive of popular sovereignty’. 150 This suggests that American categories and understandings of the freedom of speech are not relevant to Australian jurisprudence. Instead, the High Court should be scrutinising laws for their attempts to undermine the systemic ability of ‘the people’ to hold ‘the body politic’ accountable through voting. 151
This intellectual history also responds to the challenge put by Adrienne Stone to better describe the ‘kind of public debate’ that should be protected under the implied freedom of political communication. 152 By showing the constitutional value that the drafters placed on the systemic ability of the people to hold parliament to account, this history shows that courts must scrutinise laws that threaten Australia’s system of popular political constitutionalism. 153 This understanding of the role of the courts in upholding Australia’s guarantee of representative democracy is described in Justice Gageler’s extra-curial writing. He has explained that the ‘underlying purpose of the constitution’ is to enlarge the powers of self-government of the people. 154 This form of representative democracy, he explains, requires judicial ‘vigilance’ when popular accountability is inherently weak or endangered. 155 This is clearest where the government burdens the right to vote itself. But this vigilance is also required when law endangers ‘a process of communication by which that political accountability is maintained’. 156 In these cases of vigilance, the Court must ensure that the law is reasonably adapted and appropriate to achieve a compelling end. If it is not, it is committing ‘a fraud on the power’ and the Court must invalidate it. 157
Two High Court cases are consistent with the enforcement of this systemic constitutional guarantee. In the McCloy case, the plaintiff advanced an American-style individual liberty claim under the implied freedom of political communication to invalidate a cap on donations by property developers. The Court unequivocally rejected this claim, explaining that the implied freedom is not an ‘individual right’. 158 Justice Gageler explains that Australia’s commitment to representative democracy means that a law which limits the ability of wealthy interests to gain ‘unequal access to government based on money’ does not burden political communication but actually improves it by allowing ‘meaningful participation’ for non-wealthy voices in the electoral process. 159 Moreover, French CJ, Kiefel, Bell and Keane JJ stress that the law helps to ensure the ‘[e]quality of opportunity to participate in the exercise of political sovereignty’ which they argue ‘is an aspect of the representative democracy guaranteed by our Constitution’. 160
In the Brown case, the High Court struck down a Tasmanian anti-protest law because it burdened political speech in a way that was greater than reasonably necessary. The Court reasoned that the Act had broad effects on the system of political communication, largely by ‘extending the areas of its operation, creating further consequences for non-compliance with directions including special offences and heavy penalties’ and, ‘more importantly’ that deterrent is ‘achieved by the uncertainty which surrounds the areas within which the Act applies’. 161 These measures are likely to go far beyond any legitimate purpose and instead ‘deter protest[s] of all kinds’, thus depriving the people of access to political communication that can help them hold parliament to account through the vote. 162
Other judgments, however, are not consistent with this approach. For instance, in Clubb v Edwards, Justices Kiefel, Bell and Keane refer to the importance of ‘dignity’ and ‘privacy’ to the constitutionally prescribed system of representative democracy. 163 In support, they cite Israeli judge, Aharon Barak, for the idea that ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’. 164 There is no doubt that privacy and dignity are important values in traditional individual rights discourse. But Australia’s constitutionally prescribed system of popular political constitutionalism does not protect individual rights. Instead, it is intended to guarantee a system that allows the people to hold parliament to account. Protecting individual dignity or privacy (or autonomy for that matter) are not important or compelling purposes of such a system.
Finally, the doctrinal test the Court has adapted to understand the implied freedom — structured proportionality — is in tension with this fuller history. If history shows that the purpose of Australian representative democracy is to guarantee a system in which the people can hold the parliament account by voting, why is a doctrinal test taken from the individual rights context being used? In particular, the third and final ‘adequate in the balance’ step of structured proportionality is problematic in a system of political constitutionalism such as Australia. As Justice Brennan stated in Nationwide News Pty Ltd v Wills, the balancing of key interests is better left to Parliament. 165
Although a comprehensive discussion of the correct test is beyond the scope of this paper, the fuller history suggests that a version of the ‘calibrated’ scrutiny test (suggested by Justices Gageler and Gordon) is more appropriate. 166 In this approach, the Court would closely scrutinise laws that burden core aspects of popular political constitutionalism while giving deference to laws that do not. Those cases involving laws that warrant deference would only require ‘constitutionally permissible’ purposes to be valid. 167 But those cases considering laws that burden core aspects of the system of popular political constitutionalism would warrant higher scrutiny and require the impugned law to be ‘narrowly tailored’ to a ‘compelling’ purpose.
Two recent cases provide examples of how this calibrated scrutiny test could operate. In Ruddick v Commonwealth, the plaintiff challenged 2021 amendments that compelled deregistration of a party that chose a name which duplicates the name of an earlier registered political party. 168 In a 4-3 judgment, the Court upheld the amendments. Calibrated scrutiny supports this outcome. In this case, the impugned law should be subject to searching scrutiny because it impacts the ability of political parties to communicate with voters on the ballot paper — clearly a central aspect of Australian popular political constitutionalism. But it passes this stricter scrutiny because the law has a compelling purpose that is at the core of popular political constitutionalism: reducing voter confusion and therefore improving the ability of the people to make a clear and informed choice about their representatives. Furthermore, the law is narrowly tailored to this compelling purpose: there do not appear to be obvious other ways to avoid voter confusion, and therefore the law improves the clarity and quality of electoral choice and communication on government or political matters.
In Murphy v Electoral Commissioner, the plaintiffs argued that the long-standing practice of closing the electoral rolls 7 days after the issue of the writ was invalid because the Electoral Commission now possessed the technological and administrative capacity to process new enrolments closer to polling day. 169 The impugned provisions had been in place for many years and therefore do not place a significant burden on popular political constitutionalism. As Justices French and Bell argued, this was ‘not a case about a law reducing the extent of the realisation of the constitutional mandate’. 170 Instead, it was a case arguing that ‘the law did not go far enough in the provision of opportunities for enrolment’. 171 Given this, the impugned law only requires a constitutionally permissible purpose. In this case, this is easily found as the cut-off period is important to the ‘the orderly and efficient conduct of elections’. 172
D The Voting System Cases
This fuller historical account has had more impact on cases where the Court scrutinises laws that burden or reduce the ability of the people to vote. In McGinty, Justice Gummow argued that the Court must scrutinise laws burdening the ability of the people to vote because ‘[t]he architects of the Australian federation shared an expectation that the federal Parliament would embrace what were then advanced ideas of political representation’. 173 This fact, he argued, showed that sections 7 and 24 create a constitutional requirement ‘of ultimate control by the people, exercised by representatives who are elected periodically’. 174
This history reappeared more strongly in the Roach case, in which the Court invalidated a law that broadly disenfranchised prisoners no matter the severity of the crime or the length of the sentence. Justices Gummow, Kirby and Crennan invalidated the law in part on Australia’s progressive and broad colonial franchise (for its time). 175 They argued that Australia’s distinctive system of representative government with which the framers were ‘most familiar as colonial politicians’ helps to understand the purpose of the Constitution’s guarantee in sections 7 and 24 that representatives be ‘directly chosen by the people’. 176
The most explicit use of this fuller history is in Rowe v Electoral Commissioner, a case where the High Court struck down a law shortening the period during which voters could enrol to vote after an election writ was issued. 177 In her judgment, Justice Crennan made use of the intellectual history of colonial Australian representative democracy. Justice Crennan had written a Master’s thesis at the University of Melbourne on the influence of Chartism in colonial Victoria. 178 Her judgment draws on this work by describing the ‘British radicalism’ that took hold in the Australian colonies and the strong push for manhood suffrage. 179 She then links these ideas with constitutional provisions aimed at blocking oligarchical mechanisms (plural voting or undemocratic upper houses) that would halt or reverse ‘the tide of democracy’. 180
In describing this political history, Justice Crennan explicitly relies on the new wave of intellectual history highlighting Australia’s distinctive form of representative democracy. She relies on the work of John Hirst’s The Strange Birth of Colonial Democracy: New South Wales 1848-1884, one of the early books examining the distinctive nature of Australian democracy. 181 She also cites Peter Cochrane’s book Colonial Ambition: Foundations of Australian Democracy, which remembers the democratic ideas of colonial Australia. 182 Finally, she cites John Molony’s Eureka and the Prerogative of the People which describes the role of Chartism in the democratic exceptionalism of colonial-era Australia. 183
She describes how this historical background provides important context for understanding sections 7 and 24. These provisions, she argues, were directly targeted at blocking attempts to re-establish what she calls ‘oligarchic’ governance. This includes section 7 which guaranteed that the commonwealth upper house (the Senate) would not be an undemocratic body (as it was in many states). It also includes a ban on plural voting in sections 8 and 30, another technique that was used in the colonies (and Britain) to limit democratic governance. 184 Finally, she describes how section 41 tied Commonwealth electoral rolls to the lower house of parliament in each state, the key institution at the centre of the colonial movement towards democracy. 185
Justice Crennan argues that this structural context makes it clear that sections 7 and 24 were part of a broader movement to ‘mandate a franchise which will result in a democratic representative government’. 186 She then concludes that this constitutional purpose will naturally require the Court to scrutinise laws that burden the vote and therefore threaten the developing concept of representative democracy. 187 This history then supports the doctrinal requirement that Parliament have a ‘substantial reason’ if it limits the ability of people to vote enshrined in past legislation. 188
Justices Gummow and Bell explicitly adopt Justice Crennan’s historical argument. In addition, they also independently refer to the ‘striking’ development of representative democracy in the Australian colonies and the ‘deep significance’ of the ‘progressive instincts’ of the time in understanding the purpose of sections 7 and 24 of the Australian Constitution. 189 This history shows that ‘“progressive instincts” would animate members of legislative chambers’ when they legislated for a franchise that would ensure representatives ‘chosen by the people’. 190 In fact, they go on to argue that this new history shows that the Constitution was framed on the idea that ‘the body politic would embrace the popular will and bind it to the processes of legislative and executive decision making’. 191
This use of the fuller intellectual history can and should be used more widely by both claimants and the Court in the voting context. For instance, they could expressly cite Cole v Whitfield and its interpretive method as supporting this implication. In so doing, they would explain how this history provides important context for why Parliament must justify any law that undermines the representative nature of parliament by reducing or burdening the ability of ‘the people’ to hold parliament to account. The Court should also make broader use of this history in justifying why it must strike down laws that ‘impermissibly distort the voting system in a way that would compromise the representative nature of a future Parliament’. 192
This history of the distinctive role of the people also helps explain and justify the Court’s use of prior electoral legislation as a baseline to determine constitutional validity and shows why it is not ‘radical’ or problematic. Each new law defining the franchise allows ‘the people’ (acting through their parliamentary representatives) to exercise ‘the power of collective self-definition’ in determining the scope of ‘the people’ and therefore a representative parliament. 193 If a new law itself burdens or limits this self-definition process or legislative baseline of ‘the people’, it poses a threat to the ability of ‘the people’ to hold parliament to account and must be justified in court. 194
This approach is also consistent with political constitutionalism because it means the Court does not itself need to independently determine what a popularly representative parliament is; instead, it simply has to look to pre-existing electoral legislation to determine that question. The Court is therefore not overstepping the bounds of its legitimate authority. Instead, the Court is allowing Parliament to determine who ‘the people’ are through legislation. As Weis explains, it ‘allocates the primary institutional responsibility for defining the incidents of representative democracy’ (in this case, who are the people) to Parliament. 195 ‘Legislative baselines’ in this context are therefore a deferential tool in protecting ‘the people’ from laws that dilute their power to use the vote to hold parliament to account.
Finally, as with the implied freedom, this fuller history suggests that a test of calibrated scrutiny — and not proportionality reasoning — is best suited to judging the constitutionality of laws in the voting context. In this approach, the greater the threat to the system of popular political constitutionalism, the greater scrutiny that should be applied. The outcome in the recent Palmer case would be consistent within this calibrated scrutiny approach. 196 In the case, the plaintiff argued that the Electoral Commission’s practice of publishing the indicative two-candidate preferred count after polls closed in the relevant Division but before the polls closed in all parts of the nation violated sections 7 and 24. The facts showed that there was little evidence that this practice impacted voter choices. Under the calibrated approach, therefore, this practice would be subject to significant deference and only require a constitutionally permissible rationale. In this case, the Electoral Commission adopted the practice to ensure that the public would know ‘the result of the count as it becomes available’. 197 This rationale is constitutionally permissible and therefore the challenge must fail.
The calibrated scrutiny test also makes it clear why a voter identification law should face searching judicial scrutiny. 198 This kind of ‘voter ID’ law would introduce a new requirement for voting that would make it difficult for some to vote, particularly those without a fixed residence. 199 It would therefore threaten the system of popular political constitutionalism by making it difficult for some Australians to vote. In order to avoid invalidation, therefore, the Commonwealth would need to argue that this identification requirement is narrowly tailored to a compelling purpose.
V Intellectual History and Australia’s Constitutional System
The fuller history also helps to better understand Australia’s distinctive constitutional system and practice. To date, the conventional historical account of Australian constitutional democracy as a fusion of federalism and British parliamentary sovereignty has shaped public discourse about constitutional reform. For instance, Australia’s supposed adherence to parliamentary sovereignty has played a powerful role in discussions and proposals about how best to protect individual rights.
The centrality of parliamentary sovereignty in Australian constitutionalism, however, has recently been questioned. Ryan Goss has asked whether Australians should understand themselves as having a constitutional system of parliamentary sovereignty when Australia’s constitutional texts (both state and federal) place clear limitations on parliamentary power. He concludes that ‘[t]o describe Australian legislative power by drawing an analogy with British parliamentary sovereignty risks giving an imprecise and misleading sense of the nature of Australian legislative power’. 200 This claim echoes others that argue more broadly that the continued use of parliamentary sovereignty today obscures more than it shows. 201
The intellectual history provides additional support for Goss’s critique. As stated above, the constitutionally guaranteed role of the plural people in Australian democracy is a significant break with British parliamentary sovereignty and its limited, indirect role for the people. 202 This has important implications for understanding Australia’s constitutional system. It shows that this system is better understood in its own right as one anchored in a unique combination of political constitutionalism with a system where ‘the people’ have a constitutionally guaranteed role. 203 This system gives the people constitutionally guaranteed mechanisms for directly exercising their sovereignty, rather than the indirect political mechanisms of popular sovereignty in the British tradition of parliamentary sovereignty. Finally, it is a democratic system that rejects a majoritarian and unitary conception of the people. Instead, it recognises the plural nature of the Australian people.
In addition, this history also demonstrates that Australia’s distinctive constitutional system was originally built for a white Australia. This racial exclusion extended to all non-white Australians but was particularly pronounced for First Australians whose status as a ‘people’ that predated federation was completely ignored. Since federation, structural constitutional and legislative changes have helped to overcome this racism by expanding the definition of the people. Despite the failure of the First Nations Voice to Parliament in a referendum, constitutional recognition for First Australians is a critical next step in overcoming this history of exclusion.
A The Standard Account of Australia’s Constitutional System and Constitutional Discourse
The orthodox view that Australia has a federal version of parliamentary sovereignty has long played a prominent role in Australian constitutional discourse. It has been particularly influential in opposing a constitutional bill of rights and advocating for a statutory bill of rights that will protect rights but also ensure respect for ‘parliamentary sovereignty’. For instance, the design of Victoria’s statutory bill of rights (called the Charter of Human Rights and Responsibilities Act 2006 (Vic)) was shaped by a ‘desire to retain parliamentary sovereignty’. 204 In Queensland, the explanatory notes for its Human Rights Act also sought to ensure that the Parliament would ‘remain sovereign’. 205
Most recently, this common view of sovereignty in Australia’s constitutional system emerged in the 2023 referendum debate about a First Nations Voice to Parliament. This Voice proposal emerged in 2017, after a series of regional dialogues convened around Australia culminated in the Uluru Statement from the Heart. This Statement requested ‘structural’ solutions to the ongoing failure of Australian constitutional democracy to incorporate the views of First Australians. Amongst these was the ‘establishment of a First Nations Voice enshrined in the Constitution’. Although its exact powers and makeup were to be legislated in the event of a successful referendum result, this Voice to Parliament was constitutionally described as giving First Australians the ability to make ‘representations [to parliament and the executive] on matters relating to Aboriginal and Torres Strait Islander Peoples’. 206
Both sides of the debate about a First Nations Voice to Parliament strained to place this proposed institution in the orthodox view of Australia’s constitutional system. Those in favour of the proposal situated the Voice to Parliament in the context of parliamentary sovereignty. For instance, the Law Council of Australia has argued that a Voice to Parliament is ‘consistent with parliamentary sovereignty’. 207 Those in opposition to a Voice institution described it as a threat to Australian parliamentary sovereignty. Then-Prime Minister Malcolm Turnbull argued that it proposed a ‘radical change to our constitution’s representative institutions’. 208 Others argued that it poses a ‘unprecedented threat’ to Australia’s representative institutions. 209 Finally, a common argument in the referendum debate was that a Voice to Parliament would ‘permanently divide’ Australia and therefore threaten its unity. 210
B Australia’s Distinctive Constitutional System
The fuller history of Australian constitutional democracy challenges a key assumption underpinning this debate. Most importantly, it shows that, from the very beginning, the Australian Constitution broke with British-style parliamentary sovereignty. The Australian Constitution was instead a key moment in the formation of a distinctive Australian system which guarantees that the plural people — currently understood as both the people of the nation and the people of the states — have a direct role in choosing their representatives, breaking legislative deadlocks and making constitutional law.
This system is visible both before and after federation. Prior to federation and influenced by Chartist ideology, colonial-era Australians developed a number of innovations that expanded the role of the people. These included the secret ballot, the elimination of property requirements (for many lower houses) and (in South Australia) giving women the right to vote (in 1894). As described in part 3 above, the Commonwealth Constitution entrenched this system by constitutionalising many of these mechanisms as well as introducing a referendum and double dissolution provision. Although these mechanisms might seem natural to us now, they were radical for their time. Furthermore, they were structural guarantees of popular involvement in politics, rather than rights guarantees secured through litigation.
Since then, this distinctive constitutional system has continued to evolve. 211 Four of the eight successful constitutional amendments to the Australian Constitution have involved giving the people more structural power in Australian constitutional democracy. 212 For instance, in 1977, s 15 of the Constitution was amended to ensure that if a casual vacancy occurs in the Senate, the state parliament must choose a replacement who is from the same political party as the previous ‘senator chosen by the people of a State’. 213 The underlying purpose was to guarantee that the choice of ‘the people of a state’ not be frustrated by the representatives in state parliament appointing a replacement from another political party. Another constitutional amendment (from 1977) amended s 128 of the Constitution to give the people who lived in the territories the ability to vote in constitutional referendums. 214 The chief goal was to ensure that a broader range of ‘the people’ would participate in the referendum process.
This system of popular political constitutionalism has also evolved at the sub-constitutional level. For instance, the electoral franchise has expanded over time to give a broader section of the people the power to control parliament through the vote. This includes the inclusion of non-white Australians in the definition of the people by expanding the franchise. Moreover, voting was made compulsory in most elections in a system overseen by a powerful Australian Electoral Commission to avoid problems of voter apathy and unrepresentative parliaments. Finally, proportional representative voting for the Senate was introduced in 1948. This drew in part on a longer tradition of argument dating back to federation that recognises the value of giving representation to groups that might be silenced in a more majoritarian system. 215 For instance, Patrick Glynn introduced a petition at the Melbourne session of the Constitutional Convention that proportional representation in the Senate was vital to ensure that ‘the minority should not be absolutely silenced’. 216
These innovations now seem uncontroversial. But, in many cases, they were radical for their time. For instance, compulsory voting was highly controversial when it was first introduced and required large-scale state intervention. 217 These innovations are also distinctive. Very few countries in the world have compulsory voting and some that do are abandoning this practice. 218 Moreover, the cultural importance placed on voting in Australia is distinctive amongst democracies. 219
C Implications for Constitutional Reform and First Australian Constitutional Recognition
This fuller historical account therefore shows that Australia’s distinctive constitution system involves structural mechanisms that guarantee the ability of a plural people to participate in Australia’s parliamentary centred form of political constitutionalism. This system does not guarantee the role of the people through individual rights protection. It therefore stands in tension with an American-style constitutional bill of rights. Instead, the constitution provides for a systemic guarantee that the plural people be able to participate in Australian representative and responsible government.
Constitutional recognition for First Australians is an important step in more fully realising this system because it remedies the exclusion of First Australians from the plural Australian people. As described above, Australia has long had a plural idea of ‘the people’ in which the Constitution recognises not just the national people of the Commonwealth but also the people of the states. This form of democracy therefore goes beyond simple majoritarianism towards a more inclusive form of democracy that recognises a plural conception of shared sovereignty. As Dylan Lino argues, federalism recognises a degree of autonomy for the people of the states while still maintaining an overarching state exercising shared rule. 220 This inclusiveness in turn helps to ensure greater trust in Australian democracy.
At federation, this plural concept of the people recognised that the people of the Commonwealth and the people of the states were distinct political communities that should have a guaranteed role in holding parliament to account. But it did not accord First Australians — a distinct people that also predated settlement — any structural ability to participate in this new constitutional system. Instead, despite the provisions in chapter 1 of the Constitution seeking to protect a broad democratic franchise, section 127 of the Constitution explicitly stated that First Australians were not to be counted ‘in reckoning the numbers of the people of the Commonwealth’. In 1902, the Franchise Act (Cth) gave women the right to vote and stand for Parliament. It, however, explicitly excluded ‘aboriginal native[s] of Australia, Africa, Asia, or the Islands of the Pacific except New Zealand … unless able to vote under Section 41’. 221
It would take another 60 years for the Parliament to include First Australians in the legislative definition of the people that participated in Australian representative democracy. 222 Five years later, the constitutional reform process of 1967 took another partial step in remedying the racial exclusion in Australia’s commitment to representative democracy. This reform improved the position of First Australians by deleting section 127 and giving the Commonwealth power to make special laws regarding First Australians under the race power provision. In 1983, Commonwealth law finally made enrolling to vote at federal elections compulsory for First Australians. 223
These reforms, however, still do not remedy the constitutional exclusion of First Australians, a people that had a long and close relationship with the land for centuries predating Australian colonialism. Constitutional recognition must remedy this constitutional exclusion. The plural nature of the Australian people can allow First Australians to exercise sovereignty as a people but in a way that is broadly compatible within the Australian settler-nation state. A First Nations Voice to Parliament was aimed directly at this structural exclusion. It constitutionally guaranteed that First Australians can directly participate in policy-making that directly impacts them. As Megan Davis argued, this inclusion ‘mak[es] space for the first peoples to play an active role in the nation’. 224 Although this proposal was rejected by the Australian people at referendum, it is important not to abandon the project of First Nations constitutional recognition.
In the wake of the failure of the Voice to Parliament proposal, meaningful constitutional recognition must take real steps towards realising the promise of the special role of the plural Australian people in the Australian constitutional order. Although the precise details of this recognition are beyond the scope of this paper, this recognition must be more than symbolic and work to overcome the ‘multiple ethical lapses of the settled state’ by repairing a central flaw in the definition of the Australian people. 225
This constitutional reform will also help to strengthen the trust of First Australians in Australian democracy. The failure to recognise First Australians in the Constitution has led to decades of paternalistic policy-making that has excluded them from shaping policies that impact their everyday life. This exclusion has had serious adverse consequences. 226 Amongst these include the fact that First Australians face disproportionately high levels of incarceration and are far more likely to live in poverty than other Australians. 227 It also includes the fact that the health and life expectancy of First Australians lag well behind the average for non-First Australians. 228 Meaningful constitutional recognition can help to close the gap between First Australians and the general Australian population and therefore help to secure greater trust in government.
VI Conclusion
The fuller, intellectual history of colonial and federation-era Australia that emerged in the mid-1980s fills an important blind spot in our understanding of Australian constitutional democracy. It shows that the Australian constitutional drafters not only rejected American-style constitutional commitments to individual liberty grounded on a mistrust of public power. They also rejected British constitutionalism’s commitment to placing legal sovereignty in the hands of parliamentary representatives. The fuller history instead shows how the founders created a unique constitutional system committed to political constitutionalism but that also provided the plural Australian people with constitutional guarantees that they could ‘directly’ choose both houses of parliament, break deadlocks between these houses and make constitutional law. This distinctive popular political constitutionalism, however, was racially exclusionary.
This paper has begun the process of uncovering the consequences of remembering this intellectual history of Australian constitutional democracy. First, this remembered intellectual history provides critical support and direction to the High Court’s existing caselaw on the necessary implications from sections 7 and 24 that limit parliamentary power. Second, this intellectual history helps to better understand the distinctiveness of Australia’s constitutional system and why meaningful constitutional recognition for First Australians must be more than symbolic and remedy their structural exclusion from the plural Australian people. Taken together, this remembered history also helps to move towards a better understanding of Australia’s unique constitutional identity: a system of constitutional democracy that trusts in parliament but that is also constitutionally accountable to a plural Australian people. Future work is needed to further explore other aspects of this distinctive Australian form of ‘popular political constitutionalism’.
