Pub Date : 2020-11-15DOI: 10.1177/0067205X20973479
J. Crowe
Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.
Jim Allan在最近一期的《联邦法律评论》中辩称，高等法院的隐含权利判例是非法的，因为它没有充分植根于宪法文本及其作者的历史意图。Elisa Arcioni的回应承认宪法学说应该以文本和作者意图为基础，但认为隐含权利案件符合这一标准。Arcioni是正确的，但关于隐含权利推理的精确解释基础，可以说得更多。正如我在其他地方详细展示的那样，忠实地试图实现制定者的意图，有时不仅要问他们在撰写文本时的想法，还要问这些意图在当代环境中意味着什么。这涉及到将宪法文本和作者意图置于更广泛的法律和社会制度背景下。从这个角度来看，高等法院的隐含权利判例是确定和适用《宪法》预期含义的合法尝试。
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Pub Date : 2020-10-05DOI: 10.1177/0067205x20955105
J. Ruru, Jacobi Kohu-Morris
In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Māori may have initially welcomed the intent of te Tiriti as a means for seeking British help to protect their international borders, the British prioritised the English version of the Treaty which recorded the transfer of sovereignty from Māori to the British. As the British transposed their dominant legal traditions of governance, including bringing to the fore their doctrine of parliamentary supremacy, Māori have been seeking their survival ever since. We extend this by focusing on why the doctrine of parliamentary sovereignty needs to adapt to the Treaty’s promise of bicultural power sharing.
{"title":"‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand","authors":"J. Ruru, Jacobi Kohu-Morris","doi":"10.1177/0067205x20955105","DOIUrl":"https://doi.org/10.1177/0067205x20955105","url":null,"abstract":"In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Māori may have initially welcomed the intent of te Tiriti as a means for seeking British help to protect their international borders, the British prioritised the English version of the Treaty which recorded the transfer of sovereignty from Māori to the British. As the British transposed their dominant legal traditions of governance, including bringing to the fore their doctrine of parliamentary supremacy, Māori have been seeking their survival ever since. We extend this by focusing on why the doctrine of parliamentary sovereignty needs to adapt to the Treaty’s promise of bicultural power sharing.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"556 - 569"},"PeriodicalIF":0.0,"publicationDate":"2020-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205x20955105","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43066799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-04DOI: 10.1177/0067205X211016584
Shireen Morris
This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.
{"title":"Love in the High Court: Implications for Indigenous Constitutional Recognition","authors":"Shireen Morris","doi":"10.1177/0067205X211016584","DOIUrl":"https://doi.org/10.1177/0067205X211016584","url":null,"abstract":"This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"410 - 437"},"PeriodicalIF":0.0,"publicationDate":"2020-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016584","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46676007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-10DOI: 10.1177/0067205X20955069
K. Drake
The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback.
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Pub Date : 2020-09-10DOI: 10.1177/0067205X20955064
Gabrielle Appleby, Vanessa MacDonnell, Eddie Synot
The constitution pervades the governance practices of a state, far beyond its application and interpretation in the courts. This Special Issue draws together a field of scholarship that considers these extrajudicial dimensions of constitutional practice to reveal a very different constitution to the juridified version. It is a more complex, dynamic and pervasive vision of the constitution, focused on the ongoing relationships of a broader set of constitutional institutions and actors. These relationships are mediated by the legal and political dimensions of the constitution and by the narratives and symbolism that grow up around it. In this introduction, we explore three themes of the pervasive constitution: the importance of constitutional narratives and symbols, the multiplicity of constitutional actors and the relational nature of constitutionalism. This recalibrated understanding of the constitution reveals constitutional actors and power dynamics that are often invisible in more traditional accounts of constitutionalism. This recalibration is particularly important in addressing contemporary constitutional challenges. In settler systems hoping to decolonise, courts have proven important but insufficient sites of constitutional change, and it is in political spaces that new constitutional stories can be told, stories which acknowledge the full sovereignty of Indigenous peoples and their claim to territory. In countries experiencing democratic backsliding, extrajudicial actors have been championed as the backstops to democracy and human rights. We argue that only by understanding the space outside the courts will we appreciate the breadth of new constitutional possibilities.
{"title":"The Pervasive Constitution: The Constitution Outside of the Courts","authors":"Gabrielle Appleby, Vanessa MacDonnell, Eddie Synot","doi":"10.1177/0067205X20955064","DOIUrl":"https://doi.org/10.1177/0067205X20955064","url":null,"abstract":"The constitution pervades the governance practices of a state, far beyond its application and interpretation in the courts. This Special Issue draws together a field of scholarship that considers these extrajudicial dimensions of constitutional practice to reveal a very different constitution to the juridified version. It is a more complex, dynamic and pervasive vision of the constitution, focused on the ongoing relationships of a broader set of constitutional institutions and actors. These relationships are mediated by the legal and political dimensions of the constitution and by the narratives and symbolism that grow up around it. In this introduction, we explore three themes of the pervasive constitution: the importance of constitutional narratives and symbols, the multiplicity of constitutional actors and the relational nature of constitutionalism. This recalibrated understanding of the constitution reveals constitutional actors and power dynamics that are often invisible in more traditional accounts of constitutionalism. This recalibration is particularly important in addressing contemporary constitutional challenges. In settler systems hoping to decolonise, courts have proven important but insufficient sites of constitutional change, and it is in political spaces that new constitutional stories can be told, stories which acknowledge the full sovereignty of Indigenous peoples and their claim to territory. In countries experiencing democratic backsliding, extrajudicial actors have been championed as the backstops to democracy and human rights. We argue that only by understanding the space outside the courts will we appreciate the breadth of new constitutional possibilities.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"437 - 454"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955064","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43586968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-10DOI: 10.1177/0067205X20955068
Gabrielle Appleby, Eddie Synot
The Uluru Statement from the Heart offers an opportunity to reorder the Australian constitutional hierarchy as it relates to First Nations. The proposal for a First Nations Voice provides a tailored, structural response to the experiences of Aboriginal and Torres Strait Islander people under the Australian state. For the First Nations Voice to meet this potential, it will require more than careful design of the Voice as a new constitutional institution; it will require existing constitutional institutions within the legislature and executive to learn to ‘listen’. This article draws on the political and democratic listening literature to examine how political listening might be practised at the interface between the First Nations Voice and existing constitutional institutions. We suggest five principles to guide this cross-institutional relationship together with ways these principles might be incorporated into governance structures.
{"title":"A First Nations Voice: Institutionalising Political Listening","authors":"Gabrielle Appleby, Eddie Synot","doi":"10.1177/0067205X20955068","DOIUrl":"https://doi.org/10.1177/0067205X20955068","url":null,"abstract":"The Uluru Statement from the Heart offers an opportunity to reorder the Australian constitutional hierarchy as it relates to First Nations. The proposal for a First Nations Voice provides a tailored, structural response to the experiences of Aboriginal and Torres Strait Islander people under the Australian state. For the First Nations Voice to meet this potential, it will require more than careful design of the Voice as a new constitutional institution; it will require existing constitutional institutions within the legislature and executive to learn to ‘listen’. This article draws on the political and democratic listening literature to examine how political listening might be practised at the interface between the First Nations Voice and existing constitutional institutions. We suggest five principles to guide this cross-institutional relationship together with ways these principles might be incorporated into governance structures.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"529 - 542"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955068","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42269556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-10DOI: 10.1177/0067205X20955102
Paul Blokker
The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’ 1 —to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.
{"title":"Constitutional Resistance in Populist Times","authors":"Paul Blokker","doi":"10.1177/0067205X20955102","DOIUrl":"https://doi.org/10.1177/0067205X20955102","url":null,"abstract":"The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’ 1 —to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"511 - 528"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955102","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43580475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-10DOI: 10.1177/0067205X20955100
Yee-Fui Ng
Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.
{"title":"Political Constitutionalism: Individual Responsibility and Collective Restraint","authors":"Yee-Fui Ng","doi":"10.1177/0067205X20955100","DOIUrl":"https://doi.org/10.1177/0067205X20955100","url":null,"abstract":"Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"455 - 468"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955100","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46570451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-10DOI: 10.1177/0067205X20955076
Dylan Lino
According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
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Pub Date : 2020-09-10DOI: 10.1177/0067205X20955097
Paul Kildea
Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that have a role to play in safeguarding electoral democracy against government attempts to undermine the fairness of the electoral process. This article explores the extent to which the Australian Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting electoral democracy. It demonstrates that independence, impartiality and a supportive legislative framework help the AEC to be effective in performing these roles, but that inadequate powers, lack of budgetary autonomy and answerability to political actors operate as constraints. More generally, the analysis presented shows the value of expanding our understanding of the role of fourth branch institutions so that we take account of their activities in both fostering and safeguarding key democratic values.
{"title":"The Constitutional Role of Electoral Management Bodies: The Case of the Australian Electoral Commission","authors":"Paul Kildea","doi":"10.1177/0067205X20955097","DOIUrl":"https://doi.org/10.1177/0067205X20955097","url":null,"abstract":"Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that have a role to play in safeguarding electoral democracy against government attempts to undermine the fairness of the electoral process. This article explores the extent to which the Australian Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting electoral democracy. It demonstrates that independence, impartiality and a supportive legislative framework help the AEC to be effective in performing these roles, but that inadequate powers, lack of budgetary autonomy and answerability to political actors operate as constraints. More generally, the analysis presented shows the value of expanding our understanding of the role of fourth branch institutions so that we take account of their activities in both fostering and safeguarding key democratic values.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"469 - 482"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20955097","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42970992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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