QUADRANT

 

STIRRING UP THE AUSTRALIAN CONSTITUTION

 

Michael Kirby

 

I

 

"He's a very naughty man," said a colleague, as I prepared to leave for the book launch. "He's always coming out with new ideas, and controversial ones. Rather like Tony Abbott." With these words ringing in my ears I set off to do the honours at the Stanton Library of the North Sydney Council, across the Bridge. Who would be there? Why did they not choose a place closer to the CBD in Sydney, where dark-suited lawyers congregate who could be counted on to turn up for an afternoon book launch, so long as a drink was thrown in?

 

When I was taken up the staircase to Hutley Hall (not named, as I had thought for my old judicial colleague, Frank Hutley but after another civic worthy) I was assured that there were already nearly 150 there. A hundred and fifty citizens to hear a talk about the Australian Constitution. Remarkable, I thought, given the competing ways to kill time in Spring-time in Sydney.

 

I noticed that the stairs were covered with a dark maroon carpet including pseudo-Bucchara patterns. It looked quite elegant, in a faded sort of way. I was told that Ted Mack, once Mayor of North Sydney and later an independent Member of the Federal Parliament, had chosen the carpet covering. It reminded me of my days of youth - of the lovely old Axminster covering on the staircase ascending to the mysterious judges' chambers in the old Supreme Court building in Sydney. "Good taste in carpets," I said. Helen Sutherland, North Sydney's Chief Librarian, agreed.

 

Then into Hutley Hall and there indeed were 150 citizens, ratepayers of the municipality I presumed, turning up to meet Greg Craven and me. A hush fell on their conversations as we entered. But it was an encouraging sign for launcher and author alike. A representative of the publisher, University of New South Wales Press, scurried around with the credit card machine at the ready, full of eager anticipation of many sales. It had not been so when the book was launched by the Governor in Perth, the author lamented. No copies had turned up. Not a single one. Hard to "launch" a book without a copy on display. The Vice-Regal host had soldiered on, true to his military training. No such problems for me.

 

I was announced by Martin Ellis, Director of Library Services of North Sydney Council. He spoke eloquently about both of his speakers. The occasion, it seems, was part of a series of talks at the library called "Writers at Stanton". The series was originally devised by Constant Reader Bookshop. It has run for 12 years, putting paid to the suggestion that Australians are now so hooked on cyberspace that they leave hard-copy books to the decrepit. The audience, of mixed gender, age and outlook, was sitting there in eager anticipation. Past speakers in the series had included Bob Carr and Barry Humphries. The next speaker-to-be was John Pilger, no less, just a week away. It goes to show that out there in the suburbs of Australia civil society is alive and well.

 

II

 

I warmed to this audience, which was big-hearted and welcoming. I told them, with all due modesty, that I was now the second most popular book launcher in the nation. Barry Humphries has fallen a little behind in the book launching stakes. Gough Whitlam is still the most sought after - still out there in front. The technique of a splendid book launch is by now well settled. The launcher must describe the contents of the book, at least for a time, so as to make sure that he has actually read it and is not going simply to speak about himself. I hesitate to say it but some of my erstwhile rivals failed abysmally on this score - which led to their dropping away in popularity. But not I. Dutifully, I had read the book from cover to cover and give the audience just enough morsels to tempt them into a purchase - which is the whole point of the exercise so far as the publisher is concerned. Authors, in my experience, are far less concerned about sales. For them, commonly, writing a book is like childbirth. Once it comes forth it takes on its own life. They lose some of the original interest. They are thinking about their next creation.

 

Taking my theme from the audience, I suggested that it was a healthy thing that such a group of citizens would come out on a warm afternoon to hear two lawyers talk about the Constitution. According to Greg Craven, author of Conversations with the Constitution - Not Just a Piece of Paper (UNSW Press, 2004), the Australian Constitution deserves more attention. Moreover, surprisingly, according to Craven, it is not so difficult to read. Craven says that, if you set your mind to it, you can accomplish the feat in less than an hour - pretty good by the standards of such texts. He describes the level of complexity of the Australian Constitution as lying somewhere between the standard required of readers of the Sydney Daily Telegraph and of those lawyers who have a daily love affair with the Income Tax Assessment Act.

 

Despite the user-friendly simplicity of the text, Craven declares that the Constitution of the Australian Commonwealth is probably the least-read book in any Australian library. When people learn that he is a Professor of Law with a speciality in constitutional law, he tends to get struck off the invitation lists for agreeable dinner parties. Talking about the Constitution, you see, is not something Australians usually do.

 

So this was the task that Craven had set himself in writing his new book: to introduce a mass audience to the unfamiliar text of the national charter of governance. To do this, he has called forth his undoubted skills as a polemicist and journalist. He learned the latter skills from his father who wrote for a popular newspaper in Melbourne, now part of the Murdoch stable. The father taught the young Gregory the talents of Daily Telegraph simplicity. Not a bad thing for a lawyer to learn. Pity that Craven Senior, or his contemporary equivalents, was not ensconced in every one of the nation's law schools. Perhaps in the courts, come to think of it.

 

From his father, whose particular focus was sports journalism, Craven learned the merit of the vivid phrase. No doubt that is why my colleague regarded him as incorrigibly "naughty". The book is full of Cravenisms. Whenever he fears that the reader might be falling asleep, along comes another to wake us up and to grab our interest. It is a tried and trusted technique of journalism, occasionally used by politicians and real estate salesmen too. But I do not know any other Australian legal academic who deploys them to quite the same effect.

 

III

 

The first chapter of Conversations is a warm-up for the whole book. Craven starts with an acknowledgment that, in the galaxy of national constitutions, our star does not shine very brightly. This, he declares, is because the Constitution is out-shone both by older and more recent stars. Probably the brightest one of all is the star of the American Constitution. Beginning with its bold assertion of "We the people" and with the later added words of James Madison's Bill of Rights, it is hard for the texts that follow, with their dull prose, to grab quite the same interest. Yet as Craven points out, compared with the Australian Constitution, the American counterpart is full of 18th-century legalese. It is much denser and less pristine. Yet it is its occasional stirring phrase is what gets its readers going.

 

By way of contrast, Craven says that our Australian text, reflecting it origins, is rather like the British film stars of the 1950s. It is presented in black and white and is rather bland. The American document is a biblical epic starring Charlton Heston. The new constitutions of Africa and Asia are larger tomes, travelogues about a foreign world that is alien to most of us.

 

Craven attributes this feature of the Australian text to the fact that it was written by committees of 19th-century English immigres, living in the Australian colonies. According to Craven, they had boring names like Alfred and George. I asked if here were any Alfreds or Georges in the audience. A sprinkling of hands shot up. The bearers looked distinctly uncomfortable about Craven's comments. The first of many attacks on the monarchs who have reigned over us since 1788 then comes with the description of George III as "bug-eyed". Yet, I reminded myself, we have bug-eyed George to thank for being here. But for his perfectly reasonable unreasonableness with the American colonists, there would have been no need to search the southern seas for a big land to send all the English miscreants, victims of the latest law and order campaign of the British government in the eighteenth century. Boring and bug-eyed George may have been. But at least his Ministers learned from the American affair. Never again would the British Government attempt heavy-handed interference in the settlers' running of their own affairs.

 

Craven says that there will never be a movie Barton made for the life of the first Prime Minister of Australia and later a Justice of the High Court. Not for us a blockbuster like those the Americans have made on the lives of Washington and Lincoln. By the same token, it was boring old Barton, Deakin, Griffith, Clark and the other authors of the Australian text who secured a nation that has avoided the bloodshed of revolution and civil war. A million Americans were lost in their civil war. All that blood and death makes for good movies. But not necessarily good constitutions.

 

Craven then declares that the most important, and virtually unique, feature of the Australian text is that the people voted for it. True, it was not all of the people of Australia. In most of the colonies in the 1890s women still had no vote. Aboriginals were excluded, and so were the Chinese on the old goldfields. But those who could vote did. Not only did they vote for the ultimate text. They voted for those who would take part in writing it. In that sense, the Craven Australian Constitution is "deeply democratic". The Americans, with their much vaunted document, never voted directly for "We the people". Nor, as Craven pointed out, did the South Africans vote for their recent Constitution. A constituent assembly did the work there. This feature gives the Australian text a special legitimacy, according to Craven. This is a view that I share with him. Good or bad, we are all responsible for our Constitution. We (or our forebears) voted for it. We, the electors, have sole authority to approve formal changes. We accept it as the basic law for our governance.

 

For some, such as Justice Deane in the High Court, these features of the Australian Constitution give rise to certain legal implications. Because the true "sovereignty" in Australia rests in the people who played, and still play, such an important role in constitutional matters, the ultimate power belongs to the people. This makes talk of the "sovereign Parliament" quite misleading. Even a respectful description of the Queen as "the sovereign" is also misleading in Australia. That is why Sir William Deane, as Governor-General, always raised his glass in the loyal toast to "The Queen and the people of Australia". For him this was not a nitpicking point. It was fundamental to the character of the Australian Constitution. Craven, elsewhere in his book, seems less comfortable with the implications of the sovereignty of the people. It is a description that fits less happily with his world view than with that of Sir William Deane. Sometimes, in his Conversations, he does not follow through the logic of his descriptions of the document, accurate though they may be. But he certainly starts the reader thinking.

 

Craven finishes the first chapter with a stirring defence of the federalist idea which the Australian founders borrowed from their American cousins. According to the author, this is a governmental notion specially suited top the modern age. It is a kind of planned inefficiency. Yet none the worse for that. It decentralises governance. It protects the people from too much concentration of power. In Australia, federalism had been brilliantly married in the text first written by the idealist Andrew Inglis Clark of Tasmania with the British tradition of a cabinet government.

 

Greg Craven even finds in the opening Preamble of the Australian Constitution words that he feels are almost as inspiring as the opening text of the American document. He points out that the Preamble starts with the recital that the people "Humbly relying on the blessings of Almighty God, have agreed to unite in one indissoluble federal Commonwealth". Deftly, he omits the fact that the "people" mentioned do not include the people of Western Australia. The concurrence of those colonists in joining the new Commonwealth came at the last minute. He also omits the words that immediately follow in the text: "under the Crown of the United Kingdom". As will be seen later, this is a notion that he would prefer was not there, for Craven is now a convert to republicanism. But for the moment, Craven has laid the ground for a reader to approach the unknown territory of the Constitution and to do so with a new-found appreciation and a realisation that, if we are not happy about it, it is up to us as "electors" to improve things.

 

IV

 

The second chapter of Conversations asserts that, in truth, Australians have two constitutions. It is schizophrenia over the Constitution that Craven traces back to the founders. Amongst them, there were the safe and sure hands like Barton and Sir Samuel Griffith, later the first Chief Justice of the High Court. But there at the Convention table were also the troublesome idealists: Sir Isaac Isaacs (also later a Chief Justice and Governor-General), AI Clark (who wrote the first draft of the text) and Henry Bournes Higgins (who devised the unique system of national conciliation and arbitration). Upon the text, the safe hands generally won. But the idealists laid enough down to cause the tensions that have existed ever since.

 

Craven describes "old constitutionalism" as the dominant tradition in the Australian document. He says that the long ascendancy in the High Court of Chief Justices Sir Owen Dixon and Sir Garfield Barwick assured the continuance of the British idea that "Parliament is King". People like these and their contemporary counterpart, Murray Gleeson (present Chief Justice of the High Court) will never, declares Craven, be seen at a Tibet Liberation Rally. They are deeply suspicious of too much change. Instead, Cravens says, they are safe in their "bewigged Olympian" heights. Basically, according to this book, they oppose too much change, especially in constitutional governance. The reference to wigs is woven through the text because it is always good to raise a little antipathy towards lawyers with their quaint rig-out. Never mind that the High Court abandoned wearing wigs in 1988. We will not let simple facts get in the way of a well-expressed jibe.

 

New constitutionalism is ascribed by Craven to the line of lawyers that can be traced back to those trouble-makers of the early days. According to Craven, they came to the fore during the Mason High Court. He hints darkly that Justice Deane was the leader of the pack. It is here that this reviewer also gets a mention. But I am relegated to an Albigensian heresy. Not having shared Greg Craven's Roman upbringing, I hastened to my dictionary to find that the Albigensians were heretics against Rome in 12th-century France. They thought, apparently, that all mortal things were evil. I puzzled over this description of my own views but pressed on. For Craven, the new constitutionalists love Foucault, Derrida and Che Guevara. He describes the High Court under Chief Justice Mason as a Loch Ness monster that appeared and now, presumably, has happily disappeared. But for Craven, the monster lies in wait, biding its time, waiting for a new appearance.

 

Put in a nutshell, Craven's concern about new constitutionalism is based on his opposition to the "living force" approach to interpretation first espoused by AI Clark. It was Clark's view that the founders did not intend, and did not have the right, to bind all future generations to their understanding of the text. Clark suggested the not wholly surprising opinion that future generations would read the Constitution and adapt what they read to their own needs. This is a view of constitutional interpretation that I am unapologetic enough to embrace. Indeed, it is a functional view. It derives from the very character and purpose of the Constitution as an instrument of continuing governance, meant to last ages. But for Craven the choice before us is summed up as one between a text observing the precise quality of a Dürer drawing and a text composed by Jackson Pollack, scattering paint on a "big-picture" canvas. Craven is for Dürer.

 

Having propounded this somewhat stereotyped division of the intellectual battlefield over constitutional interpretation (never in practice so extreme) Craven argues that the big debates about the Australian Constitution in the future will probably concern the republic, whether there should be a bill of rights and whether some new arrangement should be adopted so as to ensure that changes can come more readily from the people and so avoid the temptations presented to effect change through the enactment of over-imaginative federal laws upheld by an over-adventurous High Court.

 

V

 

This softening up takes Craven into a description of the subject for which he has become famous in Australia - federalism. He sees federalism as a most precious feature of the Constitution. He seeks to defend it from the demonisation that it has suffered from successive generations of centralists. According to Craven, centralists paint federalism as a "monster" and portray it as an unfashionable, inefficient system of government, unsuitable for the scattered but largely homogeneous community of continental Australia.

 

Craven offers what he calls a "polite defence" of federalism. In contemporary society, the federal idea permits experimentation in the "social laboratories" of the several States. He conjures up the left-wing reforms of Don Dunstan in South Australia and (somewhat more enthusiastically I thought) the privatisation economic reforms of Jeff Kennett in Victoria, in whose government he played a part as Crown Advocate of that State. He suggests the States are closer to the ordinary people of Australia and their concerns. He claims that one has only to look at the new Parliament building in Canberra and the Mahal that accommodates the High Court on Lake Burley Griffin to see the lack of fiscal restraint that would accompany still more centralisation of Australian governance. He declares that the existence of hostile State governments, constantly yapping at the heels of the federal government, demanding more money, is good for the honesty of the federal politicians. He declares that, in carving up political power, federalism is a brilliant notion and that we should be doing more to defend it.

 

Craven describes what he sees as the main causes for the decline of the fortunes of the States within the Australian Commonwealth. The Senate has not worked out as a States' House as the founders originally expected. The Federal Parliament was given too many powers in the Constitution and it has made the most of them, whichever political party sits on the Treasury benches. The external affairs power, in particular, upsets Craven. It has the potential to undo the federal compact. However, he does not really face up to the fact that it also has the potential to permit Australia, as a modern nation operating in the global community, to play its full part in world affairs.

 

Above all, Craven is critical of what he sees as the lack of impartiality on the part of the High Court when it comes to carving up the powers of government. All too often, the High Court, according to Craven, has sustained the centralists. Craven suggests this is unsurprising, given that the judges of the High Court have uniformly been appointed by federal governments. A sorry day for Craven was the High Court decision on the Engineers' Case in 1920. This reversed the "wise" federal approach to constitutional interpretation taken by the founders, applying their safe hands. It substituted a literalist approach that permitted the Commonwealth to ride rough-shod over the States, with virtually no implied limitation accepted to cut down their powers, in order to ensure that the States would remain truly effective. There is no mention in the book of the recent High Court decision in Austin v The Commonwealth. There the High Court upheld the objection of the States to certain federal taxes on State judicial pensions. Over my dissent, this was held to be an invalid intrusion into a protected zone of State power implied in the division of powers under the Constitution. Perhaps Craven did not mention the case believing that protection of judges' pensions was not necessarily the best example of protecting State powers that he had in mind.

 

There is much angry rhetoric but also a measure of wisdom in Craven's call for a revival of attention to the federal notion that lies at the heart of the Australian Constitution. Perhaps we need to study more closely new federations that have sprung up since our Constitution was written: the German, in particular, and the European Union - a federation that dares not speak its name. For Craven, federalism is basically a libertarian idea of governance. Curiously, in an age when technology aids and abets the centralisation of power, federalism may come to the rescue of liberty.

 

VI

 

In his fourth chapter, on Parliament, Craven recounts the common objections to the federal parliamentary institution. The Parliament in Canberra has not always had a good press in Australia. The fact that it is filled with human beings, with virtues and vices, and that it is often entertaining, makes it the focus of most people's understanding about government under the Australian Constitution. The existence of a "rogue" Upper House which can frustrate the wishes of the government that commands the majority in the House of Representatives has been a constant problem in recent years for getting the government's legislation through to the statute books. Craven's work was written before the 2004 general election delivered to the present federal government control from mid-2005 over both chambers.

 

Craven singles out the larrikins of Federal Parliament. Oddly enough, all those whom he names are on the Labor side. At least originally they were. WM Hughes, Hawke, Keating and Latham are listed as quintessential parliamentary larrikins. Not a single politician from the other side is identified. Some readers might consider this a trifle surprising, bearing in mind a few larrikins they can remember.

 

Craven takes to task what he calls the "lazy, uninformed media" who people the Press Gallery in Canberra. He also laments the lack of effective ministerial responsibility; the culture of Dorothy Dixers during question time; and the flood of research assistants who have become so numerous that they demanded, and secured, a new building in Canberra at great expense because they just could not fit in the more modest 1927 building in which Parliament was first housed in the national capital.

 

Craven makes the point that governments in Parliament look powerful and unchallengeable. Yet closer up they live in constant fear that Parliament will expose them for unworthy actions and shameful involvements - politically necessary but horribly embarrassing. Rightly, Craven thinks this is the special feature of our parliaments, given that the Executive sits within them and can be called to account on every sitting day.

 

The chapter on Parliament would have been improved if Craven had addressed a serious problem of the present age. This is the common incapacity of the elected assembly to process large and controversial matters of law reform. Where there are no votes in it, it is difficult to capture the attention of government and parliament to proposals for legal change. That is just the nature of elected bodies. They tend to like the subjects that are popular and to shy away from the subjects that are boring or might lose them votes.

 

Craven suggests that the future reform of the Australian Parliament may involve reorganising the diversity that is presently confined to geographical divisions, in terms of the States, moving instead to divisions created by reference to other criteria. He might have mentioned local government, in deference to his hosts at the launch. But he did not. Instead, in the book, he points to the special seats for Maori in New Zealand and the other ways in which particular interest groups could be represented, perhaps in the Upper House.

 

Craven is at pains to say that Australians should not worry too much about the American system with its elected President. He concludes, probably correctly, that there is no risk that we will ever change our Constitution to copy that system. No political party would support it. The people would reject it if ever it was presented at referendum. In fact, the American Constitution is a kind of time capsule of history. It freezes in time the system of English government under the "bug-eyed" King George III. It concentrates too much power in the hands of one person. This attracts to that person too many sycophants and fine weather supporters. It is too risky. The Australian Constitution, at least, was the beneficiary of the continued evolution of British constitutional monarchy through the long reign of Queen Victoria. The Americans missed out on this evolution. Their constitutional system is the worse for it.

 

VII

 

The fifth chapter on the Executive Government starts with some needlessly trivial comments about the Queen. She speaks like an English woman, which Craven thinks disqualifies her from being a symbol for the Australian people. According to him, she is dressed by an English opportunity shop. He even suggests, quaintly, that Her Majesty is concerned about her rights at common law to the beached whales at Bondi. I rather think that she has other, more pressing issues on her mind.

 

When he gets this republican diversion out of his mind, Craven turns to the merits of the day-to-day executive governance of the Commonwealth. And there are plenty of merits that he can mention. They include the general stability of the system, its capacity for decisiveness and the genius of putting the cabinet into the parliamentary house. He admits that our Executive Government was rocked by the events of Remembrance Day 1975, when the Whitlam Government was sacked by the Governor-General. But he points out that, within a decade, the Hawke government was elected to office and Labor returned to a record term at the helm in federal government. In short, the system righted itself. So it works.

 

Craven instances the restraints that are imposed on the Executive under the Australian Constitution. On his list is the story of the defeat of the Australia Card and the exposure of the parliamentary attack on this reviewer as well as other tales rather more important. But each of those events depended as much on media as on the parliamentary system. For all their faults, the media play a crucial part in the governance of Australia which is totally unmentioned in the constitutional document.

 

Craven claims that the Executive, which in the Constitution looks like the private advisers of the Queen, is far and away the most interesting group of players in the constitutional arrangements. In effect, over time, these are the winners of the constitutional Australian Idol. He declares that High Court Justices are not likely to turn up on chat shows. They would be unlikely, according to Craven, to have anything much to contribute were they to do so. I wondered about the latter verdict. However, the Executive Government, in the persons of the Prime Minister and the ministry, are endlessly fascinating, according to the book. At least the media attempt to make them so. Here are the wellsprings of most of the new ideas in Australian government. Curious, therefore, that the Prime Minister is also not mentioned in the constitutional text and that the answerability of the ministry to Parliament is largely left to conventions and not spelt out.

 

Craven describes the changing face of the Executive in today's government. A newly elected Prime Minister will demand countless press secretaries to attempt to control the way the government's ideas will be projected to the populous. This is to be contrasted with the simpler, more modest ways of Chifley and Menzies. To this extent, Executive Government has changed. Craven notices how the Prime Minister and other politicians are now performing functions that once were the sole preserve of vice-regal representatives. No sporting match of any note is now conducted, according to Craven, without politicians kissing babies and gathering votes.

 

Accurately, Craven describes the way that contemporary Executive Government in Australia dislikes the independent voices of the judiciary and of public servants of integrity. This, according to the author, is why governments of all persuasions seek to stack the bench of their judiciary. Fortunately, according to Craven, governments come up against two impediments in such endeavours. The first is that they are generally not in office long enough to succeed. The second is that judges are "like eels", slippery and defensive of their independence. The second seems a better point than the first. However, it is true that governments often react with hostility to novel ideas of the kind that Craven himself delights in. In his talk in support of his book, Professor Craven explained this feature of government as bound up in the "media game". The media loves to use the ideas of others to challenge and confront government. Government is always fragile and on the defensive. That is why ministers often react to any suggested criticism, sometimes without bothering to see whether it is criticism at all and, if it is, whether they should actually attend to it.

 

VIII

 

The sixth chapter of Conversations is the one that interested me most. This was natural enough because it concerns the courts. It starts again with a reference to wigs. Not a good opening, I thought. At least we must be grateful for small mercies. There is no mention here of gavels. Those American symbols of the judiciary, so beloved of the media, are left out of Craven's text, and rightly so because Australia's judges have never seen the need to bolster their authority with hammering.

 

Like many others, he resents the fact that judges have been treated as "minor deities". He objects to the assertions of too much power by the courts. He suggests that judges have no ultimate credibility to change the law because they are not elected. They have no skills as major social engineers, so they should not pretend to them. Their real duty is to defend the rule of law, not to make it up. All of this can be conceded, so far as it goes. But this point then comes up against Craven's correct acknowledgment that it is obvious that, under our common law system, judges "make the law". The professor is too good a lawyer to pretend that it is otherwise. So the true issue for this chapter should have been not whether but how much law judges should make. And by what criterion they should advance or hold back.

 

Craven's chapter on the courts is eventually an appeal to modesty and restraint in action. He opposes judicial hero worship lest it go to the heads of the judges. He opposes too much novelty in interpretation, especially of the Constitution. He seeks to remind judges of their modest role within the democratic institutions of the Constitution. He is especially upset by the judicial embrace of ideas that he sees as coming from overseas, gathered in what he calls the fashionable salons of New York or Paris. Australians, like all island people, are generally deeply suspicious of ideas and people coming from beyond the seas. Craven skillfully taps those fears.

 

These generalities only go so far. However, practising judges know that they have choices to make. Not a month passes but the High Court has to make such choices over little words in the Constitution. What does the word "jury" in section 80 mean, when that section guarantees a right of jury trial of certain federal crimes? Does it mean a jury of 12, as it was in 1901 when the Constitution was written? (Answer: Yes). Does it mean a jury only of men, as was the case in 1901? (Answer: No). Only propertied men, at that? (Answer: No). Does it mean that the jury must be locked up in bunks in the Supreme Court, as was usually the case in 1901? (Answer: No). Now, we are civilised enough to let the jurors go home to their family and the television. But does this create constitutional problems because of media reporting of the case on the television? A little word such as "jury" cannot solve every problem. In our constitutional system someone must do so. And for us, it is the judges. To that extent they have to "make it up". But they do so in a principled and reasoned way. The suggestion that they are bound by what the word meant in 1901 alone would lead to some very odd results, and Craven seems to sense this. I do not see in this book any inclination to embrace the purer approach of originalism, advocated by Justice Scalia of the Supreme Court of the United States. In Australia, pure originalists are as scarce as hen's teeth and get no solace from Craven.

 

Take also the word "alien". In 1901 that meant anyone who was not a British subject. But did this mean that British subjects who came to Australia in the 1970s and never took out citizenship were "aliens", although they fought in our army, voted in our elections and took part in our referendums? (Answer: They are aliens). Does it mean that a little girl, born in Australia to unsuccessful Indian applicants for refugee status can live here as a national although not a citizen? Upon these issues the High Court divided because of different views about the constitutional meaning of "alien". The little girl ultimately had to go. For me that was a painful decision. But it was necessary because of my view of the way we should approach the interpretation of the Constitution. Parliament is entitled to enact that the old notion of nationality by birthright is modified to secure citizenship in today's age to require at least one parent who was Australian or to oblige a qualifying residence of 10 years in this country. Otherwise, as an "alien", out she goes.

 

Craven describes the Australian judiciary as male, conservative, educated in private schools and mainly derived from a professional middle class of commercial barristers. All this is fairly accurate. But things are changing and not before time. He affords a good description of the competing theories of constitutional interpretation - originalism, intentionalism, literalism and progressivism. He does not think much of the last. But he explains how the High Court has grappled with these issues. In endeavouring to interest ordinary citizens in these problems, he performs a service. I say this even when I disagree with some of his descriptions and the conclusions that he propounds.

 

IX

 

The last chapters address in more detail what Craven sees as the looming future issues of the Australian Constitution. In Chapter 7 he describes the debate about "rights and wrongs". He does not much like the idea of a Bill of Rights. He considers rights thinking as basically alien to Australian constitutionalism. He says that the attempt of Lionel Murphy and Gareth Evans to introduce a Bill of Rights by legislation in the 1970s was like the Titanic. It hit a Senate iceberg and down it went. However, the idea has been resurfacing of late. In part, this has been because of the advance of international system of human rights. In part, it has been out of recognition of the fact that Australia is now virtually unique in the developed world in failing to afford its people a constitutional guarantee of fundamental rights. Not all issues can be addressed, or addressed effectively, by the legislature and executive. That is why most countries in the world now allow the judiciary a role in defending fundamental rights. But not Australia. And Craven is not much concerned about this.

 

Craven acknowledges that on some issues Australian lawmaking has not been respectful of the rights of minorities. He mentions wholesale internment of enemy aliens in the Second World War, the fate of pacifists, the long-term detention of refugees in remote parts of Australia and the treatment of Aboriginals. Basically, he believes that the Bills of Rights of foreign constitutions detract from the democratic feature of constitutionalism that he sees, with federalism and the rule of law, as the central ideas behind the Australian document.

 

Somewhat unworthily, he asserts that cases over constitutional rights inevitably descend to debates over whether prisoners have a "right" to soft toilet paper. It is true that under Bills of Rights borderline cases arise and courts must rule on them. But that is so in any constitutional system, as I have shown with the words "jury" and "alien". Courts exist to draw lines. They do it all the time. Craven should not be surprised that a few of them are on trivial or less important subjects. In fact, I doubt if he is surprised. He just trots out the toilet paper as part of the rhetoric he skilfully deploys against the notion of a constitutional Bill of Rights.

 

X

 

Craven's eighth chapter is titled "Limping to a Republic". He acknowledges that the monarchy, as it now exists in Australia, is a pretty modest one. But he thinks it is wrong and unsuitable to Australia today. He seems most upset with the hereditary notion and with the fact that the monarch cannot be a Roman Catholic. In the current age, with such a fall off in adherence to all religions, this seems the least of the monarchy's problems. But it worries Professor Craven, perhaps because he sees it as contrary to a fundamental right that all people in Australia - including their monarch - will have complete freedom of religion and not be beholden to any State religion, whatever the historical explanations.

 

Craven expresses grudging respect for the boring but reliable monarchy of George V and George VI. He even gives an occasional tribute to the present dutiful monarch. But he sees Australia's future as one of shuffling towards a republic. Yet he is realistic enough to accept that, until the republicans sort out their differences over the form of republic (direct or indirect election), nothing much will change.

 

XI

 

The last chapter of Conversations is an assessment of the Australian Constitution. On the whole, Craven thinks it has worked reasonably well. Most of the formal proposals for change were rejected by the people at referendum and rightly so. The document, in his view, has survived remarkably well. It is a relic of the 1890s. Yet it is still operating fairly efficiently in the twenty-first century. Craven suggests that it will continue to do so for the indefinite future and that we cannot expect too much rocking of the constitutional boat. His conclusions are probably shared by a majority of citizens - if ever they think about the subject. Only reformers and other troublesome people see much reason for change.

 

His book is well produced by UNSW Press. I could not find a single typographical which, of course, any launcher worth his salt is expected to denounce. The index is adequate. Like the doyen of launchers, I immediately turned to it. There, I was happy to find, "Whitlam" but also "Kirby". In fact, there were more mentions of my Albigensian heresies in the text than the single reference in the index suggests.

 

In one small hint of a personal life, Greg Craven reveals in his preface that his mother, Sylvie Craven, died whilst he was writing the chapter on the courts. He says that "she was always proud when one of her children published a book though she usually had more sense than to read them". Sylvie Craven must have been a remarkable mother to raise such a naughty child and not to read his books. In fact, this book is very readable. That may be a danger. Some of its assertions were surely written with tongue firmly planted in cheek. It has much that I disagree with. There are heresies and outrageous opinions in every chapter. Yet, at the moment, the Constitution is a kind of black hole for most Australian citizens. Perhaps Craven might say that that is not necessarily such a bad thing. A legal document that can survive so long and cause so little pain must have something going for it. Nevertheless, he suspects, rightly, that the ignorance about civics has reached intolerable depths in Australia. And he has set out to address that problem and to get Australian citizens thinking about their Constitution and engaging in a conversation about it.

 

This is a readable, entertaining, irritating, informative book. It may yet provoke me to write an antidote.

 

The audience in North Sydney loved the launch. After it, they queued in droves to buy the book. The last memory I have of that afternoon is of citizens crowding around Greg Craven, seeking autographed copies. They were probably inviting him to their dinner parties where his constitutional conversation would be sure to amuse and instruct the Australians present for whose good government the Constitution endures.

 

Although Craven and I have many completely opposite ideas we enjoy discussing them and think it is good to do so. The intolerant, infantile division of Australians into closed categories - "them and us" - is too prevalent just now. Perhaps the greatest achievement of the Constitution of 1901 is not that it is still in force. But that people with conflicting ideas can engage with an audience of fellow citizens on a sunny afternoon and learn a little from each other without risk of the firing squad at dawn.

 

Justice Michael Kirby is a Justice of the High Court of Australia. Before that appointment he played a part in the establishment of Australians for Constitution Monarchy which successfully fought the 1999 republican referendum.

 

Professor Gregory Craven is Professor of Government and Constitutional Law at Curtin University in Perth. He was a leading republican advocate in the 1999 referendum and was a delegate to the 1998 Constitutional Convention in Canberra.

 

Conversations with the Constitution (2004, NSW Press), sells for $34.95 (paperback) rrp.