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By Dr Lael K Weis
A striking feature of current debates about constitutional reform in Australia is the evident interest in exploring legislative alternatives to formal amendment. Although this may be explained by the historically low success rate of referendums, the fact remains that ordinary legislation can’t change the text of the Constitution: only an amendment can do that. So in what sense is legislation an alternative to formal amendment? This post suggests that this proposition is not as implausible as it might otherwise first appear; however, evaluating its possibility requires a new set of analytical and conceptual tools.
2018: a year of constitutional reform?
The Australian Constitution is very old and infrequently amended. And yet, constitutional reform is a topic that has rarely been at the forefront of Australian public debate—whether due to complacency, cynicism, lack of interest, or some combination thereof.
There are some indications, however, that 2018 might be different. Two significant events in 2017 have captured public attention and put constitutional reform on the political agenda. These include:
Both are the subject matter of current parliamentary inquiries.
In the case of section 44, the Prime Minister referred a set of issues to the Joint Standing Committee on Electoral Matters late last year. At the time of writing, the Committee has concluded a set of public hearings and is currently reviewing written submissions ahead of issuing its report, which is due later this week.
In the case of Indigenous constitutional recognition, political pressure has led the government to retreat from its initial position, resulting in a bipartisan agreement to create a Joint Select Committee on Constitutional Recognition. This newly-formed Committee will examine options for Indigenous constitutional recognition in light of the Uluru Statement.
Prospects for constitutional reform: formal amendment vs legislative ‘alternatives’
In both contexts, there appears to be fairly widespread agreement that the Constitution is out of step with contemporary Australian needs and values. At the same time, there is a great deal of pessimism about the prospects for constitutional reform. Much of this pessimism is driven by the belief that formal amendment is simply too hard. That belief is not unfounded: the success rate for formal amendment is extremely low, with only eight out of 44 proposals for amendment succeeding at referendum. When a low 18% success rate is coupled with the concern that a failed referendum could have disastrous social consequences—a concern that is particularly pressing in the case of Indigenous recognition—then perhaps at least some of the government’s reluctance to put forward an amendment proposal is understandable (leaving aside the question of whether it is justifiable.)
Dissatisfaction with the formal amendment process and recognition of its limitations as a tool for achieving constitutional reform, at least as currently practiced, may also explain the recent interest in legislation as a possible alternative. This is a striking feature of the parliamentary inquiries being conducted in both contexts. In the section 44(i) context, the consideration of legislative alternatives to formal amendment is explicit in the terms of reference to the Joint Standing Committee, which was asked to consider ‘[w]hether the Parliament is able to legislate to make the operation of section 44(i) more certain and predictable’.
In the Indigenous recognition context, much of the debate to date has assumed that creating an Indigenous advisory body would require formal amendment: the method of law-making presupposed by the Uluru Statement, which calls for a ‘constitutionally entrenched First Nations Voice’. Over the past several weeks, however, there have been indications that a legislative alternative is in the mix as well, with the Labor party signalling that it will propose legislation if the government is unwilling to proceed with a referendum. Moreover, given the Committee’s broad mandate and the well-known conservative constitutional views of the Committee’s proposed Co-Chair, Julian Leeser—which favour parliamentary sovereignty and political constitutionalism over the entrenchment of judicially-enforceable rights—one imagines that a legislative alternative will receive serious consideration.
But does legislation merit consideration in debates about constitutional reform—or is it a red herring?
There is a sense in which the very notion of a legislative alternative to constitutional amendment appears confused. Despite its roots in the British constitutional tradition—and notwithstanding clear strands of political constitutionalism (such as the preference for leaving rights-protection to the political branches)—contemporary Australian constitutionalism subscribes to legal constitutionalism. On orthodox understandings of legal constitutionalism, there is a hierarchical relationship between constitutional legal norms (the primary source of which is the entrenched ‘capital-C’ Constitution) and ordinarylegal norms prescribed by legislation. Ordinary legal norms must comply with constitutional legal norms—not the reverse.
To suggest that a problem that flows from the text of the Constitution (and well-established interpretations of its text) could be ‘resolved’ by enacting ordinary legislation seems to misunderstand this fundamental hierarchical relationship. Legislation may be an alternative to constitutional law-making, but surely it cannot be an alternative method of constitutional law-making.
Legislation as a method of constitutional reform, reconsidered
I want to make the following provocative suggestion: notwithstanding legal constitutionalist orthodoxy, the proposition that legislation could provide an alternative to constitutional amendment is not as far-fetched as it might otherwise first appear. Here is where constitutional theory may come to the assistance of current debates.
In pursuing this suggestion, it must first be observed that the Constitution’s text cannot be changed without a formal amendment. However, even conceding this important limitation of legislation as a method of constitutional reform, there are other strategies available that demonstrate how ordinary legislation can effect constitutional change.
Strategy 1: changing the small-c ‘constitution’ outside the capital-C Constitution
The first strategy examines the possibility that ordinary legislation may have or acquire constitutional status in its own right: for instance, in virtue of its subject matter or its functional role in structuring the exercise of political power. For example, Professors William Eskridge and John Ferejohn argue that certain Federal statutes in the United States, which they call ‘super-statutes’, are ‘constitutional’ in the sense that they define values and create norms that ‘stick’ in public culture. Like capital-C Constitutional values and norms, these legislatively-defined small-c constitutional values and norms form part of the background assumptions against which Congress legislates, making their repeal extremely unlikely.
Of course, the validity of any argument that legislation has constitutional status in its own right turns on how one defines ‘constitutional’ and this is highly contentious. One could take issue with Eskridge and Ferejohn’s definition as overly-inclusive, encapsulating norms that it does not seem appropriate to call ‘constitutional’ and assigning insufficient weight to Constitutional pedigree and double-entrenchment in distinguishing constitutional norms from non-constitutional norms. Nevertheless, it is a perspective that has attracted significant scholarly consideration in recent years, giving rise to the proliferation of the term ‘quasi-constitutional’.
Strategy 2: legislation as a source of capital-C Constitutional meaning
A second strategy for demonstrating the possible constitutionalisation of legislation begins with the observation that when judges interpret a Constitution they can and sometimes do rely on legislation. Although legislation cannot change the text of the Constitution, it can nevertheless influence the meaning of the text when mediated through interpretation. In this way, legislation can inform capital-C Constitutional values and norms. This strategy may be objectionable as a matter of constitutional practice—for one thing, it runs up against the well-established principle that ‘a stream cannot rise above its source’, meaning that Parliament cannot define the scope of its own legislative powers. However, it is less contentious as a matter of constitutional theory than Strategy 1 because it does not require relying on a controversial definition of what makes a norm ‘constitutional’.
A body of research that I have been developing examines the various ways that this occurs. For example, in recent work on constitutional directive principles I have shown how legislation enacted to give effect to entrenched but non-justiciable constitutional obligations is used by courts to determine the scope and content of other constitutional guarantees. But this phenomenon is not confined to legislation implementing directive principles. In research currently in progress, for instance, I am examining how courts use legislation to define the adequacy of constitutionally entrenched guarantees. A well-known example in the Australian context is the High Court’s reliance on the electoral franchise, as defined by the Commonwealth Electoral Act, to help determine the meaning of ‘the people’ for the purpose of applying the constitutional requirement that Parliament be ‘chosen by the people’ in sections 7 and 24. This includes recent cases such as Rowe v Electoral Commissioner (2010) 243 CLR 1 and Murphy v Electoral Commissioner (2016) 90 ALJR 1027.
Evaluating legislative ‘alternatives’: a need for new conceptual & analytical tools
The two mechanisms for the constitutionalisation of ordinary legislation outlined above pose several questions for current debates about constitutional reform. Starting with section 44(i), Strategy 2 suggests that if Parliament changes how cases are referred to the High Court, legislating to create a procedure whereby the eligibility of parliamentarians is given extensive examination by an administrative tribunal, that this could influence the Court’s understanding of what constitutes ‘reasonable steps’ under the current test (even if it is unlikely to change the Court’s mind about the requirement of a ‘mental’ element or the use of foreign law).
Turning to Indigenous recognition, Strategy 1 suggests that if Parliament opts to establish an Indigenous advisory body through ordinary legislation, rather than through formal amendment, such a body could have (or acquire) ‘small-c’ constitutional status notwithstanding the fact that it would not be formally entrenched in the Constitution. This could achieve a First Nations Voice without risking the catastrophic consequences of a failed referendum, and if it were to ‘stick’ in the way that Eskridge and Ferejohn describe, it may attain functional (although not of course formal) entrenchment. Finally, it is worth noting that even if a First Nations Voice is formally entrenched, many of the details would be worked out by Parliament via ordinary legislation—raising further issues concerning the constitutional status of implementing legislation (Strategy 1) and its interpretive treatment vis-à-vis Constitutional values and norms (Strategy 2).
Although neither set of legislative possibilities is equivalent to formal amendment, they may provide attractive alternatives. Even so, the practical lessons are somewhat unclear. For one thing, Strategy 1 and 2 both largely involve processes of constitutionalisation that are beyond parliamentary control. Outside of the special case of directive principles and other constitutional provisions that expressly require legislative implementation, it isn’t obvious that legislation enacted for the purpose of constitutional value and norm-creation would be successful—particularly where this is done as an intentional ‘work-around’ the formal amendment process.
Moreover, even if Parliament could successfully enact legislation for the purpose of constitutional value and norm-creation, it isn’t obvious that this is desirable. As a substantive matter, one might query whether legislative alternatives carry the same symbolic weight as amending the Constitution—a factor that may count against a legislated First Nations Voice. In addition, the formal amendment process prescribed by section 128 arguably performs important procedural functions as well: a referendum and double-majority decision rule facilitate more robust consideration by requiring broader-based social consensus for constitutional reform than for ordinary legislation, and safe-guard constitutional institutions and guarantees from hasty changes.
The difficulty with evaluating proposed legislative alternatives is that constitutional theory currently lacks an appropriate set of conceptual and analytical tools for understanding whether, and how, ordinary legislation can inform constitutional values and norms in constitutional systems with an entrenched Constitution. Most of the theoretical ‘toolkit’ in this area comes from systems with unentrenched constitutions, such as the United Kingdom and New Zealand, which have long had to negotiate the distinction between constitutional and non-constitutional legislation. But it isn’t obvious that concepts such as ‘constitutional statutes’ developed within that literature can be borrowed and applied to legislation in a jurisdiction with an entrenched Constitution since a different set of considerations apply. Similarly, although the practice of enacting legislation for the purpose of constitutional value and norm-creation is used widely in some jurisdictions in civil law Europe, where it is known as ‘constitutional legislation’, it is unfamiliar in the common law world. Research that my colleague William Partlett and I are currently collaborating on aims to supply these missing tools—combining constitutional theory with a broader comparative perspective—in order to better understand how legislation can be used as a method of constitutional change.
Dr Lael K Weiss is a Senior Lecturer in Constitutional Law at the University of Melbourne.
This article was originally published on the AUSPUBLAW blog: https://auspublaw.org’