The Australian Constitution Is Little More Than A Legal Document - Essay Example

The Australian Constitution is little more than a legal document THE AUSTRALIAN CONSTITUTION IS LITTLE MORE THAN A LEGAL DOCUMENT. EXAMINE THIS STATEMENT WITH REFERENCE TO KEY HIGH COURT DECISIONS GRACE SARKAR Order No. 417848 05 March 2010 THE AUSTRALIAN CONSTITUTION IS LITTLE MORE THAN A LEGAL DOCUMENT. EXAMINE THIS STATEMENT WITH REFERENCE TO KEY HIGH COURT DECISIONS Introduction No other constitution in the world has aroused so much debate within legal circles like the Australian constitution. Whether it is human rights or voting rights for the Aborigines, the Australian constitution appears inadequate in addressing issues if put to the litmus test. The difficulty is in understanding the constitution (The crisis of 1974-75). Opinions in the legal circles are varied. While certain legal luminaries argue the constitution is adequate in the hands of a responsible leadership, other school of legal thought differ and talk about covering up the inadequacies through proper legislation. Justice M.D. Kirby (1997) succinctly highlights the difficulties in this manner: "I have elsewhere tried to point out that the Australian Constitution can be viewed as reflecting a struggle, which is still ongoing, between British and United States elements captured in its text." (The Honourable Justice M D Kirby AC CMG, 1997) Key High Court Decisions "In 1992 in Australian Capital Television Pty Ltd v Commonwealth the High Court struck down the Political Broadcasts and Political Disclosures Act 1991 (Cth) which restricted political advertising on the electronic media during Federal, State, Territory and local elections. In doing so, it recognized that the Australian Constitution contains an implied freedom to discuss political matters. This freedom was primarily derived from sections 7 and 24 of the Constitution, which respectively provide that the members of the Senate and the House of Representatives 'shall be ... directly chosen by the people'. As federal laws passed under section 51 of the Constitution are passed 'subject to this Constitution', such laws are invalid if they infringe the implied freedom" (William, George (b); 1996-97). The reason for the High Court decision was clear. The 'implied freedom' took precedence over Political Broadcasts and Political Disclosures Act 1991. Or, the 'implied freedom' was implicitly clear while the written law was irrelevant. The Australian constitution does not guarantee freedom of speech. However, the court ruled in favor of Australian Capital Television Pty Ltd quoting 'implied freedom'. The learned judge ruled on the merits of the case. Had he ruled on the basis of the written constitution, he would have ruled otherwise (William, George (b); 1996-97). The constitution is a powerful document. It is the overriding and supreme determinant. However, sometimes there are verdicts that appear to have little to do with the constitution. At times, they also appear to run counter to the constitution. Nonetheless, the judges are in better position to provide the ruling. The ruling reinforces what many believe that the Australian constitution is a little more than a legal document. In other words, the Australian constitution must be taken with a pinch of salt. Does this also mean that this constitution is inconsistent and has inadequacies No responsible judge will be expected to make such sweeping remarks. However, there could be a silent consensus on what the constitution ought to be (Justice and the Rule of Law). Disputes arise that demand a constitutional resolution. These disputes are handled by legal specialists and settled in the courts. But from time to time, controversies occur, drawing the country's attention to its constitution. These raise major national questions about whether acts of government or parliament, decisions or actions of officials are constitutional, that is, whether they are authorized by the ultimate source of law and power in Australia (Justice and the Rule of Law). The Constitution is the legal document upon which the Commonwealth of Australia was founded as federation in 1901. It can be thought of as a type of 'contract' or 'compact' between the people of the six Australian States (or colonies, as they were previously called). The colonies chose to come together, to create a federal nation, and thus to do things on a larger scale (like defense, trade, and immigration) more effectively than they could on their own (His Excellency Major General Michael Jeffery AC CVO MC, 2007). In Australia, the spoken word has tremendous weight. The constitution is a written document. But its interpretations are made in the courts where arguments and counter-arguments take place to determine the finer aspects of law and how they are interpreted (Williams, George (a)) At the time the constitution was made in 1901, the six federal states of Australia were self-governing. The states came together and decided to make one constitution that linked the states as a federal entity. It took a year to make the constitution prior to 1901. The time was 1897-98. It was then handed over to the British parliament for ratification and acceptance by an Act of the British parliament. This constitution is relevant after more than a hundred years of its existence. Australia is a prosperous and powerful nation. It will not be in a position where it is now if it treated its constitution with scant respect (His Excellency Major General Michael Jeffery AC CVO MC, 2007). "In the subsequent cases of Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd the constitutional freedom reached a high point when the Court created a new defense to defamation actions involving political figures and extended the protection offered by the implied freedom to the State laws and State political matters. Most recently in McGinty v Western Australia the Court seemingly halted the development of the freedom by finding that neither the Commonwealth nor the Western Australian Constitution embodies a guarantee of electoral equality or 'one vote - one value'. This shift of direction came as Chief Justice Mason retired and was replaced by Chief Justice Brennan and new Justices Gummow and Kirby joined the Court. Today, the scope and impact of the implied freedom of political discussion is uncertain" (The Honourable Justice M D Kirby AC CMG, 1997) The court continued to rule in favor of the constitutional freedom of the newspapers. The end may be uncertain. But the judge was clear about what to do when defamation cases were launched against the newspapers. So far, so good! The constitution may appear to be little more than a legal document. However, in the final analysis, the constitution is capable of displaying its authority when push came to shove (Aroney, Nicholas; 2009). In the matter of the state, the constitution is the final authority. The constitution is a well thought out and well laid out document. It may appear to fall short in certain respects. But in a well-administered, strong state, it is capable of making up for any obvious shortfall. The work of judiciary is to see that justice is done. They interpret the constitution. In the eyes of the judiciary in Australia, the constitution cannot be just another document of law. That would amount to doing grave injustice to the Australian judiciary system (Williams, John M (a); 1999). At the moment, we are dealing with the issue of implied freedom. The scope of implied freedom has been appropriately applied in the case under discussion. Implied freedom does not mean unbridled freedom. This is what the judge may have had in mind when he left the scope and impact of implied freedom in a state of uncertainty. There is no mention to what happened to the issue of implied freedom. There is no need to know what could have happened. The judge may have yet again ruled in favor of implied freedom, yet left matters pending further investigation. At any rate, the judge is not about to give the television a blanket freedom to do whatever it feels (Williams, John M (a); 1999). However, a person who feels aggrieved due to a case going against him, there is the provision of appeal. He can appeal in a higher court. These provisions are made in the nation's constitution. The Australian constitution, however, is not exhaustive like the constitution of the United States of America. It is much smaller in comparison. Hence, the Australian constitution may not contain details in fine prints. The lawyers and judges decide how to determine cases in the absence of finer details. They depend on their experience or the nature of the case to conclude their arguments (Williams, John M (b); 2008). Conclusion We conclude that the Australian constitution is not just another legal document. It is the foundation of the entire edifice of the governance and judiciary of the Australian people. It is the framework for every aspect of governance and citizenry in the nation of Australia. It must be accorded the rightful place and respect that every nation's constitution also requires (Aroney, Nicholas; 2009). We also conclude that the guidelines for what ought to be done under different circumstances in Australia is provided in the constitution. We must not forget that this constitution took a year to be made and the circumstance in which it was made was not always smooth (Williams, John M (a); 1999). If we treat the constitution like any other legal document, we are short-sighted and fail to realize the true worth and significance of the constitution. We also put ourselves in a position where we fail to gauge the majesty and sovereignty of a strong and vibrant nation. In order that every Australian can be proud to be an Australian, it is necessary to hold the constitution in high respect and not regard it as anything less than what it is - the blue print of the nation's identity. There may be some flaws and shortcomings in the constitution. But these must be set right with proper discussions and analyses (The crisis of 1974-75). Ultimately, it must be borne in mind that Australia is one of the greatest nations in the world. Its history, current affairs and destiny is tied up with the welfare and activities of its citizens. These qualities must be reflected in its constitution. 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