Roll Up, Roll Up … for A Transformational Journey into the Australian Constitution!

By Martin Clark

David Foster Wallace’s journey into voter apathy in the United States following John McCain’s 2000 Presidential campaign around the country led him to this profound insight:

it’s hard to get good answers to why Young Voters are so uninterested in politics. This is probably because it’s next to impossible to get someone to think hard about why he’s [sic] not interested in something. The boredom itself preempts the inquiry; the fact of the feeling’s enough.

Picking over the political ‘upsets’ that fixed the attention of the Anglophone western world in 2016 — the Brexit referendum and the election of Donald J Trump to the Presidency of the United States — plenty of commentators read these as ‘anti-establishment’ political movements. Voters in the UK and the US sought to vent their frustration at ‘political elites’. Formerly uninterested in politics or bored with politicians, these voters suddenly thought ‘hard’ and did the ‘next to impossible’: got out to vote in support of the movement or candidate promising to rock the establishment to its core … and in both instances there is already plenty of evidence showing a ‘betrayal’ is not far off.

What could any of this have to do with Australia’s High Court? Half a world away, the centrepiece of our legal establishment enjoys an extremely high public confidence rating. Unlike the Supreme Court of the United States (or even, given the recent Brexit, cases the United Kingdom Supreme Court), the High Court is firmly insulated against politics. Its cases, reasoning and appointments are always (said to be) about questions of law and legal expertise, not politics. This year’s cases on voting procedures, parliamentary retirement entitlements, and senate eligibility remind us that even when the Court touches on the overtly political, it is guided — as it (says it) must be — by legalism. (Certainly, that hasn’t stopped it from being the stage for often dramatic political protests (here and here).)

But really, what is all this preamble about boredom and the ‘establishment’, politics and legalism in aid of? Well, the Constitution Education Fund Australia has just announced a new journey: a major new interactive multimedia exhibit about the Constitution which will be installed in the High Court itself. This exhibit seeks to be part of a solution to Foster Wallace’s conundrum as it applies to the Australian Constitution: how can you get uninterested and disengaged people (‘Young Voters’!) to pay attention to something that seems undeniably important: Australia’s foundational law. One way is to promise an interactive multimedia exhibit of the Constitution, with a ‘touchscreen and immersive video wall’ that makes the ‘text and the story of the Constitution … available to all’! (This rings particularly nicely with Senator Culleton’s  recent suggestion that the text had been ‘hidden in a drawer since 1975’ somewhere, contrary to the third and fourth results from a quick ‘let me Google that for you’.) This ‘transformational journey’ will show visitors what ‘really matters’, namely, what the Constitution ‘represents to all Australians’. The exhibit will give visitors an ‘enhanced awareness’ of the Constitution as the nation’s foundation, showing them how it has supported Australia’s ‘continuously democratic and stable’ system of government, which the announcement notes was rare in the twentieth century (the Communist Party case and the Whitlam dismissal, among other events, presumably notwithstanding), and will allow them to interactively learn ‘how our constitution was written, not as a result of civil conflict but through a process of peaceful agreement between the colonies’. All of this will be ‘informed by focus-testing’ and will allow in-person and online visitors to contribute to an ‘ongoing collection of comments’.

In another statement, CEFA provides more detail on the exhibit’s aims and audiences. It is prompted by a crisis. Australians ‘are disengaging. Informal and donkey votes go up at each election. If we don’t develop a more informed voter this will get worse’. Combatting this, the Centre’s objective is to ‘ensure that Australians don’t take their democracy for granted’. Its strategy is to ‘target’ three ‘key audiences’: primary and secondary students, undergraduate students and first time voters, and the general public. Its connection to educating students and the public is stated in these  terms:

The Australian Constitution Centre is much more than a museum. It is a national educational initiative. Quality education is a process, incorporating the best pedagogical practice with dynamic content, utilising innovative delivery methods.

The result of applying innovative pedagogical practice to fight the war for Australia’s democracy? ‘Measurable improvements’ in Australian attitudes towards our democracy within the first five years, and a status ‘as iconic’ as that of the National Constitutional Center in Philadelphia. ‘In 20 years time we will look back and wonder why it wasn’t set up earlier’.

I want to raise two thoughts about this exhibit, and end on a note of cautious encouragement. The first is about histories. The second is about disengagement. The concluding note is about education and political engagement.

Is there only one story to be told about the Constitution? Before or after visiting this exhibition, it is worth thinking about — and then finding out about — a few different histories that might involve this hallowed document. Within many histories of men’s efforts to keep women out of Australia’s political processes, Cold War-era repression of the communist party, and the environmental movement, Australia’s federal and State constitutions have played starring roles. One of the most important stories, told in a few places usually far from institutional exhibitions, is of the encounters between Australia’s Indigenous nations and the Constitution. Contrary to the exhibit’s description, in this history the Constitution was written after a conflict, just one that isn’t remembered much in Australia. The murder and dispossession of Indigenous peoples throughout settler colonialism was undoubtedly a war fought throughout Australia. Aspects of it are detailed in recent works by Henry Reynolds and Lyndall Ryan, among others. For many, this conflict has not ended.

As Mark McMillan and I have argued, the Australian Constitution was not neutral throughout this process: in drafting the race power the Constitution’s first writers left Indigenous peoples as a burden on the States to be policed, controlled, quarantined and eliminated. Indigenous peoples gain a side-glance reference in the original draft only as a collective ‘aboriginal race’, and only for the purpose of excluding them as a federal collective concern for white Australia. With the 1967 Referendum, Indigenous peoples gained something besides explicit formal equality. The Federal Parliament gained the power to make ‘special’ laws ‘deemed necessary’ for these peoples; to remedy, in its infinite wisdom, the deficiencies and problems said to attach to their race. Further, as a recent article by Anna Dziedzic and McMillan demonstrates, Indigenous constitutions that have existed for thousands of years continue to operate today as the foundational laws for Australia’s many Indigenous nations. No doubt the 1967 Referendum will be part of the exhibit, though whether it will be a part of a triumphalist progressive narrative will remain to be seen. It seems unlikely that Indigenous constitutions will get a look in. Understanding the way in which the Constitution was not a beacon of progress, peace or light for all Australians is a fundamentally important part of any real understanding of what it is. Hopefully the exhibit will pay more than lip service to these and other critical views of our constitutional history.

What of disengagement? Adrienne Stone and Elisa Arcioni have recently shown how Australians tend not to see their constitution as a shared source of values or aspirations. Australia’s ‘thin’ constitutional identity results partly from its ‘rather muted role in defining values’. It does not offer soaring pronouncements of ‘We the people’, using instead the rather less poetic ‘Whereas the People’. It does not comprehensively protect fundamental rights or dignity or freedom or anything else likely to stir readers. It does provide a detailed structure for the legislative, executive and judicial branches of an ‘indissoluble’ Commonwealth, a set of States, provisions on trade and finance between these two levels of government, and provisions for changes.

For these reason it is not immediately riveting, which perhaps explains why most people know so little about it. A now famous 1994 report of a survey of Australians found 47% of respondents did not know Australia had a constitution, 62% thought we had a national Bill of Rights (spoiler alert: we do not), that only 18% possessed ‘some understanding’ of the contents of the Constitution, and that some respondents, particularly younger respondents, knew more about the United States Constitution than our own. This ‘appalling lack’ of knowledge does not seem to have improved since 1994.

It’s probably not a great thing that most Australians know very little about the foundational document that structures our government and laws. But we ought to also be wary about the kind of criticism this implies and the kind of demand it makes: that Australians are too stupid, lazy or frivolous to get the basics. Why is this the basic, fundamental thing everyone must know? Why is it a precursor to political involvement? Particularly, why does the Constitution present the ‘cold facts’ of government in Australia that must be imbibed by the body politic for it to function at all. Plainly, our current state of ignorance shows this isn’t true: government in Australia is not in crisis, and despite rising donkey votes and ignorance that has endured since (at least) 1994 it has not ceased functioning  — well, this might be up for some debate.

Yet Americans, for all their popular understandings of the history, drafting, clauses and contemporary operation of the US Constitution, and for all their avid attention to contentious political cases before the United States Supreme Court, just elected in accordance with their strange constitutional system someone who plainly has little to no regard or understanding of that document, whose campaign promises would violate its protections (or, more worryingly, might not), and whose ascendancy poses not one, but several, potentially major constitutional conflicts, about which he seems entirely blasé. ‘The media tries so hard to make my move to the White House, as it pertains to my business, so complex — when actually it isn’t!’

Like America’s, Australia’s constitution is complex, and we should take it on ourselves to learn as much as we can about it (at least as much as we can bear). But in demanding that others learn too, we should be wary of the way in which we phrase that demand, and the kinds of conservatism and institutional elitism that making this demand may suggest to its audiences. In saying this I am not endorsing the rejection of expertise or careful debate about politics, policy, law, society or whatever else that Trump and many of his followers pointedly espouse. As an academic, like CEFA I’m all for transformative journeys through education. What I am pointing to the risk and the message of telling people there is one story about our laws and government — stability, progress, freedom — and you had better learn it or risk being part of the unwashed masses, huddled together in their ignorance. To speculate a little here, I’d suggest people do not donkey vote, remain disengaged or begin to support authoritarian or neo-fascist candidates because they do not understand the text and structure of the Constitution or its role in our fair nation’s history. They donkey vote because they do not care about politics, they do not trust politicians or ‘political elites’, they think themselves to be powerless, or they are just plain bored and uninterested — without a reason and incapable of giving us one, as Foster Wallace suggests. The Constitution may well seem to them part of that establishment problem. Knowing more about it might not necessarily solve it.

While an exhibit on the Constitution might not be the solution to voter apathy or any defence against authoritarianism or neo-fascism in Australia’s political system, it can serve as one small part of the array of things — books, debates, institutional understanding, lived-experience — that stokes the critical inquiry and empathy that is vital to an engaged citizenry. The exhibit will likely tell this initial mainstream — and perhaps dull — story about the Constitution that engaged citizens — of whatever political stripe, gender, background, religion or orientation — need to hear, know and understand before they might see and say where Australia’s system of government does and does not serve their communities and their lives. Engaging in public debate, whether in your kitchen, at the pub, a town hall, a board room, a university or in the Parliament of Australia, demands that we ‘think hard’, collectively. Those conversations cannot go far when we are unwilling to put aside the potentially irrepressible feelings of boredom that hard slog understanding about the lives of others, the impact and technicalities of policy, and yes, the workings of the Constitution requires.

For the reasons noted above, the exhibit might raise a few more problematic questions than it might have hoped to. But what better place to encounter the mainstream story — whether you’re a primary school child or a High Court Judge — than at the new centre at the High Court? Just don’t let your engagements end there.

AGLC3 Citation: Martin Clark, ‘Roll Up, Roll Up … For a Transformational Journey into the Australian Constitution’ on Opinions on High (17 December 2016) <http://blogs.unimelb.edu.au/opinionsonhigh/2016/12/17/clark-transformational-journey>.

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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

4 thoughts on “Roll Up, Roll Up … for A Transformational Journey into the Australian Constitution!

  1. The Constitution of the Australian Commonwealth must be a national educational initiative. It must be taught at all schools throughout the nation, starting with awareness at maybe the last two years of Primary School and then in more detail at the secondary levels. Its not something that should languish in a High Court Museum. As for a Bill of Rights, well thats up for debate, I would argue the English Bill of Rights are implied rights enshrined within our Constitution. What say you?

    • I’d say it already is a national education initiative, in that there are plenty of units touching on it in the current national curriculum — http://www.australiancurriculum.edu.au/Search?q=constitution — starting with years 6/7 and including topics on major constitutional principles of representative and responsible government, the branches of government and various major offices, the founders and the drafting of the document, federal-state relations, and the role and jurisdiction of the High Court (for year 10s). Whether and how well this is actually taken up and rolled out by particular schools is another question, but those are questions for every element of the national curriculum. On the the debate about whether Australia should have a bill of rights, I wasn’t taking a position on that very complicated question, but just noting that many respondents in one survey thought there was a constitutional document entitled ‘Bill of Rights’. Certainly while a range of English constitutional rights protections are of course incorporated into our constitutional system, I think the survey question aimed at testing whether respondents thought these were explicitly enumerated in the document itself. (Now of course respondents might have been confused by the wording of the question, or interpreted it as being about Australia’s constitutional system generally — hopefully those who constructed the survey were careful about limiting that risk.)

  2. Thanks for your reply Martin. This is an excellent blog to keep updated – research what’s happening with the laws of Australia etc. I’m not a lawyer but research the law, I have a copy of the latest edition Lexus Nexus Quick and Garran, learning allot from it. My thoughts are that we don’t want to lose this good book and the laws in it to some corporatised, new bastardized version riddled with private law and influenced by the likes of a foreign power i.e. UNIDROIT which has what I would call, unconstitutionally made its way into our legal system .

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