07 September 2013

Constitutional Identity

'Constructing Identity in Australian Constitutional Law' (Sydney Law School Research Paper No. 13/56) by Elisa Arcioni comments
Written constitutions can identify and construct membership of the relevant constitutional community. This paper addresses how the language of the Australian Constitution, as seen through the eyes of judges, constructs such an identity. The phrase ‘the people’ is focused upon. Three case studies are considered in order to discuss the approaches of judges of the Australian High Court to the interpretation of constitutional language. One approach is to treat constitutional language as symbolic and absolute, representing inclusion, popular participation in government and representation. A competing approach is to treat the language as reflective of historical circumstances, limited by legal understandings at the time of drafting the text. This article concludes that determining the meaning of legal language is inherently connected with methods of interpretation. In order to understand the identity of the constitutional community, the underlying approach of judges and the external principles or theories they incorporate into the text must be identified.
Her 2009 'That Vague But Powerful Abstraction: The Concept of ‘The People’ in the Constitution' comments
The concept of ‘the people’ in the Australian Constitution is undoubtedly unfinished constitutional business. The concept is “vague” due to a lack of development by the High Court but also because it is an inherently fluid concept. Yet it is also “powerful” because of what ‘the people’ has come to signify, which is something that I suggest should be further developed by the High Court. There are two questions that I consider in this paper. The first is: who are ‘the people’? The second is: what impact do they have on our understanding of the Constitution and constitutional terms?
She continues
Is ‘the people’ a vague concept? A majority of the Court has now directly stated that ‘the people’ is a reference to the community under the Constitution. While still somewhat vague, there is at least the hint in Roach, as well as in earlier statements, that the community is to be identified in accordance with determining who is part of the group who has the ability and legitimacy to be involved in constitutional government. In Roach it was the act of voting that was at issue, so the Court looked to what it means to vote and what is required in order to be involved in that process. It is unrealistic to suggest that there is going to be a clear identification of either the exact identity of ‘the people’ or the criteria for their identification. The identity of ‘the people’ is going to remain vague, or at least fluid. This is because the identity of the constitutional community will change over time, as can be seen in the history of who is accepted as part of the community. 
In colonial times, the constitutional community was not every person in Australia, but a more limited group – predominantly white men. In the early part of federation, the constitutional community could be considered to be all British subjects resident in Australia, with some racial exceptions (although these were not consistently applied). Over time, British subjecthood was no longer a true label for the constitutional community, just as the High Court recognised the separation between the UK and Australia in Sue v Hill  in 1999 such that the UK is now considered a foreign power. Australian citizenship seems an obvious identifier of ‘the people’ in the Constitution, but it cannot simply be in the hands of the Parliament to determine who fall within the group ‘the people’ by legislating for citizenship. 
The Court will need to expand on what they mean by being a member of the community under the Constitution. The parameters need to be explored because of the possible implications that such identity has for our understanding of the Constitution. Yet such development is obviously going to be a sensitive and contested exercise and my guess is that it will be a case of incremental development before a clear outline of ‘the people’ is revealed by the Court. 
Despite the vagueness of the identity of ‘the people’, ‘the people’ is nevertheless a powerful constitutional concept. This has been shown most recently in Roach, where the concept of ‘the people’ led to the striking down of legislation which restricted prisoners’ voting rights. Given the significance of the people both in history and in High Court jurisprudence, the concept has the potential to go further than being a symbolic reference to the source of the Constitution’s authority. It certainly has the ability to further affect the franchise, along the lines of the reasoning in Roach. Further areas for contestation include a consideration of who else is included or excluded from the vote. Apart from horror hypotheticals of the Parliament excluding all people of a particular gender or race, there are the more realistic challenges to the franchise as it exists today. For example, the exclusion of some Australians living overseas. Australians living overseas may be deprived of the right to vote if they remain or intend to remain outside Australia for more than six years. Or, there might be a challenge to the voting age being 18. In the future, there may be a challenge from some under-age individuals, who have the same ability and maturity as those over 18. Just as the voting age changed from 21 to 18 in 1973, could it be that some people between the ages of, say, 16 and 18 should be entitled to vote? Or the question of permanent residents, who may be as involved in Australian life as citizens – should they continue to be denied the vote? However, I suggest that the significance of ‘the people’ could go further than the franchise. As hinted at by McHugh J, as well as by Kirby J in a number of cases, such as Patterson in 2001, there may be the development of constitutional citizenship, not confined to the current legislative definition of citizen, which insulates individuals from attempts at deportation or being categorised in a class such as ‘alien’. The concept of ‘the people’ could be used in the future to challenge citizenship legislation, which is treated as the current indicator of membership of the Australian community. And, by extension, to challenge migration legislation, which operates on the basis of individuals being ‘non-citizens’, with non-citizen being used as an equivalent to the constitutional status of ‘alien’ in s 51(19).
‘The people’ has become more than a symbolic reference to the authority of the Constitution, or the group who has freedom of political communication in order that there be fully informed elections. It is a powerful force, symbolically and legally. It was the rallying cry for successful federation, and a reference to the group at the heart of constitutional government. 
‘The people’ can be understood as a reference to the constitutional community. That is, as a reference to the individuals who make up the Australian population under the Constitution and therefore to the ones who have a claim to involvement in constitutional government and the possibility of protections or freedoms under that Constitution. As a phrase approximating constitutional citizenship, the Parliament’s power may be limited with respect to ‘the people’ in areas such as the franchise, citizenship and deportation, which are all areas that intersect with membership of the constitutional community.