Big Data and Anti-trust

'Big Data and Competition Analysis Under Australian Competition Law: Comeback of the Structuralist Approach?' by Baskaran Balasingham and Hannah Jordan comments

 Competition assessment in Australia has traditionally been based on an evaluation of the market structure relying on five factors, namely the degree of market concentration, the height of barriers to entry, the extent of product differentiation, the extent of vertical integration, and the nature of arrangement between firms. These factors, known as the ‘QCMA factors’, are characteristic of competition in the manufacturing industries of the ‘old economy’. Since the ascendancy of Chicago and Post-Chicago School thinking competition analysis in Australia has also taken into consideration non-structural factors. However, in light of the dominance of big tech companies in online markets, the so-called ‘Neo-Brandeisian School’ has advocated focusing on structural elements that are characteristic of online markets. This article examines to what extent the QCMA factors still a suitable structural framework for the assessment of competition in online markets.

Floodgates

In commenting on the High Court decision in Love v the Commonwealth (2020) 94 ALJR 198 earlier this year I cautioned against claims that there would be a 'floodgates' effect. That caution appears to be substantiated in Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702 dealing with the determination nation of identity.

Rares J states

39 While, at first glance it might seem unusual to make such a finding on the basis of what necessarily must be a story passed orally down in a family over 100 years, that is the very process of establishing substantive elements of a native title claim group’s traditional laws and customs. A society that has no written tradition, such as all Aboriginal Australian societies are, can only pass its essential features from generation to generation by word of mouth. Societies that do not have the written word to record their laws, customs or history, depend on traditions of orality. As Gleeson CJ, Gummow and Hayne JJ recognised in Yorta Yorta 214 CLR at 454 [80], the proof of traditional laws and customs in existence at a time earlier than described in the evidence is capable of being inferred from more recent evidence. Here, on the evidence before me, Walter Richards was born about 30 years after white settlement disturbed the traditional people’s way of life in Wathaurong country. His family oral history is that he identified to them as a Wathaurong man and he was born and lived in Wathaurong country for over 30 years.  

40 I am satisfied that Mr Webster has biological descent from a Wathaurong man, his great grandfather, and accordingly he has met the first limb of the tripartite test. 

The second and third limbs 

41 It is convenient to deal with the second and third limbs of the tripartite test together since the issue between the parties is whether the Yunupingu people’s “cultural adoption” of Mr Webster and his family’s recognition of that “adoption” can satisfy those limbs. 

42 The second and third limbs of the tripartite test appear to refer to a mutuality of recognition by the person who has biological descent from a particular society (or people) and elders or others enjoying traditional authority among that particular indigenous society (or people) recognise or acknowledge that that person is a member of that society (or people). This appears to have been how the majority analysed the tripartite test in Love 94 ALJR 198 at 216 [70], 217–218 [78]–[79] per Bell J, 255 [278], 256 [281], 256–257 [286]–[288] per Nettle J; 270 [370]–[371], 271–272 [375]–[388] per Gordon J, 290–291 [458]–[462] per Edelman J. 

43 I reject Mr Webster’s argument that, in applying (and, I emphasise, applying) the tripartite test, a person can be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically. The essence of the second and third limbs of the test is that the person must be seen as incorporated as a member into a society (or people) because he or she is descended from its common forebears. That concept derives from the legal conception of common law native title in Australia. That conception has a fundamental precept that the common law native title holders have a spiritual connection to, and relationship with, the relevant land and waters that derives from, or is reflected in, their traditional laws and customs. 

44 Mr Webster referred to Gordon J’s and Edelman J’s reasons where they said, respectively, that the determinative question is Constitutional, so that neither of the Native Title Act or Racial Discrimination Act 1975 (Cth) is of assistance, the Court can act on evidence that lacks specificity, and that the tripartite test “is not set in stone” (Love 94 ALJR at 264 [334], 270 [368], 290 [458]). However, their Honours expressed those reasons in the context of applying, not departing from, the tripartite test. 

45 Here, Mr Webster’s biological descent from the Wathaurong people is unconnected to what he described as his “cultural adoption” by the Yunupingu people. Thus, their recognition of him is outside any application of the tripartite test. 

46 The validity of the act of incorporating an outsider into an indigenous society can only be ascertained by evidence of that society’s laws and customs governing a particular occasion or event at which such an “adoption” can take place. 

47 There is no evidence of the laws and customs of the Yunupingu people, including particularly in relation to the existence or process of any mechanism of “cultural adoption”. It is not possible to know, on the evidence, if or how the late Mr M. Yunupingu could perform this process or what place his great grandson had to recognise it under the laws and customs of the Yunupingu people. 

48 It is not unknown for indigenous people to adopt or accept into their society persons born to one or more parents who is not one of its members. But the relevant process, under the society’s laws and customs, needs to be before the court, to some degree, in order that its significance and the adherence to its requirements can be assessed, where in a case like this, it is the only means by which Mr Webster claims to satisfy the second and third limbs of the tripartite test. His (and Mr Madgwick’s) honest belief that something happened that amounted to “cultural adoption” and, through that something, Mr Webster’s status changed to being that of an Aboriginal Australian because of the actions of the late Mr M. Yunupingu is not sufficient to satisfy me that, in fact, Mr Webster gained or has that status within the meaning of the third limb of the tripartite test.

Rares J goes on to comment

Bell J expressed the ratio decidendi in Love 94 ALJR at 218 [81] as follows:

I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. The difference with respect to Mr Love is a difference about proof, not principle. (emphasis added)

50 The Minister noted that Nettle J maintained that the indigenous society or people had to exist today for a biological descendent to be able to establish that he or she is not an alien. His Honour said (Love 94 ALJR at 256 [281]):

It was contended by the Commonwealth that it might often prove difficult to establish that an Aboriginal society has maintained continuity in the observance of its traditional laws and customs since the Crown's acquisition of sovereignty over the Australian territory. No doubt, that is so. But difficulty of proof is not a legitimate basis to hold that a resident member of an Aboriginal society can be regarded as an alien in the ordinary sense of the term. It means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country. (emphasis added) 

51 Bell J recognised in Love 94 ALJR at 218 [80] that the Court was not dealing with a situation in which the tripartite test was, or could be, problematic. Where a person can prove that he or she is a biological descendant from a particular Aboriginal Australian ancestor, but the society or people to which that ancestor belonged has ceased to exist, it is difficult to understand how that person is no less what his or her birth entailed in terms of direct descent from the original inhabitants of Australia before British sovereignty. 

52 It is one thing to be a member of an existing indigenous society or people and to have legal rules (such as the tripartite test) by which that membership can be assessed. It is another thing to deny that a person, who can prove that he or she is a direct biological descendant of persons who were in Australia before British sovereignty, is an Aboriginal Australian just because a consequence of that sovereignty was the destruction or disappearance of the antecedent society. I noted in Warrie v Western Australia (2017) 365 ALR 624 at 736 [450] the human tragedy that the historical displacement of Aboriginal Australians can create when their descendants seek to establish or ascertain, many years later, their true indigenous heritage and identity. Mr Webster may be in a similar and equally unfortunate position. However, his claim has failed because he based it on being able to satisfy the tripartite test.

IoT Chameleons

'De-camouflaging Chameleons: Requiring Transparency for Consumer Protection in the Internet of Things' by Rónán Kennedy in (2019) 10(1) European Journal of Law and Technology comments

Information and communications technology (ICT) and the development of the so-called 'Internet of Things' (IoT) provide new and valuable affordances to businesses and consumers. The use of sensors, software, and interconnectivity enable very useful adaptive capabilities. However, the rapid development of so-called 'smart devices' means that many everyday items, including software applications, are now impenetrable 'black boxes', and their behaviours are not fixed for all time. They are 'chameleon devices', which can be subverted for corporate deceit, surveillance, or computer crime. While aspects of the IoT and privacy have been discussed by other scholars, this paper contributes to the literature by bringing together examples of digital devices being surreptitiously diverted to purposes undesired by the consumer, reconceptualising these in the context of Foucauldian governmentality theory, and setting out a variety of proposals for law reform.

Kennedy argues

Information and communications technology (ICT) and the development of the so-called 'Internet of Things' (IoT) provide new and valuable affordances to businesses and consumers. The use of sensors, software, and interconnectivity (marketed as 'smartness') provide digital devices with very useful adaptive capabilities. The rapid development of so-called 'smart devices' means that many everyday items are now impenetrable 'black boxes'. However, unlike non-computerised devices, their behaviours are not fixed for all time, and they can be subverted for corporate deceit, surveillance, or computer crime. They become 'chameleon devices', hiding in plain sight. 

While aspects of the IoT and privacy have been discussed by other scholars, this paper contributes to the literature by highlighting the lack of consumer awareness of, and legal protection against, the unauthorised re-purposing of data by end-user devices. It presents examples of digital devices being surreptitiously diverted to purposes undesired by the consumer, placing these in the context of Foucauldian governmentality theory, and setting out a variety of proposals for European law reform, aiming at ensuring that Internet of Things devices operate in a moral, ethical, and legal fashion that is in keeping with public policy goals. Its key contribution is the notion of IoT devices as chameleons - capable of changing their behaviour and appearance to fit in with their surroundings but with an agency and agenda other than what they seem to be, whether that is at the behest of their manufacturer, law enforcement and security services, or criminals.

It explores two case studies which highlight different aspects of this developing phenomenon. First, the scandal surrounding Volkswagen's purported low-emissions diesel cars demonstrates the extent to which regulated entities can invade privacy by enrolling individuals in a massive corporate fraud. Second, the monitoring capacities of many Internet-connected devices provide new opportunities for surveillance. The weak security, lack of industry capacity, and widespread adoption of IoT devices mean that end-users are becoming particularly vulnerable to identity theft or to unwittingly providing infrastructure for criminality. This article places these troubling developments in the context of Foucauldian governmentality theory, demonstrating that each is an example of 'resistance' to the development of new means of power through ICT. It highlights how the capacity of ICT to bring together information across time and space also enables manufacturers, state actors, and criminals to act across these dimensions in ways that were hitherto impossible, maintaining or obtaining a degree of control over devices long after they are sold. It builds on existing literature on 'Foucault in Cyberspace', updating Boyle's critique of technological libertarianism for the Internet of Things and taking into account Cohen's proposals for the development of a new regulatory state. It connects this to the often under-appreciated issues that arise when regulation depends, to an ever-increasing degree, on technical standards and the expanding legal protections for trade secrets.

A new challenge posed by the IoT is how to respond to 'chameleon devices' which change their behaviour in response to external conditions. Existing literature has accepted the inevitability of IoT-related privacy breaches, been largely descriptive, or proposed only moderate reform that allows the market to continue to innovate. However, the article adopts Shaw's more radical critique of market-driven post-humanism as something which must be restrained, and builds on this to outline proposals for reform which would better protect the interests of consumers in an increasingly digitally-intermediated society. xxx It therefore puts forward three possible responses: global labelling standards that clearly indicate transparency and privacy protections to consumers; mandatory open source in some instances or code escrow in others; and licensing requirements for software engineers. It explores in detail the extent to which certain provisions of the General Data Protection Regulation could assist with these proposals: the requirement in Articles 13 (2) (f), 14 (2) (g) and 15 (1) (h) that those subject to automated decision-making, including profiling, be provided with 'meaningful information about the logic involved'; the possibility under Article 12 (7) that this information 'be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing'; and the support which Article 42 gives for the development of data protection seals and marks.

However, it highlights the limitations of these legislative provisions, particularly due to the recognition of the rights to trade secrets or intellectual property under recital 63. It therefore closes with recommendations for further reform of the law in this area that will assist in de-camouflaging the ever more present chameleon devices in our midst.

Fake News

'Protecting Elections from Disinformation: A Multifaceted Public-Private Approach to Social Media and Democratic Speech' by Yasmin Dawood in (2020) 16 Ohio State Technology Law Journal 1 comments

 This Article argues for a multifaceted public-private approach to the challenge of protecting the electoral process from the harms of disinformation. Such an approach employs a suite of complementary strategies — including disclosure rules, political ad registries, narrow content-based regulations against false election speech, self-regulation by online platforms, norm-based initiatives, civic education, and media literacy. It also deploys a mix of regulatory styles, namely, legal regulation (regulation imposed by the state), self-regulation (regulation by private actors), and co-regulation (regulation through cooperation between private actors and public actors). This Article has shown how the approach in Canada is multifaceted in both of these respects. In addition to incorporating a wide range of tactics by both public and private actors, the Canadian approach has adopted a mix of regulatory styles. The Article also canvasses the advantages and drawbacks of each individual tactic. 

In addition, this Article focuses on the dilemma posed by protecting the electoral process from disinformation while also protecting the freedom of speech. It argues that a multifaceted public-private approach allows for the trade-off between disinformation and free speech to be optimized. The combined and interactive effects of a multifaceted approach provide helpful protections against some of the harms of disinformation. More importantly, the adoption of these multifaceted public-private strategies signals the importance of electoral integrity to citizens thereby bolstering public trust in elections, a key ingredient of long-term democratic stability.

'Optimal Social Media Content Moderation and Platform Immunities' by Frank Fagan in (2020) European Journal of Law and Economics (forthcoming) comments

  This Article presents a model of the lawmakers' choice between implementing a new content moderation regime that provides for platform liability for user-generated content versus continuing platform immunity for the same. The model demonstrates that lawmakers prefer platform immunity, even if incivility is increasing, if the costs of implementing a platform liability regime are greater than the costs of enforcing status quo law. In addition, inasmuch as implementation of a platform liability regime is coupled with new speech restrictions that are unconstitutional or prohibitively costly, lawmakers prefer immunity, but platforms are free to set strong content moderation policies consistent with existing law. Thus, the private governance function of platforms highlighted by Balkin and others is directly related to lawmakers' ability to enact and enforce alternatives, and further, it goes beyond mere private enforcement of existing free speech restrictions. Inasmuch as lawmakers are prohibited from suppressing unwanted speech by constitutional limits as well as lawmaking and enforcement costs, they give platforms wider discretion to make private suppression decisions. The status quo governance function of platforms, therefore, includes a private lawmaking function for determining which types of speech to suppress, albeit one bounded by the state’s appetite for alternatives.

Transparency

'Visible Policing: Technology, Transparency, and Democratic Control' by Hannah Bloch-Wehba in (2020) California Law Review comments

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand — let alone set limits on — new investigative methods and techniques, for two major reasons. New technologies of surveillance, often procured from or otherwise reliant on the private sector, tend to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. At the same time, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance free of oversight or scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions, and is becoming even less so. 

In light of these informational dynamics, transparency litigation has become a core technique for rendering obscure investigative practices visible and holding police accountable. These new lawsuits form a criminal procedure “shadow docket” — they resolve important questions about democratic governance of policing without deciding on the constitutionality of searches and seizures. This Article builds on the government secrecy literature to explore the significance of this “shadow docket” and the relationship between transparency obligations and constitutional limits on police action. In the absence of meaningful Fourth Amendment safeguards, the Article shows, transparency makes policing practices increasingly visible to the public and to democratic institutions in areas in which constitutional criminal procedure today has minimal reach. These efforts to make policing visible bear important lessons for advocates and scholars of criminal procedure, criminal justice reform, and transparency itself. 

Privacy and regulator capability

'Dead Ringers? Legal Persons and the Deceased in European Data Protection Law' (University of Cambridge Faculty of Law Research Paper No. 21/2020) by David Erdos comments

Notwithstanding suggestions that the treatment of legal and deceased person data during European data protection’s development has been broadly comparable, this paper finds that stark divergences are in fact apparent. Despite early fusion, legal persons have been increasingly seen to have lesser and, more importantly, qualitatively different information entitlements compared to natural persons, thereby leaving European data protection with a very limited and indirect role here. In contrast, natural persons and the deceased have not been conceived as normatively dichotomous and since the 1990s there has been growing interest both in establishing sui generis direct protection for deceased data and also indirect inclusion through a link with living natural persons. Whilst the case for some indirect inclusion is overwhelming, a broad approach to the inter-relational nature of data risks further destabilizing the personal data concept. Nevertheless, given that jurisdictions representing almost half of the EEA’s population now provide some direct protection and the challenges of managing digital data on death continue to grow, the time may be ripe for a ‘soft’ recommendation on direct protection in this area. Drawing on existing law and scholarship, such a recommendation could seek to specify the role of both specific control rights and diffuse confidentiality obligations, the criteria for time-limits in each case and the need for a balance with other rights and interests which recognises the significantly decreasing interest in protection over time.

The Access Now Two Years under the EU GDPR: An Implementation Progress Report comments

It has been two years since the EU General Data Protection Regulation (GDPR) entered into application. We have witnessed the first positive impacts of the law but also the challenges authorities, courts, and people have faced in its enforcement. The past 12 months have proven particularly demanding for the protection of personal data and the application of the law as the European Union — and the world — has faced significant political and health crises. 

In our first GDPR progress report, published in May 2019, we wrote: “for most, 2018 was the year of data protection awakening in Europe. Still, for the GDPR to reach its full potential, 2019 must be the year of enforcement.” As it turned out, however, the last year has been a time of crisis. From public health to political crises, human rights abuses to administrative backlog, a series of challenges have put the robustness of the GDPR to test. 

In this report, we look at how the multiple crises of the last year have impacted the application of the GDPR. We will start by addressing some of the internal challenges, wherein the mechanisms established for enforcement of the GDPR have begun to show their limitations, with a particular focus on the lack of cooperation among data protection authorities (DPAs) and the lack of resources to do their work. We will then analyse how external crises, such as the United Kingdom’s decision to leave the European Union and the COVID-19 outbreak, are further challenging the application of the law. We close this report by putting forward a list of recommendations to enable the European Commission, EU states, and DPAs to address the hurdles here identified with the application of the GDPR. May 2020 not only marks the second anniversary of the GDPR, it is also the first official review of the law to be conducted by the EU institutions. Access Now has contributed to the process by providing comments to the European Commission through our membership in the multistakeholder expert group on the implementation of the law. 

The publication of this report, coinciding with the review process of the law, is an opportunity to highlight the successes of the GDPR. These include its robustness and ability to provide human rights safeguards during crises; its role in advancing and protecting our rights in the EU; its capacity as a reference point globally, establishing the EU as a world leader in the field of data protection; and more. But we must also reflect on the challenges, such as how the law has been misused in efforts to silence journalists and NGOs, and how the slow pace of enforcement, exacerbated by the lack of cooperation between DPAs, has threatened to undermine the GDPR’s long-term capacity to change private-sector norms and practices with regard to data protection. 

In our report, we further note a disconnect between the rate of enforcement and the perception of enforcement by the public. Data show that DPAs have opened investigations and imposed fines at an exponentially increasing rate since May 2018. However, in some cases it is yet not clear what the impact will be of these enforcement measures, and we continue to wait for the resolution of landmark cases with the potential to force broad changes in invasive data-harvesting behaviour. 

Opponents of the GDPR are meanwhile using the review process as an opportunity to seek a change of the text, and with it, to remove many of the provisions that safeguard our rights. It would be ill-advised for the EU to reform or re-open the GDPR before it has been adequately implemented, applied, and enforced. 

It took the EU institutions and member states five years to negotiate the GDPR under immense external pressure to compromise, so it is perhaps not surprising that its application is not perfect two years in. But we will need more than patience to see the promises of the GDPR delivered. Concrete, urgent action is needed. It is imperative that DPAs work faster and in a more coordinated manner. The GDPR will be as strong as its weakest link and we cannot let that weak link be the enforcement process and the bodies in charge of representing our rights. Even the best law in the world will bring little benefit if it is not applied. Fear of legal costs and delay tactics have sharply limited the capacity of DPAs to move forward key cases against tech giants whose revenues are sometimes ten times higher than the DPAs’ budgets. To counter this imbalance, member states and the EU must give DPAs ample resources and protect their independence. 

As the GDPR has withstood two years of tests, crises, and challenges, we call on the EU institutions and the DPAs to move forward with the application and enforcement of the law.

Access Now make the following recommendations -

1.  RECOMMENDATIONS TO GOVERNMENTS INCREASE RESOURCES FOR DPAs 

To function properly and be able to address the large number of complaints, governments across the EU must increase the financial and human resources allocated to Data Protection Authorities, including technical staff. 

GUARANTEE DPAs’ INDEPENDENCE 

Governments must guarantee the independence of Data Protection Authorities, both in statutes and financially. 

GOVERNMENTS MUST UPHOLD HUMAN RIGHTS DURING CRISES 

International and national laws recognise that extraordinary crises require the use of extraordinary measures. This means that certain fundamental rights, including the rights to privacy and data protection, may be restricted to address crises as long as basic democratic principles and a series of safeguards are applied, and the interference is lawful, limited in time, and not arbitrary. 

GOVERNMENTS MUST UPHOLD THE GDPR DURING THE COVID-19 CRISIS 

Governments should ensure the application of the GDPR and the protect the right to data protection in their COVID-19 response, particularly in the areas concerning the collection and use of health data, the use of tracking and geolocation, and the conclusion of public-private partnerships for the development and deployment of contact-tracing apps. 

THE UK MUST UPHOLD HUMAN RIGHTS BEYOND BREXIT 

For the benefit of UK citizens and everyone living in the UK, the UK government must continue to apply the GDPR and reform its surveillance laws. 

2.  RECOMMENDATIONS TO THE EUROPEAN COMMISSION 

LAUNCH INFRINGEMENT PROCEDURES 

The European Commission should launch infringement procedures against EU states :

• When they do not provide sufficient resources to Data Protection Authorities, or 

• When they do not guarantee the Data Protection Authority independence in status and in practices, or 

• Where Data Protection Authorities or courts misuse the GDPR to restrict freedom of the press or stifle NGOs’ work. 

REVIEW ADEQUACY DECISIONS AND CONDUCT THOROUGH REVIEW OF UK DATA PRACTICES 

The European Commission shall review all existing adequacy decisions concluded prior to May 2018. In its negotiations for an adequacy decision with the UK, the European Commission has the obligation to ensure that data from EU data subjects will not be misused or intercepted for surveillance once it reaches the UK. 

3.  RECOMMENDATIONS TO THE NATIONAL DATA PROTECTION AUTHORITIES AND THE EUROPEAN DATA PROTECTION BOARD 

INCREASE COOPERATION 

Data Protection Authorities should increase cooperation between each other to ensure the functioning of the “one-stop-shop”, including sharing information on cross-border cases and providing support to each other during investigations. 

USE THE URGENCY PROCEDURE 

Data Protection Authorities should start utilising the urgency procedure laid down in Article 66 of the GDPR to adopt temporary measures or to force other authorities to act. 

DO NOT MISUSE THE GDPR 

Data Protection Authorities hold much of the responsibility for the GDPR’s success or failure. It is absolutely unacceptable that DPAs misuse the GDPR to undermine human rights, restrict freedom of the press, or otherwise stifle NGOs’ work. 

UPHOLD DATA PROTECTION RIGHTS DURING CRISES 

When governments adopt emergency legislations and derogate from human rights obligations, national DPAs and the EDPB will have a crucial role in maintaining scrutiny over measures impacting data protection. In the context of the COVID-19 crisis, the DPAs must uphold the GDPR and provide guidance to states.

Hegemonies

The Australian Constitution as Symbol' by Dylan Lino in (2020) Federal Law Review (forthcoming) comments

According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.

Lino argues

‘For every constitution there is an epic, for each decalogue a scripture.’ Except in Australia, apparently. Among Australian lawyers, there is a well-told and decidedly non-epic story about what sort of life the Australian Constitution has in the public imagination: the Australian Constitution has no life. It does not, in other words, feature as a symbol within Australian political debate and culture. Much of the blame for this state of affairs can be laid squarely at the feet of the unremarkable document itself. Unlike the rousing texts of other nations’ constitutions, such as the quintessential United States instrument, the Australian Constitution does not contain grand expressions of rights or principles. It does not proclaim universal truths of political philosophy, nor does it recite the more local truths of national history. The Australian Constitution does something much more mundane and workmanlike. Unassumingly nestled in a provision of a statute passed by the British Imperial Parliament, the Constitution, in lawyerly prose, establishes the institutions of Federal Government, divvies up authority between them, and delineates the respective powers of the Federal Government and the States. It is a ‘structural constitution’, not a ‘rights constitution’. It is a constitution founded in continuity with the past, rather than in a radical break from it. It is a practical instrument of government, not a self-conscious embodiment of national identity and values. 

According to this story, the Australian Constitution, a technical and arid legal document, is a hard field to be tilled by lawyers rather than a verdant civic garden that sustains and inspires the citizenry. And the citizenry responds accordingly. Bequeathed such a pedestrian founding document, the public simply ignores it, forsaking appeals to it in the course of political debate. Many Australians don’t even know they have a constitution, much less turn to it as a touchstone of civic life. When they go looking for sources of Australian identity and values, they look elsewhere – anywhere but the Constitution. Australians live in a state of constitutional estrangement. 

This short article challenges the conventional story. I argue that the Constitution plays a more significant symbolic role in public life than scholars commonly assume. There is no doubt a good deal of truth in the conventional story. But this story also leads us to miss the many ways in which the Constitution functions as a symbol in Australian political culture. Ironically, embedded in the very notion that the Constitution is a kind of non-symbol are some important strands of constitutional symbolism. Thus, for some people, the Constitution’s dearth of declarations of values or identity paradoxically symbolises something important about Australia – bespeaking its people’s pragmatic, unsentimental character. That is one common way that the Constitution is represented but there are others, other symbolic Constitutions. 

Having a proper understanding of the Constitution’s symbolic role matters for two reasons. First, it helps us see the political work that the Constitution performs beyond its official role as a legal instrument that regulates public power. Much of that political work involves shoring up the constitutional status quo, but some forms of constitutional symbolism contribute to modifying or challenging the constitutional order. 

Second, for those of us who study and teach about the Constitution, understanding how the Constitution operates as a public symbol helps us be more aware of the ways in which we ourselves represent the Constitution in our research, teaching and interaction with the wider community. Given our power as some of the most authoritative sources of constitutional knowledge, what we say about the Constitution – to colleagues, students, practising lawyers, policymakers and the general public – matters. Our pronouncements about the Constitution, its history, its practical operation, its politics and its future affect how Australians think about the Constitution and ultimately how they imagine the possible shapes of the political future. Our resort to a proverbial story of the non-symbolic Constitution is not simply a description of reality; it is itself a particular way of representing the Constitution, a form of constitutional symbolism. But it is not the only story available. It is also a story that tends to depoliticise the Constitution, thereby reinforcing the constitutional status quo. As scholars and teachers of the Constitution, we should be mindful about what particular representations of the Constitution make visible, what they occlude, whose interests they serve and what the alternatives might be. 

I begin by critiquing the claim that the Constitution is largely invisible within Australian political culture. After outlining the conventional story told by constitutional scholars about the Constitution’s invisibility, I argue that such claims are unduly influenced by the unrepresentative example of the US Constitution. They are also too narrowly focused on the Constitution as a symbol of shared identity and values, neglecting other forms of constitutional symbolism. If only we take a closer look, and we know what to look for, we find that the Constitution does operate as a symbol within Australian political culture. It has done so, to varying degrees and in numerous ways, since it was drafted in the 1890s. Indeed, the very claim of the Constitution’s invisibility engages in such symbolic work, in a way that tends to depoliticise and legitimise the Constitution. 

I then briefly survey several ways that the Constitution has recently taken on symbolic significance within public life. I look at how different political actors with varying agendas and ideological outlooks have represented the Constitution through interventions into public debate – how they conjure different visions of the Constitution to serve their political projects. I focus on an area of public debate where the Constitution has taken on multiple symbolic guises over the past decade: the debate over recognising Aboriginal and Torres Strait Islander peoples within the Constitution. I draw attention to four common symbolic Constitutions – the practical, the liberal, the outdated and the exclusionary – operating in the Indigenous constitutional recognition debate and show how they are used by different people to support particular political positions. The practical and liberal Constitutions are mainly invoked by conservatives to venerate and uphold the Constitution, typically in opposition to Indigenous recognition, whereas the outdated and exclusionary Constitutions are deployed primarily by progressives to critique the Constitution, typically in support of Indigenous recognition or other constitutional change.