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Mission impossible

The plan to recognise Indigenous Australians within the Constitution will self destruct after this message...

27 June 2015

9:00 AM

27 June 2015

9:00 AM

Tom Cruise has made an awful lot of commercially successful movies.There’s the one in which he cross-examines Jack Nicholson who yells back ‘You can’t handle the truth’. There are all the Mission Impossible movies. Going back a bit there is even his Jerry McGuire, towards the end of which he sweeps into the room containing his love interest and proclaims to her ‘You complete me’.

And somewhat surprisingly that brings me to the Recognise campaign in this country seeking to amend our Constitution. Save for the über-minimalist position of repealing s.25, I am opposed to all the proposals thus far on the table. Much has already been said on this topic both for and against. Much is yet to come. An awful lot of subtle accusations of racism have already been lobbed around against sceptics. Yet as far as I know no-one has so far commented on the government’s spin that it doesn’t want to change the Constitution; rather it wants to complete it. When you hear this you can almost picture Tom sweeping into the room and embracing his starlet. Cue romantic music. Cue Hollywood sensibilities.

Of course it takes but a moment’s thought to raise some pretty big questions about how one goes about distinguishing between an amendment proposal that changes our existing century old, incredibly successful constitution, and one that merely completes it.

Actually, it’s worse than that. In a strict sense any amendment that does anything at all, however small, is of course a change. So it is tempting to see all such talk as pure spin and focus groups and proponents casting about wildly for some form of words they can sell to all those who want to weigh the costs of any proposed change against their supposed benefits. In other words, it’s tempting to see the distinction as BS, pure and simple.

But let’s try to resist that temptation and see if we can come up with a plausible way to make the ‘change’ versus ‘complete’ distinction rise above incoherence. To do so, I think you need to imagine one of two scenarios. In the first scenario, the drafters and ratifiers of our Constitution – let me say it again, our written constitution that is in my view one of the democratic world’s most successful specimens and one which would be better still if our centralising High Court had refrained from rewriting so much of it to enervate and bastardise the federalism bits – are imagined to have thought they were setting up something but they made some sort of mistake and produced something less than that. They wanted X but inadvertently got Y.

So here we are imagining that the producers of our Constitution actually really wanted, say, a proto-bill of rights equality section but forgot to put it in; or they really wanted a separate body just for Indigenous people that would have to be consulted (but would never get a veto) on a host of proposed laws, but inexplicably omitted its inclusion. Over a century later we amend the Constitution and put these in. That would sort of count as completing it. Tom would be whole again.

Alas, all such imaginings are palpably false. Those above proposals amount to changing our Constitution, full stop. They cannot honestly come close to being characterised as some sort of completing of it according to this first scenario.

Moreover, back in a time we would all today characterise as filled with racist views, the framers may well have forgotten Indigenous people. But fortunately there is nothing in our Constitution that has prevented the advancement of Aborigines (except, perhaps, the 1967 powers) and indeed the advancement of any race (if that concept of race even makes any sense as regards humans). Such is the Constitution’s brilliance in not getting in the way. There is nothing to complete.

There is, though, a second scenario. Here we imagine that our Constitution is not some specific instructions on paper for setting up a bicameral, federalist system of government with a separation of powers and more. No, on this scenario we indulge in the worst sort of European Court of Human Rights type characterisations and imagine our Constitution as a ‘living thing’ that can change and shift according to ever changing social values. Its content is not to be found in its words but in the understandings of whatever set of unelected interpreters happens to be staffing the High Court at the moment.

So now we see the Constitution pretty much as an amorphous, mutating ‘vibe’ that only some specialised caste of augury readers can pin down when asked. Which is exactly how Human Rights Commissioner Gillian Triggs described it on Q&A recently, proudly pinching a line from another famous movie, the Aussie classic The Castle.

Change on that understanding can, in a way, certainly be characterised as a completion of something. But that’s because that understanding of what a constitution happens to be is so profoundly undemocratic, so reliant on deconstructionist interpretive theories, and so unwilling to concede that meaning is tied only to purposeful real-life humans. Almost anything can count as a completion on this scenario’s suppositions.

Put bluntly, this second scenario relies on the worst sort of mumbo-jumbo and no Coalition Prime Minister – no Labor one for that matter – could ever articulate such underpinnings and presuppositions and stay in the job.

Well, maybe that’s too hasty a verdict. You see this sort of interpretive mumbo-jumbo, where words are alleged to change their meaning over time based on the interpreters’ mystical sense of changing social values and some claimed ability to put their fingers on the pulse of a country’s ‘vibe’, is pretty much standard fare on top courts across the Anglosphere. Heck, Australia’s High Court even genuflects in this direction when it makes up enervated voting rights out of thin air and limits from nowhere what our State Courts can and cannot do. And our top judges do this without the fig leaf of cover a bill of rights provides. If you think any change to our Constitution, any at all, does not carry a big risk of even greater judicial activism and usurpation than we have now, your confidence borders on recklessness.

So we’ve come full circle back to the claim that distinguishing between a change to our Constitution and somehow completing it is more or less pure spin. It’s incoherent claptrap, if I can put it as kindly as possible.

If this ‘we’re not really trying to change anything, just to complete it’ is the line that’s going to be relied on by the ‘Yes’ side then I feel safe in saying, with Mr Cruise, that they are facing a Mission Impossible in trying to win any constitutional referendum. Expect it to self-destruct at some point before 2017.

Got something to add? Join the discussion and comment below.

James Allan is Garrick Professor of Law at the University of Queensland

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