In my Australian Federal Constitutional Law tutorials today, we discussed a couple of issues that have striking contemporary relevance.
First, we looked at the defence power and Australian Communist Party v The Commonwealth (1951) 83 CLR 1. As today is five years and one day since 9/11 and so much has happened in the intervening years, it seems particularly important to remember that case and the supreme value of the rule of law. For that reason, I suggested that my students may want to read a speech Justice Kirby gave only a month after 9/11, "Australian Law - After September 11, 2001". Here is an extract on the Communist Party case:
Given the chance to vote on the proposal to change the Constitution, the people of Australia, fifty years ago, refused. When the issues were explained, they rejected the enlargement of federal power. History accepts the wisdom of our response in Australia and the error of the over-reaction of the United States. Keeping proportion. Adhering to the ways of democracies. Upholding constitutionalism and the rule of law. Defending, even under assault, the legal rights of suspects. These are the way to maintain the love and confidence of the people over the long haul. We should never forget these lessons ... Every erosion of liberty must be thoroughly justified. Sometimes it is wise to pause. Always it is wise to keep our sense of proportion and to remember our civic traditions as the High Court Justices did in the Communist Party Case of 1951.
...
In the course of a century, we, the lawyers of Australia, have made many errors. We have sometimes scorned those who, appearing for themselves, could not reach justice. We have gone along with unjust laws and procedures. We have been instruments of discrimination and it is still there in our books. We have not done enough for law reform. We have often been just too busy to repair every injustice. Yet in some critical moments, lawyers have upheld the best values of our pluralist democracy. In the future, we must keep it thus. To preserve liberty, we must preserve the rule of law. That is our justification and our challenge.
I urge you to read the full speech here. I was fortunate to hear Justice Kirby present a version of this speech not long after and it is the most extraordinary and impressive speech I have ever heard.
Second, we discussed Australia's federal system and whether federalism should be scrapped for a unitary state. Towards the end of that discussion I referred my students to a recent speech Peter Costello gave at the launch of The Bulletin's list of the 100 most influential Australians:
Who will be on our list of the most influential Australians in 2100 when we get our cyber edition of The Bulletin magazine.
For those of you who have not made this list but would like to, can I suggest some avenues that you might like to explore. I come from the field of politics and public policy so let me suggest a few here.
The person who can solve the problem bedevilling Australian political life in every area, the problem of federalism, will be there. In 1900 Federation was a great success, the coming together of colonies in a customs and economic union within an empire. But the empire has faded and the nation now has consciousness of itself. We are no longer dealing with self-governing sovereign colonies. I believed that by giving the States a revenue base - a financial free kick - we would restore that sense of sovereignty. It was a failed hope. States are moving towards the role of service delivery more on the model of Divisional Offices than sovereign independent governments. Legally, constitutionally and practically we must fix the problem of federalism.
Read the full speech here.
These are two issues that we should all be giving some thought. They also demonstrate how studying constitutional law is not only relevant and interesting, but also important.
