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Option 1: Legitimacy of the Australian Constitution

Many countries around the world have established constitutions that describe the rules by which their people are governed. Additionally, a majority use written constitutions. Through the Constitution, legislative, executive, and judicial bodies draw their power and legality. The rights and freedoms of people are also mostly guaranteed in the Constitution. However, the question of legitimacy of these constitutions is rarely addressed. Many scholars explore the meaning and interpretation of the Constitution while leaving out the question of legitimacy.1 According to this scholar, many people consider the Constitution as being sacred and, therefore, fail to ask whether the document is legitimate. However, it is important to understand legitimacy, because it is the basis upon which the Constitution deserves to be applied. Through establishing legitimacy of a constitution, it can be determined why people need to obey the laws enshrined therein. It is no wonder Barnett states that “the problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law.”2 This paper discusses the legitimacy of the Australian constitution and argues that it cannot be said to be legitimate.

The Australian constitution contains the rules by which the federal and state governments rule the Australian people. This constitution took effect on the 1st of January 1901, bringing together the forming colonies as a federation.3 The forming parties were established by the British in 1700s when they were used as penal colonies. However, by the late 1800s the colonies had been allowed to have their own parliaments. Yet, the parliaments were still subject to British law-making power. The constitution sought to give the colonies and their parliaments some level of power. As such, during the 1890s, constitutional Conventions took place in New South Wales, Victoria, South Australia, Queensland and Tasmania.4 Selected groups from these colonies drafted the Constitution after which it gained approval from Britain albeit with some changes. Later, Western Australia also joined the other colonies. However, when drafting the Constitution, the Conventions throughout the colonies left out the Aboriginal and Torres Strait Islander people. The women did not also participate in the process. According to Reconciliation Australia, the Australian constitution is, therefore, a reflection of the opinions and prejudices of the men of British ancestry.5 As such, the question of legitimacy of the Constitution formed in this process arises.

Legitimacy is the acceptance of an exercise in power as being justified and, thus, bearing authority.6 As such, constitutional legitimacy requires that the wider society accept and find justifiable the Constitution. In line with this view, the prima facie duty to obey the constitution exists through the presence of consent or the practice of justice.7 Overall, a constitution can be justified if people give consent for its establishment. This argument is the basis for referendums and meetings of public participation in law-making. The Australian constitution was drafted during Conventions and passed through a referendum. Therefore, it gained consent from the people involved. However, this consent was not unanimous as there are groups which were left out. For instance, women were not chosen as part of the members of the Conventions.8 In some of the colonies, they also did not vote during the referendum. In the same way, first nations people were left out during the Conventions. They were not even recognized in the Constitution, and although they were not barred from voting, existing discrimination prevented them from doing so. This means that the Australian constitution is not a full representation of the people of Australia in their entirety. Yet, the Constitution is supposed to be a representation of the cultures and values of the people.

However, unanimous consent is not the only basis for constitutional legitimacy.9 The expectation for such consent to be the sole basis by which people judge the legitimacy of the constitution is flawed. In light of this, there is a second way through which the Constitution gains legitimacy. When consent is absent, the Constitution has to established through procedures that are just.10 Additionally, it must assure that the laws enacted are to be just. For example, in the United States, this threshold is met by ensuring that laws enacted are necessary for the protection of people’s rights. Also, it is assured by making sure that the law does not infringe on the rights of the people for whom it is enacted.11 By meeting the two requirements, laws are kept just and therefore legitimate. Yet, in the case of the Australian constitution, in sections 51 and 127 allowed the discrimination of the Aboriginals.12 In addition to not recognizing the Aboriginal and Torres Strait Islander people, the Constitution allowed for their discrimination.

Furthermore, sources of legitimacy can be placed in three categories. Charismatic authority, traditional authority, and rational-legal authority can make a constitution legitimate.13 According to the author, the Constitution needs extra-constitutional legitimacy that can be drawn from many sources. The three criteria which were defined by Max Weber are such sources. Charismatic authority draws on the qualities of a leader or respected personality. A person who is perceived as exceptional or supernatural can legitimize a law by causing it to be widely accepted.14 People can also accept and obey the law to please the idol. Secondly, traditional authority is based on the fact that ‘that is how things have always been.’ This type of authority can be obtained by involving the people. When people participate in drafting the Constitution, their views, values, and ways of doing things are included. That way, it is easy to gain legitimacy based on traditional authority. Finally, rational-legal authority provides a bargain in which all people stand to benefit from the establishment of the laws. All three forms highly rely on public involvement.15 People accept the Constitution when they feel a sense of ownership and inclusivity.

Other arguments on the constitutional legitimacy have been made by Fallon. The author explains that there are three categories of legitimacy, all of which are interconnected. The Constitution’s legitimacy is weighed through legal, sociological, and moral lenses.16 The author states that legal legitimacy is based on the sociological acceptance of the Constitution in present times as opposed to the formal framework of its ratification. As such, people’s acceptance and believe in the Constitution as having authority over them is important in determining legitimacy. Observance of ethics is also critical since it determines moral authority. For this reason, aptness measures constitutional legitimacy.17 The appropriateness or suitability of the Constitution leads to its acceptance and legitimacy. Yet, for the Constitution to gain acceptance, people have to believe it to be in their interest. Additionally, they not only have to believe, but it has to actually promote their interests and foster justice and fairness.

The Australian constitution has undergone amendments towards the inclusion of the Indigenous peoples of Australia. In 1962, the Commonwealth Electoral Act secured the right of Indigenous Australians to vote. Additionally, in 1967, more than ninety percent of the Australians favored the amendment of sections 51 and 127 of the constitution.18 The latter was scrapped entirely while the words “…other than the aboriginal people in any State…” were removed in the former. However, the Constitution does not still guarantee equality for the Indigenous Australians. The Aboriginal and Torres Strait Islander people are still subjected to a constitution whose establishment left them out and which has still not achieved inclusivity.19 Therefore, more effort is needed to achieve equality for these people. Afterall, unlike Australia, countries like Canada have done more for their Indigenous people.20 For this reason, it can be argued that justice was and is not being observed. Hence, the legitimacy of the Constitution is questionable. It can only be achieved when all people accept and recognize it as having authority over them or by being just.

In conclusion, constitutional legitimacy is obtained through consent. The people upon which the Constitution is used have to give their consent. Otherwise, the Constitution has to prove to be observing justice throughout its drafting and adoption. Moreover, legitimacy is legal, sociological, and moral. Yet, all these forms rely on public participation so that the Constitution reflects the views, values, and cultures of all the people. On the other hand, the sources of legitimacy are charismatic, traditional, and rational-legal authorities. The Australian constitution, by excluding part of society and leaving room for discrimination failed these tests. It is not a representation of all the Australian people and their history. It does not also foster justice but rather promotes inequality. Although steps have been made towards affording the Indigenous Australians more rights, justice has not been achieved. It is only by being more inclusive and according these people their right place that it can claim legitimacy.


A Articles

Barnett, Randy E, ‘Constitutional Legitimacy’ (2003) 103(1), Columbia Law Review 111-148

Chau, Brian, ‘Constitutional Legitimacy: An Analysis under Max Weber’s Traditional Sources of Authority’ (7 April 2012) <https://dx.doi.org/10.2139/ssrn.2192172>

Fallon Jr., Richard H, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787-1853

Patton, Paul, ‘Rawls and the legitimacy of Australian government’ (2009) 13(2) Australian Indigenous Law Review 59-69

Stephenson, Margaret, Indigenous lands and constitutional reform in Australia: A Canadian comparison (2009) 15(2) Australian Indigenous Law Review 87-108

Zevit, Zehava, ‘Foundations of constitutional legitimacy: Legal-political culture, constitutional aptness, and baseline community’ (2004) 32 Studies in Law, Politics and Society 123-161

B Other

Australians Together, The 1967 referendum (17 November 2020) <https://australianstogether.org.au/discover/australian-history/1967-referendum/>

Parliamentary Education Office, The Australian Constitution in focus (9 November 2020) <https://peo.gov.au/understand-our-parliament/how-parliament-works/the-australian-constitution/the-australian-constitution-in-focus/>

Reconciliation Australia, Aboriginal and Torres Strait Islander Australians and the Constitution, <https://www.reconciliation.org.au/wp-content/uploads/2017/11/Recognising-Aboriginal-and-Torres-Strait-Islander-people-in-the-Australian-Constitution.pdf>

  1. Randy E Barnett, ‘Constitutional Legitimacy’ (2003) 103(1), Columbia Law Review at 111.↩︎

  2. Randy at 111.↩︎

  3. Parliamentary Education Office, The Australian Constitution in focus at paragraph 6.↩︎

  4. Parliamentary Education Office at paragraph 14.↩︎

  5. Reconciliation Australia, Aboriginal and Torres Strait Islander Australians and the Constitution, <https://www.reconciliation.org.au/wp-content/uploads/2017/11/Recognising-Aboriginal-and-Torres-Strait-Islander-people-in-the-Australian-Constitution.pdf> at 2.↩︎

  6. Brian Chau, ‘Constitutional Legitimacy: An Analysis under Max Weber’s Traditional Sources of Authority’ (7 April 2012) <https://dx.doi.org/10.2139/ssrn.2192172> at 3.↩︎

  7. Randy at 111.↩︎

  8. Reconciliation Australia at 2.↩︎

  9. Randy at 147.↩︎

  10. Id. at 142.↩︎

  11. Id. at 141.↩︎

  12. Reconciliation Australia at 3.↩︎

  13. Brian at 4.↩︎

  14. Id. at 4.↩︎

  15. Id. at 8.↩︎

  16. Richard H Fallon Jr., ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review at 1787.↩︎

  17. Zehava Zevit, ‘Foundations of constitutional legitimacy: Legal-political culture, constitutional aptness, and baseline community’ (2004) 32 Studies in Law, Politics and Society at 123.↩︎

  18. Australians Together, The 1967 referendum (17 November 2020) < https://australianstogether.org.au/discover/australian-history/1967-referendum/> at paragraph 4.↩︎

  19. Paul Patton, ‘Rawls and the legitimacy of Australian government’ (2009) 13(2) Australian Indigenous Law Review at 59.↩︎

  20. Margaret Stephenson, Indigenous lands and constitutional reform in Australia: A Canadian comparison (2009) 15(2) Australian Indigenous Law Review at 87.↩︎

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