The Australian Constitution as Symbol

Date01 December 2020
Published date01 December 2020
AuthorDylan Lino
Subject MatterArticles
The Australian Constitution as
Dylan Lino*
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liberal, the outdated and the exclusionary.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 con-
stitutional scholars to be more conscious of how they contribute to that ideological work through
their representations of the Constitution.
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 Aus-
tralian 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’ con-
stitutions, 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
* TC Beirne School of Law, University of Queensland, Level 3, Forgan Smith Building (1), Saint Lucia, Queensland 4072,
Australia. The author may be contacted at
1. Robert Cover, ‘Nomos and Narrative’ (1983) 97(1) Harvard Law Review 4, 4.
2. See further Part II of this article.
Federal Law Review
2020, Vol. 48(4) 543–555
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0067205X20955076

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