The Role of a Constitutional Court in a Federation a Comparison of the Australian and the United States Experience
| Published date | 01 March 1986 |
| Date | 01 March 1986 |
| DOI | 10.1177/0067205X8601600101 |
| Author | Sir Anthony Mason |
| Subject Matter | Article |
THE
ROLE OF ACONSTITUTIONAL COURT IN AFEDERATION
ACOMPARISON OF
THE
AUSTRALIAN AND
THE
UNITED STATES EXPERIENCE
SIR
ANTHONY
MASON·
The Australian National University, the Sir RobertMenzies Memorial Trust
and the University
of
Virginia Law School have established
an
annualMenzies
Lecture Series. The Lectures are held
in
honour
of
Sir Robert Menzies
and
mark
his contribution to the law
and
public life. The Lectures are given
in
alternate years at the
Law
Schools
of
the University
of
Virginia and the
Australian National University. The Lectures will bepublished
in
the "Federal
Law
Review". Thefirst Menzies Lecturer was The Honourable Sir
Anthony
Mason
of
the High Court
of
Australia who visited the University
of
Virginia
in October 1985. The following article is based on Sir
Anthony's
lecture.
To
an
Australian lawyer
the
surprising feature
of
the
contemporary
American scene
is
the
satisfaction, indeed
the
pride,"that Americans
take
in
their Constitution.
To
be sure, continuous
and
contentious debate surrounds
the
Supreme
Court's
interpretation
of
particular provisions
and
the
Court's
methods
of
reaching those interpretations.
But
Americans generally have a
strong conviction
that
the
United States Constitution, despite its age, is just
about
as
good
aconstitution as
one
can
hope
to
get. Yet
the
Australian
Constitution, which is less
than
one
hundred
years old and, in its federal
aspects, has much in
common
with its American model, is frequently
condemned -principally
by
our
politicians -as a
product
of
the
horse
and buggy age. The thrust
of
this criticism
is
not so much that the Constitution
inadequately protects individual rights, as
that
it
is
deficient as
an
instrument
of
government, notably in distributing powers between
the
centre
and
the
states.
Dissatisfaction with the Australian Constitution as early as
1973
led
to
the
establishment
of
abiennial convention for the purpose
of
recommending
constitutional amendments.
After
floundering for twelve years, it seems
to
have
run
aground.
Not
that
the delegates have declared
that
the
existing
Constitution is satisfactory. Rather, they simply
cannot
agree
among
themselves
upon
amendments
that
are
necessary
or
desirable. Their failure
to
agree might suggest
that
nothing
is
seriously wrong with
the
Constitution
and
that
such" difficulties as we have arise,
not
from faults in
our
system,
but
in ourselves.
Perhaps
we lack the great sense
of
community
that
unites
the American people
and
their profound sense
of
understanding which enables
each constituent piece in acomplex constitutional mosaic
to
appreciate
and
respect the role
of
the
other
pieces in
that
mosaic.
In
fairness
to
the delegates
to
the Convention it should be said
that
it was optimistic
to
expect very much
from them. Acrisis such as a
War
of
Independence, aCivil
War
or
aproposed
union
of
separate communities in afederation
is
required
to
kindle
the
*The Honourable Sir Anthony Frank Mason,
KB,
CBE, Justice
of
the High Court
of
Australia.
2Federal
Law
Review [VOLUME
16
statesmanship, vision and sense
of
purpose essential to the success
of
a
Constitutional Convention.
More recently on
19
December
1985
the Australian Government announced
the appointment
of
aConstitutional Commission
of
experts under the
chairmanship
of
Sir Maurice Byers QC, former Solicitor-General for the
Commonwealth to undertake, with the assistance
of
five
Advisory
Committees, afundamental review
of
the Australian Constitution. The
Commission
is
required to report on or before
30
June 1988. In some areas
reform would be advantageous. Take, for example, the federal arbitration
power.! It
is
too limited and too rigid. It perpetuates our system
of
industrial arbitration because it
is
the only power that Parliament has with
respect
to
industrial relations. However,
if
past history
is
areliable guide
only abold prophet would predict that the Commission's deliberations will
result in wide-ranging constitutional reform. The Australian electorate has
proved notoriously resistant to constitutional change.
The need for constitutional reform
is
directly affected by the methods
of
constitutional interpretation adopted by courts, for if courts apply static
rather than dynamic principles
of
interpretation, the case for reform
will
be
so much the stronger. The method
of
interpretation acourt pursues has a
close inter-relationship with the court's perception
of
its role. The two are
so closely interwoven that an understanding
of
the interpretive techniques
of
the High Court
of
Australia and the Supreme Court
of
the United States
is
essential to an appreciation
of
their roles in their respective federal systems.
Because the operation
of
aconstitution may vary according to the technique
of
interpretation that acourt adopts, constitutional interpretation
is
asource
of
continuing debate in Australia and the United States. The debates in the
two countries admittedly have different focuses. In the United States it centres
on the guarantees
of
fundamental rights, provisions which are not found in
the Australian Constitution. In particular, the contentious issues have
revolved around the role
of
the Supreme Court and the lower federal courts
in restricting, pursuant to the Bill
of
Rights, state government action. The
contentious issues in Australian constitutional law have also involved
federalism, but from adifferent perspective. Usually the controversy
surrounds the High Court's construction
of
the limits
of
federal power
vis-
a-vis the states. Although the focuses
of
debate are somewhat different, the
constitutions
of
Australia and the United States bear anumber
of
important
similarities.
COMPARING CONSTITUTIONS
The fundamental common features
of
the two Constitutions are -
(1)
a
democratically elected legislature consisting
of
aHouse
of
Representatives,
whose members are directly chosen by the people, and aSenate composed
of
members representing the states and territories, directly chosen by the
people;
(2)
the separation
of
powers within the federal government;
(3)
the
1Section
51
(xxxv)
of
the Constitution.
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