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Living Traditions: an Examination of the Theoretical and Philosophical Tensions in Australian Constitutionalism

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Living Traditions: an Examination of the Theoretical and Philosophical Tensions in Australian Constitutionalism Living Traditions: An Examination of the Theoretical and Philosophical Tensions in Australian Constitutionalism Author Olive, Carl Published 2017 Thesis Type Thesis (PhD Doctorate) School Griffith Business School DOI https://doi.org/10.25904/1912/1512 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/367369 Griffith Research Online https://research-repository.griffith.edu.au Living traditions: An examination of the theoretical and philosophical tensions in Australian constitutionalism By Carl Olive BA Hons (First Class) School of Government and International Relations Griffith University A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy December 2016 ii Abstract The thesis is concerned with understanding the influence of constitutional philosophy on contemporary political practice. The thesis questions whether the Australian polity has an established account of what constitutes the underpinning philosophy of the Constitution and, more importantly, if this philosophical inheritance has any enduring impacts. The thesis refutes claims that Australian constitutionalism is devoid of political philosophy or underpinned by an innate utilitarianism, arguing that the Constitution has a rich and diverse philosophical heritage. More specifically, the thesis contends that Australian constitutionalism is predominantly shaped by two philosophical traditions that can be traced to the founders’ decision to combine elements of English and US constitutional thought. The first three chapters of the thesis discuss how these two traditions shaped the development of the Constitution, contributing to Australian understandings of critical constitutional concepts such as the separation of powers, the foundations of national sovereignty and the best mechanism to secure individual rights. Furthermore, by tracing the philosophical origins of the Constitution, the thesis shows that the two predominant influences on the development of Australian government are often at theoretical tension. Having established the Constitution’s rich and diverse philosophical heritage, the thesis then attempts to understand if the theoretical tensions in Australian constitutionalism manifest in contemporary political practice. The thesis demonstrates the significance of Australia’s theoretically rich constitutionalism by examining three case studies. The case studies are designed to show that the theoretical tensions are significant because, on occasion, disagreements over the philosophical foundations of the Constitution underpin political events, contributing to both the debate and the final resolution or outcome. The first case study examines the Whitlam dismissal to show how Sir John Kerr utilised the contested nature of the separation of powers to advance an innovative idea of the executive and its relationship to the federal elements of the Constitution. The second case study examines the transcript of proceedings recorded throughout the 1998 Constitutional Convention to show how challenges resolving theoretical tensions in Australian constitutionalism underpinned the debate, defining the development of the proposed constitutional model that was put to electors in 1999. The second case study finds that philosophical tensions regarding the final proposed model were reconciled with a conservative approach to constitutional reform, which favoured a continuation of parliamentary sovereignty and the conventions of responsible government. The final case iii study examines the failure of the Gillard Government’s Malaysia Solution to show that theoretical tensions in Australian constitutionalism can be used opportunistically as a political tool to alter or impede the development of complex public policy such as offshore processing. Thus, the thesis demonstrates that philosophical tensions in Australian constitutionalism have resulted in or contributed to political innovation, conservatism and opportunism. The findings from the thesis are significant because they provide a basis for further examination of both the ideas that informed Australian constitutionalism and how these powerful traditions continue to shape and underpin contemporary political practice. The thesis provides a platform for research seeking to further investigate the complex theoretical nature of the current Constitution, as well as offering compelling practical reasons for the Australian polity to develop a more profound or meaningful consensus regarding the philosophical foundations of government. iv Statement of Originality This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Carl Olive v Acknowledgements I must formally thank my supervisor Professor Haig Patapan. Haig’s patient guidance and counsel has been a source of inspiration throughout my studies. I would like to acknowledge that Chapter Six and Chapter Seven have benefitted from the double-blind peer review process associated with publication. Comments from reviewers have been incorporated into both Chapter Six and Chapter Seven. I would also like to acknowledge Dr John Janzekovic and Dr Donna Weeks. In different ways, Dr Janzekovic and Dr Weeks inspired my early academic development, nurturing and supporting an unrefined talent. Finally, I would like to thank my wife, Mairead, who continues to share my journey. I am truly blessed to have such a caring and thoughtful family. vi Table of Contents Contents Abstract ..................................................................................................................................... ii Statement of Originality ......................................................................................................... iv Acknowledgements .................................................................................................................. v Table of Contents .................................................................................................................... vi Chapter One: Introduction ..................................................................................................... 1 Research questions and approach ........................................................................................... 1 Significance of the project.................................................................................................... 10 Methods and methodology ................................................................................................... 12 Overview of structure and key arguments............................................................................ 17 Chapter Two: Australian constitutional thought .............................................................. 25 A pragmatic approach to the study of Australian constitutionalism .................................... 27 Single philosophical perspectives ........................................................................................ 31 Dual constitutional traditions ............................................................................................... 38 Conclusion ............................................................................................................................ 43 Chapter Three: The Colonial Inheritance ........................................................................... 45 The common law .................................................................................................................. 47 The Governor-General ......................................................................................................... 53 Representative democracy and the Benthamite critique ...................................................... 57 Responsible government ...................................................................................................... 61 Parliamentary sovereignty .................................................................................................... 66 Conclusion ............................................................................................................................ 70 Chapter Four: Federation and the American Influence .................................................... 72 Popular sovereignty and the foundations of Australian democracy ..................................... 74 Australian federalism and modern republican thought ........................................................ 80 The American founding .................................................................................................... 81 Australian federalism ........................................................................................................ 86 Human rights ........................................................................................................................ 94 The rights-based liberal tradition ...................................................................................... 95 Human rights in Australia ................................................................................................. 97 vii Conclusion .......................................................................................................................... 100 Chapter Five: The 1975 Constitutional Crisis..................................................................
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