Trone, John --- "Greg Craven, Conversations with the Constitution: Not Just a Piece of Paper" [2005] UQLawJl 33; (2005) 24(2) University of Queensland Law Journal 563

• Greg Craven, Conversations with the Constitution: Not Just a Piece of Paper Sydney: University of New South Wales Press, 2004. 250pp. ISBN 086840439X.

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Greg Craven, Conversations with the Constitution: Not Just a Piece of Paper Sydney: University of New South Wales Press, 2004. 250pp. ISBN 086840439X.

JOHN TRONE^[*]

Over the years there have been many ‘popular’ introductions to the Commonwealth Constitution.^[1] This book is of one of those ‘popular’ titles. It not intended as an academic tome. It is aimed squarely at a general audience.

This is not a conventional legal book. Justice Kirby’s comments, reproduced on the cover, provide a good summary of Craven’s style: ‘A blunderbuss of a book. Craven is outrageous, shocking, vulgar, over-the-top. Yet from his larrikin prose may emerge a heightened interest in the Constitution which, for most Australians, is a black hole of ignorance and indifference.’ The book does contain numerous provocative remarks. Given its controversial nature, Craven’s book is bound to attract both praise and criticism. Some of the praise has been quite notable. The book was a joint winner in the Non-Fiction category of the 2004 Western Australian Premier's Book Awards.

As an introductory work dealing with a wide variety of issues, this book does not advance an overall argument. Each chapter contains many interesting observations, descriptions and assertions about the theme of the chapter.

Chapter 1 is named for the book’s subtitle (‘Not Just a Piece of Paper’). Craven makes the good point that the relatively undramatic origins of the Australian federal Constitution mean that it does not contain the stirring rhetoric of the United States Constitution, which was born of revolution. As Craven states, ‘our Constitution …. is a product of peaceful evolution, and reads like one’.^[2] He also effectively challenges the commonly held belief that federation was inevitable in the 1890s, emphasising the considerable historical achievement of the framers.^[3]

Having suggested that the Constitution can be read in less than an hour,^[4] Craven defends its readability, arguing that it is more readable than the United States Constitution.^[5] That may be true of the original American Constitution, but the amendments comprising the American Bill of Rights make for more stirring reading than any part of the Australian Constitution.^[6] However, Craven implies that the Constitution would be less readable if it was drafted today: ‘for all the prevalent supposition that the Constitution reads like poorly drafted technical correspondence between 19th-century sanitary engineers, it is notably more readable than the overwhelming majority of modern legislation’.^[7] That is undoubtedly the case. Modern legislation often makes for excruciating reading. As Craven points out, the most prolix part of the Constitution is the most recently amended text (s 15, as amended in 1977).^[8] However, it is not the readability of the Constitution but its relatively dry subject matter that would discourage most readers.

Craven also examines the ‘moral authority’ of the Constitution: ‘its principled case for obedience’.^[9] He observes that the adoption of the Constitution was ‘an exercise in triple democracy’.^[10] First, the enabling Acts were enacted by popularly elected legislatures. Secondly, most of the delegates were popularly elected. Thirdly, the Constitution was adopted by a popular vote.^[11] The Constitution has a particularly strong case for obedience because it is the only Australian law adopted by the people at a vote.^[12] Craven argues that the process of adoption of the Commonwealth Constitution had a high degree of popular participation by the standards of the time.^[13] That may be true, but it misses the point. The fact that in most of the colonies approximately half of the population was unable to participate in the voting on the Constitution^[14] will diminish the ‘moral authority’ of the Constitution for many Australians. No appeal to the standards of the time^[15] is likely to assuage those feelings of exclusion. Here Craven is making a moral not a legal case for obedience. Downplaying that exclusion is misplaced in a moral argument based on the democratic participation of the people.

Chapter 2 is entitled ‘Two Constitutions’. This chapter gives a broad outline of the views of the principal warring parties in the debate about constitutional interpretation. It discusses two broad notions of interpretation, dubbing them ‘old constitutionalism’^[16] and ‘new constitutionalism’.^[17] These competing philosophies ‘influence every constitutional issue’.^[18] The ‘new constitutionalism’ is a progressivist approach to constitutional interpretation. Craven suggests that new constitutionalists have a ‘passionate devotion … towards any constitution but their own’.^[19] He claims that they have a ‘deep disdain’ for parliament.^[20] They are obsessed with issues of human rights^[21] and favour the creation of constitutional guarantees of human rights by an activist judiciary.^[22] They even ‘loathe federalism’.^[23] Craven postulates that the ‘new constitutionalism is the darling of all who desire major social change, and see in the Constitution an instrument for achieving that change’.^[24]

By contrast, the ‘old constitutionalism’ is a traditional approach, the approach of the first High Court.^[25] This philosophy places great faith in the parliamentary process.^[26] Its adherents believe that parliament is best suited to defining and preserving rights and freedoms.^[27] They are suspicious of judicial activism^[28] and are wary of amendment to the Constitution.^[29] To adapt the author’s words, the old constitutionalism may well be the darling of all who oppose major social change, for the values of the framers will usually be most congenial to those who are the most conservative.

However, Craven does not acknowledge that the broad groupings he depicts are caricatures. Like all stereotypes, they are gross oversimplifications. For the benefit of his general readership, he should have stated that these characteristics are not fixed like a natural law, and that not all who participate in constitutional debate will fit comfortably within one or other of these categories. Likewise, Chapter 2 sometimes assumes too much background knowledge for a general reader. For example, Craven often discusses judicial activism without defining it.^[30] This term will be unfamiliar to a general audience, so a definition should have been provided. Oddly, despite his focus on judicial activism, the author does not mention the term ‘judicial restraint’, opting for a brief reference to ‘judicial deference’.^[31]

Chapter 3 is entitled ‘Federalism and the States of Reality’. Craven outlines several classic arguments for federalism: that the division of power acts as a bulwark for liberty, and that federalism allows individual states to act as laboratories for social and economic experimentation.^[32] These arguments have been widely canvassed in the United States. The discussion could have been buttressed by reference to these American views. For example, the protection of freedom argument was famously made in the Federalist Papers.^[33] Similarly, in Australia Sir Harry Gibbs argued that ‘the most effective way to curb political power is to divide it.’^[34] Again, Craven alludes to the American origins of the ‘laboratory’ argument,^[35] but does not elaborate. It is a pity that he did not quote the evocative argument of Justice Brandeis: ‘It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’^[36]

There are many good arguments for federalism in Australia, but the argument that the Australian states are ‘seriously different’ from one another may not be one of them.^[37] Craven rather unconvincingly rests his argument on ‘the host of small differences of character’ between the Australian states.^[38] The major divide in Australian society is between rural and urban, and that divide bears little relation to state boundaries. The sheer size of Australia is a much better argument for federalism.^[39]

The author considers that the federal system has not functioned as intended. He believes that both the judicial and legislative branches have failed to respect the federal division of powers. He argues that the High Court has failed to protect the states against federal encroachment.^[40] The Senate has not been a strong bastion of states’ rights. Given the rigid party discipline in the largest political parties, it is not very surprising that the Senate operates today as a ‘party House’ rather than a ‘State’s House’.^[41] However, sometimes the author’s lament for the state of federalism leads to exaggeration. He asserts that ‘[t]he confronting truth for a constitutional lawyer is that the continued existence of the states may well have ceased to be a matter of constitutional stipulation, and become one of simple political fact’.^[42] This statement is hyperbolical, since the existence of the States is clearly a matter of constitutional stipulation, and no one argues otherwise.

Craven makes a good point about the lack of financial independence of the States.^[43] Australia suffers from a dire vertical fiscal imbalance.^[44] The financial power of the Commonwealth has exacerbated duplication between the federal and state levels. As he points out, the Commonwealth exerts extensive influence over health and education because of its financial power, not its legislative jurisdiction.^[45] This is a relatively neglected topic in legal writing about Australian federalism. That is because the more ‘exciting’ questions of legislative jurisdiction generally occupy the attention of academic writers.

Surprisingly, Chapter 3 contains little discussion about the specific legislative powers of the Commonwealth,^[46] or even the residual powers of the States. The resolution of inconsistencies between Commonwealth and State laws is not explained. This issue is implicit in much of the discussion, but it could have been clearly stated.

The next two chapters provide a good introduction to the Australian political system. These chapters deal with the legislature and the executive respectively.

Chapter 4 is entitled ‘Parliament: The Counsel of Multitudes’. Much of this chapter is an account of the operation of parliament. In many cases the discussion does not focus on legal matters, but the daily workings of parliament, such as question time, the committee process, and the influence of the backbench.^[47] In this respect, Craven argues forcefully that the public focus upon the antics of politicians on the floor of the House obscures the generally sound functioning of parliament as an instrument of democracy.^[48] Indeed, he argues that parliament has the strongest democratic credentials of any Australian governmental institution, given that it is elected, while the courts are not.^[49]

At the same time, the author makes a number of useful suggestions for improvement of the parliamentary process. For example, better funding for the opposition is a good idea.^[50] As Craven points out, ‘healthy oppositions produce healthy parliaments’.^[51] Craven also favours strengthening the impartiality of the presiding officers of parliament. He argues that they should be removable only by a two thirds vote of the House.^[52] The author suggests various salutary improvements to Question Time.^[53] He also argues that a higher minimum number of sitting days for each year should be set.^[54]

Moreover, Craven suggests that a parliamentary committee could be entrusted with the role of scrutinising proposed Bills for their consistency with human rights.^[55] This is a worthy suggestion. However, Craven does not discuss the possibility of such scrutiny at the prior stage of legislative drafting. For example, mention could have been made of the Queensland Legislative Standards Act 1992, which seeks to ensure that the drafting of legislation has regard to ‘fundamental legislative principles’ such as human rights.^[56]

Craven criticises the effect of party discipline upon the legislative process.^[57] This party regimentation is reflected in the rarity of parliamentarians actually voting against the party line.^[58] He observes that executive dominance of parliament is hardly a new phenomenon, but stern party discipline has exacerbated this tendency.^[59]

In Craven’s explanation of the concept of parliamentary sovereignty,^[60] he only tangentially mentions that the Australian Parliaments are not sovereign, which is a more important point in an Australian context.

Chapter 5 is entitled ‘Hissing the Villain: The Executive’. Craven points out that Australian society has an ambivalent attitude towards the executive: society fears that the executive will abuse its powers, but expects that the executive will be a strong ruler.^[61] Obviously, there is considerable tension between these attitudes.

The author notes the relatively sketchy nature of the constitutional provisions regarding the executive, which do not actually mention the words ‘cabinet’ or ‘prime minister’.^[62] He observes that the ‘state constitutions … are creatures of innuendo on the issue of cabinet government’.^[63] He should perhaps have noted that some of the state constitutions do expressly mention the Cabinet or Premier.^[64] However, Craven points out the difficulty of reducing constitutional conventions to writing, because it is difficult to reach agreement about the boundaries of those conventions.^[65] Furthermore, codification will prevent the evolution of those conventions over time.^[66]

Much of the public might have been interested in a brief non-partisan account of the dismissal of the Whitlam government. This dramatic event is barely mentioned in the book.^[67] This is the only constitutional controversy remembered by most Australians, so a concise explanation of the arguments and circumstances would have been worthwhile.

The previous chapter offered several useful suggestions for reform of the parliamentary process. Surprisingly, Chapter 5 does not suggest possible reforms to the operation of the executive. For example, there is no mention of any need to limit government advertising, though the author is clearly aware of its misuse.^[68] However, Craven does make the very good point that the demise of public service independence increases the likelihood that ministers will be able to implement harebrained policies without receiving fearless advice from public servants.^[69]

Chapter 6 is entitled ‘Court in the Act’. This title is rather disrespectful, since it has overtones of the judiciary being apprehended in flagrante delicto. However, the various insults directed towards the judiciary throughout this book are relatively mild compared to those devised by politicians.^[70] The chapter certainly supports a restrained role for the judiciary. The author raises familiar arguments against judicial activism: democratic legitimacy and judicial expertise.^[71] As for democratic legitimacy, Craven points out that Australia has ‘a constitutional system where a democratic chain of title is indispensable to the exercise of power’.^[72] He argues that the democratic credentials of an activist judge are very weak. The judiciary ‘cannot lay claim to a democratic process acceptable even by the standards of 1900 or, for that matter, 1743’.^[73] Moreover, so far as expertise is concerned, Craven correctly observes that the possession of expertise in the law does not necessarily mean the possession of any particular expertise in resolving social and economic problems.^[74] He also points out that the judiciary’s record of protecting the vulnerable is not unblemished.^[75]

The author coins a new term for judicial activism. He refers to Australian judicial activism as ‘judicial athleticism’, suggesting that ‘activism’ is an understatement.^[76] This new phrase suggests that the activism of some Australian judges is of Olympian proportions. However, as noted, the argument could have displayed more awareness that the perception of judicial activism often depends upon the outlook of the beholder. With some justification, American ‘liberal’ and ‘conservative’ judges regularly accuse each other of judicial activism.^[77]

Craven is scathing about the implication of constitutional rights and freedoms by the High Court. He points out that these judicially created limitations have the same force as if they had been written by the framers of the Constitution: ‘These doctrines will be contained in judicially-created ‘rights’ or ‘limitations’, logically as spurious as a Confederate bond, but in the absence of a full-scale referendum to eliminate them, as effective as if they sprang from the pen of Barton himself’.^[78] Craven attacks the logical process by which these doctrines have been inferred, describing it as ‘a deductive process that would confidently have inferred the existence of dragons from a cursory examination of garden skinks’^[79] and ‘as logically compelling as the case for the Loch Ness monster’.^[80] Admittedly, the textual support for the implied freedom of political communication is very thin.^[81]

Craven briefly examines the most commonly employed methods of constitutional interpretation: originalism (intentionalism), literalism and progressivism.^[82] Craven favours an originalist method of interpretation. Ironically, it was the first High Court that denied the use of the very tools that would have been most necessary for an originalist approach. The first Court eschewed reliance upon the Constitutional Convention debates for the purpose of constitutional interpretation.^[83] That view survived for eight decades. It was the ‘Mason Court’ that finally permitted broader reliance upon the Convention debates.^[84] This fact is also rather ironic in view of the ignominy heaped upon the ‘Mason Court’ by the author.^[85]

Chapter 6 is diminished somewhat by the fact that Craven often accuses his opponents of bad faith. He charges that ‘literalism is constitutional partisanship in objectivity’s clothing’.^[86] Except when discussing his opponents, the author does not acknowledge that the method of constitutional interpretation you adopt tends to predetermine the types of conclusions you will reach. Partisan considerations may thus influence the choice of a preferred method of interpretation. It is rather disingenuous for the author to suggest that his opponents are partisan, but he is not, when his political views are so openly and regularly displayed.

Curiously, Chapter 6 omits any substantial discussion of the separation of powers. This doctrine is briefly alluded to in a few places throughout the book.^[87] Some readers may remember the occasional puzzlement of politicians regarding this concept, so a concise explanation would have been warranted. Given that in Australia this doctrine has most significance in relation to the separation between the judicial and the political branches of government, this chapter would have been an appropriate place for a brief introduction to the concept.

In one sense the discussion of the judiciary in this chapter is somewhat lopsided. Most of the chapter is devoted to criticism of the judiciary, but very little attention is given to explaining why the judiciary is an important pillar of the constitutional system. For example, judicial independence is discussed only in passing.^[88] The author should have at least explained why this principle is of fundamental importance. Perhaps a broadly supportive rather than a combative attitude towards the judiciary might have been more appropriate in a general book.

Chapter 7 is entitled ‘Rights, Wrongs and the Constitution’. This chapter contains a frank admission of the violations of human rights by Australian governments over the centuries.^[89] For example, he states that the ‘initial destruction and diaspora of Aboriginal people was a matter of guns, lies, disease and bastardry’.^[90] However, the violations criticised are largely historical, though they may have continuing effects. While excesses during World War II and the Cold War are forthrightly condemned, the discussion does not even allude to the human rights implications of the war on terrorism.

The author sets up a straw man about the violation of rights in Australia: ‘Australia is not the Hannibal Lecter of human rights’.^[91] No one seriously advances an argument anything like that. Most of the argument in favour of the constitutional protection of human rights is not premised on the assumption that Australia is a particularly oppressive nation. Those arguments rest mainly on the idea that human rights would be better safeguarded by express constitutional provisions than by leaving human rights at the mercy of legislative majorities.

Craven’s arguments against a bill of rights are familiar from the numerous books and articles that have traversed this issue.^[92] He argues that a bill of rights would simply transfer decision making about human rights from an elected parliament to an unelected judiciary.^[93] He also advances what might be called the ‘empty vessel’ argument, that bills of rights offer the judiciary vast discretion about the content and extent of human rights.^[94] He also reiterates arguments that he advanced in earlier chapters. For example, he again argues that parliament is best suited to defining and enforcing rights and that the competence of judges as arbiters of social policy is questionable.^[95]

The author argues that if rights were to come under serious threat, constitutional guarantees are unlikely to offer much shelter against a rampaging executive or legislature.^[96] The most famous source of that argument could have been mentioned. Judge Learned Hand somewhat pessimistically opined that: ‘I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.’^[97]

The focus of this chapter upon constitutional bills of rights may be somewhat out of place in an Australian political context. There is very little prospect that such a constitutional amendment would be adopted at a referendum. Apart from the 1988 referendum proposals, most of the Australian political debate about bills of rights has focussed on statutory bills of rights.^[98] Craven does not make a case against a statutory bill of rights, apart from ironically ridiculing their weakness compared to a constitutional bill of rights.^[99]

Indeed, there are a few omissions in the discussion. This chapter is essentially a broadside against bills of rights, and largely ignores the Australian Constitution. In a book about the Constitution we already have, this chapter should have given more attention to the protections of rights under the existing Constitution. In particular, there should have been a more substantive discussion of the implied freedom of political communication. Similarly, the limited protection of the acquisitions power would have merited a paragraph or two, given that it was almost a supporting actor in a popular Australian film.^[100] The chapter offers no opinion about, or description of, the High Court’s current interpretation of freedom of interstate trade.^[101]

There are several other omissions. The discussion of discrimination against Aborigines mentions the exclusion of Aborigines from the scope of the races power prior to the 1967 referendum.^[102] However, the author does not refer to sections 25 (‘races disqualified from voting’) and 127 (‘Aborigines not to be counted in reckoning population’, repealed in 1967). Both of those sections were highly relevant to this issue. Furthermore, the discussion of statutory Bills of Rights does not mention the Australian Capital Territory Bill of Rights, the Human Rights Act 2004.^[103]

The author cites Cheatle v R^[104] as authority for the proposition that the ‘right to trial by jury under s 80 applies only where parliament chooses to make an offence indictable, a matter of form in its discretion’.^[105] In fact, that decision held that under s 80 jury verdicts must be unanimous. The Court did not decide whether the traditional rather constricted view of s 80 should still be followed.

Chapter 8 is entitled ‘Limping Towards a Republic’. This is the most interesting chapter in the book. It is the most balanced and least ideological. Craven points out that both monarchists and republicans exaggerate the power of the monarchy, though for different reasons.^[106] Republicans invoke the dismissal, monarchists depict the monarch as a warrior against despotism. The reality is much less dramatic—the monarch has little practical significance in the everyday operation of Australian government.^[107] Indeed, both sides of the debate are primarily concerned with symbolism. People tend to take a position on this issue based upon an emotional reaction.^[108] Craven paints a most unflattering portrait of monarchists.^[109] He characterises their arguments as ‘based on nostalgia or fear’.^[110] On the other hand, he points out that some of the arguments of republicans are fairly weak.^[111] For example, the argument that a republic would greatly improve Australia’s image in neighbouring nations is unconvincing. However, Craven persuasively argues that a direct election would be less likely to succeed at a referendum than would another indirect election proposal.^[112] He gives a good introduction to the debate over direct election versus indirect election.^[113] He concisely identifies the reasons for the failure of the 1999 referendum.^[114]

Chapter 9 is entitled ‘Verdict on a Constitution’. Craven makes an important point about the rarity of the Australian Constitution’s longevity. Very few Constitutions have remained in operation for so long. Craven correctly observes that if we ‘ask how many other Constitutions have presided over a hundred years of stable, peaceful, boring democracy, the results are striking’.^[115] It is not widely appreciated that the Australian Constitution is indeed one of the oldest in the world, adopted in 1900. Few Constitutions have lasted longer. The author mentions the United States Constitution, the oldest national Constitution in the world, stretching back to 1787.^[116] He also mentioned the Canadian Constitution Act 1867 earlier in the book.^[117] He might also have referred to several other current Constitutions that predate ours: those of Norway (1814), Argentina (1853), Luxembourg (1868) and Tonga (1875). The oldest currently effective Constitution appears to be the Massachusetts State Constitution (1780). These examples form a very small group indeed. It can therefore be concluded that if the Commonwealth Constitution has survived for an entire century, it must have worked well. Of course, others will respond that this longevity only shows that other nations have moved on from their ‘horse and buggy’ constitutions, or that updating of the content of the Constitution is long overdue.

This chapter also offers a perceptive analysis of the reasons for the low success rate of referendums.^[118] The author also expresses scepticism about citizen-initiated referendums.^[119]

Having outlined the structure of the book, at this point I will raise a few relatively minor complaints and offer some suggestions for improvement. The overly colourful language of this book often distracts attention from the many substantive points made by the author. The constant metaphors and similes can be rather overwhelming at times. Some of the jocular comparisons are ridiculous. The most striking is the claim that the Federal Constitution is ‘the sort of Constitution you could imagine having a beer with’.^[120] It is difficult to imagine having a beer with any legal document. Rather surprisingly, some of the language used is somewhat indecent.^[121]

The author displays an unfortunate tendency to demonise those with whom he disagrees. The author bitterly denounces the High Court, which is described as an ‘enthusiastic … judicial cheer squad for the commonwealth’.^[122] The author jokes that ‘the judicial panzers will one day roll again’.^[123] It is rather unfair to associate the judiciary with the weapons of fascism. Fortunately, these denunciations are rarely levelled at specific individuals. However, the manner in which the author questions the motives of Sir Isaac Isaacs is a little unbecoming.^[124]

An introductory book about the Constitution should not be politically partisan since the intended audience may not be able to recognise that partisanship. This book exhibits a strong political bias. The contemporary political figures ridiculed by the author tend to be from one side of politics.^[125] In referring to ‘leech-infested Tasmanian rivers’,^[126] the author echoes former Tasmanian Premier Robin Gray, who described the Franklin River as ‘a brown ditch, leech-ridden and unattractive to the majority of people’.^[127] Perhaps the source of that remark could have been revealed in the book.

There is very little discussion of actual constitutional cases in the text of the book.^[128] Most of that discussion is relegated to the footnotes. It is commendable that the author avoided a dry recitation of High Court cases, but he could have offered a few well chosen examples of the broad trends he has identified. Moreover, since the author clearly wishes that Australians would read their Constitution,^[129] the text of the Constitution should have been reproduced in the book.

The author occasionally mentions fundamental legal concepts but neglects to define them. For example, the doctrine of precedent is mentioned but not defined.^[130] Sometimes the explanations are a little opaque. The explanation of the common law is unlikely to be clear to the general reader.^[131] The rule of law is very briefly defined.^[132]

The author has a suspicious attitude towards comparative law, but he often embarks upon his own excursions into comparative constitutional law. Throughout the book he frequently criticises the constitutional arrangements of specific nations. If you are going to criticise foreign experience, you should demonstrate sufficient familiarity with that experience. Unfortunately, the discussion of comparative law is fairly superficial and contains some errors.

When discussing the United States Supreme Court, the author appears to believe that Justice Frankfurter was a proponent of judicial activism.^[133] In fact, Justice Frankfurter was one of the leading advocates of judicial self-restraint.^[134] Perhaps Justice Douglas would have been a more appropriate example.^[135] Furthermore, the school desegregation decision^[136] is not commonly regarded today as involving a ‘liquid reading of the Bill of Rights and a copious judicial chutzpah’.^[137] The busing decision might have been a better example for Craven’s argument.^[138] Of the rights he mentions, the right to bear arms has not been enforced with ‘indecent gusto’ by the Supreme Court.^[139]

The author instances the Canadian Charter of Rights and Freedoms (1982) and the South African final Constitution (1996) as examples of modern Constitutions that were adopted without a popular vote.^[140] While this observation is correct, the author does not mention that direct popular participation has become a very common element of constitution-making in modern times. In recent decades the following Constitutions are among the many that have been approved at referendums: Albania (1998), Estonia (1992), France (1958), Lithuania (1992), Philippines (1987), Poland (1997), Romania (1991), Russia (1993), South Korea (1987), and Switzerland (1999). The Australian Constitution’s significance in the history of popular participation in the adoption of constitutions is that it was a pioneer. However, a greater depth of comparative research would have shown that approval by referendum is no longer a particularly rare phenomenon among national Constitutions.

The author suggests that the use of the override power in the Canadian Charter is ‘political suicide’ and that the ‘power is more theoretical than real’.^[141] It is true that the power is not commonly invoked. However, its use is not utterly taboo in Canada. Quebec attempted to immunise all provincial statutes from Charter scrutiny.^[142] Moreover, the author’s statement that federalism is ‘being mooted as a solution to the political problems of … Belgium’ is misleading.^[143] Belgium is already a federation. Article 1 of the Belgian Constitution of 1994 provides that ‘Belgium is a Federal State constituted of Communities and Regions’. The author states that the Swiss Constitution is ‘over one hundred and fifty years old’.^[144] This is also misleading. The 1848 Swiss Constitution was replaced by the 1874 Constitution, which was itself replaced by a new federal Constitution in 1999. There are many similarities between these three Swiss charters, but they are clearly distinct Constitutions.

The New Zealand Human Rights Act 1993 is cited as an example of a Bill of Rights.^[145] However, reference to the New Zealand Bill of Rights Act 1990 would have been more apposite. The former statute is an anti-discrimination law, while the latter Act is a statutory Bill of Rights. The correct Act is cited elsewhere in the book.^[146] There are also a number of misstatements about international law. For example, the European Convention on Human Rights is an instrument of the Council of Europe, not the European Union.^[147]

However, these minor quibbles do not detract from my positive assessment of this book. The author should be applauded for writing a book about the Constitution which is genuinely suitable for a broad audience. The book meets its aim of being written ‘in an engaging way, while still saying something worthwhile’.^[148] It is considerably more than ‘vaguely readable’.^[149] On this score, the book sets a high standard. The numerous jokes will lighten the book for its target audience. Many people view the law as tedious in the extreme, so this levity may break the monotony for the nonlegal reader. For instance, Craven suggests that critics of the Constitution maintain that the framers ‘were elected at meetings composed of possums’!^[150] The selection of topics provides a good overview of the constitutional issues which are most likely to attract popular interest. All of the major topics are represented by separate chapters: constitutional interpretation, federalism, each of the three branches of government, human rights, and the republic debate.

The presentation of this book is also very pleasing. The cover is very attractive. It depicts a public record copy of the Australian Constitution, which is ‘permanently in the keeping of the Commonwealth’.^[151] The typeface is clear and readable. There are very few typographical errors.^[152] The author has added a useful bibliography.^[153] The index is quite helpful in navigating the book. Presumably as a tip of the hat to the book’s numerous similes and metaphors, the index does contain one very unusual entry (walruses).^[154] The footnotes contain many useful cross references to other parts of the book.

Overall, I would say that this book does an admirable job in presenting the Constitution in a relatively straightforward manner for its target audience.

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^[*] Dr John Trone, Postdoctoral Research Fellow, TC Beirne School of Law, The University of Queensland.

^[1] For example C Howard, The Constitution, Power and Politics (1980); C Howard, Australia’s Constitution (1985); M Coper, Encounters with the Australian Constitution (1987); P H Lane, An Introduction to the Australian Constitutions (6th ed, 1994); J Waugh, The Rules: An Introduction to the Australian Constitutions (1996); T O’Connor, Understanding Australia’s Constitution (1998); G Aitken and R Orr, Sawers’ The Australian Constitution (3rd ed, 2002); C Saunders, It’s Your Constitution: Governing Australia Today (2nd ed, 2003); H Irving, Five Things to Know about the Australian Constitution (2004).

^[2] G Craven, Conversations with the Constitution: Not Just a Piece of Paper (2004), 12.

^[3] Ibid 16-18.

^[4] Ibid 33.

^[5] Ibid 34.

^[6] With the exception of section 116 of the Commonwealth Constitution, which was based upon part of the First Amendment to the United States Constitution.

^[7] Craven, above n 2, 33.

^[8] Ibid 33.

^[9] Ibid 19.

^[10] Ibid 20.

^[11] Ibid 20.

^[12] Ibid 21.

^[13] Ibid 21-22.

^[14] D Cass and K Rubenstein, ‘Representation/s of Women in the Australian Constitutional System’ [1995] AdelLawRw 2; (1995) 17 Adelaide Law Review 3 at 28-29; H Irving (ed), The Centenary Companion to Australian Federation (1999), 374-375.

^[15] Craven, above n 2, 23.

^[16] Ibid 38 ff.

^[17] Ibid 46 ff.

^[18] Ibid 38.

^[19] Ibid 46-47.

^[20] Ibid 47.

^[21] Ibid 49.

^[22] Ibid 51.

^[23] Ibid.

^[24] Ibid 46.

^[25] Ibid 39.

^[26] Ibid.

^[27] Ibid 40.

^[28] Ibid 41-42.

^[29] Ibid 43.

^[30] Ibid 41-42, 58, 145.

^[31] Ibid 142.

^[32] Ibid 62-63, 73-74.

^[33] Federalist Papers, No 51 (Madison), No 84 (Hamilton).

^[34] Sir H Gibbs, ‘Courage in Constitutional Interpretation and its Consequences—One Example’ [1991] UNSWLawJl 15; (1991) 14 University of New South Wales Law Journal 325, 326.

^[35] Craven, above n 2, 74.

^[36] New State Ice Co v Liebmann, 285 US 262, 311 (1932). For a criticism of this famous statement, see G A Tarr, ‘Laboratories of Democracy? Brandeis, Federalism, and Scientific Management’ (2001) 31, 1 Publius 37.

^[37] Craven, above n 2, 63, 70-71.

^[38] Ibid 70.

^[39] Ibid 69.

^[40] Ibid 78-79.

^[41] Ibid 77-78.

^[42] Ibid 84.

^[43] Ibid 76-77, 80.

^[44] Ibid 81.

^[45] Ibid 82.

^[46] Ibid 78-79, 222.

^[47] Ibid 93-94, 100-102.

^[48] Ibid 93, 95.

^[49] Ibid 105.

^[50] Ibid 108.

^[51] Ibid 109.

^[52] Ibid.

^[53] Ibid 110.

^[54] Ibid 111.

^[55] Ibid 109-110.

^[56] Legislative Standards Act 1992 (Qld) ss 4, 7(g)-(h), 9(2)(c), 23(1)(f), 24(1)(i).

^[57] Craven, above n 2, 90.

^[58] Ibid 98. Compare D McKeown, R Lundie and G Baker, Crossing the Floor in the Federal Parliament 1950 – August 2004 (Commonwealth Parliamentary Library Research Note no 11, 2005-06).

^[59] Craven, above n 2, 96-97.

^[60] Ibid 88.

^[61] Ibid 117-118.

^[62] Ibid 120.

^[63] Ibid 120 n 15.

^[64] Eg s 35E, Constitution Act 1902 (NSW); s 42, Constitution of Queensland 2001.

^[65] Craven, above n 2, 123.

^[66] Ibid 124.

^[67] Ibid 122, 192.

^[68] Ibid 131.

^[69] Ibid 139-140.

^[70] A catalogue appears in M Kirby, Through the World’s Eye (2000) 158-159.

^[71] Craven, above n 2, 142-143, 150, 153.

^[72] Ibid 142.

^[73] Ibid 151.

^[74] Ibid 143. Cf United States v Lopez, [1995] USSC 42; 514 US 549, 611 (1995) (‘nothing about the judiciary as an institution made it a superior source of policy on the subject Congress dealt with’ (‘congressional policy choices’ under the interstate commerce power)); Cruzan v Director, Missouri Department of Health, [1990] USSC 122; 497 US 261, 293 (1990) (‘the point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory’).

^[75] Craven, above n 2, 154-155.

^[76] Ibid 145-146, 148.

^[77] For example, Kimel v Florida Board of Regents, [2000] USSC 1; 528 US 62, 98-99 (2000); Harper v Virginia Department of Taxation, [1993] USSC 84; 509 US 86, 105, 107, 109 (1993); Payne v Tennessee, [1991] USSC 131; 501 US 808, 844-845 (1991); Florida v Wells, [1990] USSC 53; 495 US 1, 13 (1990); Doe v Bolton, [1973] USSC 40; 410 US 179, 222 (1973); Furman v Georgia, [1972] USSC 170; 408 US 238, 470 (1972); Griswold v Connecticut, [1965] USSC 128; 381 US 479, 520, 522 (1965); Lochner v New York, [1905] USSC 100; 198 US 45, 75 (1908).

^[78] Craven, above n 2, 146.

^[79] Ibid 149.

^[80] Ibid 51.

^[81] Ibid 149 n 24.

^[82] Ibid 157-163.

^[83] Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208, 213.

^[84] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.

^[85] Craven, above n 2, 46, 150.

^[86] Ibid 185; see also 161.

^[87] Ibid 45, 136, 156.

^[88] Ibid 134-136.

^[89] Ibid 177-179.

^[90] Ibid 179.

^[91] Ibid 175.

^[92] Eg M R Wilcox, An Australian Charter of Rights? (1993); P Alston (ed), Towards an Australian Bill of Rights (1994); G A Moens, ‘The Wrongs of a Constitutionally Entrenched Bill of Rights’ in M A Stephenson and C Turner (eds), Australia: Republic or Monarchy? Legal and Constitutional Issues (1994), 233; J Allan and R Cullen, ‘A Bill of Rights Odyssey for Australia: The Sirens are Calling’ [1997] UQLawJl 1; (1997) 19 University of Queensland Law Journal 171; F Brennan, Legislating Liberty? A Bill of Rights for Australia (1998); G Williams, The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004).

^[93] Craven, above n 2, 185.

^[94] Ibid.

^[95] Ibid 186-187.

^[96] Ibid 188.

^[97] I Dilliard (ed), The Spirit of Liberty: Papers and Addresses of Learned Hand (1952), 189-190.

^[98] For example, Human Rights Act 2004 (ACT); Human Rights Bill 1973 (Cth); Australian Human Rights Bill 1985 (Cth); Legal Constitutional and Administrative Review Committee, Queensland Legislative Assembly, The Preservation and Enhancement of Individuals’ Rights and Freedoms: Should Queensland Adopt a Bill of Rights? (1998); Standing Committee on Law and Justice, New South Wales Legislative Council, A NSW Bill of Rights (2001).

^[99] Craven, above n 2, 181-182, 188

^[100] See T Blackshield, M Coper and G Williams (eds), The Oxford Companion to the High Court of Australia (2001) 82-83, (The Castle, 1997).

^[101] See Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.

^[102] Craven, above n 2, 179 n 40.

^[103] Ibid 181-182. This Act was notified on 10 March 2004. The book was published in September 2004. It is probable that the book was in press at the time the Bill of Rights was enacted.

^[104] [1993] HCA 44; (1993) 177 CLR 541.

^[105] Craven, above n 2, 167 n 10.

^[106] Ibid 189.

^[107] Ibid 189, 192.

^[108] Ibid 198.

^[109] Ibid 55.

^[110] Ibid 196.

^[111] Ibid 198-199.

^[112] Ibid 212-213.

^[113] Ibid 202-206.

^[114] Ibid 211.

^[115] Ibid 218.

^[116] Ibid 217 n 8.

^[117] Ibid 26.

^[118] Ibid 228-233.

^[119] Ibid 225-226.

^[120] Ibid 8.

^[121] Ibid 21, 33, 41, 82, 92, 119, 133, 163, 170, 175, 177.

^[122] Ibid 79.

^[123] Ibid 58.

^[124] Ibid 157.

^[125] See, eg ibid 52 n 37, 57 n 51, 63 n 6, 89, 171, 222.

^[126] Ibid 227.

^[127] The Age, 18 September 1982.

^[128] See, eg, Craven, above n 2, 78-79.

^[129] Ibid 33-34.

^[130] Ibid 145.

^[131] Ibid 144-145.

^[132] Ibid 143.

^[133] Ibid 173.

^[134] See A Cox, The Court and the Constitution (1987), 154, 178; B Schwartz, A History of the Supreme Court (1993), 255, 275-276. For a notable example, see West Virginia State Board of Education v Barnette, [1943] USSC 130; 319 US 624, 648, 666-667 (1943).

^[135] See E P Hoyt, William O Douglas: A Biography (1979); J F Simon, Independent Journey: The Life of William O Douglas (1980); B A Murphy, Wild Bill: The Legend and Life of William O Douglas (2003).

^[136] Brown v Board of Education, [1954] USSC 42; 347 US 483 (1954).

^[137] Craven above n 2, 173.

^[138] Swann v Charlotte-Mecklenburg Board of Education, [1971] USSC 121; 402 US 1 (1972).

^[139] Craven, above n 2, 181. See United States v Miller [1939] USSC 95; 307 US 174, 178 (1939).

^[140] Craven, above n 2, 26-27.

^[141] Ibid 181.

^[142] See Ford v Quebec (Attorney-General) [1988] 2 SCR 712.

^[143] Craven, above n 2, 69.

^[144] Ibid 217 n 8.

^[145] Ibid 172 n 24.

^[146] Ibid 182 n 53-54.

^[147] Ibid 47.

^[148] Ibid 8.

^[149] Ibid.

^[150] Ibid 151.

^[151] Preamble, Australian Constitution (Public Record Copy) Act 1990 (UK). Photographs of this copy of the Constitution may be viewed at the ‘Documenting a Democracy’ website: http://www.foundingdocs.gov.au.

^[152] In a footnote the date of a case is given twice (p 173 n 27). One sentence refers to Australians as coming ‘from on [sic] original homogeneous stock’ (p 63). The reference to the Western Australian Constitution Acts Amendment Act 1899 should include the date (p 91 n 10). The United Kingdom Human Rights Act was enacted in 1998, not 1993 (pp 181 n 51, 182 n 52).

^[153] Craven, above n 2, 239 ff.

^[154] Ibid 250.