Most of the work on this 4th edition of Sawer’s The Australian Constitution was undertaken beside Yeal-am-bid-gie, now also known as the Molonglo River, on Ngunnawal and Ngambri country, in the offices of the Attorney-General’s Department, Canberra. The Indigenous peoples of this region have lived here since time immemorial, using this river as a primary resource corridor and conducting ceremonies and following their laws beside it. We begin by acknowledging the traditional owners of this area, and of country throughout Australia, and recognise their continuing connection to their land, waters and culture. We pay our respects to their elders past and present.
The first edition of this book was published in 1975, the second in 1988 and the third in 2002. In the preface to the third edition we noted 3 major recent developments in relation to Australia’s Constitution: the expanded protection of implied individual rights and freedoms under the Constitution – in particular, freedom of speech (see chapter 9); the recognition of the native title rights of Australia’s Indigenous peoples to their lands and waters (chapter 10); and consideration of whether the Constitution should be amended so that Australia becomes a republic (chapter 11). These issues remain of ongoing relevance.
In terms of constitutional developments since the last edition, the High Court has tended to consolidate and refine its thinking on those implied individual rights and freedoms rather than materially extend their scope. Notwithstanding this, there continues to be a debate within the Court as to the extent to which basic principles and values should influence constitutional interpretation. This has been particularly true for the principle of representative democracy where the Court has, among other things, affirmed the right to universal adult suffrage in respect of federal elections and struck down laws that attempted to exclude classes of persons from the franchise without a rational basis for that exclusion.
No proposal to amend the Constitution has been put to the people in the past 20 years, and it remains the case that the terms of the Constitution were last amended in 1977. However, there are proposals for constitutional change which are actively discussed and advocated – most notably giving constitutional recognition to the Indigenous peoples of Australia, in particular by an Aboriginal and Torres Strait Islander Voice, as referred to in the Uluru Statement from the Heart (Chapter 10).
One significant development since the last edition of this book has been the increased cooperation between the Commonwealth and the States to address issues of national concern. A variety of constitutional and legislative mechanisms have been used to achieve a broadly uniform approach in areas ranging from anti-terrorism to workplace relations (chapter 5). The official response to the COVID-19 pandemic was another conspicuous exercise in federal relations. That response told us much about the respective constitutional responsibilities of the Commonwealth and the States.
It has also been an interesting period in the operation of Parliament. Between 2010 and 2013, the Commonwealth government did not have a majority in the House of Representatives – the first time there had been a 'hung' Parliament at the federal level for many years. And in 2016 both houses of Parliament were dissolved in the first double dissolution since 1987 (chapter 6).
No understanding of these developments and events is possible without an understanding of the Australian Constitution. The aim of this edition remains to provide an interested person with a readable guide to the basic features of the Constitution and, in doing so, indicate how it underpins and influences Australia’s political system and civic life.
Producing a 'readable' guide to the Constitution presents challenges. Some constitutional concepts and principles are complicated. But the central features of the Constitution – those of great contemporary significance to the lives of Australians – are capable of straightforward exposition, and that is what we have sought to do in this book. We hope that the publication will soon be available in an online form, which will make it more accessible.
We are very grateful to a large number of Australian Government Solicitor (AGS) and Attorney-General’s Department lawyers for their assistance in giving their thoughts and comments on various aspects of the book, in particular: Andrew Buckland, Robyn Briese, Helen Chisholm, Genevieve Ebbeck, Jenny Francis, Leo Hardiman, Bridget Gilmour-Walsh, Kathryn Graham, Adam Kirk, Gavin Loughton, David Lewis, Hilary Manson, Sacha Moran, Damian Page, and Greg Prutej. A special thanks to Emily Spice and Jackson Wherrett, and more recently Alice Nagel, for all their work in researching and developing the text, and progressing its publication. And thanks to Dimitrios Bezos and Eleanor Kirkland for their proofreading.
The views expressed are our own, and not those of colleagues, AGS, the Attorney-General’s Department or the Commonwealth.
We are also extremely grateful to Kirsten McNeill for editing the text and developing the index; Tiffanie Brown and Mandy Orr in AGS’s Client Services for their great work over a long period on the book’s design and bringing it to a print and online form; and AGS more generally for supporting this project.
Thanks also to Professor James Stellios, of the ANU College of Law, one of Australia’s foremost constitutional experts, for reading the full draft of the book and making many helpful suggestions.
Finally, we continue to take pride from being associated with a book that was originally written by Professor Geoffrey Sawer (1910–1996) and which still bears his name. This edition continues to be a tribute to his enduring scholarship.
Guy Aitken
Robert Orr
February 2023
