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Book Review: Alex Deagon on “Australian Constitutional Values” (Rosalind Dixon, ed.)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alex Deagon reviews Australian Constitutional Values (Rosalind Dixon, ed., Hart Publishing 2018).

Dr. Alex Deagon, Senior Lecturer, Faculty of Law, Queensland University of Technology

Australian Constitutional Values is a bold, illuminating edited collection that articulates and investigates a ‘functionalist’ interpretation of the Australian Constitution.[1] According to the collection’s editor, Rosalind Dixon, such an interpretation ‘emphasise[s] the role of individual judges’ moral and political outlooks as an influence on constitutional interpretation’, and calls for more open engagement with questions of political morality, including practical and policy impact.[2] Yet this ‘values-oriented approach’ also pays due attention to ‘constitutional form’, requiring a ‘serious engagement with the text, history and structure of the Constitution’.[3] Nevertheless, such an approach raises important questions in relation to the substantive content of such constitutional values, the flexibility of values as determined within textual, originalist or progressive frameworks of interpretation, and interaction with other identified values – particularly if there is conflict between values.[4] In this context the authors in the collection consider the viability of recourse to ‘values’ as part of an interpretive framework, and explore the implications for Australian Constitutionalism. Since the book is an edited collection there are many disparate views and contributions. It is simply not possible to do justice to each in a short review like this. So the review will broadly critique the idea of ‘values’ raised in the contributions, with an accompanying apology that this will no doubt neglect some contributions in form, substance or both.

A problem with the framing of this work exists at the outset. As Iain Benson has noted, the language of values is ambiguous and introduces subjectivity in moral claims (as opposed to ‘virtues’, which have a rationality grounded in theological and philosophical tradition). The elucidation of ‘constitutional values’ may obscure rather than clarify, and the nature of values as ungrounded means they must be imposed rather than discovered.[5] Dixon, and many other authors, are conscious of this danger.[6] ‘To the maximum extent possible’, Dixon says, ‘members of the Court should attempt to rely on values in some way sourced in the Constitution – and not simply their own values, or those of the community’ when engaging in interpretation. Dixon later acknowledges that judges should ‘attempt’ to ‘ensure that their own subjective judgments about values… play a role only where relevant objective “guideposts” run out’.[7] Presumably, this language refers to values being ‘securely based’ in the text, history and structure of the Constitution.[8]

Many authors explicitly or implicitly argue that particular values can be derived from the text, structure and history of the Constitution and are securely based in that sense (though they disagree about the nature and content of those values). However, the majority ultimately conclude that constitutional form does not give sufficient specificity or particularity to identified values, so substantive values must be externally imposed through recourse to either the intentions of the framers, or community/other individual attitudes, or both – which is, ironically, just the imposition of individual or community values which Dixon cautions against.[9] For example, Crowe proposes that novel interpretations of constitutional provisions are a ‘result of new functions and values imposed upon those sections by surrounding constitutional narratives’, and those narratives are just the way members of the community think and talk about a constitution.[10]

Tham observes that ‘formal provisions must be viewed in societal context and this context will have a profound impact on how we judge the provisions’.[11] The principle (value) of political equality has a meaning ‘dependent on how the constituency and metric of political equality as well as the political community are understood’.[12] In the context of free trade, Puig identifies that functionalist analysis invites the ‘problem of circularity’: a judge identifies a value as deriving from the text of a provision, then uses the value to inform interpretation of that provision.[13] Stellios argues that the interpretation of s 80 in the context of liberty as a constitutional value ‘may take on a different complexion depending on the assumptions that are made about the function it performs and the way in which it forms part of the constitutional system defining the relationship between the individual and the state’.[14] The fact that the nature of the value is itself contested means interpretation will be determined by the external imposition of ‘presuppositions’ which are not found in the Constitution.[15] Simpson concludes that ‘a functionalist approach may enable a superficial commitment to be maintained as a cover for what is, in substance, a more controversial interpretive approach’. There is consequently ‘potential for divergent conclusions about the values’ to be properly attributed to constitutional provisions, and ‘to hold out the promise of concrete outcomes would be disingenuous’.[16]

Thus, despite the appearance of securely based constitutional values, the values are contested and ambiguous, producing inconsistency and conflict that require subjective judgements. Effective elucidation of those values for a functional purpose requires extra-constitutional influence and impositions of meaning.[17] This leads Ananian-Welsh and McGarrity to express ‘concern about the constitutional values project as a whole’.[18] A functionalist approach may lead to ‘cherry-picking of constitutional values’, ‘subjectivity and the moving of personal biases for one value over another’, such that the risks may ‘outweigh’ the rewards.[19]

So-called ‘Australian Constitutional Values’ may well be ‘Australian Values’, and may be consistent with the Australian Constitution, but it is questionable whether such values are ‘constitutional’ in the sense of securely based in its text, structure and history. If the functionalist approach is to be accepted, its proponents must acknowledge this. The pursuit of functionalism entails open and transparent explanation of judicial reasoning, the value/s relied upon, how these values are identified, and why these values are important for interpretation in this context.[20] Functionalists will need to persuade the unconvinced that the problems described above can be overcome, and that this will result in contemporary interpretations well-grounded in constitutional form.

Suggested Citation: Alex Deagon, Review of  “Australian Constitutional Values” (Rosalind Dixon, ed.), Int’l J. Const. L. Blog, Aug. 1, 2019, at:“australian-constitutional-values”

[1] Rosalind Dixon (ed.), Australian Constitutional Values (Hart Publishing, 2018). All references are to this book unless otherwise indicated.

[2] Dixon, Functionalism and Australian Constitutional Values, 9.

[3] Ibid.

[4] Ibid 10-11.

[5] Iain Benson, ‘“Values Language”: A Cuckoo’s Egg or Useful Moral Framework’ in David Daintree (ed.), Creative Subversion: The Liberal Arts and Human Educational Fulfilment (Connor Court, 2018).

[6] See e.g. Dixon (n 2) 9, 14-23.

[7] Ibid 9, 24-25.

[8] C.f. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 134-135, where Mason CJ (for the majority) found an implied freedom of political communication in the Australian Constitution and argued such an implication was ‘securely based’ in the instrument because it was necessary to preserve its integral structure.

[9] See e.g. Aroney, The Justification of Judicial Review, 29, 36-37, 40; Goldsworthy, Functions, Purposes and Values in Constitutional Interpretation, 55-58; Tham, Political Equality as a Constitutional Principle, 152; Stellios, Liberty as a Constitutional Value, 193-194; Appleby and Lim, Democratic Experimentalism, 241-242.

[10] Crowe, Functions, Context and Constitutional Values, 72 (my emphasis), c.f. 68-69.

[11] Tham (n 9), 169.

[12] Ibid 171.

[13] Puig, Free Trade as a Constitutional Value, 294-295.

[14] Stellios (n 9), 183.

[15] Ibid 192.

[16] Simpson, Equal Treatment and Non-Discrimination, 208.

[17] As, for example, Tham (n 9) demonstrates in relation to the value of political equality – see 163-167.

[18] Ananian-Welsh and McGarrity, National Security, 282.

[19] Ibid 284-285.

[20] C.f. Appleby and Lim (n 9), 242.

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Published on August 1, 2019
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