Next to the revolution that created the United States of America, the lead-up to the federation of Britain's Australian colonies seems tame. It was debate, negotiation and referenda, not war, that on Jan. 1, 1901, brought the federal Commonwealth into being. But later generations who saw that union as predestined would be mistaken, cautioned leading federationist Alfred Deakin. After 40 years of argument, he said, it seemed "providential," the result of "a series of miracles."
Framing the Constitution that allowed six disparate colonies to become a nation was also hard work, says Murray Gleeson, Chief Justice of Australia's High Court. It took "determination, patience, vision and considerable political and legal skills." As the "basic law" of the federation, Gleeson says, the Constitution has "survived and adapted amazingly well" to the extensive changes that have taken place both within Australia and in its relations with other countries. It has provided stable government and a secure base for parliamentary democracy and guaranteed the rule of law.
Gleeson believes the centenary of Federation provides an ideal opportunity for Australians to learn more about-and better appreciate-this cornerstone of the national identity. And as the 42nd Boyer lecturer, he hopes to contribute to that process. "Raising the level of consciousness about these subjects" is, he says, a duty for people in public life. His series of half-hour broadcasts, airing on the abc's Radio National on six Sundays from Nov. 19 (and also published in book and audiotape form) is titled The Rule of Law and the Constitution.
Gleeson's lectures present a comprehensive picture of the Constitution's strengths -and weaknesses. "The amount of compromise between competing claims that was required to frame the Constitution means it is not perfect. It never could have been perfect," he says. Australia's federal founders realized that the system they were creating -a hybrid of U.S. federalism and Britain's Westminster system-contained an inherent inconsistency between the law-vetoing power of the Senate, demanded by the states in return for giving up some of their own powers, and the law-making power of the House of Representatives. In 1975, "those chickens came home to roost," Gleeson says, when the Liberal Partydominated Senate refused to pass a bill supplying money to Gough Whitlam's Labor government-resulting in the dismissal of the Prime Minister and the dissolution of both Houses. (Gleeson was one of the lawyers who advised the Liberal Party on Governor-General John Kerr's power to sack Whitlam.)
The High Court's interpretation of the Constitution changes with the times, Gleeson says. Fortunately, however, the document was framed in terms of principles rather than policies. A century ago, politicians of most stripes agreed that it was imperative to restrict immigration on the basis of skin color-the 1901 Immigration Restriction Act and Pacific Islands Laborers Act were among the federal government's first pieces of legislation. "Where would we be today if they had decided to write the White Australia Policy into the Constitution?" Gleeson says. Or if they had entrenched their idea of representative democracy: in 1900, most Australian colonies didn't allow women to vote. Unlike Acts of Parliament, which can be changed or annulled relatively easily, the Constitution can be amended only through a referendum that is supported by a majority of voters in a majority of states.
Deciding whether government legislation conforms to the Constitution is the responsibility of "a group of unelected lawyers," says Gleeson-and that role can make High Court judges unpopular. "This is why judges must be, and be seen to be, independent of people and institutions whose power may be challenged [in the court]." He is adamant that judges must uphold the law even if it conflicts with their personal beliefs-or resign. "Judges have ample scope for exercising wisdom and understanding," he says, "without compromising their integrity or impartiality. [But] they have no right to subvert the law because they disagree with a particular rule."
Gleeson, 62, became Chief Justice in 1998, after a career marked by high office (New South Wales Chief Justice, N.S.W. Bar Association President, N.S.W. Lieutenant Governor). An "extremely intelligent and intellectually agile advocate," according to his friend barrister Robert Stitt, Q.C., Gleeson was able "to put complex propositions in a simple and skilful way which rendered them very persuasive." Such talents made him Australia's "most sought-after advocate in every field," says barrister Bret Walker, S.C.
On the bench, Gleeson-whose intense manner at the bar earned him the nickname "Smiler"-is described as a conservative by some legal experts. "He's more cautious than former Chief Justice Anthony Mason and Justice [now Governor-General] William Deane," says George Williams, a lecturer in constitutional law at the Australian National University. "And when you put him together with other recent High Court appointments, [the court] has become less adventurous." Gleeson has no time for such generalizations. "It's a great oversimplification to label courts as progressive, legalistic, reactionary or conservative," he says.
In the century since the Constitution was enacted, 44 proposed amendments have been put to voters in referenda; only eight have been approved. "Constitutions ought to be relatively difficult to change," the Chief Justice says, "but change should not be out of the question." Keeping the Constitution vital is a challenge for each generation of voters, he believes. For those with only a sketchy idea of what that document contains, Gleeson's Boyer lectures offer a palatable remedy.
