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D J CREMEAN[*]
Professor Greg Craven is described in the front of this book as ‘one of Australia’s best-known constitutional lawyers.’ It says he ‘is widely regarded as one of the most prominent conservative intellectual voices on Australian constitutional issues.’
No doubt all of this is true. But Conversations with the Constitution is hardly a conservative product. It is a very unusual book - not in keeping with orthodoxy at all. It is in effect a street-wise account of our Constitution and of our constitutional heritage. It is as if one is down the pub, having a beer with the Constitution. Professor Craven sets the tone when he says that: ‘Most books about the Australian Constitution are as dense as the more impenetrable physical elements, and contain about as many laughs as a jumbo jet disaster.’[1] He says he hopes his approach in the book will show that our Constitution ‘is not deadly, flat, pompous and dull, but interesting, alive and quirky.’[2] Indeed, he says, it is ‘the sort of Constitution you could imagine having a beer with’ - that is, he says, ‘if you could rely on it to stand its shout.’[3]
Conversations with the Constitution has 9 chapters. In Chapter 1 (‘Not just a piece of paper’) Professor Craven introduces us to some of the background to our Constitution. He tells us that if the American Constitution really were an actor ‘it would be male, ruggedly handsome, with loads of sex appeal and latent violence’ whereas the Australian Constitution as a thespian ‘would be one of those grey, thinly moustached men who played disgruntled form teachers in British films from the fifties.’[4] But where does Professor Craven get this analysis from? What movies has he been watching that he associates with either Constitution? In Chapter 2 (‘Two Constitutions’) he distinguishes between ‘old’ constitutionalism and ‘new’ constitutionalism. He makes the observation that constitutions of any kind ‘in the long run tend to be more important than most football teams, and nearly all morally gymnastic Californians.’[5] But why make a point like this? What is its justification?
Chapter 3 (‘Federalism and the States of Reality’) deals with federalism and the decline of the States. The chapter commences by saying: ‘There can be few things less fashionable than Australian federalism, and most of these live at the bottom of stagnant ponds.’[6] But is this necessary? Chapter 4 (‘Parliament: The Counsel of Multitudes’) deals with the workings of Parliament. At one point, Professor Craven observes: ‘It is a simple truth that parliament is the most popularly despised institution in Australia, putting aside taxation and certain football clubs.’[7] But where is his proof of this? He claims the reason for it is that ‘parliament represents the largest concentration of the nation’s most loathed genus, the politician.’[8] But, this is simply left to the agreement of the reader, with no supporting proofs. Are there not any members of the public who support our politicians?
Chapter 5 (‘Hissing the Villain: The Executive’) deals with the so-called ‘beast’ and its ‘terrors’ and other aspects of executive power. The chapter commences by saying: ‘It is a natural human response to be nervous of very large, noisy creatures with lots of moving parts. Elephants, tigers and municipal street-sweeping machines all fall within this panic-inspiring category.’[9] So too does the executive government, according to Professor Craven. Tribunals seem to be lumped into this category - their members are appointed by the executive ‘and like puppies in a litter about to be culled presumably will have a lively appreciation of the virtues of cuteness and cooperation.’[10] In creating tribunals, Professor Craven says, ‘the executive cannot be accused of playing the bully in the judicial sandpit.’[11] But is this all he can possibly say about tribunals? Admittedly, he does say more about them but do they have in his view no redeeming virtues at all - or at least, some advantages over the courts in several areas for the ordinary citizen? He appears to concede them some value. But - was there not a time when Professor Craven was Crown Counsel in Victoria? Did he have these views about tribunal members then? And what of tribunals presided over by judges - presumably they too fall prey to the same analysis. Not so the courts, though, which he deals with in Chapter 6 (‘Court in the Act’).
To enter a court, says Professor Craven, ‘is to be instantly enveloped in an atmosphere of measured solidity, like entering a gothic cathedral or Aunt Lily’s dining room.’[12] Without the Constitution, he says, the High Court ‘is just an arena in which bus crashes and crooked companies are laid to rest’ but with it, he says, the court ‘is a tribunal of national destiny.’[13] Obviously, however, this is not the same kind of tribunal he criticizes as being puppy like in Chapter 5.
In Chapter 7 (‘Rights, Wrongs and the Constitution’) Professor Craven attempts to deal with the question of human rights and some associated issues. No-one can dislike human rights, he says. The basic approach of the Constitution towards rights he regards as one of suspicion tempered with extreme caution. I think there is a serious point to be made here - our Constitution is remarkably devoid of rights and freedoms. But Professor Craven then trivializes the matter by saying: ‘The Constitution contains express rights as cans of dog food contain pearls.’[14]
Chapter 8 of the book (‘Limping Towards a Republic’) enters into the republican debate. His conclusion is that a republic ‘seems a long, long way away.’[15] Even so, however, he considers that ‘Australia, plummy queen and all, is already as independent of the United Kingdom as it is of Zaire.’[16] The process, Professor Craven says, ‘has been so silent, so easeful, so infuriatingly British in its complete lack of fuss, that we have become independent virtually without knowing it.’[17] He makes the point that ‘[n]o Henry VIII ever had his royal fingers lodged in the eye-sockets of Australia’ anyhow.[18]
We get Professor Craven’s verdict on the Constitution in Chapter 9 (‘Verdict on a Constitution’). The Constitution, he says, will never become an object of public veneration like its American counterpart. At best the overall result is mediocre to say the least - ‘bobbing upon its customary sea of mild derision and bored hostility, our Constitution will continue to work, as it has for a hundred years.’[19]
I cannot think that those who strived so hard to achieve our Constitution over so many years deserve such lukewarm praise for the product of their labours. Our Constitution deserves better praise than that. And what of all those who have defended our land, our Constitution, in time of war?
I cannot think, either, who might be the target audience for Professor Craven’s book. The book is cleverly written in places with pithy observations and good points made from time to time. But it is unappealing to the person who is serious at wanting to find out about our Constitution. Those persons are likely to be extremely irritated by its constant quipping and analogising. They would be better served by consulting other texts including some of those written by Professor Craven himself.
[*] Associate Professor, School of Law, Deakin University.
[1] Greg Craven, Conversations with the Constitution (2004) 8.
[2] Ibid.
[3] Ibid.
[4] Ibid 9.
[5] Ibid 37.
[6] Ibid 61.
[7] Ibid 92.
[8] Ibid.
[9] Ibid 115.
[10] Ibid 138.
[11] Ibid.
[12] Ibid 141.
[13] Ibid 156.
[14] Ibid 167.
[15] Ibid 214.
[16] Ibid 190.
[17] Ibid.
[18] Ibid 191.
[19] Ibid 237.
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URL: http://www.austlii.edu.au/au/journals/DeakinLawRw/2004/34.html