Despite the Australian Constitution having been one of the most stable since its commencement in 1901, it is becoming fatally flawed. The Naked Australian Constitution examines these flaws and the lack of public appreciation of those defects. This is due to several serious errors, including the racial basis of its origin, and the misleading nature of its text—with the High Court having interpreted it in a remarkably subjective manner, undermining the few express requirements and freedoms in the Constitution while also applying concepts that are not required by the constitutional text. As a result, the Constitution is now what the High Court says it is, instead of what it was expected to be by its drafters. Most Australians have no knowledge of the Constitution or its operation, but with the growing subjective application of the Constitution, this constitutional digression requires remedy by a Constitutional review. Ian Killey argues that without review, the Australian people will eventually see the Australian Constitution for what it is rapidly becoming—an Emperor with no clothes.
Ian Killey is sessional lecturer and tutor at Australian Catholic University and an experienced senior lawyer who has worked in the public sector for over 30 years.
Introduction: A Flawed Middle-Aged Constitution
Chapter 1: Middle Aged Constitution
Chapter 2: Federation and Henry Parkes’ Boast
Chapter 3: Federation and “Australia’s Magna Carta”
Chapter 4: Constitutional Problem 1: A Very Misleading Constitution
Chapter 5: Constitutional Problem 2: Constitutional Provisions Undermined by the High Court
Chapter 6: Constitutional Problem 3: Constitutional Provisions that are Badly and Misleadingly Designed
Chapter 7: Constitutional Problem 4: Constitutional Requirements Based on Judicial Invention
Chapter 8: Constitutional Problem 5: A Constitution that Does Not Deal with the Essential Nature of Federation
Chapter 9: Constitutional Problem 6: A Constitution with a Result Very Different from its Design
Chapter 10: The Need for an “Intelligible Theory”
Chapter 11: What Do We Do Now?
Australian federation has certainly been a study in unintended consequences. Elaborate constitutional provisions have proved, in some cases surprisingly quickly, to be pointless or redundant, while judicial interpretation, among other factors, has rendered the federal division of powers almost a dead letter—whereas the Judiciary has lavished care and attention on doctrines of its own creation which find, at best, obscure support in the text of the document. Ian Killey's book contains a thorough-going critique of the course of developments—although it can be safely said that his views will not command universal agreement—alongside several useful suggestions for improvement.
Dr. Killey has written a very thought-provoking book. He describes the Australian Constitution as a mess and contends that it is badly designed and inappropriately interpreted. Whether or not one agrees with that conclusion, there is no doubt that the Constitution is in urgent need of review and reform. This book should set that discussion alight.