Why the ‘Vibe’ of the Constitution Won’t Help You.

Probably the most famous popular reference to the Australian Constitution is the quote by the fictional lawyer Dennis Denuto in the 1997 comedy ‘The Castle’ that his client’s land couldn’t be compulsorily acquired by the Government because of the “vibe” of the Constitution. Needless to say, he wasn’t successful.

The Australian Constitution is mostly concerned with setting out the various rights and responsibilities of the States and the Federal Commonwealth. Unlike other Constitutions, it does not set out rights for individuals. The closest there is to a right to free speech is an ‘implied’ right to freedom of political communication. Any attempt to “plead the 5th Amendment” (and refuse to answer self-incriminating questions) will be quickly laughed down as being in the wrong country (unfortunately, I have witnessed this occurring more than once).

Bogus Constitutional arguments have made headlines this week after a conspiracy theorist, #BunningsKaren told police that she didn’t consent to police arresting her because they were breaching the Constitution in doing so. Presumably, she acquired this Constitutional insight into her studies as a shamanic healer. It should be obvious, but police don’t need your consent in order to arrest you. Even if there was Constitutional invalidity to the powers that they were arresting her under (after she failed to wear a COVID mask when it was required she do so and also refused to identify herself when requested to do so), the ‘Executive’ arm of government (of which the police are part of) is responsible for enforcing and administering laws. The proper place for debating the validity of laws is in the Courts.

I have seen a number of strange and novel misapplications of law by persons who are trying to be too clever by half. One such argument (also used by #BunningsKaren) is that they do not have to follow a law because it was not validly enacted under the Constitution. The arguments are difficult to follow but can range from the wrong colour Constitution being used, the Government not referring to itself in ALLCAPS, the person has seceded from the Commonwealth, that the Queen has to personally sign all law into being, or that Australia’s Federation is improper. More amusing is when they reach for something big like disputing the Royal succession, international human rights law (e.g., the Geneva Convention), Magna Carta, or the Ten Commandments.

Rhetorical tricks are often used to deflect from the underlying problems in the argument. A common one is to reverse the burden of proof. #BunningsKaren tried this on the police officers, demanding that they provide High Court authority (presumably to her satisfaction) that the laws are valid. As any first-year law student knows, it is on the applicant to positively prove their case, not the respondent.

Outside of the legal field, Occam’s razor would support the status quo. This heuristic provides that the hypothesis with the least number of assumptions is the one to be preferred as the null hypothesis, and the other bears the burden of proof; that laws enacted by a Government are validly made has the least number of assumptions, and so the rebuttal of that bears the burden of proof.

Of course, it is not hard to find cases where these outlandish arguments have been dismissed. In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56, it was submitted that there had been a break-in sovereignty in Australia with the effect that some taxation legislation purportedly passed by the Parliament of the Commonwealth, or one or more State Parliaments was invalid. Hayne J considered that these submissions confused questions of political sovereignty with the question of identifying the supreme legislative authority recognised in the legal system and the rules for recognising its valid laws. He found that these questions were resolved by cl 5 of the Commonwealth Constitution, which provided that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution were binding on the Courts, judges, and people of every State and every part of the Commonwealth.

I wonder whether greater accessibility of law could help prevent these spurious legal arguments going around. Just as public health campaigns regarding the safety and societal benefit of vaccination has helped Australia has one of the lowest child mortality rates in the world, perhaps too if people could easily find evidence to refute odd-ball legal arguments, then their spread could be prevented. We need society to mask-up with legal knowledge to reduce the R0 of #BunningsKaren.

Or maybe we could follow the lead of the Australian Tax Office, which seems to deal with an endless stream of ill-conceived reasons why taxpayers do not have to pay tax. In Practice Statement PS LA 2004 Tax laws claimed to be invalid the ATO guides it’s officers that “Given that many claims of this type have been rejected by the Courts, it is not appropriate for ATO personnel to spend time and resources producing detailed responses to these claims” and that “the appropriate response will be a short letter of rejection.”

Given that #BunningsKaren has been providing template responses to people to encourage them to raise Constitutional arguments, I have decided to provide my own template to respond, taking inspiration from the ATO.

“Dear,<INSERT NAME> your ideas are rejected”

Until next week, all the best,

Adrian.