Thawing the frozen continent
From Griffith REVIEW Edition 19: Re-imagining Australia
© Copyright Griffith University & the author.
Written by George Williams
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George Williams' biography and other articles by this writer
Australia's system of government has passed its use-by date in too many respects. The federal arrangements are dysfunctional, ministerial responsibility has broken down and the system fails to adequately protect fundamental rights and freedoms. Too many of the processes that made sense when Australia became a nation are now antiquated and ineffective, and as a consequence many of the rules of our democracy are second rate.
Australia was regarded as a leading innovator and moderniser in 1901, but the tag has long since slipped. We lag behind many other countries and are now seen as having one of the most static systems of government in the world. The progression to this point has been gradual. The cause of our predicament is not a series of false steps, but inaction. We have failed to sufficiently update and improve the good system of government we gained more than a century ago. It is as if, having built Australia on the foundation of a new constitution in 1901, the task finished and there was no need for renovation. Without coups, revolutions or other social and political upheaval, we have been happy to leave things be and focus on other priorities.
Renovation may be a national preoccupation, but it stops at the front door. We have forgotten that, like any home, a system of government can fall into disrepair. The democratic project is never finished, the long-term health of a democracy demands ongoing engagement. Such reform is vital to ensure that subsequent generations have faith in the system of government, and that it remains relevant and as good as possible. Without this, popular support can weaken over time and with it the legitimacy of the democratic structure. These issues require a contemporary commitment to nation-building. While the focus has been on economic reform and grand achievements of infrastructure, like the Snowy Mountains Scheme, and population, with immigration, we have not paid sufficient attention to other big-picture issues: like how power can best be exercised.
These matters affect Australia's future. Government can improve or diminish fairness, social justice, social cohesion and economic progress. While these issues depend on who we elect, they are also shaped in fundamental and often unseen ways by the power we grant leaders and the checks and balances that limit them. As Gough Whitlam wrote in 1970 in On Australia's Constitution (Widescope), ‘Existing constitutional arrangements do not provide an adequate, far less an ideal, framework for the solution of contemporary problems. We are entering the future mounted on a penny-farthing bicycle.'
Australia has a system of government that too often impedes, rather than facilitates prosperity and progress. The political rhetoric hints at the problem, but rarely acknowledges the very high cost of not reforming the architecture of government – the price of the broken federal system alone is billions of dollars wasted every year. It is impossible to estimate the full cost, as inefficiencies multiply it in the private sector and across the community. The impact can be felt throughout society – poorly designed policies and laws reduce standards of services like health and education. It provokes expensive battles for control between the Commonwealth and the states, and binds some of the biggest challenges facing the nation in red tape. It can also cause inaction when no government accepts responsibility.
Addressing this is not for the timid, but failing to address it will store up problems that will rebound electorally. The fact of Labor governments from coast to coast presents an historic opportunity to reform the system of governance without distracting partisan squabbles. Not to grasp this opportunity would be to squander a once-in-a-century political opening to develop a political framework that will serve Australia well into the next century – one which will be profoundly different from the last.
I am not railing against all aspects of our system. There is much to be proud of in our political traditions and rules of government. Australia is one of the oldest continuous democracies in the world with a constitution that holds up well against many others. Nonetheless, we rest too often and too much on past achievements. We have not followed up the initial good work by ensuring the system is kept up to date.
Certainly not all the poor decisions made by governments are due to underlying rules and processes, and I am not saying that if these problems were fixed governments would always operate like well-oiled machines. It is possible, though, to say that many problems are due to structural questions about how we are governed and that many adverse consequences and extra costs could be avoided if they were addressed. It is hard enough even for a government with the best leadership to operate effectively, let alone when the rules by which it must run are skewed towards inefficiency, or even injustice.
THESE QUESTIONS HAVE have occupied my mind since 1992 when I spent a year as associate to Justice Michael McHugh in the High Court. In more recent years, I have appeared as a barrister in that court and the courts of Fiji, and have taken part in major cases – including the Hindmarsh Island Bridge Case in 1998, which considered the limits of native title, and the case that overturned a coup in Fiji in 2000.
In 1995 I began work as a constitutional lawyer at the Australian National University Law School, and later moved to the University of New South Wales – places where I have had the opportunity to reflect on the small and large details that determine how we are governed and how the system could be improved. I have engaged extensively with governments and parliaments throughout Australia, advising on law-making, conducting inquiries and appearing before parliamentary committees on matters ranging from euthanasia to combating terrorism. I have also travelled for extended periods to see in practice how systems operate in Britain, Canada, New Zealand and the United States. This has shown me that problems can sometimes only be seen clearly from afar, and with the benefit of a good point of comparison.
My perspective has developed in a practical way, informed by an intellectual interest in the theories and principles of good government. These experiences have had a major impact and over this time my views have changed significantly. When I first walked into the High Court building in 1992, I believed our system of government was sound and needed little reform. Bit by bit, case by case, I have become an advocate for reform. The decisive point came as a barrister in the Hindmarsh Island Bridge Case, when I saw the federal government argue it had the power to pass racially discriminatory laws. Acceptance of that argument by members of the High Court stripped away my preconceptions that we had a system of government best suited to contemporary Australia. The more I see and understand, the more I am convinced that we can and must do better.
‘The way of the reformer is hard in Australia,' Gough Whitlam once remarked. The truth of this is plain to see; there have been many attempts at reform, with meagre successes. The referendum record of the Whitlam government is a good example. During the three years as prime minister from 1972-75, Whitlam put six proposals to change the Australian Constitution to the people on two voting days. Each failed, at a significant political and financial cost. If the Whitlam years were judged according to the failure of these referenda, the conclusion would be entirely negative, yet his government is often remembered for the success of its reform agenda.
The record is a salutary one, the obstacles to reform considerable. Under section 128 of the Constitution, an amendment must be passed by an absolute majority of both houses of the federal parliament, or by the House of Representatives or the Senate twice, and supported at a referendum by an overall majority of the people and by a majority of people in a majority of states.
This process has been invoked forty-four times, but only eight proposals have succeeded. None of the eight changes was a major revision of the text although some of the changes have been of political importance. Two stand out. The 1928 referendum added a new economically significant section, 105A, which enabled the Commonwealth to make agreements with the states to take over their debts, and the 1967 referendum deleted discriminatory references to Indigenous peoples and allowed federal laws to be made on their behalf.
As a result, the Constitution remains almost exactly as it was enacted in 1901. Even in 1967, Australia was described by leading constitutional lawyer Geoffrey Sawer in his book Australian Federalism in the Courts (Melbourne University Press) as ‘constitutionally speaking ... the frozen continent'. This is even more apt today. Despite the profound changes to Australian society, it is thirty-one years since the founding document was changed; in 1977 it was amended to set a retirement age of seventy for High Court judges, among other things. The people have rejected a further eight proposals since then. This is the longest that Australia has gone without any change to the Constitution, well surpassing the previous longest period of twenty-one years between 1946 and 1967.
There is no other area of Australian life which has not undergone major change since 1901. Then there were fewer than four million Australians and, although formally a nation, there was little sense of Australian identity. The former British colonies became states with their own separate economies, due in large measure to the primitive nature of communication and transportation. That the country has evolved so easily is testimony to the strength and resilience of the Constitution, but also says a lot about fear of change. Failure to renovate the Constitution is putting real pressures on the system of government.
It is a paradox that the political party most readily associated with constitutional reform, the Australian Labor Party, has not won support for a single referendum since 1946. Labor governments have put up thirteen proposals and all have failed. They initiated ballots in 1948, 1973, 1974, 1984 and 1988. There may be a simple, cheeky solution. Australian National University law professor Michael Coper suggests that Australians just love to vote ‘no', perhaps for reasons related to the convict origins and contrariness of the national psyche. He suggests that this and the desire to reform could simultaneously be accommodated in a referendum if the question were put in the negative: ‘Do you not support changing the Constitution to bring about an Australian republic?' A ‘no' vote would mean assent and everyone would be happy!
THE EXPLANATION, OF COURSE, is more serious and more complex. Three lessons help explain why history repeats itself with failed constitutional reform. First, the lack of success has itself become part of the problem. The series of dismal – and expensive – outcomes has made people pessimistic about future change. As a result it is hard – indeed, almost impossible – to initiate or gain sufficient support for reform. There is a self-defeating aspect of the reform agenda in Australia, one not found to the same degree in other nations: one failure seems inevitably to breed another.
Altering perceptions about the positive possibilities of change is a step that is needed to make reform more likely. More than a century ago, the drafters of the Constitution included in section 128 a mechanism that would enable the document to be updated. They did not imagine the document would be set in stone, but did not want changes made without careful consideration and popular support. The idea of constitutional reform is entirely consistent with the document's original conception. The drafters expected that there would be additions and alterations to keep the document up to date and reflect contemporary ideas and values. At a time when we have learned to accept profound change in every other area of life, this expectation in the Constitution has been lost. It needs to be recaptured and made less threatening. One implication is that, before considering a contentious major amendment, it would make sense to put a less divisive proposal to the people. This would break the constitutional change drought and restore public confidence in both the process and the possibilities of reform.
My preference would be to hold a referendum at the next federal election to fix a problem identified by the High Court in 1999 which actually prevents co-operation between federal and state governments. It is a technical flaw in the Constitution that prevents cases being heard interchangeably by federal and state courts, and precludes an area of law having a single national regulator. It impedes consistent, harmonised laws and policies, and applies even where there is bipartisan support across all jurisdictions in areas like family law and new fields such as genetic technology.
Fixing this would not give governments more power, but allow them to work together more effectively, using existing powers. The proposal has had bipartisan support at all levels of government, as well as the backing of the business and other lobbies, for some years. It has no known opponents, and as a sensible and much-needed change would have a greater chance of success at a referendum than any other idea I know of. While the Howard government supported the idea, it never got around to doing anything about it, and in the meantime co-operation faltered and costly ‘work arounds' evolved.
The second lesson is that the agenda needs to start with reforming the process of change itself. The problem has not just been the recommended reforms or the overly optimistic aspirations of the governments that proposed them, but the referendum process itself. Governments tend to start constitutional reform with an idea they believe has strong community support, only to find this whittled away by the time people vote. The difficulty can lie in the steps between initiating the idea and reaching the ballot box. Ideas that continue to attract significant support – including four-year terms for the federal parliament, human rights protection and recognition of local government – have all failed (sometimes more than once) when put to the people. While such ideas have general support, this has not translated into a ‘yes' vote at the ballot box because Australians have not felt they owned the change and have preferred to reject something developed for them by politicians they do not fully trust.
Australians have demonstrated by voting ‘no' that they want more engagement than being asked to simply rubber stamp amendments at the end of a distant, protracted process. This suggests that there is a need for a process that gives people a real opportunity to participate in and shape the change itself. Such a process would require trust not often found in our political system, the trust by elected representatives in the people to play a constructive and meaningful role in the process of reform. People need to feel as if they ‘own' the proposal for which they are being asked to vote. Despite the 1998 convention, this is one reason why the most powerful argument for the ‘no' case at the 1999 republic referendum was ‘Vote No to the Politicians' Republic' (the other effective slogan was ‘Don't Know – Vote No').
Changing the process does not itself need a referendum. Section 128 only sets out the basics – that there must be a referendum; the process is left to the Federal Parliament. An amendment to the Referendum (Machinery Provisions) Act 1984 could make the process more open by including plebiscites to gauge opinion and refine a proposal so it is more likely to win support, and expand those who could initiate reform ideas. This could include state parliaments, petitions and even conventions – like those of the 1890s and on the republic in 1998 – to propose change. Conventions signal serious intent to address major questions and, by establishing an inclusive process that draws in voices and perspectives from across the nation, they also indicate respect for the democratic nature of the Constitution itself.
Communication is central. The republic model considered by Australians at the 1999 referendum was supported by a $24.5 million government-funded advertising campaign, a seventy-one-page ‘yes' and ‘no' book sent to every voter and saturation media coverage. Despite this, most Australians had little idea of what a republic would mean or how the proposed model would have worked. I remember doing days of talkback radio and being faced with questions like whether a republic would mean coins with the Queen's image would overnight become worthless.
Timing is also important. Greater community participation will require a longer process than the artificially accelerated timetables often used to meet a short-term political need. Proposals – with the exception of those with immediate and broad community and political support – should be viewed as options for reform to be worked towards over some years. Some options may take five or more years. A regular cycle of engagement is also missing from the processes and timing of reform. A convention every decade, or half-generation, to consider options and to determine national priorities may help provide the necessary structure and entrench an expectation of change and a consultative mechanism. It has been done in similar ways with standing bodies including Reconciliation Australia and the Australian Law Reform Commission – innovation demands a supportive framework.
The third lesson is that not all reform requires a referendum. Changing the text of the Constitution can be slow, expensive and fraught with uncertainty. Indeed, a reform agenda should not, unless absolutely necessary, depend on a successful referendum. The difficulties mean that this path should only be taken where it cannot be avoided. However, this must not become an excuse to leave people out of the process. Whether change takes place via a referendum or by other means, Australians must be given a say.
Discussion of reform too often focuses on the text of the Constitution – a very narrow perspective. Most of our system is defined by legislation and practice. A law like the Parliamentary Privileges Act 1987 defines the operation of the Federal Parliament and describes its privileges. Because the system includes statutes and unwritten conventions, large-scale reform often does not need referenda. In the area of federalism, for example, it is possible to reallocate powers and responsibilities for water, health and education by ordinary Acts of parliament, as the Whitlam and Howard governments demonstrated.
The possibilities for this are magnified because the state constitutions do not, with few exceptions, need a referendum to be altered. This means that Tasmania and Victoria, and possibly others, could sever links with the British monarch and become mini-republics without a national vote. All states could adopt a different method of appointing governors, such as by a two-thirds vote of parliament or even a popular vote. Experiments of this nature could help familiarise people with an idea like the republic and make any future referendum less threatening. This approach allows for important, incremental changes to help build momentum towards a national vote.
Such changes require a change of focus. A good example is the ongoing attempt to improve human rights protection through a Bill of Rights. In recent years, the debate has shifted from entrenching protections in the Constitution to enacting the change as an ordinary Act of parliament. As a result, both Victoria in 2006 and the Australian Capital Territory two years earlier passed Acts guaranteeing protection of human rights.
As John Howard demonstrated in areas like industrial relations, it is possible to aggregate significant new power to the Commonwealth without first winning the support of the majority of people in the majority of states. Howard achieved this by making greater use of the Commonwealth's financial powers, tying an increasing amount of federal money to his policy objectives in areas like education, where money was contingent on universities offering AWAs to staff, and schools, using the Commonwealth-approved student report card. Similarly, the Whitlam government passed legislation such as the Senate (Representation of Territories) Act 1973, which changed the parliamentary structure by including senators from the territories as well as the states, and the Racial Discrimination Act 1975, which for the first time introduced the internationally accepted principle of non-discrimination into Australian law.
WHILE THE POOR REFERENDUM record looms over debates about reforming the system of government, Australia has met comparable challenges in other sectors, including the economy. The floating of the Australian dollar and the opening up of financial markets in the Hawke-Keating years were economic reforms that provided the foundation for our current prosperity. The leadership required was similar to what is needed now to reform the nature of government. It involves popular acceptance of the need for change and then, through education and public debate, public understanding of abstract concepts and long-term goals. This can only be achieved with passionate, well-informed political leadership able to convince and educate Australians about the merits of change.
It is often forgotten that Australia once had a reputation as a world leader in governance. In 1901, the country became one of the world's first federations when the new Constitution transformed the British colonies into states and united them into one nation. The document introduced the then-radical idea of a popular vote to approve any changes. Not long afterwards, Australian parliaments continued to take a reformist path by making voting compulsory. We need to tap into the cultural and political narratives that permitted such innovation and rediscover an interest in and capacity for new reform.
Other nations are now setting the pace on constitutional reform. Britain may be the country Australia has looked to for models of governance since 1901, but it has changed significantly in the last decade. It is now an example of a country that has transformed its system of law and government for the modern world. The election of Tony Blair as prime minister in 1997 heralded the beginning of a process of modernisation that included major changes to the House of Lords, a new Supreme Court and even the nation's first Bill of Rights. The sky did not fall in. The changes have now become an accepted part of the political system. The home of the Westminster system accommodated changes more profound than any that have been put to the people at an Australian referendum.
Rather than faltering, the reform agenda was reinvigorated when Gordon Brown became Prime Minister in June 2007. His first major announcement was a proposal to debate far-reaching changes to the way Britain is governed. Brown released a green paper, The Governance of Britain, that called for constitutional change that ‘entrusts more power to Parliament and the British people'. Its agenda, if implemented in full, would be the most profound reform of law and government for at least a century.
Brown's agenda focuses on the relationship between parliament and the executive, appointment of judges and means to improve democracy. The shift in power to the executive has accelerated in Britain, as it has here and in the United States, especially since September 11, 2001. The need for new legislation to protect against terrorism provided a policy rationale and handy excuse to transfer power and decision-making functions. This has been at the expense of both parliament and the courts, in Britain and other countries – including Australia.
Brown is, remarkably, promising to reverse this trend. He is prepared to surrender or limit executive power in key areas and transfer responsibility back to parliament and other, independent, decision-makers. It is an unusual political leader who offers to cede political power in the name of greater accountability, but that is the heart of the Brown agenda. Tangible benefits long enjoyed by those in power are now up for discussion. This includes inadequate, often non-existent, regulation of ministerial advisers, which governments have been happy to use to deflect blame and avoid scrutiny. Brown plans to introduce legislation to clarify the role of advisers and the limits on their power.
The most contentious aspect would change the power of government to deploy troops abroad in a conflict like that in Iraq and give parliament a real say in such decisions – perhaps even a veto. This has already provoked a vigorous debate and won strong public support. By contrast, there has been virtually no debate in Australia about the role of parliament in decisions to go to war. The Democrats introduced a Bill in 2003 requiring parliamentary approval of Australian involvement in overseas conflicts, as happens in many other countries, but the Bill received little attention and sank without trace.
Brown's short tenure as British Prime Minister has highlighted the weaknesses and limited scope of the Australian debate. The Australian path to reform faltered after the 1999 republic referendum. The ‘no' vote exhausted many of the proponents of change, and suggested that if Australia could not sever its symbolic link with the British monarchy, more challenging reforms may be impossible. The lesson is not that reform is impossible, but that it needs better strategy and tactics. There are five areas which I see as starting points for such a process. They amount to an ambitious new plan to modernise the government of Australia by addressing the big underlying issues: the flaws in the system of federalism; symbols and identity; race and discrimination; responsible government; and rights and freedoms.
AUSTRALIAN FEDERALISM IS DYSFUNCTIONAL. If you care about the quality of schools and hospitals, you must care about how power and responsibility is divided. The federal system has increasingly become a barrier to delivering services efficiently and at the highest level of quality. When Australia became a nation on January 1, 1901, it also became a federation and the people of the colonies agreed to ‘unite in one indissoluble Federal Commonwealth'. To reflect this, the Constitution shared power and money between state and federal governments. This was designed to prevent one government exercising complete control.
Drafted by colonial politicians like the former premier of Queensland, Sir Samuel Griffith, the Constitution was meant to establish the states as the master of the system. They had greater authority; the Commonwealth was restricted to listed areas from marriage to corporations, external affairs and defence. The Commonwealth had power over forty specific areas, leaving everything else to the states, including taxation, health, education and industrial relations. Those who voted for the new federation expected the states to have greatest responsibilities, a view that was reinforced by their control of the purse strings. This made sense at the time: no one had experience of a nation and communication across the country was poor. Few imagined the need for national leadership in areas like the economy or the environment.
For the first two decades of the new nation, the High Court interpreted the Constitution to maintain the position of the states and limit Commonwealth power. This changed abruptly in 1920. In that year, in the famous Engineers' Case, the High Court overturned many of its earlier decisions. A new approach evolved that involved a generous reading of listed Commonwealth powers. The case was won by a young Robert Menzies, and provides yet another example of the conservative side of politics leading the charge for greater centralisation in our system of government.
Over time, the Engineers' Case allowed powers like those over external affairs and corporations to be extended to other areas like the environment and industrial relations – something that had not been anticipated or intended by the framers of the Constitution. If the court had adopted this interpretation in 1903 when it began, it could have derailed the young federation. High Court Justice Victor Windeyer pointed out decades later that the decision was itself the product of the changing nature of Australian society. It was a result of the Constitution being ‘read in a new light that had, over twenty years, led to a growing realisation that Australians were now one people and that national laws might meet national needs'.
After the case, ideas like ‘federal balance' and ‘states' rights' became constitutional heresy. Today, they are nothing more than political slogans. The Engineers' Case was a major blow to the states. Another equally significant loss was in the area of taxation – in governance, as in life, control of revenue matters even more than the power to pass laws. Without the money to fund programs and services, new laws may have little effect. It was another two decades before High Court decisions – in the Uniform Tax Cases of 1942 and 1957 – upheld the Commonwealth takeover of the income tax system and gave it the ability to attach conditions to the money it granted to the states. Under section 96 of the Constitution, the Commonwealth can make grants on ‘on such terms and conditions as the Parliament thinks fit'. The Commonwealth's financial control increased a decade ago when the High Court struck down excise duties levied by the states over alcohol and tobacco. The result in 1997 in the Ha Case stripped the states of more than $5 billion a year.
As a result, the states do not raise income taxes and cannot impose taxes on goods. Their financial position is dire because they cannot raise the revenue they need to provide the services they are constitutionally expected to provide. While they have turned to new sources of taxation, such as gambling, they depend heavily on Commonwealth grants – including $45 billion of GST revenue. Federal handouts account for almost half of New South Wales revenues; without them, New South Wales would be bankrupt. All the states are in the same predicament. The Commonwealth grants money with strings attached and the states have no real choice but to accept the money, thereby fulfilling the prophesy of the nation's second prime minister, Alfred Deakin, who wrote in the London Morning Post in 1902 that the states would find themselves ‘legally free, but financially bound to the chariot wheels of the central Government'.
Australian federalism is in tatters because it is based on rules that no longer match reality. High Court decisions and canny prime ministers from John Curtin to John Howard have transformed the system. Australia now has one of the most centralised federal systems of government in the world. The states are shadows of their former selves, rarely able to check Commonwealth power. The High Court's 2006 decision in the Work Choices Case exacerbated the situation: the Commonwealth can now pass laws in any field in which corporations operate. As most business is done by corporations, the potential reach extends almost everywhere goods or services are supplied.
Despite its dominance, the Commonwealth cannot exert compete control – a recipe for buck-passing and administrative duplication which the Business Council of Australia estimates to cost at least $9 billion a year, and probably more like $20 billion when the costs of duplication and red tape are factored in. This is 9 per cent of all general government expenses, and 3 per cent of gross domestic product. This is not just a loss to taxpayers, but a lost opportunity: every dollar squandered could have been used for schools, hospitals, aged care or affordable housing.
There is a stark choice: to continue to pay extra tax for second-rate services, or to accept the challenge and opportunity of reform and fix the system of government by a proper allocation of tax revenue and a more appropriate division of power over areas of responsibility.
The answer is not to abolish the Australian states. That would be unrealistic and bad policy. Few local problems can be solved by unilateral action from Canberra. At least one lower tier of government is needed to help develop regional solutions and deliver services. Problems of legitimacy are a reason why federal systems evolved: people in Western Australian were the last to accept federation and, at a time of unprecedented economic success, are as unlikely to ever accept rule by a single government in Canberra.
While Australia's federal system of government is broken, the answer is to fix that system, not to jettison it. We should focus on pragmatic, achievable change that lowers taxes and improves the quality of government services. In the short term, there are many things that can be done to improve how our federal system works, facilitating cooperation and re-examining finances. In the longer term, the text of the Australian Constitution will also need to change. If the rules are not changed, bad habits will resurface and blockages re-emerge. There is a need for a revised set of rules to accommodate the changes of the past century and to prepare for the next – a new deal for the federal system.
Many have called for a constitutional convention to consider the future of the federation. Such conventions were crucial in the development of the Constitution – a place where disagreements were teased out and resolutions found. In today's interconnected world, a convention may seem old-fashioned, but it remains an effective way of bringing together many interests and perspectives. A convention should be held as soon as possible to develop a program for federal reform.
SYMBOLS MATTER. THEY DEFINE who we are and can be a powerful way of redressing injustice and building social cohesion around shared goals and values. Prime Minister John Howard always understood this, and during his leadership Anzac and Australia Days gained new significance. After many years disputing the value of symbolic reform in Indigenous affairs, he told the Sydney Institute in October 2007, ‘I announce that, if re-elected, I will put to the Australian people within eighteen months a referendum to formally recognise Indigenous Australians in our Constitution – their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special (though not separate) place within a reconciled, indivisible nation.' He declared that his ‘goal is to see a new Statement of Reconciliation incorporated into the Preamble of the Australian Constitution'. Howard was right – it is long past time that Aboriginal people were recognised in the Constitution. These issues are examined further in the next section.
The other major symbolic agenda is the Australian republic. The Constitution is at odds with the reality of Australia's political and legal independence, and its contemporary values. It is more than incongruous that Australia's head of state is the monarch of a foreign nation born to a position, according to a 1701 British statute, that ranks men over women and rules Catholics ineligible. Sexism and religious discrimination are unacceptable tests for office in modern Australia, and should not determine who is eligible to be the country's head of state.
The problem lies with the most basic law: section 2 of the Constitution suggests that Australia is not an independent nation and establishes the Governor-General as the Queen's representative: ‘A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.'
The now obsolete section 59 even grants the Queen power to ‘disallow any law' passed by the federal Parliament. The Constitution is only reprinted in Australia as part of the UK Parliament's Commonwealth of Australia Constitution Act 1900, the implication being that it – and not the Australian people – is the source of the power and authority of Australian laws.
Despite the failure of the 1999 republic referendum, Australia is in fact both politically and legally independent. The legal shift was finally resolved by the Australia Acts of 1986, which removed any right of appeal to the Privy Council. The symbolic conflict between the text of the Constitution and actual Australian independence remains unresolved, and both undermines a sense of identity and distorts perceptions within and outside the country. Symbolism is an important value in our system, and the Australian Constitution ought to be amended to reflect this and establish a republic with an Australian head of state appointed without reference to London.
RACE AND DISCRIMINATION shaped the way the Australian Constitution was drafted in the 1890s. At the time, it made sense to trust that British traditions of the common law and responsible government would protect human rights. There was, however, an additional reason why guarantees of rights were not included in the new Constitution: the framers did not want to prevent the new parliaments from passing racially discriminatory laws. The Constitution said little about Indigenous peoples, but what it did say was entirely negative. The race power of section 51(xxvi) enabled the Federal Parliament to make laws with respect to ‘people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws' while, under section 127, ‘In reckoning the numbers of the people ... aboriginal natives shall not be counted'.
By today's standards, the reasoning behind these clauses was clearly racist, designed to restrict the liberty and rights on the basis of race. Sir Edmund Barton, later Australia's first prime minister and one of the first members of the High Court, made the position clear when he told the 1897-98 Constitutional Convention that the power was necessary to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth'.
Tasmanian attorney-general Andrew Inglis Clark disagreed, and argued for a provision taken from the United States Constitution requiring the ‘equal protection of the laws'. Others were concerned that this clause could override laws, such as those in Western Australia, under which ‘no Asiatic or African alien can get a miner's right or go mining on a gold-field'. Sir John Forrest, the premier of Western Australia, summed up the mood of the convention when he stated, ‘It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still it is so. I do not want this clause to pass in a shape which would undo what is about to be done in most of the colonies, and what has already been done in Western Australia, in regard to that class of persons.'
Clark's provision was rejected and section 117, which prevents discrimination on the basis of state residence, was inserted instead. In formulating the words, Henry Higgins, another early High Court judge, said it ‘would allow Sir John Forrest ... to have his law with regard to Asiatics not being able to obtain miners' rights in Western Australia. There is no discrimination there based on residence or citizenship; it is simply based on colour and race.'
In the 1967 referendum, more than 90 per cent of Australians agreed to strike out the words ‘other than the aboriginal race in any State' and to delete section 127, yet the racist underpinnings of the Constitution remain. While the referendum extended federal law to Indigenous people, there was no requirement that such laws be positive. This silence meant the racially discriminatory intent behind the races power extended to Aboriginal and Torres Strait Island people; there was no provision that the power be applied only for their benefit.
Nearly a century after the Constitution came into force, this provision made it possible for the Federal Parliament to pass an Act that prevented a group of Ngarrindjeri women from protecting an area near Hindmarsh Island in South Australia from development. They argued they were the custodians of secret ‘women's business' for which the area had traditionally been used. The Hindmarsh Island Bridge Act 1997 unilaterally overrode their claim. The women brought a case against the Commonwealth in the High Court, arguing that the Act was invalid. I was a member of their legal team, which argued that the races power of section 51 only allowed parliament to pass laws that were for the benefit or advancement of a particular race. We argued that legislation designed to provide health care to address the specific needs of a racial group could be passed, but not Nazi-style laws banning people of a race from working in certain professions or attending particular schools.
The Commonwealth asserted that the Constitution enabled it to do just that. It argued that there were no limits to the power so long as the law produced a consequence based on race: the positive or negative impact of the law was not a matter for the High Court to examine. The races power, as the solicitor-general Gavan Griffith QC declared, ‘is infected, the power is infused with a power of adverse operation'. He acknowledged ‘the direct racist content of this provision using "racist" in the expression of carrying with it a capacity for adverse operation'. In this way, the government argued that the Commonwealth had the power to pass laws that discriminate on the basis of a person's race. This is abhorrent to most Australians, and inconsistent with accepted community values such as equality under the law. It is also exactly what the framers of the Constitution intended.
A divided High Court handed down its decision on April 1, 1998. Justice Mary Gaudron found that ‘it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid', and Justice Michael Kirby found that the power ‘does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race'. Chief Justice Sir Gerard Brennan and Justice Michael McHugh did not address the issue, and Justices William Gummow and Kenneth Hayne left room for the power to be used in an adverse as well as a beneficial way. The result was that the Hindmarsh Island Bridge Act was upheld, with the court split on whether the races power can still be used to discriminate against Indigenous or other peoples. This fundamental question remains unresolved. The latent racism should be removed from the Constitution. The races power should be deleted and replaced with a capacity to make positive laws on behalf of Aboriginal people. A separate provision should also be added to outlaw racial discrimination.
In order to address underlying concerns about acknowledgement of Indigenous peoples, a preamble – like that proposed by John Howard – should be inserted. A new preamble would not grant any new rights to Indigenous people, but would be an important symbolic statement. An attempt has already been made: in the midst of the 1999 republic debate, Howard announced that a second referendum question would ask the people to consider a new preamble. He then, without public or Indigenous involvement, drafted a new preamble that included the words: ‘Since time immemorial our land has been inhabited by Aborigines and Torres Strait Islanders, who are honoured for their ancient and continuing cultures.' The draft attracted little support, a result of its awkward and confused wording, refusal to acknowledge the original occupancy and custodianship of Indigenous peoples, a bizarre reference to ‘mateship' and because it had been drafted without public consultation.
Howard subsequently produced a new preamble that was revised after negotiations with the Democrats, who held the balance of power in the Senate, before being rushed through parliament. The revised preamble put to the Australian people on November 1999 contained a clause which read:
We the Australian people commit ourselves to this Constitution ... honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.
Like the vote on the republic, the referendum on the preamble was defeated nationally and in all six states. Nationally, the preamble was supported by less than 40 per cent of the voters; 61 per cent voted ‘no'. It was not widely embraced by the Indigenous community. Although it referred to them, it was seen as ungenerous. ‘Kinship', rather than ‘custodianship', was used to describe the relationship to the land, although ‘kinship' does not apply to the connection between a person and a place or thing. The next time a preamble is drafted, the process must involve appropriate consultation with Aboriginal people and the community more broadly.
Australia needs an agreement with its first peoples. All the state parliaments have issued formal apologies, and every other Commonwealth country has reached an agreement with its first peoples. In 2000, the Council for Aboriginal Reconciliation recommended that ‘the Commonwealth Parliament [should] enact legislation ... to put in place a process which will unite all Australians by way of an agreement, or treaty, through which unresolved issues of reconciliation can be resolved'. This could be the lynchpin of a new stage in the reconciliation process. It might open up the Australian political and legal system to more actively include Indigenous peoples. This is reflected in the United Nations Declaration on the Rights of Indigenous Peoples negotiated over more than two decades between nations and Indigenous peoples. The Declaration was adopted by the United Nations General Assembly in 2007 by an overwhelming majority of 143 votes in favour and only four votes against, cast by Australia, Canada, New Zealand and the United States.
A treaty signifies an agreement between two or more parties. While it has connotations that suggest an agreement between sovereign nation states, this need not be the case. In other countries, treaties have been signed between settler and Indigenous representatives as a way of striking an agreement on governance and other issues. New Zealand signed the Treaty of Waitangi in 1840, well before an Australian Constitution was even imagined. A treaty is the normal and accepted way by which other nations have achieved an appropriate settlement.
AUSTRALIA'S SYSTEM OF RESPONSIBLE government is surprisingly fragile. The written Constitution omits many of the most important aspects of government, and depends instead on a series of assumptions and conventions. More than a century ago, the framers believed that respected conventions and traditions would be sufficient to fill the gaps.
This has some advantages. It means the system can adapt, and it keeps the courts out of political disputes because in the absence of hard law judges cannot adjudicate. However, a system founded on conventions also leaves the most important processes of government vulnerable to uncertainty and misuse. The dismissal of the Whitlam government in 1975 is an example. Before then, no one in Australia or elsewhere thought that the conventions of government could allow a governor-general to dismiss a prime minister whose budget bills could not pass in the upper house. Whatever the rights or wrongs of Sir John Kerr's decision, the possibility that an unwritten power to dismiss a government could be exercised by an unelected official without clear authority is a flaw that continues to destabilise the constitutional structure.
The system is especially vulnerable when it comes to the accountability of ministers. The concept of ministerial responsibility – that every minister is responsible to parliament for their actions and those of their department – is merely a convention, not law. The absence of law means that enforcement of ministerial responsibilities lies in their discretion. Whichever party is in power, this has inevitably meant that the accountability of those who govern has been shaped by political self-interest.
Typically, governments start well but end badly on accountability. John Howard deserves credit for giving his ministers a clear language guide to their responsibilities and duties when he came to office in 1996. His Guide to Key Elements of Ministerial Responsibility was updated in 1998, but proved insufficient. As a prime ministerial directive, it depended on his enforcement and on his willingness to dismiss a minister for breaching it. Howard did this in his first term, but almost never thereafter.
The problem is not just that ministerial responsibility is merely a convention, but that it rests upon another convention: that parliament will hold the government to account. The idea of parliamentary sovereignty is now little more than a myth. Party discipline is so strong that the members of a governing party will almost never chasten one of their own, let alone bring down a government. The powers of parliament are more often deployed to the opposite effect: to cover up a transgression or to minimise its impact on public opinion. The self-interested nature of parliamentarians is a fatal flaw in the operation of responsible government in Australia.
There are now proposals for reform that could be implemented. Last year a group of experienced former parliamentarians from the major parties – people well aware of the deficiencies of government – published a report, Be Honest Minister! Restoring Honest Government in Australia. It sets out a number of ways to improve the workings of government by tightening the rules of responsible government. The report recognises that, as in other spheres, politicians cannot be their own guardians. To resolve this, conventions should be set down in law.
Such change is long overdue; the reform agenda in this area has stalled. Responsible government demands more than a series of malleable assumptions.
THERE ARE TWO WAYS of looking at the state of human rights in Australia. In early 2000, Howard declared on ABC Radio that, ‘Australia's human rights reputation compared with the rest of the world is quite magnificent.' He expressed the commonly held view, which in the main is correct. There is much to be proud of in what Australia has achieved and in the way many rights are protected. The rule of law is firmly entrenched in political culture, backed by an independent High Court.
Despite these strengths, Australia has a human rights problem. The system often fails those who are most vulnerable. When the human rights question is examined from the perspective of the mentally ill, people with little power like David Hicks and Indigenous people, it is clear that a problem exists. The checks and balances in the Australian system are not as robust as those in some other countries, and Australia is now the only democratic country without a national Bill or Charter of Rights.
My own view has changed. When I finished law school, I believed that the system worked well. I sensed we had some problems, but did not trace them to underlying questions of government and law. I believed that over time things would get better and that, as human rights protections improved, problems would be addressed. I soon learnt otherwise. Working for people with disabilities and Indigenous people opened my eyes to the systematic injustices in the legal system. The Hindmarsh Island Bridge Case illustrates the point – the High Court left open the abhorrent possibility that our most basic law allows the federal government to pass racially discriminatory laws.
I have also seen at first hand other problems with essential political rights, including freedom of speech. In 1996, Albert Langer was jailed for advocating a formal, valid vote at that year's federal election. Langer, a political agitator, described John Howard and Paul Keating as ‘Tweedledum and Tweedledee' and urged voters to put them and their parties equal last on the ballot paper. The Commonwealth Electoral Act specifically allowed this vote, but made it a crime to advocate it, something that Langer did with great gusto. Langer was prosecuted and, after a failed appeal to the High Court, was sent to jail for ten weeks for advocating a perfectly legal method of voting. Amnesty International declared Langer the ‘first prisoner of conscience in the country for over twenty years'.
Another example is the censorship in 1997 of Pauline Pantsdown's hit song Backdoor Man, a parody of One Nation Party founder Pauline Hanson. That song, a ridiculous compilation of Hanson's own words, contained the famous lines ‘I'm a backdoor man. I'm homosexual. I'm proud of it ... I'm a backdoor man for the Ku Klux Klan with a very horrendous plan. I'm a very caring potato ... Please explain.' It was a huge hit on the ABC youth radio network Triple J, where it was requested so often that it ranked fifth on the ‘Hottest 100' list that year. Six days after Triple J began playing the song, Hanson sought and gained a court injunction that under defamation law made it illegal to play the song. The injunction has never been lifted.
Other related problems have been explored by the Right to Know Coalition of major Australian media organisations. Its audit of free speech in Australia in October 2007 exposed a disturbing trend towards greater government secrecy, increased suppression of the court proceedings and fundamental weaknesses in freedom of information, whistleblower and other laws. These issues are the tip of the iceberg when compared with the direct impact upon freedom of speech produced by the forty-four federal anti-terror laws enacted since September 11, 2001. Those laws deal with sedition and prevent reporting of detention and questioning by ASIO in a way that poses a grave risk not only to freedom of speech but to our ability to hold government to account.
Australia's list of human rights problems is long. It includes the detention of young children seeking asylum, some of whom have subsequently become mentally ill. The debate even encompasses fundamental issues like torture and the death penalty. Opposition to both in Australia has been weakened: former attorney-general Philip Ruddock said he did not ‘regard sleep deprivation as torture' and there was bipartisan support for the death penalty for the Bali bombers. Once any instance of torture and the death penalty become acceptable, we have stepped on to a very slippery slope.
Australia is now the only democratic nation in the world without a national Bill or Charter of Rights. Legal protection of basic rights is an essential component of a modern democracy, not a flight of fancy. Australia must join the rest of the world and properly acknowledge and protect the rights of its citizens and others here.
There are signs of change. It is now recognised that human rights can be protected by ordinary Acts of parliament, as has occurred in both Victoria and the Australian Capital Territory.
I chaired the community process in Victoria that led to the enactment of the Charter of Human Rights and Responsibilities. The process had considerable community engagement – fifty-five community meetings and seventy-five meetings with government, peak organisations and the like. The committee received 2,524 written submissions – most, in my assessment, from people who had never before made a written submission to a public process. Support for change proved overwhelming.
After six months of listening to Victorians of all ages and backgrounds, we concluded that a substantial majority wanted their human rights better protected by law. They did not want radical change, but supported reform to strengthen their democracy and system of government. Many people wanted their human rights protected from the potential misuse of government power. Even more wanted change to reflect their desire to live in a society that supported the values they hold dear: equality, justice and a ‘fair go' for all. The idea of a community based on a culture of values and human rights was one we heard repeatedly. Victorians sought a new law, and something to help build a society in which government, parliament, the courts and the people had an understanding of and respect for basic rights and responsibilities.
This process has since inspired others. Last year, community-based committees in Tasmania and Western Australia supported a similar change. There is still need for federal reform, and an inquiry like that in Victoria was supported by new federal Attorney-General Robert McClelland. Australia needs a national human rights charter to ensure that human rights protection extends to federal responsibilities like anti-terrorism and immigration law, and to respect important democratic values like freedom of speech.
ONE OF THE GREATEST impediments to re-imagining our democracy is that Australians are largely unaware of the underlying problems. Rather than being engaged and active citizens, many are woefully ignorant of even the most basic aspects of government. This has been demonstrated for years. A 1987 survey for the Constitutional Commission found that almost half the population did not realise Australia had a written Constitution. The 1994 report on citizenship by the Civics Expert Group found that only one in five had some understanding of what the Constitution contained, while more than a quarter named the Supreme Court, not the High Court, as the ‘top' court in Australia. Only one in three felt reasonably well informed about their rights and responsibilities as Australian citizens.
Many Australians even believe we have a national Charter of Rights, according to a 2006 Amnesty International Australia poll of 1,001 voters by Roy Morgan Research. Remarkably, after years of heated debate about terrorism and detention laws, 61 per cent of those polled believed Australia had such a charter. The level of error was derived in part from the frequent references to Bills of Rights in popular culture, including American television programs.
One reason for this is that the Australian Constitution was not written as a people's document. It was written as a compact between colonies to meet the needs of trade and commerce. Historian Manning Clark argued in 1977 that they ‘wanted a constitution that would make capitalist society hum'. As a result, it says little about the relationship between citizens and their government and fails to embody the fundamental rights or aspirations. Lowitja O'Donoghue, former chairperson of the Aboriginal and Torres Strait Islander Commission has argued, ‘It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here – save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians.'
Another reason for the lack of engagement is that the Constitution does not match the reality of how government actually works. It does not mention many of the most basic features of government, such as the office of Prime Minister or the Cabinet. The text even suggests that ultimate political power is held by the governor-general, who is named by section 68 as the commander-in-chief of the armed forces with the power by section 64 to appoint and dismiss ministers. The Constitution appears to give the governor-general the powers of a dictator to rule over many aspects of the nation, according to the wishes of a foreign monarch. The text of the Constitution does not match political reality, because it assumes understanding of the conventions of the Westminster system of government operating in Britain in 1901. Those assumptions are not explained in the text, so an air of unreality pervades our most basic law and becomes a barrier to understanding how the Australian system of government actually works.
Ignorance and false knowledge are a cause of the alienation and anger that people sometimes express, such as when their beliefs about individual rights prove to be ill-founded. Such emotions are often directed solely at political leaders, despite the deeper origin of the rules that shape their behaviour. The result is that many Australians are ready to blame government, while assuming the foundations are sound.
This is dangerous. It produces a ‘if it ain't broke, don't fix it' conservatism which becomes a major barrier to reform. When combined with political cynicism, it leads to a cycle without an easy exit. The problem is compounded by passivity about the erosion of good government. Perhaps because of a lack of knowledge, people rarely see themselves as active participants in a debate about how the system could improve. Australians and their elected representatives have come to accept working within a flawed system, despite the enormous costs it imposes.
GIVEN THE PROBLEMS, why after more than a century has our system of government not ground to a halt? The answer often lies with judges. As the responsibility for initiating and leading change has been abdicated by elected representatives, it has been assumed by the High Court. By interpreting the Constitution and legislation, and developing the common law, the court's decisions have transformed how we are governed. Over a century, it has shifted law-making and financial power to the Commonwealth, discovered implied human rights like freedom of political discussion and recognised Aboriginal native title.
The high point of High Court activity came in the early to mid-1990s, when Sir Anthony Mason was chief justice. A series of decisions, including the Mabo native title case, opened up a debate that continues about the proper scope of judicial decision-making. This has included frequent use of the term ‘judicial activism' and the notion that judges have overstepped their role. Of course, the term is a pejorative one, as Janet Albrechtsen wrote under the heading ‘Death to Democracy' in The Australian on June 26, 2002:
A war on democracy is taking hold across the West. It's being launched by activist judges trying to overturn the will of the people ... At bottom, these activist judges think governments, politicians and the people who elect them cannot be trusted. The logical end point of this is elite rule. It might be a seemingly benign, well-educated, intelligent elite, but it's elite rule all the same. To date we've eschewed it as a poor alternative to democracy.
Her language is overblown, but Albrechtsen raises important questions: whether judges act undemocratically because they are not elected officials, whether they play an illegitimate role in making transformative decisions. There is some merit in this ‘democratic deficit' argument. If you were to pick an arm of government to be responsible for national reform, you would not chose the judiciary. It is highly unrepresentative – the first female justice was only appointed to the High Court in 1987 – and can only decide those matters brought before it. Put simply, you would be hard put to say the best shapers of the nation could be seven unelected lawyers. While the court has an important and necessary role in nation-building, it is not well equipped to play the lead.
My own thinking has changed significantly. It began when I walked into the High Court building in Canberra in early 1992. I had come straight from law school and was lucky to arrive at the beginning of the most interesting and active year in the court's history. That year the Mabo Case and early free speech cases marked the peak of the Mason court's impact on Australian law and government. It was a year when the court demonstrated it could play a major role in shaping Australian democracy. As a young graduate, it seemed to me that the court had all the answers and arguments for a leading judicial role.
I continue to believe the Mason court made the right decisions on key issues like native title, but have changed my mind about the appropriate role for the High Court. It is not the right leader, being institutionally incapable of achieving desired outcomes. While recognising native title was a momentous achievement, this has since foundered as new judges were appointed. The court alone could not forge a lasting political settlement.
Another point is that the court is unable to interpret the Constitution to provide symbolic recognition of Indigenous people. There are important limits to what the judiciary can achieve: many of the most important reforms are beyond them and others can be seen as illegitimate. The High Court could not, for example, insert a fully fledged Bill of Rights into the Constitution. In other areas, the court may have reached the workable limits of the text and the possibilities for easy adaptation. Other judges have reached the limit of their desire for reform. As a result, the aspirations and expectations of the Australian people are constrained by a century-old Constitution updated and interpreted in an ad hoc fashion.
The court is rarely capable of leading the debate to an effective conclusion. While it can bring about changes to federalism, there are also dangers it can lose touch with public opinion and political leadership. Ultimately, it depends on other institutions to make its decisions work, and for the selection of its judges. As Alexander Hamilton wrote in 1788 of the United States Supreme Court:
The judiciary ... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
The evidence of this convinced me that, while the High Court has a central role in our democracy, the reform agenda must by led by the community and its elected representatives. Such leadership is essential for successful reform. I now believe that the best way to improve human rights protection is new human rights laws. In this and other areas, it is often better to follow the difficult pathways of partisan politics to achieve lasting results.
While the High Court judges deserve credit for many changes that have updated and improved our system of government, there are dangers in leaving constitutional reform solely to them. Court-initiated change is often a second-best solution. It can distance Australians from their governance and legal structures, contribute to the sense of alienation that weakens our democratic system and undermine the vision of the founders for popular involvement in constitutional change.
There is a need for balance. While the High Court is rarely the best institution to reform the processes of government, it has frequently been the only forum for this, and its involvement has been inevitable. The High Court has a legal duty to hear the cases that come before it and, unlike political leaders, cannot duck obvious problems with the Constitution and system of government. It has never been realistic to suggest that the judges, in interpreting the ambiguous and uncertain words of the Constitution, could ignore the problems laid out before them. The point is not that judges ought to take the lead, but that even the more conservative judges will end up doing so if political leaders do not.
Over-reliance upon the High Court has, in recent times, made the community and political leaders unresponsive to the need for change. It is too easy to ignore good arguments for change, even when it is clear that a problem is beyond High Court interpretation and requires constitutional amendment or new legislation.
I am not suggesting that political leaders have totally neglected this aspect of political life. There are many examples of prime ministers striving for – and unfortunately too often failing to achieve – improvements. Even in these areas, the courts have had an impact, as the attempt by prime minister Paul Keating to cut the final symbolic ties with the British monarchy demonstrated. Keating was voted out of office in 1996 and his idea was carried to a referendum defeat by his successor John Howard. It is less widely known that, by virtue of a High Court decision, the United Kingdom is today regarded as a ‘foreign power'. In 1999, a majority of judges in Sue v Hill found that for the purposes of the Constitution this was indeed the case, despite the Queen remaining at the apex of our system. This highlights how a court, faced with the contemporary reality, could regard Australia as independent of the United Kingdom. While we have yet to see a successful referendum on the issue, the High Court judges have made it clear that when it comes to Australian law the last vestiges of monarchical power have been eradicated.
This illustrates a further point. Even if the courts were able to transform Australia into a republic through judicial interpretation, they could not achieve the real goal: a system of government that is legally effective and legitimate because it has the support and acceptance of the Australian people. Without legitimacy, legal change can be tokenistic because it lacks the democratic seal of approval needed for changes to be enduring and effective. Lasting reform can often only be won by democratic engagement and political leadership. Nation-building must transcend the judiciary.
THE REFORM AGENDA MUST take a radically different approach. Political leaders must take charge and be prepared to devolve real power to the people. Australians need more than a veto at the ballot box; they must be given a genuine say in shaping reform itself. Change must be led from the ground up, rather than being imposed from above.
We also need to build a narrative to support change that relates to Australian values and icons. The story needs to explain and justify significant reform about how we are governed as part of the larger Australian story. Reform might be justified as a people-led initiative that, like the work of our forebears in the 1890s, readies the nation for future challenges. The narrative should also be positive rather than just responding to past failures, and focus on community-led processes of modernisation. Such a narrative, that supports and reinforces the process of change, is essential for success. Unless people can see how reform fits into their vision of Australia, they are unlikely to trust the reformers or to support the outcome.
Australia also needs leaders equal to the challenge. Compared with nations like Canada and Britain, we have had few leaders who grasped the need for reform and had the skills and commitment to drive it. Good leaders need imagination. They need to envisage how our long-term future could be better on a different path. Our leaders need to be able to convince others of their vision, something that requires political talents of the highest order. We should not be pessimistic about the possibility for good leadership. Australia has an exemplary record in public policy-making in economic, social and health policy.Australia needs a new agenda for reforming how we are governed. It needs to be bold in what it tackles, but also pragmatic and realistic, avoiding wherever possible the need to hold referenda until people become more comfortable with change. The strategy should focus on incremental reform, small achievements that generate the momentum needed for more significant improvements. History shows that there are no quick paths to success, only quick paths to failure. This means we need a forward-looking agenda that educates people and encourages them to be involved. We need to trust people so that they have a genuine say in shaping the future of Australian democracy. ♦