Thawing the frozen continent - Page 2
From Griffith REVIEW Edition 19: Re-imagining Australia
© Copyright Griffith University & the author.
Written by George Williams
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!