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The Constitutional Reform Agenda

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Public Seminar, Australian Association of Constitutional Law, The Constitutional Centre of Western Australia and UWA Law School, 3 August 2011  This paper was presented by Professor George Williams

The Author

George Williams is the Anthony Mason Professor, a Scientia Professor and the Foundation Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales. As an Australian Research Council Laureate Fellow, he is currently engaged in a five year international project on anti-terror laws and democracy. He has held visiting positions at Osgoode Hall Law School in Toronto, Columbia University Law School in New York and University College London.

George has written and edited 26 books, including Australian Constitutional Law and Theory and The Oxford Companion to the High Court of Australia. His latest book is People Power: The History and Future of the Referendum in Australia.

As a barrister, George has appeared in the High Court of Australia in cases such as Lange v Australian Broadcasting Corporation on freedom of speech, the Hindmarsh Island Bridge Case on freedom from racial discrimination and Plaintiff S157/2002 v Commonwealth on review of government action and the rule of law. He has also appeared in the Supreme Court and Court of Appeal of Fiji, including in Republic of Fiji v Prasad on the legality of the 2000 coup.

In 2005 he chaired the Victorian Human Rights Consultation Committee that lead to the enactment of the Victorian Charter of Human Rights and Responsibilities. In 2007 he chaired a NSW Government inquiry into Options for a New National Industrial Relations System, and was also a member of the High Level Advisory Group on Federal-State Relations to Kevin Rudd. He is currently a member of the Northern Territory Constitutional Convention Committee and the New South Wales Government’s Panel to Examine Recall Elections.

He writes a fortnightly column for the Sydney Morning Herald and also reviews science fiction and fantasy books for The Weekend Australian.

George was made an Officer of the Order of Australia in 2011:

            ‘For distinguished service to the law in the fields of anti-terrorism, human rights and constitutional law as an academic, author, adviser and public commentator.’

The Paper

Constitutional reform in Australia has been off the agenda for some years. Indeed, the last decade was the first since Federation that lacked at least one national referendum. We are also in the midst of Australia’s longest ever drought in constitutional change. There has not been a successful national referendum since 1977, some 34 years ago, or around one third of the life of the nation.

It seems that things are about to change. While we can only guess at the prospects of success, Australia has begun three major debates that could have important ramifications for our Constitution. They are:

1. Whether to recognise indigenous Australians in the Constitution;
2. Whether to recognise local government in the Constitution; and
3. whether the Northern Territory should become Australia’s seventh state

My task is to give you a panoramic view of each. It is important to recognise that the debates are still in their early stages. None has yet produced a final proposal, and indeed this is not likely in any case until sometime in 2012.

It seems appropriate to be talking about these matters in Western Australia. Not only is your State alone in having a Constitutional Centre, but Western Australia also has the strongest record of any State in voting Yes at national referendums. Indeed, it is the only State that has voted Yes in more than half of Australia’s referendums, voting Yes in 23 out of the 44, a remarkable record when it is considered that only eight these referendums have actually passed.

I will now turn to the proposals themselves, and will finish with a few observations on what needs to be done to win one or more of these referendums.

Indigenous recognition

Indigenous peoples have long sought recognition in our national and State Constitutions. They have done so because these fundamental laws have either ignored their existence or permitted discrimination against them. They also argue that the story of our nation is incomplete without the histories of the peoples who inhabited this continent before white settlement.

Prime Minister Julia Gillard has pledged a referendum on whether to recognise Indigenous peoples in the Australian Constitution. The referendum will be held before or at the next federal election. Nothing is yet known about the substance of the change. This is something that the government will receive advice on by the end of 2011 from an expert panel chaired by Professor Dodson, former Chairman of the Council for Aboriginal Reconciliation, and former Reconciliation Australia co-chair Mark Leibler.

The coming referendum will not be the first time that Australians have voted to recognise Indigenous peoples in the Constitution. An unsuccessful attempt was made to recognise Indigenous peoples at the 1999 republic referendum. On that occasion, the people rejected a new preamble to the Constitution containing the words:
‘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’.

Since 1999, the States have taken the lead, bolstered by the advantage of not needing to hold a referendum to recognise indigenous Australians in their constitutions.

Victoria and then Queensland brought about this reform to their Constitutions by way of a simple act of Parliament. New South Wales is the most recent State to do so. The change made in 2010 to the New South Wales Constitution takes the form of a new section 2. It states:

Recognition of Aboriginal people
(1) Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State’s first people and nations.
(2) Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales:
(a) have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and
(b) have made and continue to make a unique and lasting contribution to the identity of the State.
(3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales.

These are fine words, and the language used is generous and inclusive, but it must be remembered that they are just words. The section does no more than make a symbolic change to the State Constitution. In fact, some of that symbolic effect is undermined by subsection 3.

It makes clear that, in case the words might any legal effect, such as by assisting with the interpretation of other parts of the Constitution, this is not permissible. This is a very unfortunate inclusion in removing any possible substantive benefit to Aboriginal people from the new section. It is not needed in any event given the very limited role that such symbolic words play in the interpretation of a constitution. It must be hoped that it is not copied in any federal wording.

The Gillard government may look to the New South Wales change as a starting point. However, in her case, symbolic change by way of a new section or new preamble to the Australian Constitution will not be enough. If federal recognition of Aboriginal Australians is not to ring hollow, it must also involve the removal of the last vestiges of racial discrimination from the document.

The problem for Aboriginal people when it comes to the Australian Constitution lies deeper than mere recognition. The Constitution was drafted more than a century ago to deny Aboriginal people their rights, their voice and even their identity as peoples.

The Constitution was written in the 1890s against a backdrop of racism that led to the White Australia policy and a range of other discriminatory laws and practices. The result was a Constitution that referred to Aboriginal peoples only in negative terms. Section 127 even made it unlawful to include ‘aboriginal natives’ when counting the number of ‘people’ of the Commonwealth.

Section 127 was removed by the 1967 referendum, but other problems were left untouched. The result is a Constitution that in its text and operation still runs counter to the idea of Aboriginal Australians being equal members of the community.

The first problem is section 25. Headed ‘Provision as to races disqualified from voting’, the section acknowledges that the States can disqualify people from voting due to their race. This reflects the fact that at Federation in 1901, and for decades afterwards, States denied the vote to Aboriginal people. Unfortunately, the Constitution still recognises this as being a legal possibility. The section is repugnant and should be deleted.

The second problem is the races power in section 51(26). It says that the Federal Parliament can make ‘special laws’ for the people of any race. The idea in 1901 was that laws were needed to discriminate against certain races, such as by limiting their choice of occupation or where they could live so as to limit their contact with white Australians. As stated by the nation’s first Prime Minister Edmund Barton, the power was necessary to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’.

The races power did not originally apply to Aboriginal people. At the time of Federation, they were described as a ‘dying race’ and it was thought that their affairs would best be managed by the States and not the Commonwealth. The power was finally extended to Indigenous Australians at the 1967 referendum along with a hope that it would be used to advance their interests. However, nothing was done to indicate that the races power could only be used for their benefit. The discriminatory possibilities of the power thus remained. When the issue was raised in 1998 in the Hindmarsh Island Bridge Case, the High Court left open the possibility that the power could still be used in this negative way.

When the history and current text of the Constitution is taken into account, Aboriginal people should be recognised in the Constitution by way of:

1. Positive mention of Indigenous peoples and their culture in a new preamble to the Constitution;
2. The deletion of:
(i) section 25; and
(ii) section 51(26).
3. The insertion of new sections that:
(i) grant the Commonwealth Parliament power to make laws with respect to ‘Aboriginal and Torres Strait Islander peoples’;
(ii) prohibit the enactment of racially discriminatory laws by any Australian Parliament (while also providing that this does not prevent the making of laws that redress historic disadvantage).
(iii) permit the making of legally binding agreements between Indigenous peoples and Australian governments.

These changes would both recognise Aboriginal Australians and redraft the Constitution to remove the possibility of discrimination against them on account of their race. It would also recognise that Federal Parliament can pass (non-discriminatory) laws and enter into agreements for their benefit.

Australia needs to recognise Aboriginal peoples in the Constitution in this way. It does not speak well of our nation that after more than a century we have yet to achieve this, and have not removed the last elements of racial discrimination from the document. It is past time that we had a Constitution founded upon equality that recognises Indigenous history and culture with pride.

Local government recognition

The Gillard government has also committed to holding a referendum at or before the next Federal election on recognition of local government in the Constitution. It has also announced the formation of a panel on this topic chaired by former NSW Chief Justice Jim Spigelman.

Two attempts have been made to recognise local government in this way, in 1974 and 1988. Both failed.

In December 2008, ALGA held a Constitutional Summit to debate formal recognition of local government in the Constitution. Three options emerged.

• Option 1: Recognition of Local Government in a New Preamble
• Option 2: Institutional Recognition of Local Government
• Option 3: Financial Recognition of Local Government

ALGA will seek recognition for local government in a new preamble if one is drafted, but to not otherwise now argue that option. It has also decided not to proceed with seeking institutional recognition of local government at this time.

Instead, ALGA has focused its energy on achieving the third option, financial recognition of local government.

This third option is a modest, achievable change that also responds to a problem that affects both local government funding and the services delivered to communities.

The High Court in Pape in 2009 cast significant doubt on whether Commonwealth can directly fund local government. Major direct federal funding may well now be unconstitutional, such as the Roads to Recovery Program, and even if this funding is continued despite the risk, the High Court case may impact on the willingness of federal governments to fund future programs.

A constitutional amendment that dealt with this would provide recognition of local government and of fixing a known problem. Create an expectation, and hope for increase in the size of the funding pie over time (vs take over from the States).

In the past, Australians have shown themselves willing to vote for referendums that fix a problem of this kind. A good example is the 1946 referendum put by the Chifley government. It was put after a High Court decision threatened the ability of the Commonwealth to fund a national pharmaceutical benefits scheme. The people passed the change to overcome the High Court decision.

The change to the constitution need only be a simple one. Section 96 says:

 The [federal] Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

This could be amended to add: ‘or local government body’.

My view is that this would be a common sense, practical amendment.

Northern Territory statehood

The Northern Territory is once again on the road to becoming Australia’s seventh State. This time, there is every chance it will succeed. Statehood has strong support among territorians, and the bipartisan backing of their leaders. Federal ministers from both sides of politics have also said that if territorians vote for change, the Federal Parliament should bring this about.

The problem in the past lay in translating popular support for statehood into a majority Yes vote at a Territory-wide referendum. The last debate in the 1990s produced a divisive constitutional convention, a belief that decisions were being pre-empted by politicians and concern among the Territory’s large Aboriginal population that their interests were being neglected. Despite this, Territorians only just rejected the idea, casting a 51.3% No vote at the 1998 statehood referendum.

The new move to statehood has learnt from this failure. The centrepiece is a 75 member, fully-elected popular convention that will draft the Territory’s new constitution. Jointly announced by Chief Minister Paul Henderson and Leader of Opposition Terry Mills, the convention will be held in Darwin from 21 to 29 April 2012. In an Australian first, sitting politicians will be ineligible to stand. Political leaders may attend the convention to put their view and to listen to the people, but may not vote in the deliberations.

The Darwin convention will draft a new State Constitution to be sent to the broader community for consultation and discussion. Convention delegates will then reconvene in 2013 in Alice Springs to ratify a final draft. If all goes well, this will be put to the people of the Territory at a referendum soon after. If passed, it will be presented to the Commonwealth as the basis upon which the Northern Territory should be transformed into a State.

Australia’s Constitution grants a clear and straightforward power to make a new State, whether it be a territory or even a country like New Zealand. No national referendum is required. Section 121 of the Constitution instead says that the Federal Parliament can admit or establish new States. Terms and conditions may be imposed, including as to the representation of the State in Parliament.

A new member of the Federation is not guaranteed the same number of Senators as the existing States. That privilege only extends to the ‘original states’ as at 1901. Hence, the Northern Territory can become a State while retaining its current Senate representation of two members, or this might be increased to whatever figure is agreed to by the Commonwealth.

Becoming a State will not affect the significant financial assistance received by the Northern Territory. No extra money flows because it is a territory. Federal funding is instead based upon its relative economic position according to a formula applied by the Commonwealth Grants Commission.

It is hard to see any downsides for the Northern Territory in becoming a State. On the other hand, there are certainly advantages, even if the Australian Federation is not run by the States as it used to be.

Unlike State laws, Northern Territory legislation can be overridden at the whim of the federal government. This can occur in a partisan or opportunistic way, with no consideration paid to the best interests of local people. The Commonwealth can also intervene directly in the Territory in a way that would be impossible if it were a State. The overriding of the Northern Territory’s voluntary euthanasia law in 1997, and the Northern Territory intervention in 2007 demonstrate the possibilities.

The people of a territory also receive lesser rights. The Constitution confers few human rights, and those that it does are usually expressed or interpreted only to protect the people of the States. For example, section 117 only protects someone ‘resident in any State’ from discrimination on account of where they live.

Territorians also only receive a half vote in national referendums to change the Australian Constitution. Their ballot is counted in the national vote, but not in the separate vote to determine whether a majority of States have approved the change.

It is no surprise that the people of the Northern Territory have long sought to escape their status as second-class citizens. While the last attempt floundered, this time may well prove different. Territorians are about to be given the best chance possible to express a clear view about whether the time for statehood has arrived.

Winning a referendum

In People Power: The History and Future of the Referendum in Australia, David Hume and I examine Australia’s record of failed and successful referendums in detail, and how this experience might be applied to hold referendums with greater prospects of success.

We conclude that Australia must avoid repeating, yet again, the same past mistakes, and that there are realistic prospects that the Australian people will vote Yes if a referendum is approached in the right way. To win a referendum, the process should be based upon the following five pillars.

1 Bipartisanship

Bipartisan support has proven to be essential to referendum success. Referendums need support from the major parties at the Commonwealth level. They also need broad support from the major parties at the State level. The history of referendums in Australia provides many examples of proposals defeated by committed opposition from a major party at either level. This has been a particular feature of failed referendums put by the Australian Labor Party.

 
2 Popular ownership

Just as deadly as partisan opposition is to constitutional reform is the perception that a reform idea is a ‘politicians’ proposal’. From the 1967 nexus proposal, which was felled by the cry of ‘no more politicians’, to the Republic referendum, which was killed off by the claim that it was the ‘politicians’ republic’, Australians have consistently voted No when they believe a proposal is motivated by politicians’ self-interest. This reflects a well-known undercurrent of distrust of Australian politicians. The constitutional design of Australia’s reform process exacerbates this problem. Politicians, and only politicians, can initiate constitutional reform through the federal Parliament. This renders every referendum proposal at risk of being perceived as self-serving, especially of those interests aligned with the Commonwealth.

3 Popular education

Surveys of the Australian public show a disturbing lack of knowledge about the Constitution and Australian government. Rather than being engaged and active citizens, many Australians are know little of even the most basic aspects of government. This is often a reflection of the fact that disengaged citizens tend to have less knowledge about their system of government and any reform being proposed. The problem has been demonstrated over many years. For example:

• A 1987 survey for the Constitutional Commission found that almost half the population did not realise Australia had a written Constitution, with the figure being nearly 70 per cent of Australians aged between 18 and 24.

These problems can be telling during a referendum campaign. A lack of knowledge, or false knowledge, on the part of the voter, can translate into a misunderstanding of a proposal, a potential to be manipulated by the Yes or No cases and even an unwillingness to consider change on the basis that ‘don’t know, vote No’ is the best policy.

4 Sound and sensible proposal

As important as it is to get the process of generating proposals right, it is equally important to get the proposals themselves right. A major weakness in Australia’s referendum record to date is that attempts at reform have been dominated by what have been (often rightly) perceived by the population to be grabs for extra federal power.

5 A modern referendum process

Australia’s present system for the holding of referendums is set out in the Referendum (Machinery Provisions) Act 1984. That law was adopted in 1912, and has changed little since. The Act should be changed to:

• abolish expenditure restrictions on the Commonwealth Government;
• rethink the official Yes/No pamphlet; and
• continue the Yes and No committees from the 1999 referendum.

These changes are reflected in the 2009 recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs.

Conclusion

Australia’s record of past failed attempts at constitutional reform do not mean that winning a referendum is ‘mission impossible’. Instead, we should expect a referendum to fail whenever our major political parties disagree, or when poor management means that the Australian people feel left out or confused about what is being changed. People will also vote No to a proposal that is dangerous or has been poorly thought out. This of course is common sense, yet the referendum record displays a tendency to repeat these same mistakes time after time. Australia’s referendum history contains few successes for good reason.