A New Constitution for Australia

Bede Harris

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135315924
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 2002. The last hundred years have seen many social changes in Australia. The many shortcomings in Australias Constitution have been exposed, leading to the current debate on an Australian republic.

CHAPTER 1
CONSTITUTIONAL REFORM

1.1 THE NEED FOR CONSTITUTIONAL DEBATE

It could well be said that anyone writing a book as a result of which he or she hopes to effect constitutional reform in Australia must either be optimistic to the point of foolhardiness or be expecting to live beyond the normal human lifespan. The fate of proposed constitutional amendments in Australia is well known: of 44 referenda conducted since the coming into force of the Constitution, only eight have cleared both hurdles set by s 128 of the Constitution by securing majority support of votes cast nationwide and majority support in a majority of States (in other words, in four of the six States). Most recently, the referendum held in 1999 on whether Australia should become a Republic suffered a crushing defeat, with 5,273,000 votes cast in favour of the Republic, 6,410,000 cast against, and without securing a majority in any State or Territory, bar the Australian Capital Territory (ACT).

While of symbolic importance, the issue of the Republic is of relatively little importance from a functional point of view. As we shall see in Chapter 10, most countries in the international Commonwealth have adopted a republican form of government, with a president performing the same functions as the former Governor-General, with a minimum of fuss. I should at this stage declare my preference for Australia becoming a republic, simply because I believe we should have an Australian as our Head of State. However, in my view the issue of whether we should become a republic is of relatively minor importance in comparison with the many far more pressing constitutional issues we face. Similarly, the actual result of the 1999 referendum pales into insignificance when compared with the appalling, although perhaps understandable, lack of public knowledge on the basic functioning of the Constitution which became evident during the referendum campaign. This lack of knowledge is understandable because the offering of subjects covering government and law is a relatively recent development in High School curricula, and, for the most part, Australians who left school before such programmes were introduced are rarely exposed to formal education as to the purpose and function of the federal or State Constitutions. This work is thus to some extent inspired by the referendum of 1999, and I hope that its publication will create awareness and understanding of the problems underlying current constitutional arrangements in a way that the referendum process failed to do even in relation to the specific issue of the republic.

1.2 DO WE NEED A NEW CONSTITUTION?

Does Australia need a new Constitution? Our system of government works, and the stability and freedom it provides are factors which make it a highly attractive destination for migrants. Although marred by some obvious flaws—principal among which are the incompatibility of the Senate’s blocking power of financial legislation with the doctrine of parliamentary government, and the mutual ability of the Prime Minister and the Governor-General to dismiss each other—the Commonwealth Constitution is functional. Is constitutional reform something that should concern us? The answer to this is, in my view, a resounding ‘yes’. The ‘If it ain’t broke, don’t fix it’ philosophy, in which complacency about the Constitution finds its roots, is really an argument for mediocrity. The best response that can be given to that argument takes the form of another adage: ‘The good is enemy of the best’. Surely Australia should have a Constitution which is the best we can devise, rather than one which is merely serviceable? Can it really be true that the experiences gained by operating the Constitution during the past century have yielded no lessons as to how that document could be improved? Given that necessary reforms have been implemented in every other area of law during the same period—in some cases on several occasions—surely it would be beneficial for the Constitution to be reviewed? Yet the only occasion upon which a thoroughgoing review of the Constitution was undertaken—when the then government established the 1988 Constitutional Commission, which recommended a set of useful, but by no means radical, constitutional reforms—was not followed up with political action, with the result that the enormous body of work contained in the Commission’s report was left unexploited. Surely we should draw upon our experiences, and those of other countries, to revise our Constitution, so that it reflects the best of contemporary thought, both local and international?

This introduces another prominent theme of this book—the usefulness of looking at the experience of other jurisdictions in deciding how we would like to reform Australia’s Constitution. Constitution-making should not be affected by misplaced national pride which denies that there are any useful ideas that can be adopted from overseas. On the other hand, the fact that something is done overseas is also not in itself a reason to adopt the practice here. But, that having been said, where another country has an institution or rule that operates well, we should avail ourselves of that experience as a source of ideas for reform of our own Constitution. For that reason, this book draws substantially on the constitutional law of other jurisdictions. The 20th century was unparalleled in the extent and speed of developments which had a bearing on constitutional thought: democratisation, decolonisation and the terrible experience of tyrannies, such as Communism and Nazism, which led to the wholesale slaughter of populations on the basis of class or race. All of these developments provide useful lessons from a variety of jurisdictions on what should and should not be done when reforming a Constitution.

Finally, one should recognise that tradition is to some extent an impediment to constitutional reform. Of course a country’s Constitution reflects its history, and in examining the Constitution one cannot avoid acknowledging that history and the sentimental attachment that people have to their constitutional institutions—an attachment which is, indeed, a major defence available to the Constitution, should it ever be threatened by unconstitutional action. However, we should not be held prisoner by history, and so provisions of the Constitution should not be retained merely because they reflect an historical need, if that need is no longer important. The difficulty that has attended attempts to amend Australia’s Constitution is undoubtedly due in part to the suspicion with which voters view proposals for reform, there being a presumption in the mind of the voters that proposals for change to the federal Constitution—particularly any proposal emanating from the mouth of a politician—is motivated by a desire to increase governmental power.¹

A constitutional provision may exist simply because it has existed for a long time, because experience shows that it works, or because it is just. I would argue that the first is the weakest reason for retaining a provision. Ideally, we should have a Constitution which serves both the second and the third. One would hope that, in time, a new Constitution would itself become part of our traditions, and would draw strength from that fact. That having been said, there is no merit in constitutional change for its own sake. Current institutions which accord with constitutional principle, and which work effectively, should be retained. It is only where a constitutional rule or institution is defective, or could be improved by alteration, that change is warranted.

Finally, even setting aside changes required to the substance of the Constitution, I would argue that we need a new Constitution because the current one is written in language which is archaic, uninspiring and difficult to understand. Such a circumstance is obviously incompatible with the Constitution being a document which the people hold dear. As is stated by Lutz:²

…the whole point of a written constitution is to make available to the average citizen a description of the institutions and rules whereby a people govern themselves. Any constitution that cannot be understood by its citizens is, in effect, not a constitution. [Original emphasis.]

1.3 CONSTITUTIONAL VALUES

What is a ‘good’ constitution? To answer this we should perhaps first enquire as to what is the purpose of a constitution. Most constitutional scholars writing in the context of free societies say that the purpose of a constitution (and indeed of constitutional law generally) is to define and limit the powers of the state. Under this theory (usually referred to as the doctrine of constitutionalism), constitutional law serves to bring the State down to the level of the individual by subjecting the state to law in the same way as the individual is. So constitutional law has an important levelling function. Once this is understood, one realises that what constitution-making is essentially concerned with is striking an appropriate balance between the citizen and the organs of the state—defining in what circumstances the state may validly limit the freedom of the individual, and how the different organs of the state interact among themselves. This analysis is useful, because it illuminates an important principle which is not adequately appreciated in the Australian constitutional tradition, namely that good constitution-making requires a focus on the citizen. It is from the perspective of the citizen that a constitution should be evaluated, and from this it follows that in drafting the rules contained in a Constitution, one should have the question of what impact will this have on the citizen in the forefront of one’s mind.

This was certainly not the perspective adopted by the framers of Australia’s Constitution. As they saw it, their task was to draft not a charter regulating the relationship between the citizen and the various governments in Australia, but rather what was really a compact³ or treaty between the separate Australian colonies, delineating the terms upon which they would agree to federate. Our Constitution thus bears more of the features of an inter-governmental agreement than a set of principles regulating the relationship between the individual and the State. Although it is true that the Constitution does contain some sections which confer rights on citizens, it is arguable that, with the exception of the s 80 right to trial by jury for indictable offences against the Commonwealth, these were included largely in order to serve some federal purpose, rather than to protect the individual against the organs of government. Thus, the prohibition against restrictions on inter-State trade, commerce and intercourse (s 92) was designed to ensure free trade within the Commonwealth; the prohibition against establishment of religion (s 116) was inserted partly in order to prevent the Commonwealth from becoming involved in the politically sensitive issue of State policies towards churches, or from enacting legislation that favoured any of the contending churches;⁴ the requirement of equality of treatment as between residents of different States (s 117) sought to ensure that neither the Commonwealth nor other States would impose restrictions on residents of a State when they were in other States;⁵ and it is arguable that the s 51(xxxi) requirement of just terms compensation was inserted in order to address the States’ fears that the Commonwealth might use its enumerated powers as a means of expropriating their property.

Delegates to the Conventions rejected the idea that the Constitution contain a Bill of Rights, preferring instead to rely on common law rights, and a belief that the Commonwealth and State legislatures could be trusted not to exercise their power to override such rights.⁶ This reveals another feature of 19th century Australian constitutionalism which is still prevalent today: an acceptance of the right of Parliaments to subject the citizen to law. The fact that Parliaments are the product of the general will is seen as sufficient justification for the subjection of the citizen to the will of Parliament. There was, and is, little credit given to the idea that the individual should have a sphere of rights which are immune from override by the majority acting through the agency of Parliament. This again illustrates a failure to focus on the primacy of the citizen, and stands in contrast to the attitude which governed constitution-making in South Africa in the 1990s, for example, where the starting point was that the dignity of the citizen as a human being entitled him or her to a core set of freedoms to which the legislature was subordinate. In Australia, the attitude seems rather to be ‘If Parliament, representing the majority, has chosen to enact legislation restricting freedom, what ground is there for complaint?’, which implies a default position that Parliament has power over the citizen, and that the citizen should be satisfied with whatever residual sphere of liberty Parliament chooses to leave to him or her. A citizen-focused approach to constitutionalism is the reverse—the rights of the citizen should be affirmatively stated and protected against invasion by government, which can then operate in the residuum left to it.

A further consequence of what almost might be called the contractual nature of the Constitution was that, like all contracts, it was the product of a compromise, and that in order to achieve that compromise, the delegates sacrificed positions which, if the process had been driven by principle and logic, would have been maintained. Chief among these was undoubtedly what came to be known as the ‘Compromise of 1891’, that each State should have equality of representation in the Senate irrespective of population, and that the Senate should have a power of veto over the House of Representatives, including over financial legislation.⁷ This compromise was objectionable for two reasons: it offended against the principle of equality of representation, in that it made the weight of a person’s vote depend upon which State they lived in, and it was incompatible with the doctrine of responsible government, in that it made the government which by definition had a majority in the House of Representatives dependant for supply (and thus tenure of office) upon the Senate, in which it might well not have a majority. This fundamental incompatibility between a powerful Senate and responsible government would be starkly revealed during the constitutional crisis of 1975.

It will be apparent from the above that this book adopts a stance to constitutional development which is very different to that which has been accepted in Australia over the last century, and, consistent with what has been said above, I would suggest that for purposes of this book we should define a ‘good’ Constitution as one which satisfies two essential requirements—one of principle, namely that it must accord with fundamental principles of justice, the other of practicality, namely that it must allow the machinery of government to work efficiently.

The question of what fundamental principles of justice should underlie that Constitution is very broad, but I would suggest that the following are important:

• human dignity—served by a recognition that each person is entitled to a basic core set of rights, which are protected from unreasonable impairment by the rest of society, and thus by government as the repository of legal authority in society; and
• equality—served by a recognition that each person should enjoy (at the very minimum) equality in the formal sense of equality of opportunity, the same rights of participation in the political process, and the same degree of influence over the political process as every other person, and that when power is applied to a person, it should be done in a non-discriminatory manner.

Reference will frequently be made to these values when analysing current institutions and suggesting how best they should be reformed.

It is in the light of these principles that I address such issues as whether Australia should have a Bill of Rights, and, if so, what its content should be (Chapter 2); how we should select our judges (Chapter 3); what rules should govern the liability of the executive under statute and common law (Chapter 4); what the appropriate balance between the States and the Commo...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• PREFACE
• ACKNOWLEDGMENTS
• TABLE OF CASES
• TABLE OF LEGISLATION
• TABLE OF ABBREVIATIONS
• CHAPTER 1: CONSTITUTIONAL REFORM
• CHAPTER 2: A BILL OF RIGHTS
• CHAPTER 3: THE JUDICIARY AND THE COURTS
• CHAPTER 4: THE EXECUTIVE
• CHAPTER 5: FEDERALISM
• CHAPTER 6: INDIGENOUS AUSTRALIANS
• CHAPTER 7: DIRECT DEMOCRACY
• CHAPTER 8: FAIR REPRESENTATION
• CHAPTER 9: PARLIAMENTARY REFORM
• CHAPTER 10: THE HEAD OF STATE
• CHAPTER 11: ACHIEVING CONSTITUTIONAL REFORM
• APPENDIX: THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA ACT 2002
• BIBLIOGRAPHY