Friday, 14 June 2013

Challenging Constitutional Changes

When it comes to constitutional change, very few Australians would understand the significance of the numbers 44 and 8.

Those who dabble in constitutional matters know only too well what these figures represent; the first is the number of proposals that have been put to the people of the Commonwealth (of Australia) for approval to change our Constitution, the latter is the number of proposals that have been approved in accordance with section 128 of the Constitution.

Not exactly a great batting average given that the Federation has been in place for some 112 years! 

Indeed, the Hon W Trenwith, Minister for Public Works (Victoria), at a luncheon held in Sydney on 5 January 1901 to celebrate the Federation of the Commonwealth of Australia stated the following in respect of the Constitution (The Inaugural Celebrations of the Commonwealth of Australia, William Applegate Gullick, 1904, Page 175):

“ ...... that while it is not too pliant and cannot be easily altered, it provides the machinery for doing anything the people of the continent may desire

Noting that all of the eight referenda passed to date have achieved more than 54.38% Australia-wide, four additional proposed referenda, which achieved more than 50% overall, did not gain the necessary majority of states in each case.

All of the eight successful referenda received bipartisan support and 50% of the eight successful referenda were conducted concurrently with an election. The bulk of these proposals were under the sponsorship of conservative governments.

However, bipartisan support doesn’t automatically guarantee that a referendum will succeed.

The 1977 referendum on Simultaneous Elections gained 62.22% of the votes but was not carried in a majority of states. This failed referendum and two other failed referenda, Parliament Nexus (1967) and Aviation (1937), also received bipartisan support (G Grainger, K Jones, The Australian Constitutional Monarchy, ACM Publishing, 1994, Table 2).

While it is acknowledged that a referendum could be passed with the smallest of margins it may require that each of the 6 states approve the referendum. This matches the establishment of the Constitution itself in the late 1890s.

While only 52% of the people supported the Australian Constitution then, and despite that most women and many aboriginals were excluded from voting (G Williams, The High Court and the People, Tomorrow's Law,  Federation Press, 1995, 271), the constitution was approved in each of the 6 colonies.

Currently, there are two proposed changes to the constitution in waiting. They are for the recognition of Local Government and recognition of the Aboriginal and Torres Strait Islander peoples.

A third proposal is an amendment to the Referendum (Machinery Provisions) Act to allow for the conduct of citizens initiated referenda. This is a proposed amendment to an existing Act of the Commonwealth Parliament and, therefore, is not a referenda in itself.

Additionally, and well away in the background, the chattering classes are still venting the need for some, as yet undefined, republic.

The concept of constitutional recognition for local government has been put to the Australian people on two occasions; first in 1974 (46.85%) and then again in 1988 (33.48%).

Both of these failed proposals were under the sponsorship of the Labor Party (G Grainger, K Jones, The Australian Constitutional Monarchy, ACM Publishing, 1994, Table 2).

On 9 May 2013, Prime Minister Gillard announced that a referendum will be held on election day (14 September 2013) on the constitutional recognition of local government.

The actual wording of the referendum question and the actual proposed changes to the Constitution are not yet known. None-the-less, the unintended consequences of such a bill could prove to be quite damaging. Local Government is a creature of the States and any change as proposed could lead to conflict between the States and the Commonwealth. Ironically, the Commonwealth is also a creature of the States (Colonies)!

The possibility of this getting up on a third attempt is remote given the results so far. The people of the Commonwealth will be unlikely to shower more power on the Commonwealth Parliament given the ever increasing incompetence and mismanagement of taxpayers money by the incumbent government. 

However, the indigenous proposal may have a chance - but not in its present format as proposed by the Expert Panel.

It should be remembered that the 1999 preamble proposal suffered a more disastrous defeat than that of the republic proposal which was battered to near death by the Australian people.

The Labor government has given support for such a proposal as has the Leader of the Opposition. Tony Abbott has promised to bring forward for consultation a draft amendment to the Constitution recognising Indigenous Australians within 12 months of office should his party gain government in September.

Much, if not all, of the Expert's Panel recommendations could be retained in a revamped version which may ensure support of the indigenous Australians. Equally, the several proposed changes should be desirable enough to gain an effective compromise and, therefore, bring a majority of Australians on board for a successful conclusion.

One major consideration would be to annex the Statute of Westminster and both the Australia Acts as schedules to the constitution. Most Australians would be unaware that with the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble (Richard E McGarvie, Democracy, choosing Australia’s republic, Melbourne University Press, 1999, Page 257).

Undertaking this proposal would ensure that the people of the Commonwealth would have total sovereignty over their constitutional arrangements. It could also give access to the existing preamble via section 128 of the constitution to include a suitable statement about the indigenous peoples along the lines stated in the Expert Panel’s item of recognition of Aboriginal and Torres Strait Islander people's

There are two ways of doing this. One way would be to undertake the two referenda on two separate occasions with a referenda on the annexing of the Statute of Westminster and the Australia Acts to the Constitution being the first cab off the rank. For a variety of reasons, referenda are rarely put to the Australian people. Given that there is a “hole in the bucket” in respect of the Statute of Westminster and the Australia Acts, a referenda on this issue should be placed before the people as soon as practicable. 

Alternatively, the two referenda outlined above could be conducted concurrently but would require the indigenous referenda to be subject to the success of the referenda on annexing the Statute of Westminster and the Australia Acts. This process would be more convoluted. However, there has been a precedence!

In 1999, all of the six states passed an Act to request the amendment of the Australia Acts in connection with proposed constitutional arrangements to establish the Commonwealth of Australia as a republic. This would have allowed the States to become republics in their own right. The commencement date for those six Acts was on the day after the day on which the Constitution Alteration (Establishment of Republic) 1999 bill of the Commonwealth received Royal Assent. These State Acts never saw the light of day because the Constitution Alteration (Establishment of Republic) 1999 bill failed at the referendum!

Returning to the Indigenous proposal, the repeal of sections 25 and 51(xxvi) may not be contentious. However, the Experts Panel proposal for the recognition of Aboriginal and Torres Strait Islander peoples, prohibition of racial discrimination and recognition of Indigenous languages are quite a different matter and in their current format could cause the entire proposal to fail ignominiously.

The first four paragraphs of the proposed recognition of Aboriginal and Torres Strait Islander people's are quintessentially of preamble substance but under this arrangement will form part of the constitution itself. These paragraphs should, preferably, be placed within the existing Constitution Act preamble. 

The last paragraph of recognition of Aboriginal and Torres Strait Islander people's gives the Commonwealth parliament the power, subject to the Constitution, to make laws for the Indigenous peoples. This broad sweeping aspect has a very strong prospect of being contentious enough for a majority of people to resist change because of what could be perceived as a double standard.

None-the-less, if the second paragraph of Prohibition of racial discrimination was moved to replace the existing 51(xxvi) and a sunset clause provision included, the people may accept such an arrangement. 

The provision of a sunset clause should not be too extensive and government should be required to initiate a proactive plan to accomplish the desired results within the nominated timeframe. A period of around 20 to 25 years may be acceptable. An end date would be essential to, although not guarantee, acceptance by the people.

The first part of Prohibition of racial discrimination may be acceptable to the people. However, it may be better placed under Section 117 (Rights of residents in States) as 117B. Mysteriously, the word “creed” has not been included as as one of the “grounds”. Serious consideration for the inclusion of the word “creed” may be necessary to ensure substantial support of the people.

The second part, and probably the most contentious, would be akin to opening Pandora’s box to reveal its duplicitous intent. It could also prove to be financially deleterious! While it could be argued that this is an essential requirement to meet Indigenous needs, it appears that the more global intention of this part would lead to failure in its own right. If the inclusion of this part is absolutely necessary, it should be restricted to the Indigenous people only and should also be subjected to the sunset clause already discussed above.

Finally, the Recognition of languages section in its current form could cause substantial problems. This may be eased by requiring that the English language to be the only language to be used in all jurisdictions (e.g. Commonwealth, State and Territory Parliaments, All Courts, Local Councils) and other areas where commonality is paramount.

As the Experts Panel’s draft now stands, some opposition may be attracted from within the Parliament causing a “yes/no” booklet to be sent to all voters. The essential elements that would strongly help the “no” case are the Expert Panel’s recognition of Aboriginal and Torres Strait Islander people's in toto and the second part of Prohibition of racial discrimination as they now stand.

Drafters should also not place too much faith on the referendum question which is yet to be drawn up. The Constitution is quite clear in that the “electors voting approve the proposed law”. The question is merely a vehicle for change and not a proposed change to the law in itself. Accordingly, Australian voters should be seen as an intelligent lot and that they will make their decision based on the proposed changes laid before them and not on the style and form of the question asked.

That said, much work still needs to be done. Those responsible for drafting any change to the constitution to allow for recognition of the indigenous peoples need to be extremely mindful of Quick and Garran’s poetic assertion “to delay change until there is strong evidence that it is desirable, irresistible, and inevitable”.

With the proposed annexing of the Statute of Westminster and both of the Australia Acts to the Australian Constitution, the people of the Commonwealth would finally become the beneficiaries of total sovereignty over their constitutional arrangements.

This rightful gift to the people of the Commonwealth, along with extensive re-arrangement of the Expert Panel’s draft bill, may just help the indigenous proposals get across the line at a referendum. 

Much goodwill on all sides will need to be forthcoming for this to happen. Ultimately, the people of the Commonwealth will ask themselves “What’s in it for me?”. After all, it is their Constitution and not that of only the politicians and lawyers!

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