Former Chief Justice Gerard Brennan made some pertinent comments about our Constitution to this week.
He said, “The advice “If it ain’t broke, don’t fix it!” might apply to plumbing, but not to the Constitution of a nation in a rapidly changing environment.”
He then outlined several elements of the Constitution which are definitely broke. These are not matters of everyday significance but they profoundly affect the administration of justice in Australia.
The framers of our Constitution did a first-rate job given the political and social and economic environment and of the time. But even they recognised that their creation would require occasional fixing up. That is why they provided for a mechanism to amend the Constitution that they created. Amendments require the assent of a majority of people in a majority of states. It was deliberately made difficult to get an amendment, but it has been made even more difficult by the fact that amendments can only be proposed by the federal parliament, which means in effect they have to be initiated by the federal government. And the federal government is made up of politicians who are more interested in the next election that the long-term framework of the Australian polity.
Brennan’s list of broken elements of the Constitution could be put it into four groups. The first comprise technical defects which have arisen after legal interpretations by the High Court. The second comprise shortcomings arising from technological developments since and 1901. The third comprise clauses which have become obsolete overtime. And at the fourth comprise aspirational shortcomings in the light of Australia’s development over the past hundred years. Brennan did not categorise his defects in to these four parcels, rather he called for a general clean-up, update or fixing to bring that the Constitution into the 21st century.
He said, “Surely it is not beyond the capacity of Australia’s politicians and their parties to agree on those proposals which can command their unanimous or substantially unanimous support and to propose amendments which can be confidently submitted it to referendum.”
Well, welcome to the world of politicians. It is utterly beyond their capacity to do what a Brennan suggests. In the past 100 years in Australia politicians have a failed on all but a very few occasions to update the Constitution to make it more workable and relevant to changing conditions. They have been so inept at it that it has required the High Court to strain at the words of the Constitution to make it more workable. But this has not always been satisfactory because on occasions the court has gone back on its original pragmatic rulings and a reverted to legalism and the literal words of the 100 year-old document to decide cases. And these rulings then apply to thousands of people and transactions.
To two of these rulings in recent years have had an appalling effect on the administration of justice, albeit in the corporate and commercial world. I will spare you the details. However, the rulings have prevented the federal parliament from effectively legislating for the regulation of corporations, including the way they are set up; they have prevented the states from continuing to tax petrol, alcohol and tobacco thus undermining their fiscal base; and it they have prevented federal courts from being able to deal fully with the issues between parties if that the slightest scintilla of State-law elements are involved in the case. Anyone who says the Constitution ain’t broke should talk a few people who have to sort out these difficulties. Usually, the corporations involved pass the costs on to the mug consumer or employees who are none the wiser. These technical difficulties have caused grievous expense and inconvenience to commercial litigants in Australia.
Some of these matters arose before the 1999 republic referendum and the political parties should have and could have crafted proposals to fix them in a way that would have commanded an easy majority among the Australian people.
But Brennan is a wrong when he says that it is not to beyond the capacity of Australian politicians to do this. It (ital) is (ital) beyond their capacity and it has been beyond their capacity for more than 20 years. The Australian electorate is now sadly cynical about the motives of our federal politicians because of the way the politicians behave. If the two major parties proposed some amendments to the constitution to overcome technical difficulties some opportunist or scare campaigner could easily make it difficult for them to get through.
Brennan said, “If a degree of statesmanship were exhibited by political leaders, the Australian people could be trusted to repair these defects in our Constitution at least to the point where the document can operate in the 21st century as it was intended to operate at the beginning of the 20th century.”
He’s dreaming.
There have been exercises of statesmanship on constitutional matters in Australia. The last one was in 1977 when Prime Minister Malcolm Fraser posed four referendum questions, three of which were carried. They were all machinery matters aimed at fixing obvious defects in the Constitution: that people in the territories should be able to vote in referendums; that federal judges should retire at age 70; that casual Senate vacancies should be filled by a member of the same party as the party of the vacating Senator; and that House and Senate elections should always be held simultaneously.
Unfortunately the last was not passed.
Five other of the 44 referendum questions put to the people since 1901 have passed. All were machinery-type defects with perhaps the exception of the 1967 question which gave the Commonwealth power over Aborigines, which was more aspirational and up-dating rather than a machinery question. Nearly all the 36 failed questions involved the granting to the national parliament powers to deal with a national (mainly economic) issues.
Brennan called also for the removal of obsolete provisions like the Queen’s power to reject laws passed by the Australian Parliament and for changes to give the federal Parliament power to make it uniform national laws to cope with scientific and technological advances such as a human cloning, genetic modification, electronic eavesdropping and so on. He also called for the really addressing of the republic issue.
But our politicians have failed to address posing of technical questions like court jurisdiction, and the people have failed to endorse questions posed by a federal politicians to give the national parliament wider powers to deal with national issues, and the people have failed to endorse the questions on the key aspirational issue of the republic or the preamble.
So the conclusion must be that it is beyond the capacity of our politicians to deal with the task of updating our Constitution. And a degree of statesmanship is beyond it them.
The conclusion must be that the biggest defect in the Constitution is that federal politicians, and only federal politicians, can decide on which questions can go to the people to amend the Constitution. And history shows they have been singularly incapable, unstatesmanlike and unsuccessful in doing so.
Worse, the only way to change that is for the politicians to pose the question to take away their own exclusive power to initiate referendum questions and allow the people (upon the collection of a set number of signatures) or the states to pose questions.
But if we think that will happen, we’re dreaming.