THE referendum to recognise Indigenous people in the Constitution announced this week is all very well, but there are equally deserving symbolic and practical changes which deserve at least equal billing.
There are two other objections: that the wording is messed up and that the referendum could easily be defeated, given the record. That would show Australia off as a racist country. The defeated republic referendum, on the other hand, merely showed we were immature.
Much is made of the fact that only eight of 44 referendums have been passed in Australia. There is a further more salient and seldom-stated point. Of those eight, nearly all were either defective or unnecessary.
The first to change the start of senators terms from January to July means a longer wait after an election for senators to take their seats now that we usually have elections at the end of the year.
The next two allowed the Commonwealth to take over state debts. The Commonwealth could probably have done it anyway, and in any event no one would have complained. The fourth, to provide for federal social services, was fine. The Aboriginal one was badly worded. It gave the Commonwealth power to make laws DETRIMENTAL to Aborigines, as well as beneficial laws, as we saw with the Northern Territory intervention.
The retirement of judges provision was badly worded. These days, 70 is too early. The wording should have said, “Until the Parliament otherwise provides, judges will retire at 70.”
Territory voting in referendums was a meaningless symbol. And, lastly, replacing senators with someone from the same party was probably unnecessary as no-one would have dared to break the convention in the post-1975 environment. In any event, the wording is ugly, legalistic, long-winded and quite unsuited to a Constitution.
So not only is the record of passing referendums woeful, so is the wording and effect of most of the successful ones.
This should not be surprising given the process. Perhaps the most important constitutional reform would be to change the way we go about constitutional reform in the first place.
In effect only the Federal Government can propose referendums because the proposals almost invariably have to pass both houses of federal parliament before they go to the people. Inevitably, no proposal that reduces the power of the central government will get near the people.
So perhaps it is a forlorn hope that a wider source base for referendum proposals could be created: the states, citizens’ petitions and the like.
Failing that, it would be helpful to have voluntary voting in referendums. It does not have to be the thin end of the wedge for voluntary voting in elections generally. The two are different creatures.
Complicated proposals for constitutional change should only be voted on by those who are interested – those who will get informed about the issue before voting. At present, in federal elections, the don’t know, don’t care vote becomes a neutral informal vote.
At referendums, however, the don’t know, don’t care vote becomes a No vote. And often it is quite high – certainly higher than at federal elections where even the most moronic voter can decide which football team they support. At referendums, however, the complexity baffles them and they vote No. The only way around this is voluntary voting.
Even without change to the method of change, what sort of things should be put to make our system more workable and the Constitution a better statement of our system of government.
Perhaps, the most pressing symbolic and practical issue is the role of the Governor-General. At present, a literal reading of the Constitution reveals the Governor-General as Dictator of Australia. Well may Prime Minister Julia Gillard seek constitutional recognition for Indigenous Australians. She should start, however, in seeking constitutional recognition for her own office. The Constitution does not even mention the words “prime minister”.
The recent temporary impasse of the hung Parliament gave us an insight into Australia’s constitutional shortcomings. What if it had ended at 75-all. The unelected Governor-General might have had to pick the prime minister out of a hat.
What about fixing the Constitution so that the House of Representatives must have an uneven number of members? What about a provision saying that after an election the House is presided over by the Chief Justice and its first business is to elect a Speaker and its second business is to elect a Prime Minister? How about a provision that says no-confidence motions must name the new Prime Minister, to prevent instability?
How about fixed three-year terms for the House and half the Senate, with the election on, say, the first Saturday in December – so transitions to new governments can occur over the silly season and a fixed date so everyone can arrange their lives accordingly and not be at the mercy of primeministerial whim?
How about initial legislation to say that the Prime Minister cannot nominate to the Queen someone for governor-general without approval of two-thirds of a joint sitting of the two Houses. And later having a referendum to make it a constitutional provision at the same time as doing away with the nod from the Queen.
How about a constitutional provision fixing the mess over whether state or federal courts can hear matters of mixed jurisdiction? I won’t bore you with the details. Suffice to say that if you get mixed up in litigation involving both federal and state matters (say contract and Trade Practices) it can be a costly nightmare.
How about a provision to give the feds general power over water, so we do not have the folly of the feds using the foreign-affairs power and sundry environmental treaties to get power over the Murray-Darling? The folly is that to attract constitutional power the feds have to make the environmental-treaty obligation paramount over economic and social matters.
The fundamental point is that any number of constitutional changes which would improve our government and improve many people’s lives are going begging. But none of them will happen while governments use the constitutional process for short-term gain – to get some runs on the board – or shy away from it because it might result in a short-term disadvantage – like choosing the election date.
Moreover, none of them will happen while so many apathetic, ignorant and stupid voters are forced to vote about things they know or care little about.
But no, we will have a useless platitudinous and potential divisive referendum over indigenous recognition. Worthy but dangerous, especially on its own when so much else is pressing.
CRISPIN HULL
This article first appeared in The Canberra Times on 13 November 2010