Failure of “successful” referendums

AS WE inch closer to another referendum — this time it is to recognise the place of indigenous Australians – there is the usual talk about the dismal record of 44 failed referendums and only 8 successful ones. However, few look at how spectacularly unsuccessful the “successful” ones were.

Last week, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples handed down an interim report this week. Its full report is due next June. Also, a panel appointed to advise Prime Minister Tony Abbott on the issue is to report soon.

The 1967 referendum was one of those unsuccessful passed referendums. We all imagined that the “successful” 1967 referendum did the job to “recognise” indigenous people. True, it obliterated the disgraceful provision that did not allow indigenous people to be counted for the purposes of electoral entitlement.

It also expanded the Commonwealth’s law-making power from making laws “with respect to races of people other than the Aboriginal race” (which was to stay with the states) to also include the Aboriginal race.

So, as a result of the 1967 referendum the Commonwealth got power “to make laws with respect to the Aboriginal people”.

In 1967, the 91 per cent of people who voted Yes, naively imagined that this meant the Commonwealth could make laws to benefit Aboriginal people.

It was only after the Howard Government launched the intervention which made laws that restricted and discriminated against Aboriginal people did we realise that “with respect to” did not only mean nice things but also discriminatory and detrimental things.

The High Court, quite correctly, held that “with respect to” (Aboriginal people or anything else) had to be given a wide meaning. It had to mean laws that were detrimental to Aboriginal people as well as laws that were beneficial.

Perfect constitutional reasoning. Shameful political result.

So we are now going back to a referendum to fix up the mess.

All very well, and let’s do it.

But a pandora’s box and a can of worms are awaiting to be opened here. If we are going to enshrine in the Constitution some special provision to prevent the Commonwealth from making laws detrimental to indigenous people, why stop there. Why not have a constitutional provision to prevent the Commonwealth from discriminating against people on grounds of age, sex, religion, sexuality or gender?

The logic is the same. The warm fuzziness of an indigenous constitutional recognition is different.

And if we are going to recognise indigenous Australians as an important symbolic gesture, why not similarly recognise that an Australian chosen by Australians shoud be at the apex of our constitutional system as an equally important symbolic change?

In short, we should not buy just a piecemeal, feel-good provision for indigenous people that would not contribute materially to their cause very much in any event.

Clearly, the much-vaunted 1967 referendum was a failure. Otherwise, why would we need to have to revisit the matter now.

And let’s look at the other so-called successful referendums.

In 1906 Australians changed the election cycle of Senate terms so they began on 1 July instead of 1 January. It has caused strife through subsequent electoral cycles, most recently with elected senators having to wait 10 months to take their seats this July 1.

What should have happened was to recognise the shemozzle of Senate and House terms and fix it with a system of senators holding office for two terms of the House. And while we are at it, fix elections for the House for the first Saturday in December every three years. And also get rid of the requirement that when the House is expanded the Senate must be expanded proportionately.

In 1910 and 1928, Australians voted that the Commonwealth would be able to take over state debts. The change was unnecessary. Section 96 grants would have allowed it and, in any event, who was going to argue against someone taking over your debts?

We did not need the 1946 referendum to enable the Commonwealth to hand out social security. Again, it could have been done with Section 96 grants and in any event, who is going to challenge a hand-out.

The 1977 changes to ensure someone from the same party replaced vacancies caused by dead or retired senators could have been done with legislation.

Incidentally, it could have been done without the 720 words of waffle in the 1977 amendment. I have described the effect in one sentence.

Giving the vote in referendums to the territories was meaningless. It will never change a referendum result.

And making judges retire at 70 is now proven to be a silly waste, as changes to health and fitness allow people to work well beyond age 70.

So, what a sorry history of constitutional change. Thirty-six of 44 referendums defeated and of the eight accepted all were either defective, unnecessary or useless.

So what changes do we need?

Indigenous recognition and a republic, fixing the electoral cycle; removing discrimination I have mentioned. We should go beyond discrimination and have a bill of rights with things like free speech in it. And some other legal technicalities could be fixed to widen Commonwealth spending power and to enable Federal Courts to deal with state matters when litigants agree.

So spare us this paltry patchup job to repair the defects of 1967 and get on with the job of serious and significant constitutional reform to give pride not only to indigenous Australians, but all Australians.

DOT DOT DOT

The old autocratic commies of Yugoslavia and the Soviet Union tried to trick the people of ethnicities different from the central power base. They gave them regional borders far wider than their ethnic and linguistic boundaries to make them feel better while they were under the yoke.

Alas, after the collapse of the Soviet and Yugoslav entities and the devolution of power to those ethnicities, the borders made no sense. Russia and Serbia were too small and millions of Russians and Serbs found themselves ruled by non-Russians and non-Serbs. It was ripe for conflict.

We are witnessing that now in Ukraine.

The only way the West can get some control of this and stop violence is to give in to Russian demands, but in a democratic way.

President Woodrow Wilson’s 14 points of a century ago should be dusted off. The US, Europe and the Ukraine should accept “self-determination” as a right. An internationally supervised plebiscite should be arranged to redraw the borders peacefully.

That would be better than the Russians doing it by force. And would have been better than letting the Serbs do it through “ethnic cleansing” in the 1990s.
CRISPIN HULL
This article first appeared in The Canberra Times on 26 July 2014