So a referendum on weapons is in the air.
On this one, John Howard can sweep aside not only the recalcitrant state and territory ministers who are too dumb to read the public mood, but also Cheryl Kernot and others in the Senate who might try to insist that their wording goes to the people, not the Government’s. And you can be sure that the Democrats will have a different idea of what question should be posed than the Government.
Most people assume that both House of Parliament have to pass a Bill for a referendum. Not so. In the past, both Houses have always agreed to the wording of the proposes constitutional change. But strictly speaking, the Constitution provides that it is only necessary for one House and the Governor-General to agree and the referendum can go to the people. In practice, the Governor-General means the Government, and as the Government has always been the majority party in the House of Representatives (bar a couple of odd exceptions), it means that the Government can put its own wording to the people.
Referendums to change the Constitution are governed by Section 128 of the Constitution. The referendum would not be for the people to decide on a detailed regime of weapons control, but rather to give the Commonwealth Parliament power to legislate about weapons, so that its laws would override state laws. For example, the Commonwealth might ban a crimped automatic rifle and Western Australia might allow it. In this case the Commonwealth law would prevail.
But back to Section 128. It sets out the normal procedure. Both Houses pass a law setting out the proposed change to the Constitution. After two months but within six months the proposal must be put to the voters.
Then it says that if one House (presumably the Representatives) passes a law for a referendum and the Senate knocks it back, amends it unacceptably or fails to deal with it, then the Representatives passes it again after three months has elapsed, the Governor-General may put the proposal to a referendum of the people. When the Constitution says “”Governor-General” it really means the Government. Leaving aside the extraordinary circumstances of 1975 the general principle is that if the Prime Minister tells the Governor-General to do something, the Governor-General does it (unless it is illegal). The most the Governor-General can do is ask for detailed reasons.
Moreover, the Liberal Party on its own without the Nationals, has a majority in the House of Representatives. So Howard does not have to take any nonsense about the wording of the referendum from the Nationals or the Democrats.
And what should that wording be? To add a new Clause 40 to Section 51 which has just one word: “”weapons”.
So Section 51 would read the Commonwealth Parliament has “”power to make laws . . . with respect to . . . weapons”.
Section 51 is the big list of Commonwealth powers. It includes things like currency, lighthouses, defence and tax.
There are several reasons for opting for the simple wording. It is a Constitution, not an ordinary law. It cannot be changed easily and so the wording should be general and broad. It is up to the High Court to work out, over the years, whether any particular law is a “”law with respect to weapons”. For example, Section 51 (drafted in 1900, remember) gives the Commonwealth power to make laws with respect to: “”Postal, telegraphic, telephonic and other like services”. That has been held to cover radio and television and presumably will cover the Internet. Similarly, the word weapons will embrace laser zap-guns invented in 2013.
Incidentally, constitutional lawyers call it the difference between the connotation and denotation of words. They are to carry the denotation of 1900 (or 1996 in the case of weapons) and the connotation of the present day. The Oxford says connotation is the “inclusion of something in the meaning of a word besides what it primarily denotes”. So in 1996 the word “”weapons” denotes things that fire bullets; but 2013 it will also connote things that fire lasers.
So keep it simple, stupid, and time and the High Court will ensure the Commonwealth power will develop with time to embrace new forms of weapons.
But keeping it simple is, of itself, no test for the success of a referendum. Indeed, the most complexly worded referendum in the history of Australia was successful as was the most elegantly worded.
The most complex was the 1977 proposal that dead and retired senators must be replaced by people from the same party. There now, I have put it in 13 words. But by the time the lawyers and bureaucrats got it in 1977, it ran to 800 words. True, about 550 words were transitional, but it was still silly.
The 1988 proposal for fair elections (which was defeated) ran to three pages … longer than the whole of the original part of the Constitution dealing with the House of Representatives.
Incidentally, I feel a little hypocritical taking more than a 1000 words to argue the case that only one word is necessary to effect the weapons proposal, but I’m not writing a Constitution here..
The most elegant referendum proposal was in 1967 on Aborigines. It did not add one word to the Constitution; it just deleted Section 127 (thou shalt not count Aborigines in the census) and eight words from Section 51 (xxvi), which said the Commonwealth can make special laws for certain races, but not Aborigines.
The ultimate effect of the 1967 proposal is exactly the same as what I am putting for weapons. It was “”the Commonwealth may make laws with respect to Aborigines/weapons”.
The other reason for simplicity in a Constitution is that it is very much a people’s document, not a lawyers’ document. It should express the framework of the governance of the nation. A Private Member’s Bill posed by former Liberal Senator Baden Teague of South Australia for a referendum for an Australian president as head of state did the job superbly. Aside from the republican issue, it tidies up a lot of transitional provisions and makes it plain that the Head of State acts on the advice of the Government.
There is a third point about the weapons referendum. Northern Territory Chief Minister Shane Stone made the point that the pro-crimping states should think carefully because unless they compromise there would be a referendum which would result in very much tighter laws and because mass opinion was behind tighter gun laws the referendum would pass. In short, the threat of a referendum should make politicians see sense.
It is a powerful argument. But unfortunately its application is limited to situations where a federal government is determined upon a referendum. If not, presumably politicians can ignore good sense and widespread public opinion in favour of special interest groups.
It is a good reason for holding the threat of a referendum permanently over the heads of our politicians, so that if they do not do the sensible thing, the people themselves can arrange a referendum by getting, say, the signatures of 2 per cent of the people calling for one. Also, if politicians enact stupid laws they could be repealed this way. The model proposed by Gary Humphries in the ACT shows how it can be done with sensible safeguards and adequate time for debate to ensure lunatic, big-spending or unworkable proposals are weeded out.
Force is added to the argument by the gun issue. Many avid proponents of citizens’ initiated referendums are from the far right or from people who have been labelled as fringe or redneck. Interestingly, these groups do not seek a referendum on the guns issue.
It shows, however, that citizens’ initiated referendums should be very much a mainstream demand. Far to often, fringe and special-interest groups are getting their legislative way because politicians dare not offend them.
If the threat of a citizens’ initiated referendum were held over their head, they would be far less likely to accede to their wishes … as Shane Stone as so pertinently pointed out.
Perhaps our politicians have actively promoted the idea that citizens’ initiated referendums are the plaything of the lunatic right so that they get put out of mainstream debate. The guns issue, if anything, shows that citizens’ initiative is anything but a far-right agenda item; they are running away from a referendum on this furiously.
If, however, a Swiss model or Humphries model of citizens’ initiative had been around in Australia for the past decade we probably would have had sensible gun laws long ago. Without it, even after the massacre of 35 people, they are still quibbling and farnarkling in the face of overwhelming public opinion.