Frozen continent

Sydney Morning Herald
29 March, 2008
By George Williams

History stands against Kevin Rudd's ambitious plans for constitutional change, writes George Williams.

The Labor Party often portrays itself as the champion of constitutional reform. Over the past century it has initiated debate on the republic, asked for extra Commonwealth powers in areas such as industrial relations and price fixing and sought to bring about better protection for human rights.

Like Curtin, Chifley, Whitlam, Hawke and Keating before him, Kevin Rudd has come to office with ambitious plans to reform the constitution. His election commitments include referendums on fixed four-year terms for the federal Parliament, an Australian republic, recognising local government and restoring co-operation in federal-state relations. Further ballots may be held on taking over state hospitals and recognising indigenous peoples in a new preamble to the constitution.

Despite its history and future plans, Labor's record of actually bringing about change to the constitution is almost non-existent. It is 62 years since a referendum put to the people by a Labor government was passed. That last success was in 1946, when the Chifley government gained support for amending the constitution to allow the Commonwealth to pay maternity, unemployment and other benefits. Even that victory did not follow on from any successes. It remains the first and only time since Federation in 1901 that Labor succeeded at a referendum.

The constitution sets out the only way it can be changed. Section 128 states that an amendment must first be passed by the federal Parliament. It then needs to be supported at a referendum by an overall majority of the people and by a majority of people in a majority of states. This process has been invoked 44 times, with only eight of the proposals succeeding at the ballot box. Five other proposals gained a national majority of electors but failed because they did not gain the second majority of at least four out of six states.

None of the eight changes was a major revision. The result is that the constitution remains in almost exactly the same form as when it was enacted in 1901. By contrast, more than 56 per cent of the member states of the United Nations made major changes to their constitutions between 1989 and 1999 alone. Remarkably, of the states making such changes, more than 70 per cent adopted a completely new constitution. It is not surprising then that Australia was described as far back as 1967 by the constitutional lawyer Geoffrey Sawer as "constitutionally speaking the frozen continent".

Of the 44 attempts to change Australia's constitution, 25 were put by a Labor government. Several of these were variations on the same proposal put to the people more than once. For example, Labor unsuccessfully put the idea of simultaneous elections for both houses of the federal Parliament to referendum in 1974, 1977 and 1984. It sought extra power to regulate industrial relations in 1911, 1913 and 1946, with conservative governments also seeking, with no greater success, more power in the area in 1919 and 1926. The Australian people have never voted "yes" to a proposal after rejecting it on a previous occasion. This is a problem that must be overcome if Australia is ever to become a republic.

Since its single success in 1946, Labor has made 13 attempts at constitutional reform. Its most recent attempt was in 1988, when the Hawke government put four proposals to the people. These sought to introduce four-year maximum terms for federal Parliament, guarantee "one vote, one value" and the right to vote, provide for constitutional recognition of local government and extend existing human rights such as freedom of religion to the states.

The outcome was dismal. Each proposal was defeated nationally and in every state. The highest national "yes" vote was 37 per cent for the "one vote, one value" proposal, while the fourth proposal on rights received a 30 per cent "yes" vote, the lowest "yes" vote ever recorded.

The 1988 referendums failed after being rushed to the ballot box to coincide with the bicentenary of European settlement. The lacklustre "yes" case also faced determined and effective opposition from the Coalition, and Peter Reith in particular, on the question of religious freedom. This made defeat inevitable, demonstrating once again how bipartisan support is essential for constitutional change.

Spoiling campaigns have proved especially effective because most Australians know very little about their constitution and system of government. A 1987 survey for the Constitutional Commission found that almost half the population did not even realise Australia has a written constitution. A 1994 report on citizenship by the Civics Expert Group found that only one in five had some understanding of what the constitution contained. Many Australians falsely believe the nation has a bill or charter of rights. A 2006 poll of 1001 voters by Roy Morgan Research for Amnesty International Australia showed 61 per cent believed Australia had such a law.

One reason for this is that the constitution does not match how government works in Australia. It does not mention many of the most basic features, such as the office of prime minister or the cabinet. The text instead suggests that ultimate political power is held by the king or queen's representative, the governor-general, who is named as commander-in-chief of the armed forces and given an unfettered power to appoint and dismiss ministers. The problem is that Australia's constitution makes sense only when it is read against the assumptions and conventions Australia inherited from the Westminster system of government in Britain.

A lack of community understanding and fierce partisan battles over arcane questions of constitutional law often produce an "if it ain't broke, don't fix it" response to referendum proposals. Labor has repeatedly proved unable to overcome this barrier. At the 1999 republic referendum, the "no" case combined this argument for the status quo with two other slogans, "Vote No to the Politicians' Republic" and "Don't Know - Vote No", with devastating effect.

Australia's non-Labor parties have had greater success at referendums, with seven "yes" votes out of 19 attempts. The last successful vote was put by the Fraser government in 1977, when the constitution was amended to provide for Senate vacancies to be filled by a person of the same party, allow people in the territories to vote in referendums and set a retirement age of 70 years for High Court judges.

The 31 years since 1977 is the longest period Australia has gone without any change to the constitution (the next longest period was 21 years between 1946 and 1967). The next attempt to break the drought may be a referendum on fixed four-year terms. The Rudd Government has earmarked $27 million for this over 2010-11. All of the states and territories have four-year electoral terms except Queensland and the Australian Capital Territory, which, like the federal government, go to the polls about every three years.

While the Opposition Leader, Brendan Nelson, says he is "disposed towards" four-year terms, the Coalition has yet to make any commitment, and is likely to disagree with any notion that the term should be fixed. There is also the possibility that minor parties will campaign against the idea because of how it will affect the Senate.

Senators serve two electoral cycles, or six years, with half the Senate being elected at each poll. They will either need to have their terms increased to eight years to maintain this approach, or reduced to four years, with all senators elected at each national election. The former would be a hard sell given that it would mean politicians serving close to a decade without re-election, while the latter would be opposed by people who do not want the entire Senate chosen at each federal poll.

Another early option for the Rudd Government would be to hold a referendum on federalism to fix a problem identified by the High Court in 1999.

It is a technical flaw in the constitution that prevents co-operation between federal and state governments, such as cases being heard interchangeably by federal and state courts and areas of law having a single national regulator. It stands in the way of consistent, harmonised laws and policies across Australia in areas such as family law, business regulation and new fields such as genetic technology.

Fixing this would not give governments more power, but would allow them to work together more effectively using existing powers. The proposal has had bipartisan support at all levels of government, as well as the backing of business and other lobby groups, for some years. While the Howard government supported the idea, it never got around to doing anything about it, and in the meantime co-operation faltered and costly "work arounds" evolved. While this change may be more "dry" than fixed four-year terms, it may have a greater chance of building the support needed for success at the ballot box.

The challenge for Rudd is to overcome the legal and political hurdles that have frustrated all but one of the reforms of his Labor predecessors. In particular, unless he can achieve bipartisan support for his goals, history demonstrates that his chances of success are extremely low.

It would take something truly extraordinary for the Rudd Government to win a referendum on constitutional change in the face of determined political opposition.

George Williams is the Anthony Mason Professor of Law at the University of NSW.

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