THE AUSTRALIAN REPUBLIC:
WHY IT ISN’T NEEDED©.

Firstly, a confession: I am a social democrat, who admired Gough Whitlam’s program (although not his attempt to execute it). I was totally outraged by Sir John Kerr’s sacking of the Whitlam Government in 1975, and I ‘maintain the rage’ to this day. I think Australia needs a new flag: ours is the old British Naval blue ensign, and looks too much like New Zealand’s. I am of the opinion that the Australian flag FIFA accidentally used during the World Cup Draw in 2006, which was the current flag with the stars in gold on a green background, and retained the Union Jack on the staff, would make an excellent compromise flag.
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Why, then, am I opposed to the republic? Because, to all effects and purposes, we ARE a republic. The Queen (who is the Queen of Australia under the Royal Styles And Titles Act (Commonwealth)) has NO powers in Australia. The powers of the Queen were given to the Governor-General under the Constitution. The few powers retained by the U.K. Government (Defense, Privy Council Appeals and Knighthoods) have all been given to Australia. The Queen is a powerless figurehead. The Governor-General has all the powers of our head of state, even when the Queen is in Australia.
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Yes, abolishing the last – Royal – link would be of symbolic importance. But I regard reform of our outdated Federal Constitution of far greater importance. Few people have read our Constitution. Fewer understand it. On this blog, therefore, is a simple guide to the Constitution and a few of the changes I believe are required. However, before we begin, there is one major point to address:
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DO WE NEED STATE GOVERNMENTS?
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Australia is the most over-governed nation on Earth on a per capita basis. We have 226 Federal MPs (both houses) at present. We have around 1000 State and Territory MPs. We have nearly 10,000 Local Government Councilors. All to govern just about 21 million people. That’s one politician, plus staff, plus public servants, per 1870.6 Australians. A trifle excessive, one feels.
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Unfortunately, it is also impossible to rectify this. The obvious answer is to merge State Governments and Local Government to create Regional Governments – say, 400 across Australia. The Regional Governments need only to have a single house with about 20 politicians – the Territory Governments are ideal models.
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Unfortunately, this is impossible to achieve. The referendum that would be required would be annihilated under the cries of “States’ Rights!”. Overlooking the fact that this argument is bogus, and always has been – States don’t have rights, people have rights. States have responsibilities – the cost of staging a referendum that has absolutely no chance of success rules this out in the foreseeable future.
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FEDERATION: SOME MYTHS DEBUNKED
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Myth has it that our Federal Constitution was founded by a group of high-minded delegates, elected by the people after a series of People’s Conventions (starting in Cowora, NSW) who drafted a document aimed at forming a peaceful and working alliance between the States to work as one together, and I also believe in the tooth fairy.
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The real story? Prior to Federation, the Colonies that were to comprise Australia (and New Zealand, which was intended to become part of Australia at various times, but they ultimately decided to go it alone) met on occasions to make decisions of a National nature. This began in the late 1860s. Colonies kept dropping in and out of this process.
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In 1892, various interest groups convened a conference at Cowora in New South Wales to discuss the idea of taking formal action to bring Australia together as an independent nation. Contrary to myth, these were not groups that were publicly elected, but various political pressure groups. Nor was this the start of the move to Federation, as the myth goes. The call for Federation had been around for some years. (The Brits wanted us to rule ourselves, for a start.) The Australian politicians had always scuttled the idea, as they scuttled the process after the Cowora Conference.
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Over the next few years, the idea of federation continued to percolate. The main impetus for this came from the media – notably David Syme who founded the Melbourne Age - and from some pressure groups, who turned out to be pushing a policy barrow for something they wanted for themselves out of Federation.
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There are almost as many versions as to why the process began again in 1897 as there are historians who have written about it. Certainly, the attempt by New South Wales to adapt the name Australia as a new name for NSW was a major influence, but the other influences lie lost in the proverbial sands of time. Suffice to say that the Constitutional Conventions of 1897 to 1899 which lead to the drafting of the Constitution were set up by politicians, run by politicians, and had Colonies dropping in and out of the process all the time. New Zealand dropped out very early in the piece, never to re-enter. Two Premiers tuned up with draft Constitutions, which were largely unacceptable to the other Premiers. The draft submitted by Sir Samuel Griffith is often attributed as the basis of our Constitution, but the Griffith draft bears no resemblance to any of the drafts that subsequently appeared, nor the final document. Western Australia was out almost right up to the point of Federation, when it opted in (which is why the Constitution makes so many references to “if Western Australia is an original state...”).
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The real heroes of the drafting of the Australian Constitution are the two Senior lawyers who had the unenviable task of translating the arguments – and occasional agreements – into legislative form, Sir John Quick and Sir Robert Garran. However, both argued passionately in private with their political masters about the form the Australian Constitution was taking, without much success.
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The problem is that the Australian Constitution is almost entirely based upon two different political systems – the Westminster System, where the Constitution is basically case law made by judges rather than political legislation, and the U.S. Constitution and system of Government. The Australian Constitution is a hodge-podge mix between the two, with bits from other countries (such as Canada) thrown in. What is worse is that the systems used as a basis for our Constitution are fundamentally incompatible, causing endless problems, particularly seeing that our court system remains that inherited from the United Kingdom. It is this mix which has lead to cries of “States’ Rights” based on the U.S. model, and is also why Regional Government will never occur.
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How did we get into this mess? Easily put – none of the Colonies trusted each other, just as none of the States really do today. The smaller States (everybody but New South Wales and Victoria) were – and still are - paranoid about the bigger states. Victoria and New South Wales have an enmity dating back to Victoria becoming an independent colony in 1851. In fact, it would be true to say that the concept of an “Australian” is a misnomer – most Australians put their State before Country. There are many famous examples of this, too many to list in this blog.
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One interesting side point that must not be overlooked is that only ONE of the delegates to the various conferences was born in Australia. The others almost all retained their original citizenships. Their allegiance to “Australia” as a new country, with its own system of Government, and own standards, must remain in question. Certainly, many of the debates were along the lines of “Should Australia be part of England or the USA?”, rather than “what is best for this new country we’re setting up, which will be separate from these other countries”? This was true of everybody, even down to the single Chilean, who, as much to his own surprise as everyone else’s, became Australia’s first Labor Prime Minister in 1904.
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Thus, we have a legislative framework for a nation comprising elements of two incompatible systems, with the “union” being more a coming together of enemies than anything else.
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Which does raise one obvious final question here: why didn’t the Colonies become independent Countries? The answer is twofold; firstly, the Colonial Master, England, thought we should be one nation for both legal and economic reasons; and, secondly, the great recession of the period proved that no colony could ‘go it alone’ financially at that time. Indeed, according to Sir Robert Garran in his autobiography Prosper The Commonwealth (1958), the idea was that the Colonies/States would be all-powerful within Australia, with a weak Federal Government. That this did not and could not logically occur we will see later in this blog.
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Thus, Australia was to become one nation. Unfortunately, the original referenda of the Australian people to approve the Constitution set the tone for future referenda in Australia – it was defeated. Subsequently, it was (narrowly) passed, and Australia came into being in 1901.
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ABOUT OUR CONSTITUTION
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THE FORGOTTON PREAMBLE
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Yes, our Constitution does have a preamble. It at the start of the UK Act that brought our Constitution into force in 1901 – legally known as the ‘headnotes’. It is legally binding in Australia. The preamble is more than a little anachronistic, and needs to be rewritten to clarify what is exactly intended, which has the potential to cause problems with clever lawyers and the High Court further down the track.
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One important point about the preamble is that it does stop States from leaving Australia and becoming independent – it refers to “one indissoluble Federal Commonwealth”. Western Australia tried to become an independent nation in 1933, and a referendum was carried in that State to break away. The referendum was declared null and void because of this provision. In the light of this, it would be interesting from a legal viewpoint to find how widely applied the preamble could be – except that, in view of the way the courts have ‘creatively’ read other provisions in the Constitution, it probably wouldn’t be a good idea to try it. It should be noted in this regard that the States listed in the preamble as having agreed to form “one indissoluble Federal Commonwealth” does NOT include Western Australia!
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John Howard’s 1999 preamble proposal, besides being notably inane, would not have replaced the existing preamble. Nor would the preamble being floated at the 2020 Summit. All these would do is leave us with TWO preambles, which would make us a laughing stock. Please remember this point!
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An interesting final point about the preamble is that, because it is in the UK Act, legally, no referendum is required to change it. All that would be required is an Act of the Commonwealth asking the UK Government to change it. This is obviously undesirable, and the Federal Government should pass an act asking the UK Government to put a updated version of the current preamble (updating the legal phases to modern legal terms only) in the body of the Constitution proper, so that amending the preamble then falls under the purview of Australians.
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THE ARACHIC CONSTITUTION
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The Constitution is now largely out of date. This can be best observed by a close examination of the first part of the Constitution, as can the dangers this causes…
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Section One
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This simply defines what the Australian Government is. It is not controversial. However, it could be cleaned up a bit, particularly as the English Commonwealth has now lost its power.
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Section Two
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This establishes the office of Governor-General, who has the powers delegated to him by the Queen. As all of the powers have been delegated, these powers need to be clarified. The point that all of the Queen’s powers have been delegated to the Governor-General were made clear in a letter from the Queen’s Secretary to the then Speaker of the House of Representatives after the dismissal of the Whitlam Government in 1975.
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As for the retained powers, the power of the UK Government over Australian’s Defense Forces (ADF) went during World War II. At the time, Australia was under direct attack by the Japanese (Darwin had been bombed, and Japanese mini-subs were sunk in Sydney Harbour). The then UK Prime Minister, Winston Churchill, refused Australia’s requests to get the ADF back to Australia, wanting to keep the ADF in North Africa. The Australian PM at the time – John Curtin – went to the King, who agreed that the fall of Australia would not assist the allied cause. Orders were given by the King returning the ADF to Australian command. These orders have never been countermanded.
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Appeals to the UK Privy Council were abolished from the High Court in 1975, and from other courts in 1986.
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The Australia Act 1986 finally abolished any legal remnant of these retained powers.
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As for Knighthoods, we went through an embarrassing stage between 1975 and 1988 where Labor Party Governments would abolish knighthoods in favour of Australia’s honour system (The Order Of Australia), only for knighthoods to be reinstated whenever Liberal/National Party Coalition Governments were elected. The Queen finally tired of this, and took action in 1988 to bar Australia from using the UK Honours system, thus abolishing knighthoods.
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It should be noted that the so-called ‘reserve’ powers (the power to knock back Acts of Parliament, to sack Governments, etc.) are not in the Constitution, nor any other Act, Australian or UK. They are simply conventions, and of questionable legality. It is now claimed to be too hard to codify them – in other words, write them out. In fact, two draft Constitutions were circulated by Labor MPs in the late 1970s – one by Lionel Bowen, the other by Gareth Evans. Neither had any difficulty ‘codifying’ the reserve powers and when they should be used. Obviously, this omission should be rectified, with a new sub-section spelling out what the Governor-General can and can’t do, and the circumstances when he can exercise these powers. For those interested in exactly how far the Governor-General can go if he/she sees fit, I strongly recommend a brilliant satire called His Excellency’s Pleasure by Donald Horne (1977). It’s very funny. And very chilling – because it could REALLY occur…
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While we’re on the subject of conventions and omissions, it needs to be pointed out that nowhere in the Constitution is the Prime Minister referred to. The existence of the office of Prime Minister is also a convention, and the office of Prime Minister can be abolished at any time. This was an unintended omission caused through the mix of the UK and US systems in the Constitution. Obviously, the Prime Minister, his office and powers should also be spelt out in the Constitution.
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The important thing is though, is that is gives ALL the Queen’s powers to the Governor-General. The Queen herself has no power over Australia. Nor does the UK Government. The GG is our Head of State, with all the powers of the head of state.
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As our GG is appointed by the Prime Minister, and is an Australian, we thus have an Australian head of state NOW. Thus, why are we talking about spending a fortune (at least $100 million for the referenda) to appoint an Australian head of state when we already have one?
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Section Three
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This spells out the salary of the Governor-General until Parliament decides to increase it. This first occurred in 1974, making Section 3 is redundant, and it should be repealed.
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Section Four
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This says the Governor-General can’t take any payment from the Government other than his salary and expenses. It appears superfluous at first sight, but makes logical sense in view of the fact that the Governor-General has a full-time job, and is very well paid for it.
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Section Five
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This gives the Governor-General alone (not including the Government and/or Parliament) the right to decide when Parliament meets, when it won’t, and a few other undemocratic powers. The only saving grace is a line that says Parliament must meet within 30 days after the results of an election have been finalized. That line can be kept. The rest of Section 5 is dangerous, it is undemocratic, it gives the Governor-General dictitorial powers over the Parliament, and it should be repealed ASAP.
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Section Six
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This section provides that Parliament shall meet at least once a year. It, of course, meets more often than that. However, it does offer an out for unscrupulous politicians, and altering “once every year” to “once every three months” would ensure that it wasn’t misused.
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One can go on and repeat this over the remaining 121 Sections (there were 128 Sections, but Section 127 was repealed after a referendum in 1967), but you get the idea. The Australian Constitution is way out of date. And it is not improving with time.
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THE SENATE
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Do We Need The Senate? This is a tricky one. New Zealand and Queensland do not have Upper Houses, and don’t suffer as a result.
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The original notions - that it be the “States’ House” (the US system), and/or that it be a “House Of Review” (the UK system) - haven’t worked. The only two times when Senators from a State crossed party lines to vote against a bill on the grounds that it would have an adverse effect on the State were all the South Australian Senators back in 1912 and 1917, and the bill (the same on both occasions) related to the timber industry. The only other examples of senators of a state voting together all occurred when all the senators from that State were members of the same party. One very rarely hears about State issues in the Senate, and it tends to divide on party political lines. So much for the “States’ House”.
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As for the “House Of Review”: yes, the Senate has amended and/or rejected legislation: when it has not been in Government control and the opposition has knocked off things it doesn’t agree with. However, in a democracy, the idea is that a Government can do what it believes in, and, if the people don’t like it, then the people can vote the Government out at the following election. Indeed, this was the basis of the famous dispute in the UK in 1911, which saw their upper house – the House of Lords – effectively lose its power of permanent veto over Government legislation.
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The Senate has proved useful in the work of the Senate Committees – which were founded in 1970 when the leader of the Labor Party in the Senate at the time, the late Lionel Murphy, decided as part of his power struggle with the then Labor Party Leader Gough Whitlam to increase his personal power by forming these committees, noting that it would also have an adverse effect on the Coalition Government of the time – which, of course, didn’t control the Senate.
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However, out of this grew a healthy system of bipartisan review of legislation, and major issues (not all Government-initiated issues, or, indeed, all involving Government actions) which was fair, reasonable, and certain to be gutted whenever a Government got a majority in the Senate. The Howard Government gained a Senate majority in mid-2005. It gutted the Senate committees 11 months later. The Rudd Government has yet to reinstate them, although that has more to do with the fact that the Coalition will have control of the Senate until mid-2008, and effective control (with the Family First Senator, who usually votes with the Coalition) until mid-2011.
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Certainly, the Senate should not have the veto over money bills. The events of 1974/75 proved so divisive that no independent observer wants to see them repeated.
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1974/75 also provides an excellent example of how the Senate can be misused. The opposition clearly had a majority in the Senate after an independent Senator defected to the Liberal Party. Besides the money bills, the opposition defeated 21 pieces of Government legislation in the Senate. The same opposition, when in Government in 1976/77, by either legislation or administrative fiat, enacted 18 of the bills. Two others had lapsed due to the previous Government abolishing the fees they had intended to increase. Abuse of the Senate? Without question. Could it occur again? YES.
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But…the chances of getting a referendum through to abolish the Senate are NONE, as we will see later. Thus, we are chasing a phantom. We are stuck with it.
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There is an additional problem here. Section 24 of the Constitution states that the number of members of the House of Representatives will be as nearly as practicable twice the number of Senators for the States (not including Territory Senators). As the powers of the Federal Government have increased since Federation, that means that increases to the workload of members of the lower house have increased exponentially. This would normally be dealt with (and is everywhere else) by increasing the number of Members. However, that would mean a very sharp increase in the number of Senators, which is not required. No Prime Minister has liked this, and, indeed, a referendum to correct this was put forward in 1967. For reasons we shall go into later, this was defeated, and no P.M. has revisited the issue since, mainly because of the question of getting a referendum through, a subject to which we will return.
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THE CONSTITUTION AND THE HIGH COURT
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Sir Robert Garran spends much of his autobiography bemoaning at the way the High Court has (mis)interpreted much of the Constitution, and gives the example of Section 92 – that trade between the States will be free – which the Court has taken to mean almost anything.
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The High Court is itself set up under the Constitution – Chapter III. It is supposed to interpret the Constitution, rule on the validity or otherwise of Commonwealth laws, and is the final court of Appeal in all civic and criminal cases for both the Commonwealth and the States.
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Unfortunately, the members are appointed by the Federal Government, which meant that for many years the High Court was ‘stacked’ with former politicians. Indeed, the first High Court, in 1903, comprised three members of the first Federal Cabinet, including the first Prime Minister.
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This became discredited, largely due to the shenanigans of the last two politicians appointed (Sir Garfield Barwick and Lionel Murphy). Now, members are appointed to the court from the legal profession, assuming, of course, that the Government approves of them – and that includes their political leanings. However, sometimes a strange metamorphous occurs when a judge is appointed, making that judge unpredictable. Some judges may go through several of these, depending upon various factors.
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In interpreting the Constitution, or, indeed, any act, one assumes the Court will look at the Parliamentary Debates to see what Parliament intended. And one would be wrong. In the early 1990’s, the Federal Government introduced with each Act an explanatory memorandum, designed to explain what Parliament intended. That was also ruled inadmissible. The High Court justices seem to make their judgments based on what they think the law is, and damn the actual meaning. As Mr. Justice Kirby said in a recent High Court judgment:
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“…law is not a mystery unto itself, to be preserved separate from other Parliamentary law as legal canon reserved to a specialized priestly class…where the outcome is governed by legislation, the stating point is always the legislative text…we sit here to apply the legislation, not judicial approximations of it.”
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Hear, hear one says! He was in a minority. Of one. In Australia, law is legal canon reserved to a specialized priestly class, as many frustrated politicians, lawyers, and common people in particular try to work their way through the Byzantine minefields set by our highest Court.
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How does this apply to the Constitution, and the way it is interpreted? Three examples of this will suffice.
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Section 44 provides the grounds for disqualification of a member of Parliament. The first subsection says that a member who is under any acknowledgement of allegiance, obedience, or adherence to a foreign power cannot be a member of the Federal Parliament. In other words, Aussies only. Right? Well, according to the High Court…NO. The problem lies with ‘obedience’. Former members of Foreign armies can go away, even if they’re now Australians. Ditto Foreign Citizens, including those who hold duel citizenship of countries which won’t let you renounce your citizenship (there’s at least 44 countries that won’t let you renounce your citizenship). This little ruling, which was an adjunct to Cleary’s Case (1992), made a lot of MP’s ineligible to be an M.P.. Technically, quite a few still are. As part of the 1999 Republic Referendum, it was intended to rewrite this section, but that referenda failed. But Section 44 gets better…
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Section 44 also knocks out anybody holding an office of profit under the Crown, or anybody receiving a pension from Canberra. Fair enough? Well, you’ve just knocked out anybody with ANY contract with the Commonwealth, States, and Local Governments, even if they have been on leave without pay for a year, and given notice of resignation to take effect at the end of that year (Cleary’s Case again). This ruling is still capable of knocking most MP’s out of Parliament. For example, it could be argued that all sitting members hold “offices of profit under the Crown”, which would knock out every sitting member from standing again under Section 44(1),with the exception listed below. Anybody left?
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Oh, yes. The “office of profit” disqualification does include an out – “…does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or any of the Queen’s Ministers for a State, or…a member of the Queen’s navy or army.” Problem: where’s the Air Force? Answer: It didn’t exist at Federation (the Wright Brothers flew after Federation.) But, if the army and navy are exempt, surely it implies the Air Force as well? Well, NO (Kelly’s Case, 1996). Does this mean that the Air Force may be a State responsibility? It’s quite possible, but it is better not to go down that path…
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Section 51 (Powers Of The Commonwealth) contains enough examples for a library of books, and there are several. Let me give just one example. The Corporations Power (Section 51 (XX)) was interpreted in so many ways that Corporate Law was left to the States for many years. This became increasingly untenable as companies grew and communications methods changed. Then, in the Concrete Pipes Case (1970), the High Court gave the power over Company law to the Commonwealth. The Whitlam Government drafted a bill, but it never was enacted. The Fraser Government tried, but by this time the High Court membership had changed, and the laws had to be hastily rewritten as both Commonwealth and State Acts. Then the High Court seemed to change its mind again in the late 1980s, and a Federal Companies Act appeared. The High Court ruled in 1990 that that was fine, but the Commonwealth didn’t have one key power. However, by this time, the corporate scandals of the1980s forced the all of politicians at both the both Federal and State levels to do something, which they did, with joint laws giving power to a Federal Body. However, the entire legal framework of company law in Australia has had to be completely rewritten – twice to date, with a third a strong possibility in the near future.
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My favorite, though, is the Inter-State Commission. Section 101 of the Constitution states that there shall be an Inter-State Commission to determine transport disputes between the states, and goes on to detail what the role of the Commission shall be in Section 102, and rules for the membership of the Commission in Section 103. Sound like a good idea? It is – but don’t try to contact it. It doesn’t exist. It has existed twice since Federation, for six years from 1913 to 1920, then from 1984 to 1991. How can this be?
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Any thesaurus, including a legal thesaurus, will tell you that the word ‘shall’ is a synonym for the word 'must'. Except, of course, in the Wonderful World of the Australian High Court, which ruled that ‘shall’ in Section 101 of the Constitution means ‘may’. I won’t give the legal reference, as I know of at least two Senior lawyers who have driven themselves literally quite mad trying to understand that verdict.
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There are so many other examples, but this will suffice. The High Court sees itself as the ‘great defender of the Westminster Principle: that, to prevent tyranny, the Courts, the Executive, and the Enforcement Arms must be kept separate. But what happens when the High Court acts politically? Then you get the mess outlined above.
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For masochists and others interested in this, may I recommend starting any further research with David Solomon’s simple, readable, and concise book The Political High Court (1999). I will say no more on the subject, as I don’t like the concept of contempt of court.
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MISUSE OF SECTIONS OF THE CONSTITUION
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Once the High Court started playing games with the Constitution, it was all but inevitable that the Federal Government would seek to increase its powers by using Sections of the Constitution in ways that weren’t intended, then seeing if the High Court agreed.
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One important thing to note is that the expansion of Federal powers by the Federal Governments signing treaties on whatever subject/s took their fancy WAS anticipated by the founding fathers, which allowed for it in the Constitution – Section 51 (xxix).
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It should also be noted that Australia may sign many treaties, but then either fail to pass them into law and/or pay lip service to them. The best example would be the International Covenant on Civil and Political Rights. This one is of particular note, because the original document (the Covenant on Human Rights) was mainly drafted by two successive Australian Foreign Affairs Ministers (Herbert Evatt and Richard Casey), and not passed into law until 1975! The current Covenant had significant input from a later Foreign Affairs Minister (Gareth Evans), and was passed into law in 1984. Except that…the body with responsibility for the Covenant at the Federal Level – the Human Rights and Equal Opportunity Commission – has a small budget, limited powers of investigation, and no powers to enforce its findings. Lip service, indeed! (The useful Australian law on this subject is all State Law, which, of course, only applies within a State).
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What I am thinking of as the best example of Constitutional Abuse is Section 96. This allows the Federal Government to give grants to the States for specific purposes – that is, the money must be spent on that purpose alone and nothing else. This has enabled the Federal Government to manipulate the States in such a way that they have moved into effective control of areas which would, otherwise, they would have not been able to move into – and direct what the States do, which is definitely not what was intended by any of the Founding Fathers.
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Then why is Section 96 there, and how did it reach the current situation? Well, the original idea behind Section 96 was that it would enable the Federal Government to make donations for charitable purposes. Australia was in the grip of a deep recession in the late 1890s’, with banks failing, and unemployment rife.
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The Section was used as intended for many years. However, between 1941 and the mid 1960s, the States lost most of their tax powers through a series of High Court rulings, but none of their responsibilities. Thus, it moved from the States collecting 75% of the revenue, which met their needs, to the Federal Government collecting 70% of the revenue, with the States still spending 75% through untied grants from the Federal Government. (The technical term for this is “vertical fiscal imbalance”).The key year in terms of misuse of Section 96 was 1965. The Labor Party was in opposition, and badly weakened by a split triggered largely on religious grounds. The full details are too complex to go into here, but, basically, a right-wing body funded largely by the Roman Catholic Church tried to take over the Labor Party from inside. When they were finally repelled, the Labor Party lost quite a few members through the inevitable side-effects of the grueling affair. By 1965 the Labor Party was slowly coming back to life. The Prime Minister of the day, Robert Menzies, saw a chance to try and reignite the split by directing the States through grants under Section 96 to build Science Blocks for schools – including Catholic and Private Schools. This was upheld by the High Court.
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The then Deputy Leader of the Labor Party, Gough Whitlam, took note of this, and realized that he could use Section 96 to direct the States to spend money in ways so that they were forced to implement Federal Policy, particularly after the short-lived Gorton Government (1967-71) used it exactly that way in some situations. When the Labor Party finally came back into power federally in 1972, with Whitlam at the helm, he began to use it widely. Many of his attempts were blocked in the Senate, but the metaphorical genii was out of its bottle, and is has now become common practice.
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There is little to nothing the States can do about this, except shout a lot, and knock back funding when the Federal Government attaches conditions that cannot possibly be met. An example of this occurred recently in my own home State of Victoria, when a long-in-the-works expressway began construction. It will be, with associated road works, over 50 kilometers long, incorporate several major interchanges, link several existing expressways, and include a very long tunnel to protect a wetlands area which is home to many endangered species. The idea was that it would be partly funded by the Federal Government, partly by the Victorian Government, and partly by private enterprise, who would recoup their share of the cost with tolls. Then the Howard Government made its contribution to the cost conditional on one thing: no tolls. As the Victorian State Liberal Party had already conceded, it couldn’t proceed without tolls. The expressway had been on the drawing board for over 30 years, and both existing roads and public transport near the route had already gone way past capacity. The road is going ahead, without the Federal money, but with higher tolls.
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Unfortunately, that is an exception. More often than not, the States have no option but to accept the Section 96 money which it needs for schools, hospitals, roads, and almost all other basic services, and spend them as the Federal Government tells them to, even if that means more urgent State needs get overlooked on the way.
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That’s politics. And despicable use – or rather, misuse – of Section 96 of the Constitution.
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Constitutional abuse, indeed!.
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THE BIGGEST BARRIER OF ALL: SECTION 128
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One journalist once wrote that it would be impossible to change the Australian Constitution without calling in the Army. This is a gross understatement.
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Section 128 outlines how the Constitution may be changed. A change requires all Australians to vote, with votes counting towards both the National Tally, and, if the voter resides in a State, that State’s tally. It requires both an absolute majority of voters to vote in favour, AND a majority of State voters in a majority of States to vote in favor for a change to take place. Furthermore, each change requires a separate question: so, if you want to make say, four changes, then the voter has to vote either “Yes” or “No” to four separate questions on the ballot paper.
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Confused? We’ve just begun. Let’s start with the figures. There have been 48 proposals for changes to the Constitution put to the Australian people. 8 have passed. Most of the other 44 were resoundingly defeated.
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Most people say that the requirement for “a majority of State voters in a majority of States” is be the problem. It isn’t. The fact remains that, if that requirement wasn’t there, only 4 more referendums would have passed. Yes, that is FOUR.
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Why, then, the reluctance to pass referendums? Is it really so difficult? The Constitution urgently needs change, so why are Australians so reluctant to make changes to the Constitution which are essential if this country is to get anywhere in the 21st Century?
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I do know the answer, but it’s not a happy one, I’m afraid.
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Under the various laws relating to referendums, once a bill for a referendum passes the normal Parliamentary hurdles, then each voter is posted a detailed booklet which outlines the changes proposed and gives the arguments for and against the proposal on facing pages. There is then the normal campaign, then the vote.
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Detailed University studies took place as exit polls following the 1984, 1988 and 1999 referendums, all of which failed. I was a volunteer in 1988. I had to ask four questions:
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Did you receive the booklet?;
Did you read the booklet;
How did you vote?; and
Why did you vote that way?
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The results I got from my booth were roughly comparable to the National Answers. The results were sobering. The National figures for the three referendums together were:
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Did you receive the booklet? YES – 98%
Did you read the booklet? NO – 88%
How did you vote? NO – 72%
Why did you vote that way – “Because I didn’t know what it was about so I voted NO” – 96% of the NO voters.
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People simply don’t CARE enough about the Constitution, even though it is at the heart of every Government action taken. Furthermore, ANY opposition will sink a referendum.
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For example, in 1987, four questions were put forward to alter the Constitution. None of them were controversial. All had bipartisan support. Problems? You guessed it…
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Question One in 1977 provided for House of Representative elections and Senate elections to be held on the same day. Common sense, one would say. Two State Premiers and six rebellious backbench Government Senators didn’t agree. They saw it as an attack on the States. They campaigned against it. It got 67% of the vote, but was defeated in three States, thus failing to pass. The other three questions submitted that day, all unopposed, were all passed.
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An isolated example? By no means. There are so many of these examples that Governments are now frightened of any Constitutional change, to the extent that the Howard Government passed a law in 2007 trying to use the Corporations Power – despite the fact that it was in direct breech of another Section of the Constitution, AND that a previous Federal Government had submitted a referendum some years ago to try and get the powers the Howard Government wanted! The ‘Act” was, as expected, disallowed by the High Court.
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So, we have a ramshackle, horse and cart Constitution which is riddled with anomalies which is as good as unchangeable.
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THE WAY AHEAD
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Is There One?
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It is surprising how many politicians and political types from all political parties agree we need somewhere between major surgery on and/or a complete rewrite of our Constitution. However, Section 128 means they dismiss the idea as impossible to achieve.
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Mention the Constitution to most Australians and their eyes glaze over. Try to discuss it with them, and they remember things like they’ve got paint drying they have to watch, or grass growing – something along these lines – and off they bolt, faster than you can say “But, wait, this is…”.
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So, how does Australia go about gaining a new Constitution?
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Idea One:
An armed coup, followed by the states putting together a modern Constitution. Hang on a minute, that’s not only illegal, but we couldn’t get enough people interested to get a coup up. In any case, the States would never agree on what the new Constitution should contain.
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Idea Two:
A Constitutional Convention, toured nationally, of the people, for the people, to teach them about the Constitution and the need for change. We’ve tried that – it ran spasmodically from the early 1970s to 1999. It achieved nothing other than earning lawyers a few more quid, and several very beautiful reports. I would offer to loan you them, but the set from 1987 currently holds up my VDU.
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Idea Three:
I first learnt about the Constitution at school in the ‘70s. It disappeared from the curriculum not long afterwards. Perhaps – and it’s probably the only realistic way of achieving major Constitutional reform – we can reintroduce it. Even studying our Constitution on a strictly non-partisan basis would have one realizing it needs alteration (if not replacement). It would take generations, and certainly won’t have positive results in my lifetime (At 46 I have how many years to go?), but would probably be the only way of achieving what we need – a fair, democratic, modern Federal Constitution...
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THE END
(It’s okay, you can wake up now).
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END TITLES
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