Australia’s constitution is constrained by people power

Later this year, the High Court is expected to hand down its decision on whether the Howard Government’s controversial WorkChoices legislation is legally valid.

The main argument against the legislation, an argument run by Labor states and the trade union movement, is that the Federal Parliament does not have power under the Australian constitution to enact laws regulating the internal activities (including workplace relations) of corporations.

This case is the first time in a while that the constitution has been the subject of significant public attention. The simple reason for this is that the constitution is dead boring and in need of fundamental reform. While the United States constitution gets American citizens excited with its introductory phrase “We the people”, there is precious little in our constitution to get the heart racing.

Supporters of the Australian constitution will obviously dispute this, referring doubters to section 128 of the constitution, which provides that it is only the voting public who can change the constitution, by way of referendum. Thus, unlike the United States constitution which can be amended by congressional vote (and approval of two-thirds of state legislatures), Australian citizens really have power when it comes to their constitution.

But in my view, this “power to the people” approach to amending our constitution is the major problem with the document. Counter-intuitively, giving power to the voting public to change the constitution has resulted in a stale document reflecting the attitudes and values of our dead ancestors, rather than a living document representative of our community today.

There is often talk about the need for constitutional reform in Australia, but rarely, if ever, is the referendum process for changing the constitution raised as an aspect of our constitution being in need of change. It should be.

Since federation, there have been 44 referenda in Australia in which only eight have been successful. Despite consistent commentary that proposed referenda have been rejected because the public are protective of their constitution, this is far from true. Rather, Australians are a conservative bunch who when faced with change - even positive change - that they don’t fully understand, vote to maintain or restore the status quo. No more is this true than when it comes to referenda in Australia.

Holding a referendum is an expensive process. Taxpayers’ money must be spent on printing, postage, advertising and the like. This is money clearly wasted. Why bother giving the public a say about their constitution, when a large number do not care whether the constitution exists let alone how it is proposed to be changed, and many more will undoubtedly fail to appreciate the intricacies of the change being proposed?

The difficulty in changing the referendum process for constitutional change, however, is that it is understood that this very process would have to be followed in order to scrap it from the constitution. It is unlikely that Australians will vote in favour of a change which takes away one of the few positive rights they have in this ageing document.

One way around this, however, is to just get rid of the current constitution in its entirety. Section 128 of the constitution says that a referendum is required to “alter” the constitution, but it is my contention that this process would not apply if a new constitution was enacted by the Federal Parliament to repeal the existing one.

The new constitution could be brought before the Federal Parliament for debate as early as the next session. Much of the existing constitution could be retained, but there would be some important changes to be made.

First, the referendum process would be gone. Instead, a change to the constitution would require a positive vote of an absolute majority of the Federal Parliament at a joint sitting. There is a similar procedure under the constitution in place already (Section 57), in which a joint sitting can pass proposed laws following a double dissolution election, and I believe this procedure is appropriate for constitutional change.

The joint sitting procedure would divert the power of constitutional change from the people to their elected representatives in parliament, but would not succumb to the forces of partisan politics (given that it is only on rare occasions that a political party will have a sufficient majority at a joint sitting to force through their desired constitutional amendments). At the same time, constitutional change will be in the hands of people who actually care about the issues involved, and have the resources and experience to come to an informed decision that is truly in the nation’s interest.

Thomas Jefferson, who wrote the US Declaration of Independence and later went on to become that country’s president, once said: “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, more truths discovered, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

Australia’s constitution has not kept pace with the times because the public has been given too much power. For the constitution to go “hand in hand with the progress of the human mind”, it is time to tame its human element.

If parliament is given the power to change our constitution, some significant progress can be made. First, the constitution can be cleaned up, with redundant provisions abolished. For example, we no longer need Section 26, which outlines the number of members of the House of Representatives to be chosen in each state at the first election after federation. Sections 101 to 103, providing for a non-existent inter-state commission to deal with trade and finance disputes, can also probably go.

Second, the constitution can be modernised. The Commonwealth’s power to make laws with respect to “postal, telegraphic, telephonic, and other like services” in section 51(v) might be expressly extended to cover such new-fangled devices as radio and television. Further, there might no longer be the need to talk about railways so much when we’ve now come across things like the automobile. The Commonwealth could also be provided with express law-making power in relation to current national concerns such as water and environmental protection more generally.

Third, we can fix up the federal system, which has become a shambles with each level of government continually scratching their respective heads to work out what they can and cannot do. High Court justices have earned their wages pouring over constitutional provisions to figure out whether a Commonwealth or state law is constitutional or not.

One simple way to do this is to simplify the language in Section 51, the section which gives the Federal Parliament most of its law-making powers. For example, we could tidy up Section 51(xx) - the corporations power - so that the Federal Parliament can make any law affecting a corporation. At present, the parliament can only make laws in relation to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”, hence the WorkChoices challenge presently before the High Court.

Over time, we should also think about making the law-making powers in Section 51 exclusive to the Commonwealth, rather than being shared with the states as they are currently are - at least on paper. The constitution, under Section 109, already provides that when a Commonwealth law and state law under Section 51 are inconsistent, the Commonwealth law prevails. Section 109 has been the subject of a large number of High Court cases since federation, due to the vague power-sharing arrangement provided for under the constitution.

The states are already “financially bound to the chariot wheels of the central government”, as Alfred Deakin once famously envisaged, due to the Commonwealth’s dominance over raising individual and business taxes, so why not confirm the Commonwealth’s dominance in the text of the constitution? Co-operative federalism between the Commonwealth and states has not worked effectively, and with power naturally leading towards the Commonwealth anyway, let’s just speed up the process.

Prominent constitutional law Professor George Williams recently wrote: “Reform of our dysfunctional system is long overdue. Rather than promoting good governance and enabling change, it is often a blockage to getting things done.”

Our dysfunctional federalism can be fixed by replacing our dysfunctional constitution, and in particular getting rid of the dysfunctional referendum process that gives too much power to the Australian public who aren’t equipped to exercise it effectively.