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Four rules for reform

By George Williams - posted Friday, 3 October 2008

Kevin Rudd has put constitutional change back on the agenda. When he welcomed Malcolm Turnbull to the Liberal leadership, he said they should work together to bring about an Australian republic. Soon after, the Prime Minister reminded Australians of his election commitment to hold a referendum to recognise local government in the Constitution. He listed this as a topic to be discussed late this year when the nation's 565 local councils attend the inaugural meeting of the Australian Council of Local Government.

These are only two of the Government's election promises on constitutional reform. The full list includes referendums on indigenous recognition, restoring co-operation in federal-state relations and establishing fixed four-year terms for the Federal Parliament. Rudd is similar to his Labor predecessors in coming to office with ambitious plans to modernise the Constitution. This reflects the long-standing commitment of the ALP to constitutional renewal.

Unfortunately, Labor's record of delivering this is dismal. It is now 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. There have since been 13 failed attempts at constitutional reform under Labor governments. The 1946 reform is in fact the only occasion since Federation in 1901 that Labor has won a referendum. This solitary achievement is not due to a lack of trying.


Of the 44 referendum proposals put to the people, 25 have been put by Labor. Remarkably, this amounts to a 96 per cent failure rate by Labor when it comes to constitutional reform. Overall, Australians have only voted yes at eight referendums. The last of those was in 1977 under the Fraser government when, among other things, a retirement age of 70 years was set for High Court judges.

Reform of the Australian Constitution might be seen as mission impossible. We certainly do need to be utterly realistic about the barriers to success. The main reason for the poor record is a conspicuous failure to learn from past mistakes. If the Rudd Government wants to succeed at constitutional change at the ballot box it must not repeat Labor's past mistakes. If Rudd takes a different tack, success is not only possible, it is probable.

In analysing the many referendum failures and the few successes, it is clear that Australians are likely to support reform where it is based upon four main elements. Every failed referendum lacked at least one, if not more, of these.

First, the proposal needs to have bipartisan support. Bipartisanship does not guarantee a yes vote, but no referendum has ever been passed without it. The need for broad political support means that constitutional change needs to be approached as a different type of politics. Instead of scoring points off an opposition, a government must be prepared to see its natural opponents as partners in a shared enterprise.

This, of course, runs against the grain of Australian politics and against the instincts of most of the people we elect to the Federal Parliament. Equally, the failure to live up to this challenge is a central reason why most referendums fail. Australians know that their Constitution should not be tinkered with for political gain. Where a proposal attracts heated partisan debate, popular scepticism and distrust follow. Australians are wary about supporting any change driven by only one side of politics.

Second, Australians must be given the information they need to cast an informed vote. Spoiling campaigns have been effective because Australians know little about their Constitution and system of government. A 1987 survey for the Constitutional Commission even found that around half the population did not realise we have a written Constitution. Another found that fewer than one in five Australians have an understanding what the document contains, while a 2006 poll even discovered that 61 per cent of Australians falsely believe that we have a national bill of rights.


Australians tend to say no when they lack the information they need to cast a confident yes vote. Why risk change to our most important law when the implications of the reform are unknown and uncertain? Combined with a partisan attack, the impact can be devastating. The problem stems from a system that does not provide Australians with the information they need to make an informed choice.

The Constitution only says that Australians shall vote, it otherwise leaves the details to Parliament. That body has said that voters shall receive details about the proposal via a yes and no booklet in their mailbox. The booklet is in effect a propaganda outlet for those arguing for and against the change. Parliament has not further provided for the balanced, credible information people need to make sense of opposing cases. Without this, people often arrive at the ballot box confused and even angry about what they are being asked to vote on.

The 1999 republic referendum saw a fierce national debate about whether or not to sever Australia's ties with the British monarchy. Despite the enormous time and energy involved in that national conversation, too few Australians understood the model being put to them. I remember doing days of talkback radio and being faced with questions such as whether a republic would mean that coins with the Queen's image would suddenly become worthless. I also asked my constitutional law class at the ANU whether any of them had read all of the 71-page yes and no booklet. Not one had.

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First published in The Canberra Times on September 27, 2008.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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