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Standing Committee on Social Policy and Legal Affairs
CHAIR (Mr Perrett)
Rowland, Michelle, MP
Moylan, Judi, MP
Stone, Dr Sharman, MP
Perrett, Graham, MP
Smyth, Laura, MP
Ferguson, Laurie, MP
Sir David Smith
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Content WindowStanding Committee on Social Policy and Legal Affairs - 20/06/2013 - Constitutional reform
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APPLEBY, Dr Gabrielle, Private capacity
McKENNA, Associate Professor Mark, Private capacity
SMITH, Sir David, Private capacity
TWOMEY, Professor Anne, Private capacity
WARHURST, Emeritus Professor John, Private capacity
WATERFORD, Mr Jack, Private capacity
WILLIAMS, Professor George, Private capacity
Committee met at 9:18.
CHAIR ( Mr Perrett ): Welcome to this round table on constitutional reform. I would like to acknowledge the traditional custodians of this land an pay our respects to the elders, past, present and future. The committee also acknowledges the present Aboriginal and Torres Strait Islander people who now reside in this area and thanks them for their continuing stewardship.
Please note that these meetings are formal proceedings of parliament. Everything said should be factual and honest and it can be considered to be a serious matter to attempt to mislead the committee.
The committee conducts hearings and holds discussions in a variety of formats. Today we are experimenting with a more instantaneous and interactive form of proceeding, trying out a new way to bring the parliament to the Australian people. Behind the committee there are some large screens that will display a live feed of tweets made during our discussions. If tweeters wish to comment or pose questions for the round table they should use the House of Representatives twitter handle, @aboutthehouse, and the hash tag, #auscon. We will do our best to get through the tweets—especially the more interesting questions—but we will leave some out. However, we will try to compile those as part of the day's proceedings. From time to time my fellow committee members and I may use incoming tweets to lead the discussion. We do not expect our participants to respond to or monitor all tweets as they come in. If any of you would like to respond to a tweet please let me know.
This is intended to be a provocative and lively discussion. We might not come to any particular conclusions, but our aim is to reinvigorate the dialog around the role of Australia's Constitution. We will make the transcript available on the committee's website in a few days.
There is also the possibility that democracy could break out—which often happens in this place—and the division bells will go. We the elected representatives will have to run to the chamber, at which time we will stop being a committee and Hansard will stop proceedings. However, I would like the discussion to continue, because I think it will still be going out live. We do not know what will happen, but it is a strange parliament and Thursdays are normally full of lots of divisions.
Our first session will focus on the role of the High Court in interpreting the Constitution. To give our discussion some context and provide us with a starting point I will ask Dr Appleby to make some opening remarks.
Dr Appleby : The High Court's role is to interpret the text of the Constitution in its application to modern circumstances. In doing so it often makes incremental changes to our understanding of that text. The High Court's role in constitutional interpretation can be contrasted with the power of change vested in the Australian parliament, together with the Australian people, in section 128 of the Constitution. One allows for potentially sweeping changes anchored in legitimacy through popular vote. The other allows for smaller changes that are often subject to criticism on the basis of their lack of democratic legitimacy.
The High Court's role in constitutional interpretation and change is dependent on the activity of others. Unlike the government and parliament, which can select issues for constitutional change, the High Court does not select cases that come before it. The High Court's constitutional agenda therefore reflects the decisions and actions of parliament and the executive. This raises then a question about the role of the parliament in constitutional interpretation itself. An overly cautious approach by parliament passing legislation of questioned constitutional, for example, can needlessly hinder parliament's policy agenda and its capacity to drive social and constitutional innovation. It will reduce the circumstances in which the courts have the opportunity to extend and adapt the law to modern life.
Where the parliament approaches the task in a way that is too liberal, this may result in the passage of unconstitutional legislation that is subsequently struck down by the court, with the consequential effects on government and individuals. Therefore, as the members of this committee are no doubt aware, parliament, parliamentary committees and parliamentarians need to be cognisant of the constitutional limitations and the general trends in the approach to these limitations of our High Court to interpreting these. I therefore welcome the organisation of this round table as a forum at which these issues can be discussed, and I thank you for the invitation to speak here.
CHAIR: Thank you, Dr Appleby. The previous committee—the Legal and Constitutional Affairs Committee—did a similar round table, chaired by the now Attorney-General, Mark Dreyfus, who, as you might know, had a bit of a constitutional law background. Looking at the 150 members of the House of Representatives, I am not sure how many of them are constitutional law experts. But there has been the suggestion that individual parliamentarians need to consider the constitutional basis for their actions by reference to the position and processes adopted by the judiciary when considering each piece of legislation that comes before it. I will repeat that: 'individual parliamentarians'. I do not think that happens, but I would be interested to have some comments from that side of the table as to how parliamentarians go at looking at the Constitution—or from either side of the table.
Ms ROWLAND: I often wonder, Chair, how many members of parliament have actually read the Constitution, quite frankly.
CHAIR: Well, I assume all 150! I suppose we could do a straw poll.
Mrs MOYLAN: Let me be very controversial—as I always am!—and say that I have looked at the Constitution with regard to what I think is excessive government power to deal with the rights of noncitizens. It deeply concerns me that executive government can come into this place and pass laws without reference to the parliament. It appears to me, from the historical record, that although there have been High Court challenges to some of those decisions—and probably the most controversial issues have been to do with asylum seekers, and we saw this happen with the Tampa incident—that the High Court is relatively powerless to act, because under the Constitution, and because we do not have a bill of rights, the executive government can make whatever decisions it likes in relation to noncitizens. I put it to you that this may have been all right in the last century, but I do not think it is all right in the 21st century; that is my personal view.
We saw 50 years of plugging for a human rights bill in this country, and what we have is something much less than that. It was interesting that Harry Jenkins brought down one of the first reports, I think, on the human rights view of the bill to excise the mainland, basically to put asylum seekers, including children, into places like Manus Island and Nauru. His committee made a decision that the bill was outside our human rights obligation. I thought that was quite an interesting thing—he came into the parliament yesterday—and I am surprised it has not had more publicity. That is an issue that I have studied intensely and I am very interested in your views as constitutional experts or lawyers. What can we do about it, and do you see it as a problem?
CHAIR: Perhaps I could just say that I am on that committee as well, and I am going to add into the mix a Tweet from Melissa Castan before I hand over to Mr Waterford. Her Tweet question is:
Williams&Pape cases disturbed the 'common assumption'. Is it HCA's proper role to impose novel constraints on Cth?
Mr Waterford : I will pick up Ms Moylan's second point first. Although getting to the High Court depends on a cause of action, the High Court has original jurisdiction to issue mandamuses, and when people want to they can get to the High Court fairly jolly quickly. So, although the moral and legal dubiousness of some of the procedures that are adopted may be clear enough, it is not a very long path to get to the front door of the High Court to stop or arrest legislation. And there are ample occasions in Australia when law has, in effect, been suspended before it has even been proclaimed on that sort of account.
On the other thing, I cannot remember exactly what the current version of this is called. I think it is probably part of the Senate Legal and Constitutional Affairs Committee. But for a very long time in this parliament there has been a committee—which I think began as a regulations and ordinances committee—that as part of its functions surveyed all legislation and all subsidiary legislation from a human rights general common law assumption, constitutional fitness sort of assumptions, and prepared a report on it. Even as a very young journalist I used to get kicked by David Solomon, who was my boss, to make sure I read those reports, because you often found stories in waiting just by reading dry and dusty reflections on regulations made under the merchant shipping constitutional provisions bill or something like that.
Prof. Williams : You certainly will not get any disagreement from me about the need for more robust human rights protection in that area and a number of other areas. But I wanted to focus more on your point about the role of parliament and what parliament might do in this space. I think it is quite striking indeed that a parliamentary committee starts off with the role of the High Court as its focus, and I think it tells a story of how parliament has become very passive in this space with respect to the Constitution. It has not been true in past years, and there have been periods during parliament's history when parliament was very active in generating proposals for reform, holding major inquiries into Constitutional change. I certainly welcome this event, but it is a long time between drinks, when you look at parliament's engagement in these areas. It means that when we look at change and parliament's role in interpreting the Constitution—which it does have in addition to the High Court—the parliament is largely almost absent from these debates.
I think that is quite striking in our democracy, if only because one of the major consequences of it is that we simply do not have a very robust representative-led debate about what the Constitution should be, how it should be changed or whether it is operating effectively—that is simply beyond the High Court; it is not its role to be doing that. When we look, say, at the local government referendum, it means that for most of the community these issues pop out of nowhere because there is no longer-term parliamentary engagement in these things; it literally goes back a number of years.
The other thing I wanted to quickly say about when individual parliamentarians engage in these matters» is that in my experience they do that very actively when they are trying to oppose something, and they are always ringing people like us to ask, 'Is there a constitutional problem?' That is when the issue tends to arise quite markedly and quite often. But in terms of looking at the Constitution as a vehicle for more positive change or looking at the underpinnings, that debate does not seem to happen very often.
Mrs MOYLAN: Perhaps I could just add to that. The debate that has gone on in this place in my 20 years has actually been public criticism of High Court decisions and 'how dare they question what we do in this parliament?' I do not subscribe to that view. I think a strong democracy simply has to have the separation of powers, and each of those powers must respect each other's role. The reason we have the High Court there is to challenge sometimes decisions made by executive government, and I feel very strongly about that. So, I do not subscribe to the negative portrayal that often is made in the parliament about the role of the High Court and the judges.
CHAIR: Dr Appleby, I think you referred to that progression Professor Williams touched on from coequal authority to judicial primacy with deference. But the suggestion is that there is way too much deference to the High Court from the parliament at the moment. Is that right?
Dr Appleby : It is really important that individual parliamentarians—and I understand that they operate under the constraints of party discipline and there are a lot of practical issues in putting forward this argument—
CHAIR: We do not want to create more work for the whips, do we?
Dr Appleby : But it is important for individual parliamentarians to remember that they are operating under the Constitution. While the High Court has an important role in interpreting the Constitution in individual disputes, we operate under a system in which we presume that the rule of law and constitutionalism is fundamental. That requires people to consider the constitutionality of their actions when they are exercising public power. We often talk about executive officials having to consider the constitutionality of their actions. There is an equal argument to be made about parliamentarians.
CHAIR: I have only been here for two parliaments, so the deputy chair might be able to give a better perspective or Mr Ferguson. Regarding the number of times that people have shown their individual decisions when it comes to voting, I could probably count on one hand the number of times that people have broken from either party, leaving the Independents to one side, and made individual decisions. Whether that was based on a constitutional interpretation of the implications or their moral or religious feelings or what their wife or husband told them to do or what their union boss told them to do or whatever, I do not know. I have not seen that in my six years in parliament. I am not sure whether Mr Ferguson would like to make a comment.
Mr FERGUSON : From my quick recollection, there have been things like Ruddock and the others on the race issue. They have all been about philosophy rather than legality.
Dr Appleby : There is a role for the party to bring these issues forward. I know that with the parliamentary response to the national school chaplains decision there were serious concerns raised by the shadow Attorney-General about the constitutionality of the legislation raised in parliament. But the legislation was supported by the party. I see that as a real disconnect. If we consider ourselves as operating under the rule of law, that legislation will stand until it is valid and one of the parties in the parliament does not believe it is constitutional.
CHAIR: Perhaps it might have been opportune to make comment in a closely balanced parliament. That is what I might say to that.
Ms ROWLAND: I want to take up some of Mrs Moylan's comments. I remember studying administrative law. You would look through the Margaret Allars and see that governments were always trying to limit the ability of the judiciary to interfere in their decision making—for example, with the number of social security appeals cases and so forth. Isn't it the case that governments will always attempt to make sure of that? It is their role to make laws. Why wouldn't they be attempting to limit the amount of judicial intervention? I do not necessarily consider that it is the wrong thing to do. Surely that is the role of the parliament: to try and make its laws stand as they are.
Mr Waterford : Yes, but you might just say that the history over the past 30 years has been a non-stop attempt by the federal government of whatever stripe to limit the rights of appeal of non-citizens in relation to refugee cases. That is true. At the same time, however, the Commonwealth government, whether by general reforms in administrative law or by specific things—you mentioned social security—has vastly extended the rights of Australian citizens to appeal administrative decisions that affect them, whether decisions about veteran pensions or HECS allowance or anything like that. There has been an increase in the number of tribunals, ombudsman, privacy commissioners and what not to add to the mix. On the one hand, there has been a lot of giving out and lot of creation, if you like, of either administrative or judicial review or an overlap. Then there has been an almost ideologically based effort to try and restrain by some method or other any form of external scrutiny of immigration decisions.
Mrs MOYLAN: Ronald Dworkin, who sadly passed away in recent times, had quite a bit to say about this as well. My concern is that the engagement between the parliament and the High Court has been in my time in this place quite hostile. There has been very public attacks on the High Court and High Court judges because they are not elected. But the fact is that our country's democratic system was based on these three entities—the High Court, the executive and the parliament—and I think that we need to be more temperate in the way we make our public statements, because it breaks down the authority and I think it breaks down those important principles.
One of the dangers I see of the executive government trying all the time to wave away the decisions of the court because they are not elected officials is that politics comes into play, and if you have a minority group in the community what happens is that the politics play out to the majority, because the idea is: 'We have to get elected; we have to get votes.' I do not think the Australian public, and indeed many parliamentarians, understand just how important these principles are and the principle of separation of power is, and I think we should be far more careful, all of us, in making sure that they are preserved, otherwise the whole system begins to break down. We are perhaps seeing some beginnings of that now. That is my perspective, after 20 years in this place.
CHAIR: Can I bookend that by reminding people that you just commended Harry Jenkins and the chair of the human rights committee for their frank and fearless advice to the parliament.
Mrs MOYLAN: Yes; it was refreshing.
Dr STONE: As someone who has only had 17 years in this place, let me say that I think one of the big changes that have occurred is that we have fewer lawyers being elected, particularly constitutional lawyers; I think they are extraordinary and—
CHAIR: Forty per cent in the 42nd Parliament; I have not done the numbers for the 43rd.
Mr Waterford : But, in general terms, you should be thankful!
CHAIR: Settle down, Jack!
Dr STONE: I actually see it as a significant advantage to the governing of the country when we have people with a wide range of backgrounds, training and experience. But I make the point in relation to there being less focus on the constitutionality, for example, of every piece of proposed legislation, which is one of the points made in some of our briefings here—that perhaps there should be that constitutionality ruler put over every piece of legislation. We certainly do not do that. It is when there is a major problem or when there is something very contentious that we suddenly reach for the Constitution and say: 'How can that help us?' or 'How do we have to manoeuvre around that?'
You draw attention in particular to the Water Act 2007, where we had to fish around in the Constitution to find a way to get around the fact that the states were not going to cooperate and we reached for the external powers, of course, and before that we had Hawke reaching for the external powers when it came to Tasmania's Franklin Dam issue.
Mr PERRETT: I think there might have been a waterfront case as well, from memory!
Dr STONE: The waterfront case as well—yes. So, given that the Constitution was a creation of the colonial statesmen of the day and they were very conscious of maintaining a lot of the, to their way of thinking, most important areas of action—for example, education and health—is there a problem now, do you think, with our Constitution where we are inevitably going to have more contest when, in the federal sphere, we try and put together national outcomes, like the National Disability Insurance Scheme or the Gonski education-type measures, when our Constitution is designed to keep, for the states, a lot of that action but get funding from the federal sphere, when COAG is a very clumsy, often ineffectual device? What are your recommendations in relation to all of that? I see us as—
CHAIR: Especially with that progression of money moving to Canberra over the last 110 years. Who would like to take this one on?
Prof. Twomey : I am happy to speak against the—
CHAIR: Why am I not surprised!
Prof. Twomey : People well know that I come from this point of view as a federalist. I actually see advantages, particularly economic advantages, and I think that that is often not recognised. I see economic advantages in federalism and the competition, difference and customisation that come from that. I think people tend to automatically assume that if you can centralise power that makes things more efficient because you only have one set of rules to deal with; ergo, it is necessarily more efficient. The answer is: it is not, and we know that it is not. The reason we do not have one telecommunications provider anymore is that if you only have one they become monopolies; they become inefficient; there is no competition, so there are no standards to ratchet things up—everything comes down to a low, bloated level.
CHAIR: Especially if the government sells it off.
Prof. Twomey : Equally in relation to other things, I personally find the idea of having education dealt with solely at the national level—to have one national curriculum—quite disturbing. I do not think that is a good idea. I think it is much better if we do have different states with different education systems because, when we compare them, we can say, for example, 'Oh, look! The new fad they brought in in Western Australia is showing that their students are not performing well compared to the students in New South Wales or Victoria, who are doing something different.' Doing that sort of comparison means you can ratchet up performance. Working for a state government, where the Premier would ring you up and say, 'Why is such and such a state doing better than we are?', you can find out what they are doing and adapt that to try to add something else to improve it. You have a constantly building system. If you have just a national, central monopoly, you get one ghastly fad that is brought in by somebody or other that applies to everyone. We make all these little robots that are all learning exactly the same thing and we dumb down the system across the country. I think there are really good reasons to have a federal system, but I think it is really good to compare between the states and it is good to allow states to innovate and to be the laboratories for doing something different or trying out things that are different. Victoria can have its charter of rights; you can see whether it works or not before you go to it at a national level.
CHAIR: They could have grazing of cattle in the national parks and others can see whether it works or does not work.
Prof. Twomey : Yes, or shooting in national parks. How many people get shot in one state might suggest that maybe other states do not want to do it.
CHAIR: I might ask Professor Williams to provide comment before I head to Ms Smyth.
Prof. Williams : I have certainly come to the view—I think Anne is right on this—that Australia's system of government is typified by what I would call 'unthinking centralism'. We have drifted into the system we have, but we have not become a centralised system because we have analysed it and worked out that it is a better system, that it is more efficient and that decisions tend to be better. It is because of the way High Court decisions have enabled decisions to be made at the federal level that political opportunity has been created at the federal level. We see a series of decisions which, I think, if you were to take a more rational perspective on roles and responsibilities, you would say are better done at the state level. On the other hand, I think some things that the states do would probably be better done at the federal level, but as a community we have not had the conversation since 1901 about how, in this day and age, we should solve our problems within a federal system. We have a system which is often very poor at doing that. In this parliament, we had the recent Select Committee on the Reform of the Australian Federation, which made very direct recommendations about the need for reform and the need for a public conversation, but again, I would have to say, it is in this area that parliament has let us down a bit. Parliament is the body responsible for having a debate about what the federal system should look like in the longer term, and I do not think that, in this country, we have any clear vision as to the long-term future of the federal system beyond the drift that we have seen, which I actually think has been quite damaging in many respects.
Mr Waterford : It is important to realise that every word of the Constitution is giving powers, taking powers and limiting powers. They are not just doing so as between different levels of government or different organs—executive and parliamentary—they are also as between the people being governed. In that sense, it is quite important to have a strong sense of that. Where I think parliament is lacking most and what I think they ought to make a great project of is the relationship of parliament and the executive, not so much the High Court. In our lifetime—and this has been a bipartisan thing—we have made a complete joke of the appropriation power. Once upon a time, a bill appropriated money to buy a bridge in Queensland. Nowadays, a bill appropriates money for 'good transport around Australia'. It is impossible to say of any federal expenditure—Commonwealth expenditure—that it has been specifically authorised by parliament. You might say that in arrears some estimates committees can look closely at it, but that is very much in arrears and even then it is so vague. There has been one case before the High Court in relation to the advertising of Work Choices and the High Court made a big mess of it.
It is also a function of the way, probably for good reason—although it has never been clear to me exactly why—we changed the accounting system of the Commonwealth to an accrual system to the point where nobody, not even people in Treasury, any longer understand the account system as we present it to the people. The thicker the budget papers get the less understandable they get. It is no longer possible to work out what money has been appropriated for what, except by very grand function. This means that parliament has abrogated its right and its duty to closely scrutinise the executive in terms of what it spends money on, what it does and even, if you like, whether or not it is constitutionally authorised.
Some of the little debates that we are having at the moment—for example, the very belated, though possibly fatal, debate that is being had about the local government power—are but a subset of that. Since the AAP case in 1975, or something like that, we have not had a clear appropriation power and we do not really know what the Constitution allows money to be spent on, nor is there a mechanism for controlling it.
Dr Appleby : I would like to build on some of the things that Jack has said and bring it back to the High Court's role. I think the High Court did make a mess of the case that looked at the appropriations in relation to the advertising for the WorkChoices campaign—the case of Combet and the Commonwealth—where the court basically took a very hands-off approach and said, 'If parliament wants to make these broad appropriations and no-one understands what they mean or they cannot find the detail, that is for parliament to decide and we are not going to police that.' But more recently, under the current High Court, in the national school chaplains case, there is perhaps a trend coming back and the High Court is saying, 'No, we do have a role in telling parliament the minimum levels of supervision and accountability that we expect.' This is one of the things that we need to watch into the future. In the national school chaplains case, the High Court told parliament, 'You need to authorise executive spending and contracting,' and parliament did so through its amendment to the Financial Management and Accountability Act. There is going to be a real question when it comes back before the High Court, as I am sure it will, as to whether what parliament has done is sufficient for the High Court's purposes or whether they are going to say, 'No, we meant more accountability, more strength and accountability. That is not good enough.' So maybe there is a trend coming back the other way, but we are not sure how far that is going to go.
Ms SMYTH: My question goes to the broad point of predictability in decision-making and the interaction between the High Court and the parliament. I will try and get us back to a little bit of the interactive questioning. There is a question that has come through about why the High Court is so prone to making multiple concurring judgments, and, if justices agree, why don't they just agree? I would add to that and say: what about the other end of the spectrum where we have finely balanced decisions—4-3 decisions, such as the Al-Khateb decision in relation to indefinite detention. How do we, as parliamentarians, then respond to that? How do we respond in the development of public policy when there are these sorts of very finely balanced decisions? Perhaps you just answered this in some of the comments you made in relation to the school chaplaincy case: do you think that the justices are sufficiently conscious of that and how that impacts upon federal parliamentarians' approaches to public policy-making? That is a very loaded question!
Dr Appleby : It also impacts on teachers at law schools, teaching cases and the principles they stand for. When judges are appointed to the High Court bench, they are at a very senior point in their career and they have very particular views about the Constitution and their role as High Court judges. We have seen this with the recent retirement of the Honourable Justice Hayden and some of his remarks, when he came off the bench, about why he did not join with other judges and why he would write his own judgments. It is those individual characteristics that drive non-concurring judgments. I certainly think that it would be easier for parliamentarians, and it would be easier for members of the public as well and businesses who operate within the system, if the judges took a position where they really worked out what the points are differences were in their judgments, so it is not a matter of reading 50, 100 or 150 pages and trying to find the nuances of difference. That is what we need to do as readers of constitutional judgments: find where the differences are in the judgments. I certainly would like to see a practice in the High Court where they did that a little bit clearer for us.
Mr Waterford : The problem is they are terrified of getting into an American Supreme Court situation where the Republican judges go into one room and write one judgment and the Democrat judges go into another.
Prof. Twomey : To add to that, as a young person working in the High Court I remember asking a High Court judge that very question: why do you have separate judgements and why don't you just all agree? He gave me a very good answer, which was: 'I took an oath and under that oath I have to in my judgments say what I believe the law to be, and I cannot compromise that.' So unless the judgment of the other people he proposes to join in says all the things he would say, and unless they are prepared to change it to say the things he believes, he cannot sign up to it when he does not genuinely believe something to be what the law is or to be correctly stated. So I have to say I now have sympathy with that position. I can understand it and I think it is a very principled position. It is unfortunate when you are a law teacher and you have to teach seven different judgments on something. But I can understand that if I were a judge I would have the same feelings. In the end you have to be responsible for what you put your name to, and you cannot just sign up to something even if you disagree with parts of it. That would be abrogating a responsibility.
Ms SMYTH: Perhaps asking a more controversial question, returning to Ms Moylan's point earlier on, I wonder if there are any views on where Al-Kateb is likely to go now, in terms of the question of indefinite detention.
Prof. Williams : Al-Kateb is the case in which the High Court decided by 4-3 that it is permissible under Australia's constitutional arrangements to indefinitely detain a person where that person might be stateless, for example, and so cannot be deported. It was a decision that was contrary to decisions in some other countries, where they have a bill of rights or other protections. They recognised that you could not have that form of indefinite detention.
As to what the High Court might do, it is very rare that the High Court will over-rule its decisions. It does happen, but it is very unusual, particularly in a short space of time. I think the High Court is well aware of concerns that a decision being over-ridden simply because personnel changes gives an appearance that the court perhaps is subject to manipulation by governments appointing new people to reverse the decisions they do not like. I think that is a major factor always in the court's decision. It means that on occasion in the past judges who actually would like to overturn a decision have refused to do so because they have said they do not want to be seen as giving rise to a perception that they might be appointed for a particular result.
I think that was a factor where the court has had an opportunity recently to overturn it, if it had wanted to. It avoided the issue and my best guess is that it will continue to avoid the issue as long as possible by deciding cases on statutory and other grounds. It is only if the court is squarely faced with that proposition and cannot avoid it that we might actually get a result. My best guess would be that, if that happened, then overturning is more likely than not. But my better guess is that we are not going to get to that point for some time.
CHAIR: I will go to another question submitted by a member of the public, Bill Rowlings. He is talking about the upcoming referendum. He asks if we should include a proposal to remove section 59 from the Constitution.
Prof. Williams : Do you mean hold the republic ballot again?
CHAIR: With the Queen being able to disallow any law in Australia one year from the Governor-General's assent. I might hand that question over to Sir David Smith, a former official secretary to governors-general.
Sir David Smith : The provision has never been used. I believe it to be an otiose provision now, meaning that it has no effect. It will never be used.
CHAIR: So we should remove it via a referendum.
Sir David Smith : We should remove it but governments do not want to spend money on referendums that are not necessary. So there it sits. It annoys some people but it has no effect and it has never been used. It is an otiose provision.
CHAIR: So if the Queen tomorrow said, 'I did not like that piece of legislation,' it would have no bearing at all in Australia?
Sir David Smith : The Queen would not do that. She would only be advised by—
CHAIR: But if she did?
Sir David Smith : She would not. Let us be realistic. She can only be advised by her Prime Minister, who presumably leads the parliament that has just passed the legislation.
Prof. Twomey : The interesting question would be: what if it was not? For example, what if you had a government that had passed a controversial law—say, a carbon tax or something—then there is an election and there is a new government that has campaigned on it and says it has a mandate to get rid of that carbon tax, but it discovers it cannot get its legislation through the Senate. If it was within one year, could the new Prime Minister advise the Queen to disallow the law.
CHAIR: And let's say it is a different set of circumstances and it is, say, King Harry. The young impetuous—
Sir David Smith : Theoretically, what Professor Twomey has proposed would be possible.
Prof. Twomey : It would be very controversial but theoretically it is still possible.
Sir David Smith : I suspect that the Queen's private secretary would advise her to send the recommendation back to the Prime Minister and ask him to think again.
Mr Waterford : The same effect can occur by other means, and has.
Prof. Twomey : A double dissolution?
Mr Waterford : No, take the judicial review act, which I think was passed in 1976, did not come into operation until about 1980 or 1981, because the Fraser government sat on it. It was assented to but not proclaimed. That achieves exactly the same purpose as section 59. It was not the Queen who held it back, it was the government of the day.
CHAIR: Effectively, it was sitting in its drawer.
Mr Waterford : Yes.
Prof. McKenna : Can I say one thing as an historian and a non-lawyer: here we are in a committee on the Constitution and the High Court and constitutional reform and it strikes me that one of the questions we should ask ourselves is: out in the public domain who owns the Constitution? I would argue that there is an often unstated but understood view that the High Court owns the Constitution, and not the people. By and large that is because you cannot talk about the Constitution unless you have specific legal knowledge and legal expertise.
But that also raises the question Professor Williams was getting at about parliament's responsibility in providing leadership in terms of constitutional change and direction to the High Court. If the people are to believe that the Constitution is their document and not the court's document nor a lawyers' document, then it is incumbent upon the parliament to show leadership in showing that the Constitution is also parliament's document, and, through that, the people's document. That is one of the reasons I agree with Professor Williams in saying that the silence on constitutional reform has to come to an end if we are to achieve any change.
CHAIR: That came from the question that the people's document also says that the Queen, lovely lady in England that she is, has the right to abolish any law in Australia one year from Australia making that law.
Prof. McKenna : You can find many examples of this, but—
CHAIR: There are more odious things than that in there.
Prof. McKenna : Yes. We are in a situation where we are always second guessing. To say that this provision will or will not be used is to me a moot point. The point is that we should understand, all of us should understand, what will happen in a given situation. We should not be second guessing, and the reason we are second guessing is that our Constitution is so embarrassingly out of date. It is not a living document.
CHAIR: There are people in this room who were here on 11 November 1975 who might have thought a certain thing would not happen. We were talking about people's rights and I think Ms Rowland has a question from the people.
Ms ROWLAND: Aran Moss, who is studying for his international law exam—good luck Aran—asks: do you think we need more explicit recognition in our Constitution of the rights of the Australian people? Specifically, I know you, Professor Williams, have had a bit to say and write about this. Do you still think we need a bill of rights in this context and what difference do you think it would make to the High Court's interpretation of some of the contemporary issues people like Ms Moylan have raised?
Prof. Williams : Certainly, I do think we should have a bill of rights, but I am not someone who argues that at this stage it should be in the Constitution. I think a human rights act would be the right place to start. I think if we had that sort of instrument we would not have had the Al-Kateb case, for example. There is a lot of evidence showing that in Australia if you do not have the sort of human rights protections that are stock standard in every other democracy now in the world you get a series of outcomes that you would expect but that are very undesirable.
Mrs MOYLAN: If you look at the record, when they had that inquiry into the bill of rights there was overwhelming public support for it, and every other country equivalent, like the UK and Canada, now has a bill of rights. It strikes me as curious as to why we are still afraid of it.
Prof. Williams : One of the most telling surveys of popular opinion I have seen, many years ago, asked the community whether they wanted to see stronger human rights protection in a bill of rights. That gave the normal range—usually within 60 and 80 per cent, as it has been for the last 20 years. But, when exactly the same question was asked of sitting federal parliamentarians, it dropped to 30 per cent. I think that is the answer. As the recent inquiry showed, there is actually quite a strong desire for that change. Whether it is about cold-calling, submissions or whatever, it is the same sort of result. Within our parliament, the same interest is not there. It is one of many issues where that is true.
Mrs MOYLAN: The Human Rights Committee is a second-best option and, indeed, the decisions of that committee are not compellable. Government is not compelled to act on the recommendations of that committee.
Sir David Smith : I would like to support what Mark has said about the people owning the Constitution. I just wish it were true. During the republic referendum, the no case and the yes case were equally funded—$7.5 million each to put an education campaign to the electorate before we were asked to vote. In relation to the forthcoming referendum, we find that the government has funded $10 million to the no case and $500,000 to the yes case.
Dr Appleby : It is the other way around.
Sir David Smith : The people no longer own the Constitution, because the present government—
CHAIR: I would like to put a question to the audience. How many people remember reading those booklets before 6 November 1999?
Sir David Smith : You have a parliamentary committee that has put pay to this.
CHAIR: Professor Williams, this is probably a question to you. You are saying that democracy can only be judged by the amount of money spent on the information—
Sir David Smith : No. What I am saying is that the government, the parliament, has curtailed the people's right to information. In relation to that booklet that you speak of, what astounds me is that a parliamentary committee recommended, and the government and the parliament accepted, that no longer would each voter receive a copy of the booklet but that one copy will be simply sent to each address.
CHAIR: To the household.
Sir David Smith : That certainly does not cater, for example, to people in institutions and nursing homes. It does not cater for students in halls of residence. It does not cater for families where father has one view and does not want his newly-voting children to express a different view.
CHAIR: I am not sure it was the most widely read book in the world.
Sir David Smith : At every step, the government is curtailing the people's right to information before a referendum. I find that an appalling factor.
CHAIR: I do not think we are trying to sneak the local government decision through. I think it has had a fair whack at the Australian people.
Sir David Smith : Compare $10 million to $500,000.
Ms SMYTH: Might I say, in view of what the parliament has done in relation to the act of recognition of first peoples, it stands in stark contrast to the view that I think you are putting. The parliament is exploring options of educating the public through putting in place a bill which encourages community debate over the next year. That would seem to stand quite in contrast to what you are suggesting. I mean, the parliament is actively—
Sir David Smith : But is that a—
Ms SMYTH: You are talking about a monetary mechanism—
Sir David Smith : The government feels that it ought to fund education campaigns for the yes and the no case, but it funds one side to the extent of $10 million and the other side to the extent of $500,000.
CHAIR: We got your point.
Ms SMYTH: We took your point.
Mr Waterford : In any event, it does not matter, even if the first peoples referendum, when it occurs, is doomed, and so is the local government—
CHAIR: Why so? I thought the history of the 44 was that, if there was bipartisan support it was most—
Prof. Williams : Forty-six.
Mr Waterford : The moment you find an opportunistic politician willing to oppose it—
CHAIR: We found two the other day.
Mr Waterford : This is the point. This thing has gone along without any serious public discussion whatever, even though it is actually—
CHAIR: Sorry, Mr Waterford, if I could just correct that: I am not suggesting that those politicians were opportunistic. I know them.
Mr Waterford : No—I am not talking about the merits of the proposal or whatever. What I am saying is that history shows us that, even when a bill is virtually unanimous in the parliament, if it suddenly gets a core of opposition—in times past, it might be the DLP senators in the Senate or something like that, or Peter Reith with respect to some other proposals that the Liberal Party supported, or something—you will find that the calculus is described as 'This is more power for Canberra' or 'Are you in favour of more government busybodies telling you how to live?' or something like that, and it will be rejected, as they always are.
CHAIR: It will be an interesting dilemma to say that we are giving more power to Canberra by recognising 750 local governments, but—
Prof. Twomey : I don’t know about that. I think you could argue that quite easily.
CHAIR: I am not saying that it cannot be argued. I heard it the other day.
Dr STONE: I think that comments of Sir Smith about the educational funding in relation to the forthcoming referendum are very pertinent because in Australia we have a real lack of school education about the governance of Australia and what the Constitution actually means. I go around to all of my schools all the time and I present class sets of the little Constitution, and the kids look at it in amazement. These are the year 11 and 12 legal studies students and the grade 6 students. This is where, in Victoria, the possibility of them learning about the Australian Constitution occurs.
I think we have an appalling situation in Australia of—and I am already getting emails on this—'If it's not broken, don't fix it,' and, 'When in doubt, say no.' There is not even a look at the issue at hand; it is just saying: 'It's going to take a bit of effort to work out. What the heck, there're local government issues all about so let's just say no.' I think our problem in Australia is that, with the compulsory voting that we have, we have not taken up the responsibility to then have, at least, a universal information exchange during our students' formal years of study so that they do understand the nature of our Constitution, how it can be changed, and the relationships between local, state and federal governments. I think the constitutional versus republican debate showed that up so well. When they came to debate the issue of the president being elected or not elected, people had no idea, there was no real, sophisticated sense, of what that actually meant—a popularly elected versus an appointed president in terms of the overall democracy.
I am concerned, as you are, Sir Smith, not on political grounds so much as on the lack of information for the public when you have such skewed access to information in this local government debate coming up. I think it really says to us as a government that we have let the side down in Australia in not making sure that, when our 18-year-olds march into the polling booth for the first time, they actually know what they are doing.
Mr Waterford : First of all, our Constitution is not a glorious document formed out of some revolution like in the United States or France. Although they are good words, they are not fine words that—
Dr STONE: They are not aspirational or inspirational.
Mr Waterford : The second thing is that there is a purpose behind every word that is in it but it is particularly locked in 17th century England, the ships money case, the glorious revolution and whatnot, and most people are no longer taught it. There was a time when it was taught, and there is now a thing of saying, 'Once upon a time we were taught the king and queens of England,' as if it was all irrelevant. But it was actually telling us about our constitutional story. Our constitutional story is no longer being told.
Dr STONE: That is right.
Prof. Williams : I just have a follow-on comment. Part of the problem is indeed lack of knowledge. Some surveys have shown that less than one in two Australians even know that we got a Constitution. But another part of the problem is, often, false knowledge. One thing really struck me when I was doing a Victorian inquiry that led to the charter of human rights. When I went around a lot of Victorian country towns and cities, people would say, 'We don't want this because we've already got the national bill of rights.' When I talked to those people, they would say, 'We know the national bill of rights protects freedom of speech.' The next thing people mentioned most often was that they knew they could take the fifth if they were in trouble in court. It gives you sense of where their knowledge is coming from. That was backed up by a more recent survey that Newspoll did that showed that 62 per cent of Australians think that we have a national bill of rights. This is the context in which we are having these debates. When we talk about the people's Constitution, their view of what the Constitution is—if they have a view—is often very much at odds with the reality.
As to what the answer to that is, I think formal education is part of it, although, having talked a lot to legal studies teachers and students, I am actually surprised at how much they are now taught about these things. But I find with those students that, even when they get to university, there is no reinforcement of the knowledge. The absence of this in popular debate and popular culture is very telling. People forget knowledge unless it is reinforced. It is very prevalent in America but, apart from The Castle in Australia where is the discourse that reminds people of our values and of our system of government? Also, how often do our leaders—our representatives—talk about these issues within the community in a way that reinforces and builds knowledge? The answer is: almost never.
CHAIR: The chaplains case is a classic example where it was significant in every school community but people only talked about the money and not the constitutionality of the issue at all.
Dr STONE: Before we go to Professor Twomey, let me just follow on from that for a minute. Professor Williams, one of the really interesting debates we have had in recent times was about having new citizens undertake a test of some sort to establish that they knew the values and responsibilities of becoming an Australian citizen. Remember how fraught that was, and how it actually boiled down to knowing the name of Bradman the cricket player? There was no sense that it was an opportunity to tease out our Constitution for our new arrivals, and indeed their responsibilities and rights under the Australian Constitution. We lost that opportunity completely; unlike in the US, where they spend a lot of time making sure—it appears, on face value—that their new US citizens are at least nominally aware of what their constitution means, and their rights and responsibilities.
Prof. Williams : I would simply say that I agree. And, let us also start with our citizens.
Dr STONE: Yes.
Prof. Williams : I wonder how Australians would go answering some of those questions for new citizens. On the evidence that I have seen, the would go very poorly.
Dr STONE: That was our opportunity to open that debate and I think we fluffed it.
CHAIR: It is important that everyone knows Don Bradman's cricketing average!
Prof. Twomey : Interestingly, my comment is very, very similar to George's. The response I get when I talk to people about the Constitution is that they all tend to have got their constitutional knowledge from United States television. Even if you look at the Williams case about chaplains, Mr Williams thought he was arguing about the separation of church and state based, presumably, on his understanding of the US constitution from watching television.
If you ask any Australian about what is in the Constitution, probably the only knowledge they have is The Castleand'the vibe of the Constitution'. They all know about section 51(31). I get phone calls about this from people wanting to challenge something on the basis of The Castle,but they do not understand that that film and section 51(31) only applies at the Commonwealth level, and not at a state level. When you tell them this, they get terribly disappointed. So even the one program that is part of popular culture—that they know of—betrays them in this regard.
CHAIR: They are probably comforted by their right to bear arms.
Prof. Twomey : That is right; their right to bear arms!
Ms ROWLAND: In national parks!
Prof. Twomey : When I worked in the parliamentary research service here, after every election when we had an influx of new politicians, the most frequent question was, 'Could you give me a copy of the bill of rights?' And we would say, 'Which bill of rights are you after—the Bill of Rights of 1688 or the United States Bill of Rights?' And they would say, 'No, no, the Australian bill of rights.' And we would say, 'Well, the Bill of Rights of 1688 is sort of part of our law but it is a little bit old and it is probably not what you are after.'
CHAIR: It would be about Dutch kings rather than—
Prof. Twomey : Yes. The one last point I want to make here is a flagrant advertisement. At University of Sydney we established a constitutional reform unit and the purpose of the unit is to get information to the public as objectively as we can to explain issues when they arise, particularly about referenda. If anyone out there is listening, tweeting or whatever, have a look on your search engine for 'Constitutional Reform Unit' and 'local government referendum'. We have a page up there that has a yes/no case—hopefully an objective one; at least we tried for that. It has FAQs to answer any questions you have and it has a bibliography giving you other reading on it. We are trying not to advocate any position but just put information out there. The more publicity which we can give to that—to give people the opportunity to make their own decisions—the better.
CHAIR: I should state that we are getting a lot of tweets. We might try and direct some of those tweets to the roundtable participants later so that there might be a chance for responses to people beyond this process.
Dr Appleby : I want to pick up a couple points that Professor McKenna made and also Ms Smythe about the Al-Kateb case. If we think about this idea of parliament taking a bit more leadership in terms of constitutional reform we have to remember that the High Court, when it engages in constitutional interpretation and looks at limitations, can only work with what it has.
If we express disappointment with the High Court's decision in Al-Kateb—a four-three decision in which they tried to make a very nuanced argument about how the separation of powers may prevent the executive from engaging in indefinite detention—we know that it is an extremely technical argument. If the High Court were given a bill of rights, they would be able to look at these cases and have much stronger tools with which to come to decisions which we would be happier with. We have to be careful when we say that it was disappointing that the High Court came to that decision. They came to that decision with the tools they have. They are very limited tools, and that brings us back to the role of parliament in driving forward constitutional reform.
And I think it also brings us back to public understanding. Trying to explain to the public the nuances of the Al-Kateb decision and the separation of powers is incredibly difficult. The school chaplains case is another great example of a very complex decision. If we were able to reform the document, simplify it and make it more accessible, then our High Court decisions could be more accessible as well.
Mrs MOYLAN: I have read and re-read the decisions on the Al-Kateb case—and, in fact, I participated in a Law Society summer school in WA on this issue—and it seems to me that one of the clear decisions of the High Court judges was that this was an administrative decision because the government or the minister was waiting to send the person back to their own country. As we know, that was never very clear.
In the case of Peter Qasim, which I was very closely involved in for a number of years before he was released—where he did not have a country to be returned to—there was no end to the detention. I am not quite clear on this, but it seems that one of the issues around the decision was that it was not being used as a punishment or a deterrent. Yet now we a government bill has comes out, and all of the discussion on that bill is about using these measures as deterrents and as punishment. Where do we stand here, in terms of a High Court decision?
Prof. McKenna : I just want to make a point about education regarding the Constitution. I think we have all heard the refrain many times—and it is so true—that the public are, by and large, ignorant about the Constitution. However, I think we often forget that ignorance of the Constitution does not necessarily mean that there are no constitutional beliefs in the wider society. I think that is an important but subtle distinction.
Dr STONE: Constitutional beliefs or values that underlie our—
Prof. McKenna : Yes. While people are ignorant about our Constitution that does not mean that they do not have ideas, as George was saying. They may think: 'No, we do have a bill of rights. We have freedom of speech and we have freedom of religion,' and so on. These ideas might be completely false, of course, but they do have these perceptions. In education, the challenge is to reveal how there is a disconnect between what people believe to be Australia's democratic and protected constitutional beliefs and the document we have. We have to show how we can link those two things together. That is the challenge. It is much more subtle than just trying to get people to learn about the Constitution; we actually have to show them how what they think are their democratic and constitutional rights or beliefs are not connected to the document. That is the challenge.
Mr Waterford : It is a very good argument that the Constitution ought to operate something like MS-DOS that completely organises the way we think, explain and express everything, but none of us know how to work it; would not have the faintest idea. In this ideal system, it would all work. In that sense I agree with you. Almost all Australians have strong views about the way things ought to be, about concepts of fairness, about concepts of due process, and so forth like that, that exist, even if they have got some funny, quaint ideas about the right to bear arms or the right to take the Fifth Amendment or something. In that sense, I think most Australians are not only law abiding but also have a sense of law and the way things work. But there are times when even important people say things about it that are completely nonsense.
I will give two examples. One is a very familiar argument against a bill of rights: that the heritage of the common law and the heritage of our constitutional system is such that there is really no need for such rights because they will spring up from the judges in any event. Yet, as Dr Appleby has just said, judges are grappling for an answer over the question of the person that they were trying to deport but they had nowhere to send him. They could not find, out of their strand of law, a system. I can think of a number of strands of law that they could have used, like the Stapleton case or whatever, but be that as it may.
The second one is one that you hear very familiarly, and I think it is probably best expressed by Bob Carr. It essentially operates off a British principle that parliament is sovereign and that, at the end of the day, nobody has a right to interfere with what parliament—the representative of the people—think. In that sense, the notion of judicial review is a bit of an affront—that the High Court, which is unelected, of course, ought to get back into its box and merely tick off executive decisions and so forth, and that the executive, as an offshoot of parliament, sort of operates supreme. That might be true of England—I do not believe it is true of it there, and certainly not since it exceeded to the European treaty—but it is specifically not what we decided to do when we federated. We federated ourselves, the people of different states, under a whole lot of conditions that limited everybody in different ways. The powers given to parliament were enumerated. The powers given to the court and to the executive were enumerated and limited. The High Court was given a specific power of judging whether people had exceeded those limits between each other at one level of government or of others.
So, while I am all in favour of, if you like, the general sovereign power of government, the broad assertion that this is a fundamental constitutional principle is not so. It is, in fact, to the exact contrary. The people of Australia gave limited powers to parliament, not unlimited powers.
Sir David Smith : I would like to take up Mark McKenna's point about ignorance within the community. We had that confirmed by two committees of inquiry that were set up—one by the Hawke government and one by the Keating government—and they reported on the abysmal ignorance in our community about the Constitution. While we are venerating the judgments of the High Court, can I just remind the committee of one former Chief Justice of the High Court who lectured to a lecture theatre full of law students at the Australian National University and told them that he had discovered a robust constitutional convention hidden in the Constitution. Unfortunately, for this particular former chief justice, the convention which he discovered does not exist and the precedents on which he based it have never occurred.
CHAIR: I will just make a note from chaoticcalm, who made the point that he did not read the yes and no cases before the 6 November 1999 referendum, but he says, in his defence, he was only 11 years old at the time.
Ms SMYTH: Returning to the last observations made by Dr Appleby, there is actually a question that has come up through the Twitter feed about whether we should consider conferring upon the High Court an advisory jurisdiction on Attorney-General referral as a mechanism by which to seek clarity. I just wondered if there were any observations from the panellists about that.
Prof. Williams : I think that it would be sensible on occasion to have that type of power. We do not have it, simply because the High Court has said that it does not fit within the strict confines of how chapter 3 of the Constitution is drafted. It is not a policy decision; it is just a following through of the text. A good example, in a contemporary sense, would be the issue of same-sex marriage. We are struggling with that across state and federal parliaments, and one reason is that we simply do not know which parliament has the power to enact that law. We do not know whether federal parliament does or whether it is a state issue or vice versa, and yet we are dealing with a question that is about a very intimate, important part of people's lives. Frankly, I think it would be better to have an opinion on that type of issue first before we legislate, people perhaps get married, and then we go to the High Court and, as in other countries, sometimes their marriage is annulled, essentially, because of that. Sometimes those issues arise—it is unusual, but sometimes I think it would be desirable to get an answer first.
Dr Appleby : I think it would require constitutional change because of the way the High Court has interpreted the Constitution as precluding that at the federal level, but I think it would be desirable. The comment was made earlier that constitutionality often becomes an issue when a party does not want to pass a bill, and then they are very interested in unconstitutionality. So it may prevent or at least lessen constitutionality being a political plaything if there can be some sort of certainty gained through that type of mechanism.
Prof. Twomey : I agree—I think it would be useful—but the one thing you would have to be very careful about is how you frame it, because you would need to make sure that the High Court was making a very specific decision on an issue. If it is all hypotheticals and they cannot have properly argued before them the issues as you can in a case where there are specifics, you would have to set up mechanisms to make sure that various interests were represented and could make those arguments. You would have to have a very specific thing that the court was looking at. You might want to do it so that you actually have a bill drafted and then you look at the constitutional validity of the bill so that the court can make a decision on something specific. If you are just trying to look at it as a general proposition, I think that would make it very difficult for the court. It would be the court really deciding political issues, and that is not really appropriate for it. So you have to be quite careful about how you did it.
Dr Appleby : The High Court certainly answers very specific constitutional questions through the mechanism of case stated either from a single judge or from a court below. So it does answer those types of questions already.
Dr STONE: We have something of a parallel situation happening now, where a minister can seek legal advice and, almost invariably, that legal advice is never released into the House and especially not the opposition. There was one case recently where the minister for environment sought legal advice on the water law in relation to the triple bottom line—the possibility of looking at social impacts with the Murray-Darling Basin Plan and whether it is a pre-eminent environmental consideration. That was the only time in my 17 years where legal advice has been released into the parliament. That touches on that whole business of where legal advice comes from and how it can be used. If you had that special panel, I think it would be very selectively used depending on whose argument was supported by that bit of advice.
Prof. Twomey : You also have to be quite careful about relying on the fact that a minister says they have legal advice in relation to something. I was talking to a Solicitor-General about this a little while back in relation to a controversial issue. The hint given to me was: if you just look at the words of what the minister said, they were: 'I have received advice from the Solicitor General and we are going to do this.' In fact, 'this' did not match the advice that was given. You have to actually look at the words that they use. The hint given to me by the Solicitor-General was: this person's advice went in completely the opposite direction, but, if you look closely at the words given by the minister, the mere fact that they say they have legal advice—and they may well have legal advice—does not mean that they are necessarily complying with it. I agree: if you want to try to defend your decision in the parliament by saying you have legal advice, you have to expose that legal advice to scrutiny. That is the important part of the parliament. If you are trying to advocate for and argue in support of a bill and you say you have legal advice in relation to it, it is part of parliament's role of scrutiny to be able to scrutinise the evidence upon which you are basing that bill. It denies parliament its appropriate role and scrutiny if parliament is denied the advice upon which a bill is based.
Sir David Smith : And, if you asked for the advice to be tabled, the Leader of the House would say 'No'—he would not give leave.
CHAIR: This committee is about to hand down a report on crimes at sea on Monday and our legal advice is on our webpage and can be seen. We publicised it.
Mrs MOYLAN: Can I just make a point on that, Professor Twomey, because it is a very important issue. I noticed yesterday reading the report from the Jenkins human rights committee inquiry on the excision bill that the Attorney-General's office were asked to appear before the committee to give evidence or a legal opinion and declined. I read through the letter declining to appear before that committee. I think this whole procedure is quite fascinating. It has been one of my criticisms that sometimes the committees of this parliament are no more than rubber stamps.
CHAIR: We will let Ms Rowland talk. She is keeping us from a cup of tea!
Ms ROWLAND: I don't care!
Dr Appleby, as a former competition and regulation lawyer I would be interested in your views on section 92, any possible to challenges to that, and its implications for competition law principles and regulation.
Dr Appleby : Section 92 requires that trade, commerce and intercourse between the states be absolutely free. The High Court has had a couple of interesting decisions in relation to section 92 recently. For a long time we thought that the case law was quite bedded down, but the two recent Betfair decisions have changed that somewhat.
For me the most interesting part of those decisions is in relation to the use of the competition principles. Particularly in the first Betfair case there was the idea that the High Court was moving towards a test that required them to more strongly scrutinise any measure that burdened trade, to make sure it was reasonably necessary for a non-protective purpose. Whilst they had scrutinised burdens on trade in the past this seems to be a higher test that they are putting it to.
One of the reasons—you see it from the judgments—is that we now have a national competition framework and the competition principles, and there is a presumption in favour of free trade. I think that is incredibly interesting, because they are political developments, in the last couple of decades, that the High Court is using in interpreting a section of the Constitution. That is something to watch. Where the High Court is going with it, I do not know, but I think that this is the trend—they are going to have greater scrutiny of burdens on trade, and that is influenced by the competition principles.
Dr STONE: And the disposable containers situation in the Northern Territory was just one of those cases.
Proceedings suspended from 10:37 to 10:43
CHAIR: We will recommence the roundtable. Louise Milligan asked on Twitter: 'Is it a problem that votes in the Northern Territory count for less than votes in states, especially given the high proportion of Indigenous voters in the Northern Territory?' to which Professor Williams answered via Twitter: 'All people in the territories get a half-vote in the referendum.' I will throw to Professor Williams to comment on that and to make some other introductory remarks.
Prof. Williams : The short answer is that Territorians got no vote whatsoever in referendums until 1977. In 1977 a referendum gave them a vote in the national vote but not in the state count, so, effectively, they get a half-vote. Is that a problem? I think yes. It clearly is one of the examples of why, if you live in a territory, you are effectively a second-class citizen when it comes to certain important votes in Australia. That will be particularly important in the upcoming referendum on Indigenous recognition. It will look very bad that Aboriginal people in the Northern Territory will not have the same vote as other people in this country. Perhaps we should have a referendum to fix that as well.
I will make the opening remarks you asked me to make for this session on constitutional change, referendums and campaigning. Firstly, it is important to start with the statistics. Forty-four referendums have been held since 1901; eight have succeeded. What is also striking about the statistics is that the rate of change has decreased over time. As change has become more necessary to update our Constitution, changes become less often achieved. In fact, we are currently in the midst of the longest ever period of not having constitutional change. We have not had a successful referendum since 1977—that is, 36 years. So, for more than a third of our life as a nation, which is where we are coming to, we have not had any constitutional change, despite there being a legion of often minor examples of things that certainly need correction.
I do not want to suggest that the fact that people have voted no is itself a problem. It is often a very rational and sensible vote. Many referendums have been put that were, frankly, half-baked and people said no for good reason. Nonetheless, the record does expose some very serious problems in this area, perhaps sometimes with the nature of the process of holding a referendum but more often it exposes problems with how referendums have been generated. Why is it that people are being consistently asked to vote on proposals they do not want? And why are we spending hundreds of millions of dollars on proposals that do not have a realistic chance of success?
It is with that that I thought I would make a few suggestions to start this session. To take Anne's lead, I will plug my book, People power. It goes through the 44 referendums held in Australia and analyses what has worked and what has not worked. In doing that, we found that the referendum process displays a remarkable capacity on behalf of our elected representatives to make largely the same mistakes time and time again. Those mistakes are often very similar. Each time around, they are quite explicable in leading to referendum failure, but we have an inability to learn those lessons.
One of the most basic lessons is that you cannot expect Australians to vote yes when proposals are generated in an ad hoc, one-off way without the sort of proper development that you need to actually build public understanding, community confidence and a sound and sensible proposal. What we have had in Australia is largely a series of ad hoc referendums. We have never put in place the architecture in Australia that would generate proposals reform in a more systematic and effective way. We have a productivity commission, for example, with a role but no constitutional commission that actually looks at these things in an ongoing sense. The generation problem is one of the big issues, I think, in why we have the problem we have. We are not investing funds earlier in the process to identify the sorts of proposals that need to be made that have community support. Instead, we are investing at the other end in often short, sharp and expensive campaigns by which time it is often simply too late to achieve success.
The sorts of things that I personally would like to see include a small ongoing constitutional reform commission that is part of the fabric of our political and legal life in this country that identifies issues and comes up with proposals for change. I note in this space that we have not had a holistic review of the Constitution for decades, since the 1980s, and this parliament has not had a lengthy review of the Constitution since 1959. So who is identifying the proposals for change? The answer is: no-one within the executive and parliamentary governance of this nation, except, as I have said, in an ad hoc way in response to particular inquiries.
I also personally like the idea of a regular series of conventions. They have tended to be the most successful way of discussing, in a popular sense, constitutional reform in Australia. At each half-generation, I think there should be a convention—every 10 years or so—that is part of what we do in this country to discuss these things. The agenda for the convention, the things for discussion, should be generated by the commission—what are the sound ideas that people support: a majority of either house of the federal parliament, a majority of the states or a petition of a sufficiently large number of the population? Things should be able to be put on the agenda for that public discussion. We saw that, say, the 1998 convention on the republic was very successful in generating popular engagement and interest, particularly amongst people who we thought were not interested. It would provide an event to bring that about.
The final thing I would say is that, apart from building for the first time decent architecture around constitutional change, which I think would save us money by identifying the right proposals, we have to be frank about the difficulties of change. It is very unusual for countries to have a referendum requirement. Doing so alters the preconditions for success. The referendum record shows that, if you want to win a referendum, these are things you need to do. Each of the referendums that have failed have lacked at least one of these things.
Firstly, we need to recognise that referendums will fail and will continue to fail unless there is bipartisanship. The ALP, in particular, has consistently got this wrong. The ALP has put 25 of Australia's 44 referendums; 24 of those 25 have failed; 24 of those 25 lacked bipartisan support. If you ask, 'What is the single reason why referendums fail?' it is that one. The fact that the ALP has not put a bipartisan referendum proposal since 1946 gives a good sense of why we keep repeating exactly the same mistakes, and why, perhaps, the local government referendum may be different for that single reason.
The second is popular ownership. As Mark McKenna said, we need a sense of people owning the Constitution. If they are going to vote yes, they need to own a proposal for change. Bipartisanship is not enough, and several referendums have failed with bipartisanship. It is partly because, on occasion, people have said, 'Well, if our major parties agree, we will not vote yes, because if they do agree that's got to be a problem. It's got to be self-serving in some way and perhaps they are ganging up on the people in some way.' Often that needs to be defeated with a grassroots campaign—as was achieved in 1967—or some sense of engagement that it has a popular element.
The third is the education factor. Remember that the default position is, 'Don't know, vote no', and, if people do not have enough information to cast a confident and safe vote, they will just vote no. It is the rational, understandable response.
The final thing is that we actually need sound and sensible proposals. To be frank, many of the proposals that have been put, when they are carefully analysed, have had flaws, such as the 1999 republic referendum on the dismissal mechanism. Again, this is why, in the lead-up, you need to do the work that is often not done of discussing and engaging over a number of years and coming up with a proposal that people can be confident in voting for, rather than a proposal popping out at the end.
CHAIR: Thank you, Professor Williams. I will go to Sir Smith.
Sir David Smith : As a very tall former prime minister once reminded me, I am not a constitutional lawyer. In fact, I am not a lawyer at all; I am a mere political scientist. I have listened to George and he has given us the typical academic constitutional lawyer's interpretation—
CHAIR: Empirical and factual?
Sir David Smith : Factual—of course, it is. I would expect nothing less. He has looked at the figures of eight successful referendums out of 44, but I do not think he and his colleagues have analysed the substance of those referendums. If you simply look at the statistics and argue that, with eight out of 44 having been passed, the Australian people must have got it wrong and we have to do something to make sure that they vote yes more often.
CHAIR: I am not quite sure that was his thesis.
Prof. Williams : My point is that I think they have got it right: what we need to do is generate better proposals. The problem lies before it gets to the people.
Sir David Smith : I think you are absolutely right. Rather than a constitutional commission, I would like to see the parliament have a 'committee of common sense'. There is a very large financial business in Sydney which I understand has one of those committees. Whenever a senior executive puts forward some revolutionary proposal for a policy in the future, it is sent to this 'common sense committee' before it is accepted. As I said, I resent the implication that the statistics alone—eight out of 44—show that the Australian people must have got it wrong. I would rather see an analysis based on the substance of each referendum proposal. I suspect—I have not done the research myself—that you will find that the Australian people have been much wiser than some people give them credit for.
CHAIR: Sir Smith, with respect, 6 November 1999 is the classic one for me. That is the one I was most involved with. That is the one that Malcolm Turnbull was involved in and it is the one that Tony Abbott was particularly enthusiastic about. There is a classic idea that common sense comes down to history and ideology. For me, with all respect to rich English ladies, Elizabeth Windsor is not—
Mr Waterford : It was not a constitutional referendum.
CHAIR: The republic one?
Mr Waterford : Yes. It was a plebiscite about what form of a republic we might have if we were to have one.
Prof. Twomey : It was a proper referendum. It was a constitutional referendum. It would have changed the Constitution. It was not a plebiscite. People say we should have a plebiscite, but that one in 1999 was an actual referendum.
CHAIR: In terms of common sense, for some people it was obviously their common sense. In every electorate in Queensland, apart from one, the common sense said to keep the Queen. But just about every electorate in Victoria said the opposite.
Mr Waterford : The people of Bennelong were in favour of scrapping it—the only one in New South Wales.
CHAIR: Yes. So I understand your comment about common sense, but it is hard to get the case out there and say that this is a commonsense decision. Local government is one that will be interesting as well.
Sir David Smith : If local government is so important, if this referendum question is so important, why has the government not funded each side equally?
CHAIR: I will take that as a comment! I am going to ask a question that John Stannard has asked on Twitter in response to Professor Williams: 'Prior to 1997, there was no ACT or Northern Territory referendum vote. Now it is a half vote. Is it time for equality?' I should point out that we are in the ACT, where I think the two elected representatives have about 125,000 people in each electorate. In the Northern Territory I think they have about 65,000 or 70,000 people in each electorate, whereas there are 92,000 people in most of our electorates. I will throw that question open for comment.
Prof. Warhurst : There is no doubt that the ACT does get a bad deal as far as representation in the federal parliament is concerned. But doing something about it is difficult in that the territories generally are small and insignificant as far as the broader picture is concerned. I think the tweet was suggesting that we should give ACT and Northern Territory voters a full vote rather than a half vote—and that is a revolutionary proposal that would certainly change the dynamics of getting a majority of states and territories.
CHAIR: How would you do that? What would be the mechanism? Would you ignore the state boundaries and go for 150 MPs based on communities of interest? I will worry about senators later—I do not quite understand what they do!
Prof. Warhurst : If we are just talking about representation, I think it would make sense to ignore state boundaries in terms of drawing up electorates.
CHAIR: Certainly Queanbeyan has a lot more in common with Canberra than it does Sydney.
Prof. Warhurst : Yes. There is a community of interest around the ACT region which is recognised locally but cannot be recognised in terms of representation in the House of Representatives. That would be an enormous step to take. But there would be other parts of Australia too where it would make sense to have electorates that cross state boundaries. I am thinking of southern South Australia and western Victoria—the Mount Gambier region.
CHAIR: It would perhaps explain why Barnaby Joyce supports Queensland in the State of Origin—that northern bit of New South Wales has closer connections to Brisbane than to Sydney.
Mr Waterford : It might be better if we just attach the ACT vote to Tasmania's—in which case the ACT would have half of the representation of Tasmania, Tasmania would have about two members and we would have seven senators each.
CHAIR: That would be an interesting referendum!
Sir David Smith : There's one for the commonsense committee!
CHAIR: I am just hoping Dick Adams is not listening to this!
Prof. Williams : They could only actually be passed with Tasmania's support, because the referendum mechanism reserves to states a veto right where it affects their representation.
CHAIR: It is not looking good! Are there any other suggestions?
Mr LAURIE FERGUSON: Professor Williams, you talked about this pessimistic period where there has been very little support for referendum change. Is that statistically related to the number of referendums put every 25 or 30 years, government inertia in coming forward with referendums and the liberalisation of the courts' interpretation of Commonwealth powers? Is that why there has been this period without change?
Prof. Williams : I think it is less to do with what the courts have been doing, because I think there have been pressures all through our history that may or may not have impacted on that. But I think it is a reflection of the fact that within our elected representatives a view has taken hold that winning a referendum is almost impossible. I think the ALP's striking defeat in 1988 has meant that it has been reluctant to push further proposals, Of course, the coalition side itself has always been more reluctant and has put far fewer referendums. So I think that this part of it—a sense that 'this is too hard' and 'let's focus on things that are more achievable'. But I think another part of it is simply that we are not generating the ideas. The fact that we have not held inquiries or processes that might have thrown up ideas means that things are simply not put on the agenda. Look at the two referendums on the agenda at the moment—local government recognition and Indigenous recognition. Why are they there? It is because we have a hung parliament, and the Greens and the Independent members put those things into the written agreement with the Prime Minister. It is my view that, without that, almost certainly we would not be having a referendum on either. These are accidental referendums, if they happen. I am glad they are happening, but it sort of says something about our system that we need something like that to get something up. And it is not just these big issues, but the smaller things—many things we would uniformly agree are obsolete in the Constitution and should be removed, or simply updating. It is not a historical document; it should be a living document for governance today. We do not have processes even to do the non-contentious things, frankly; they are just not there.
CHAIR: On that note, before I go to a question sent in by email, some guy called Marcus Priest has asked if I have been in a fight over the finer points of constitutional law! I will just point out that it was a rugby game on Sunday between the Defence Force and the parliamentary rugby side. The email question is, 'Should we change section 128?'—the mechanism for having constitutional amendments. I will throw that question open, but I think we had a couple of comments from people first.
Mr Waterford : I think in the context of what George is saying we have to realise that there are phases that we go through. By about the 1970s—and in part because Labor had been out of government for a long time—there was a strong view around that the law needed a fair amount of comprehensive reform. Led by Lionel Murphy in particular, there was a strong wave. We had ombudsman legislation, family law legislation and a whole lot of administrative reforms. They went through, and along with that was a general agenda of what was called law reform. The Fraser government carried that on. In fact, a whole lot of the things that had been put up by the Labor government actually came into force during the period of the Fraser government. Gareth Evans, as Attorney-General, carried it on for a very brief period of time, until things began to pile up and there were a couple of referendum defeats and basically the oomph went out of the movement. But it was not entirely that the oomph went out of the movement; I might say in that sense that there has been no significant law reform done in Australia for 20 years by one side of government or the other. But new mechanisms have been sought to try to achieve it. Whether it was Bob Hawke's new federalism or what John Howard was doing or what we now call COAG or whatever. A whole lot of arrangements in cooperativism have been tried. Most of them get to some point before they begin failing again, and I think COAG—
CHAIR: And incremental rather than significant—
Mr Waterford : Yes. I think COAG is pretty much, as an institution, on its last legs now. But we will see it again. And these have achieved significant constitutional change without the inconvenience of referendums. They have achieved it because state cooperation has been obtained. In many cases states have transferred power, or the Commonwealth has transferred power. In short, the Constitution does, more or less, work. And if one looks at the lamentable history—if it is lamentable—of constitutional referendum change and whatnot, I do not think the constitution would look all that radically different today if it had incorporated every single recommendation for change; I do not think Australia would be a greatly different place—or if we had refused every single proposal that was put up. They have nearly all been changes at the margin. Some of them have had legal effect, like 105A, but they have not actually impinged much on our daily way of life.
Prof. McKenna : I want to pick up on some of the things George said. I think we are all aware, and I am sure parliamentarians more than anyone else are aware, that we have lived in a time where contempt for parliament and politicians generally has increased. One of the biggest obstacles we face in succeeding with constitutional reform is that increasing disdain, populism and antipolitician sentiment in the community.
CHAIR: Are you sure about this? I thought they loved us!
Prof. McKenna : Where are referendum proposals initiated? They are initiated within the parliament. Even with bipartisan support, this is one of our biggest obstacles in succeeding with constitutional reform, because people can always say, 'This will give more power to politicians,' and so on. To avoid that, the only mechanism I can see—it is one that has been recommended by a number of people over the years, including George, but I am not sure if John has as well—is citizen initiated referendum. We have to seriously look at that as a proposal, and there are many ways that can work. That is one mechanism which can possibly subvert the increasing populism in the community, which sees more affection, for example, for the Australian War Memorial than for the Australian parliament.
Mr Waterford : If we have CIR, the Daily Telegraph's first campaign, which I will organise, will be to halve politicians' salaries, and it will get up!
Prof. Twomey : On the question of section 128 and whether we should change it, I agree that what we need is some other means of getting things onto the referendum ballot, not necessarily going as far as citizens initiated referenda but we certainly need another way of getting them there. One of the main reasons, I think, that many of the previous referenda have failed is that the referenda proposed by the Commonwealth government were aimed at increasing the power of the Commonwealth government. Realistically, when the people see that, they vote no. Interestingly, you will never get a referendum up at all, voted on by the people, that would reduce Commonwealth power, because the Commonwealth parliament is not ever going to pass it to begin with. But there may well be ways that the people want to change the Constitution that involve removing some powers from the Commonwealth and giving powers to the states, local government or whatever. So there needs to be another source for being able to put things on the agenda.
I think going to citizens initiated referenda is a mistake. You can get all sorts of citizens initiated referenda that do things that are not properly thought out. California is a classic case of that, where their economy has effectively been ruined by citizens initiated referenda. In California, citizens initiated referenda have passed that favour some parts of the community over others in relation to tax. For example, if you had a property owned at one stage, you are taxed at lower rate than anyone who has more recently bought a property. There are all sorts of ghastly things that have caused havoc to their economy, and it has got to the point where the Chief Justice of California has said that the system is completely dysfunctional.
CHAIR: Is that where the people need to okay a tax increase? Is that fundamentally the problem in California?
Prof. Twomey : Or they can limit and prevent tax increases in California. They also specify that X percentage of your budget has to be spent on education, or whatever, so they effectively control the budget to such an extent that the government and the politicians no longer have control over the economy, and that is just chaos. What you need is some kind of intermediate body that can: take suggestions from the states as to what they would like to put on a referendum and take suggestions from the people as to what they would like to put on a referendum; do proper research and analysis so that they can show the potential consequences of such changes, because that is the assessment you need to make—and that is not made properly in California; and, after going through that process, make recommendations of one, two or three things to put on a referendum. I think that would be a good system. The other critical thing in doing this is that we need to find ways of making referenda cheaper, because one of the big problems that we have is people do not want to put things to referendum, even if they are sensible things, because it costs up to $100 million to hold one.
Wouldn't it be better if, in this day and age where we could potentially do things with electronic voting and the like, we could organise mechanisms to take the cost out of referenda so that we can have regularly constitutional change without it being some kind of extraordinary feat that people have to plan for? We could have an agreement that every second general election there will be things on the ballot that you can vote for. It would become an automatic part of your citizenship that you face these questions every second general election. People would know it was coming up and would be able to campaign about what they want put on the ballot. You could have some kind of structured, sensible system to do it.
Dr Appleby : I would like to pick up on a few things that Professor Twomey was saying and this idea that being constantly faced with referendums and questions about changing the Constitution is part of being an elector in Australia. One of the things that I am always struck by—and this is every time I hear these figures—is that only eight out of 44 referendums have passed and that we have not had a successful referendum since 1977. There is a sense of exceptionalism about successful referendums in Australia. That sense of exceptionalism is circular and feeds into the reason why we vote no as well and into why we do not put referendum proposals forward. One of the questions came up was about the fact that amending the Constitution requires something passing through both Houses of the parliament and then going to the people and passing the double majority requirements. Should we simplify this? A similar mechanism in terms of the majority requirements exists in Switzerland and yet they do not have the same problem holding referendums and getting them through. That is because it is not exceptional to be asked questions about constitutional reform. Part of making section 128 work for us will be to use it more regularly.
CHAIR: Although I think that there are some cantons in Switzerland where you can only vote if you bring your firearms to the meetings. There are 26 cantons in Switzerland—
Mr Waterford : Or if you have a penis.
CHAIR: Is that right in some parts? Switzerland is a very diverse country. I want to recognise Bernard Wright, the Clerk of the House, who is here. I am going to raise a question asked by Peter Brent, who was here earlier. He asked, 'Do committee members and witnesses realise how unusual Australia is in requiring a popular vote to change the Constitution compared with other countries?' We have mentioned Switzerland. We could have comment about other countries.
Ms ROWLAND: We had the benefit of hearing from Professor Williams and Professor Twomey on the select committee that was looking at this local government referendum, so I would like to acknowledge that and thank you for your input on that inquiry. There have been some tweets seeking information about the cost of conducting a referendum. If people listening would like to check, we had a submission from the AEC that has some of the anticipated AEC cost data with and without the referendum being conducted at the same time as a general election. Professor Williams, do you remember what the vote was in the House of Representatives on the bill for 1999 referendum on the republic?
Prof. Williams : The short answer is no.
Ms ROWLAND: Does anyone remember whether it was close?
Prof. McKenna : No, it was not close. I am pretty sure that it was not a close.
Ms ROWLAND: But there would have been a reasonably substantial no vote, I think. It would not have been just two.
Mr Waterford : I think everybody agreed that there should be a referendum, didn't they?
Ms ROWLAND: But in terms of for and against the republic.
Sir David Smith : I think that it was on party lines.
Prof. Twomey : I do not know that it was.
Sir David Smith : Howard did not support it.
Ms ROWLAND: We will check the Votes and Proceedings. There are a number of funding elements, as we discussed during the committee on the referendum. There are the costs of the yes and no pamphlet, then there is the civics education campaign and then there are the yes and no cases—the partisan ones. Can you break that down for us, please, so that we understand what we are talking about in terms funding a referendum?
Prof. Williams : How much a referendum costs overall? The default position in the referendum machinery legislation is that the Commonwealth spends no extra money on referendums other than holding the ballot. It was exceptional in 1999 that a yes and a no case were funded, with $7.5 million going to each. Then there was a neutral case as well. On this occasion, we have had a special bill passed to again enable, if you like, a temporary suspension of the rule so that the Commonwealth can again enable the expenditure of money. But we are not dealing here with a lot examples of what has been done. These are both exceptional cases, and I think it does suggest why we need to move beyond exceptionalism to a set rule that would apply across every referendum. That rule should be determined prior to the referendum even being announced.
As to how it would normally break down, the AEC has indicated that it is much cheaper to hold at election times. The local government referendum will be much less expensive because of that, but it is still up to about $60 million to hold the ballot at election time. We are looking here at the investment of the Commonwealth of a further $11 million for the yes and no cases, weighted as has been announced. Then it seems we might have a neutral case, again, perhaps of about $10 million. So we are looking at the cost of this referendum probably being in the range of $80 million to $90 million, subject to whatever further announcements might be made.
Mr Waterford : You are talking about how hard constitutional change is. Australia is an absolute dolly compared with constitutional change in the United States. Look, for example, at the history of the equal rights amendment. Their constitutional change has, I think, to have the consent of a majority of the legislatures of the states, or something like that, and within some sort of period of time. You often find that you are in some sort of limbo position where you have 20 states and you still need another 10 or something like that, and a whole host of things have changed. Essentially, only rights based amendments have ever succeeded. So far as I am aware nothing has ever changed, if you like, the fundamental structure or division of powers at any level in the United States. So, much as we might bemoan our situation, we are not the most rigid of all.
CHAIR: I will throw to Sir Smith on this 'Washminster' beast we are sitting in—if that is the Washington process, so changes have occurred pretty rapidly by signing up to the European rights—
Sir David Smith : Unless I misheard Professor Williams, I thought he said the yes and no cases are going to cost about $11 million for the upcoming referendum.
Prof. Williams : On this occasion, but subject to the revision you have said.
Sir David Smith : That is a nice gloss to put on it: about $11 million for the yes and no cases. Can I remind the committee of what I said earlier this morning: the government is funding the yes case with $10 million and is funding the no case with $500,000.
CHAIR: I do not think this is fresh evidence.
Ms SMYTH: I have a comment that has come up on the Twitter feed. It concerns the mechanics of a parliamentary joint committee in relation to constitutional «matters» . There is a question from Louise Milligan in relation to that. If it were not a parliamentary committee—another structure. I know that this committee in previous sessions of parliament has talked about this—
CHAIR: We did an inquiry, chaired by Mark Dreyfus, into the referendum process, which I think many of you made contributions to.
Ms SMYTH: Are there any thoughts on the mechanics of that, and its remit?
Prof. Williams : I think, yes, there should be such a committee that should respond to the sort of mechanism Professor Twomey and I have talked about. But I do not think a parliamentary committee of the federal parliament should be driving the ideas solely, because if nothing else we want ideas generated outside of the federal parliament. If you look at the success of bodies like productivity commissions and others, you need bodies that stand sometimes apart from the parliament that provide advice and ideas and are seen as credible, independent and expert, particularly in this space where there is often such partisanship involved. If it is just the parliament doing it then the odds are that we will not go much further than we already have with a range of parliamentary reports across the years that have made a lot of recommendations. But once we have it from that body then I think parliament clearly has a role to look at it and examine it and inquire. Would you agree with that, Professor Twomey?
Prof. Twomey : Yes. It might be helpful if the parliament conducted a similar review to the one it conducted in 1959—it is a nice long red book on my shelf—but, equally, a review with experts would be good, like a constitutional commission or a constitutional convention, as they had in the 1970s. Anything to get people thinking through the issues again.
I think the most alarming thing about constitutional reform in Australia is that mostly the ideas just pop out from somebody thinking, 'This sounds like a winner,' without actually having properly thought through the ramification of it, or it does not have sufficient work behind it. Then it all starts popping out once you get into the campaign, and then you face a problem. Thinking back to the 1999 republic one, they did some of the work—the convention and the like were helpful—but they did not do enough. I can give you one example. I was working for a state then—New South Wales. We said to the Commonwealth we wanted to be consulted on this before they put out your draft bill. The Commonwealth said yes and then they put out an exposure bill before they consulted with the states and then expected the states to come around later. Then, when we did point out where there were problems, which the Commonwealth could have fixed beforehand, they were reluctant to do it afterwards, because of the face-saving issues. That was just sheer stupidity on the Commonwealth's part. It could have consulted with a lot of other people about the form of the bill and fixed the problems in the bill before putting it into the public domain, and they just never did. Whether or not it is because they wanted it to fail, I do not know.
These things need to be sorted out properly in advance, well before you put the bill on the table and vote on it in the parliament. It is just not happening. With the Indigenous one that is really important. You cannot just say, 'Okay, we had an expert panel and they said we should do X.' There are a lot more issues for people to sort through and think about, once you get the words onto a piece of paper. If you want to botch that one, that would be the precise way of doing it. Just go straight ahead on the basis of one thing that one lot of people said, which is really just the first draft, without getting to and thinking through all the issues to get to a really well supported and agreed final draft.
Prof. Williams : I agree with Professor Twomey completely. We are heading to an Indigenous referendum that out of election time may cost us close to $150 to $200 million and yet we are not spending the small amount we actually need to in order to make sure we get a decent proposal. But that is the story of referendums. They are very expensive yet we often do not spend the money to actually have a decent chance of getting the right proposal.
CHAIR: This would be the preamble you are talking about?
Prof. Williams : We do not know. We have the draft from the expert panel, but it is painfully obvious at the moment that we have no process to actually engage people to come across in a non-partisan way. How do you actually word this in an effective, safe way? There is just no way of doing it. Australia lacks the capacity at the moment.
Mr Waterford : I predict it will lose and that the effect will be absolutely catastrophic for Aborigines. It will lose because people will see the referendum as giving government a tick for the way they conduct Aboriginal affairs at the moment, and that is a tick that most people would agree neither the Labor Party nor the Liberal Party particularly deserve.
Prof. McKenna : But we do not have the proposal before us. Here we are talking about how we might get a better proposal ideally, so let's not be too pessimistic here.
CHAIR: On the preamble idea—
Prof. McKenna : As far as I understand it the panel committee did not recommend inserting a new preamble into the Constitution. They recommended a whole raft of changes in the body of the document. The changes they recommended are still to be worked out between the major parties. There is broad bipartisan support but there is no detailed bipartisan support for specific wording of the changes that will go forward. So there is a long way to go yet.
CHAIR: On that topic, I think Dr Stone mentioned something about the Constitution not necessarily being an affirming document—not being an inspirational document, perhaps like the one written in blood in the United States. Would you like to comment on the permeable being, say, a more philosophical reflection of what Australia is as a nation. I think you have spoken about this before, Professor McKenna.
Prof. McKenna : I have, over a long period. You can grow very old as a republican. We have been talking about this for so long. One of the challenges for the republic debate in Australia and also for constitutional reform more broadly, is that Australians do not connect their identity through their political institutions. By and large their identity is found outside of politics and outside of constitutional language. So when we are asking people to think about a new preamble to the Constitution we are also asking Australians to think differently about the way they define themselves as a people, not only, for example, through the bush myth or Anzac or other notions of national identity, but through politics and through the Constitution. That is a big challenge.
My experience from the 1990s with the preamble was that there were actually a need for what George has recommended recently: having preamble debates in schools.
Prof. Williams : Public competition like we had for the flags.
Prof. McKenna : I fully agree with that. That is a great idea, just because—
CHAIR: You do not think that the PM and a poet should be assigned to do it?
Prof. McKenna : Definitely not. The PM and a poet is not the way to go.
Prof. Williams : They can put their own entry in.
Prof. McKenna : That was a lost opportunity, I think, involving Les Murray and John Howard.
CHAIR: One of my favourite poets, I should stress for the record.
Prof. Williams : John Howard?
Prof. McKenna : It is because of the discussion that it would generate. The preamble is the first words of the Constitution. Those first words are the words that have the capacity, more than anything else, to get people interested. I would endorse any attempt by the parliament to initiate competitions and formal means to enable the community to get involved in writing a new preamble to the Constitution.
CHAIR: Before I open that up, I want to point out that my first day in parliament was the day of an apology, largely written by the Prime Minister, Kevin Rudd. I then saw another apology and then was involved in the committee that wrote another apology, which was a much more collective effort. There are all sorts of ways for the nation to embrace words. They were apologies; obviously, they were not the Constitution.
Prof. McKenna : It is good that you raised the apology, because one of the most distinctive aspects of the apology was that it surprised us; its impact surprised us. Before the election—during the campaign—Rudd and the Labor Party made very few statements about the fact that they were going to do this. It has actually since defined Rudd's prime ministership in a way and the Labor Party coming to power at that time at the end of the Howard era. The way that those words galvanised the community and the impact that they have had has been quite extraordinary. Those words act as a reference point.
CHAIR: It is interpreted by people and referred to by people around the world.
Prof. McKenna : Exactly.
CHAIR: People say, 'I remember that thing.'
Prof. McKenna : The preamble—and 'preamble' is a bit of stodgy word and perhaps we could think of another word—has a similar capacity. I do not think that we have really given enough thought to how those words, the first words of our Constitution, do have the capacity to reinvigorate our democracy.
Prof. Williams : I agree. The experience in America, South Africa and elsewhere is that a good preamble is the entry point for the community into the Constitution. That is what gets put up on school walls; that is what is used for education; that is what kids learn to recite. If they did that with the Australian preamble in the British act it would be, 'Whereas the people of the five states'. Western Australia is not even mentioned. 'Whereas' is not the most exciting word to begin that sort of education. There is a lot to be said for what Mark said. We need a way of engaging people. My vision for popular engagement is to look at this through the eyes of my seven-year old, who is starting his school. He needs something like that that he can use in class to get him engaged with the values of our community and the sorts of aspirations that we have expressed in broad terms that can then forge a discussion about our Indigenous heritage and other things. At the moment, that is an impossible conversation to have. If you are from Western Australia, it is on the basis that you do not actually form part of the Federation.
Mrs MOYLAN: We do not exist.
CHAIR: Before I throw to Dr Appleby, one of the best parts of my job is to go to citizenship ceremonies to see people become Australians as per the Citizenship Act 1949. There are many journeys. Some people have been here for 70 years and are becoming citizens; some people who have been here for four years. For the Australian sitting alongside them, hearing what we say is important to us as a nation is quite an affirming process. They sit up straight in their chairs and say, 'We're doing all right here.' Then they become Australian citizens and they ignore me for the rest of their time, which is what Australians get to do to politicians. I always make the point that after today they do not have to listen to me. But they do have to listen; it is a requirement of that act. I will quote that bit of the act. It says:
From this time forward, under God—
or without, depending on whether they are affirming—
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey.
Dr Appleby : In my mind, the process of inserting a constitutional preamble into our document would be a different form of constitutional change to changing other parts of the Constitution document. The constitutional preamble is the part of the document where we can be aspirational and inspirational, and it would be a very different process. We have to remember that if we are talking about a preamble for constitutional recognition of Indigenous peoples or if we are talking about a section of the Constitution. If it were a preamble, it would have to be a much larger exercise, because the people of Australia need to be involved in that exercise. It is who we are but also who we want to be. That is not necessarily the exercise that you go through when you are changing section 75 of the Constitution.
CHAIR: We have an email question asking: 'If section 51 powers are for peace, order, good government, why are they then limited to the subsections underneath? They are too narrow.' That is the question. I will throw that open.
Prof. Warhurst : I go back to the preamble question. My view is that tackling the preamble as a stand-alone exercise is misconceived. I can only envisage a successful attempt to introduce a preamble or to revise the preamble as part of a much bigger exercise to say, 'Look, there are a number of other things we want to do with the Constitution.' I think that is a way in which you can engage the community. I do not think it is a question of just engaging the community in broad sentiments or fine words about our identity, as much as I agree with that exercise. I just think it is very strange to say we are entirely happy with the Constitution we have. I think on both sides of any argument, you will get people who say we could improve the 128 sections of the Constitution. I would prefer going to the community with a bigger project, if you like—a bigger exercise—which focuses on the Constitution as a whole.
Prof. McKenna : You can say the word, John: republic. If we have a new preamble and we are not going to talk about the sovereignty of the Crown, we have to address the republic.
Prof. Warhurst : That might be an occasion, even to take the republic out of the issue. I think the 1999 exercise did, in a sense, make sense that there was a preamble question and also a question about another issue. Whatever that other issue is, I just think you attract the attention of the community and demonstrate the importance of the constitutional document by saying we are going to give some attention to some other parts of the Constitution as well. I am against a piecemeal approach. I know it is a big exercise to tackle the big project, but I think that is the way to go.
CHAIR: Thanks, Professor Warhurst. On Monday night there was a rugby dinner here before the Brumbies match, where they were victorious over the British and Irish Lions. I was talking to Stephen Larkham, who's mum used to work here at the parliament. I was talking about 6 November 1999. I remember that night, because there was the referendum that day and then, if you are a rugby tragic, he kicked a field goal that night against South Africa and then Australia went on to win the Rugby World Cup. Strong republican John Eales received the William Webb cup from the Queen. They were joking last night: all the Wallabies from that team were saying that, when they went up, they said to the Queen, 'I voted for you.' I do not think they did; they were giving their captain a hard time. That is an aside. We will get back to the serious issue.
Prof. Warhurst : If only interest in the Constitution was as great as your interest in the rugby, we would be—
CHAIR: The point I intended to make, before I started that rambling story, was: 14 years on, we had another game of football on Tuesday night, and it shows that Australia has changed significantly, even since 1999. When you think of the situation of football or soccer from 1999 until today, the Australia of today has changed significantly.
Prof. Williams : The Constitution has not!
Mr Waterford : I could make an alternative suggestion, not so much to take the republican debate out of the room—because I am a republican and I think our Constitution needs to be changed to be a republic—but, if any discussion about preambles or other changes are mixed with that, then the debate is all about a republic and not about any other form of change.
But something has also happened to Australia in the past 20 or 30 years. Some people would argue that it happened in 1931, with the Statute of Westminster, or in 1941, when we adopted it. But we naturalised our Constitution. We became an independent and sovereign country at some particular moment, but let's not particularly worry about it. I think one of the big problems with Australia is that we do not have an American sense of 'we the people' with our Constitution. At the end of the day our Constitution is a British act of parliament. The preamble we are all talking about is a preamble to that British act of parliament. It is not actually a part of the Constitution of Australia. One day soon we should just simply, by a referendum, possibly without any other changes, or maybe just chucking out a couple of otiose section that everybody agrees no longer exist, but, by repatriation, readopt our Constitution as the Constitution of Australia rather than—
CHAIR: Is that what the Australia Act did?
Mr Waterford : It did up to a point.
CHAIR: Or was it when the British parliament passed the Australia Act at the same time?
Mr Waterford : William Deane has this revolutionary theory that it starts off inter alia with the Constitution, but he says the Constitution of Australia was always an Australian document and always a 'people of Australia' document, because it was adopted by referendum in the states before it became that. There is some constitutional support for that notion, but the much firmer one is that Australia is something that was given to us by the British people and the terms and conditions on it was a sort of a power down sort of principle. It would be nice and more than just symbolic to invert that and say that we the people of Australia own this Constitution, and, from that, we divide the powers in this way.
Prof. Warhurst : If you did that you might get to the stage where you could seriously talk about a new preamble to that. The two things would go nicely together, because you would have a preamble discussion and also a substantive discussion.
Prof. McKenna : I do agree with you that they need to go together, but I think it is important to remember that the preamble can be the guiding principles that guide the rest of the document. So, when we are talking about a referendum on constitutional recognition, for example, that seeks among other things to delete racist clauses from the Constitution, if we have a preamble that clearly at the outset makes it clear that those sorts of racist provisions would not be logical because of what we have said in the preamble, then, the case for changing the body of the document is more clear, because it is inconsistent with the principles at the outset of the document. So the preamble is crucial in defining the spirit of the Constitution. It can be used to advantage in terms of explaining the rationale behind constitutional change.
CHAIR: My understanding is that Canada, a not dissimilar country, took their Constitution home.
Mr Waterford : Repatriated it. That is the word I mean, but I also said naturalised, and I mean that too.
CHAIR: In light of your comments—that document written by those blokes, being what it is—would that be a process, like bringing back the unknown soldier—
Prof. McKenna : I think it is something that would be beneficial. Not it alone. It would need to be part of a raft of other measures.
CHAIR: We used to have a copy just outside this hall. You could see Queen Victoria's handwriting of the document that created Australia. I used to take school kids there, whenever I had control of school kids who visited me here, and they were significantly underwhelmed by that process.
Sir David Smith : When we talk about repatriating the Constitution, let's not forget it was drafted by Australians who had been chosen by Australians and the document was approved by Australians. It is an Australian document. Because the Commonwealth did not exist we had to go through the British parliament to legislate the document. When we talk of repatriating the document, don't get confused with Canada. They had to go back to London every time to get their document amended, so they repatriated it. Our document has been ours from the beginning. We drafted it, we created it and we approved it.
Mr Waterford : We always had the power to amend it too.
Sir David Smith : And we have a power to amend it. Let's not talk about repatriating. It is our document.
CHAIR: In light of the composition of the panel I am just going to make this point: as a Queenslander who is mentioned in the Constitution—and I have a Western Australian here—Queensland was created by New South Wales. There was a fear during our seven or eight State of Origin wins that they might bring Queensland back just so they could win a State of Origin. We do not feel as Queenslanders that we need to go to New South Wales to repatriate our Constitution. In terms of your thinking that Australia has been in control all the way along, that section 59 has no application—
Sir David Smith : No application at all.
CHAIR: it would seem to be that extracting from that we do need to do something that is the sign and symbol of affirming the creation of this nation.
Sir David Smith : Make common sense changes by all means but let's not ignore the fact that right from the outset it was and is and always has been our document. So when we talk of repatriating it, we are talking nonsense with respect to my friend.
Prof. Warhurst : David is right up to a point. There were changes made. There were some things insisted upon in London, so I take Sir David's point but it is not 100 per cent correct. There were changes insisted upon.
CHAIR: Could you take us through some of those?
Prof. Twomey : The quibble there is the British did make changes, particularly to the provision concerning Privy Council appeals, so the document is not wholly as it was approved in the various colonies. It was changed in the United Kingdom but also in how the provisions were originally drafted as well. George Reid, who was Premier of New South Wales, at the time went to the United Kingdom and got given a secret list of all the changes the British wanted to our Constitution, took it back to New South Wales, got the New South Wales parliament to approve them and then presented them as New South Wales changes to the Constitutional Convention. So the British did throughout have a fair hand on what was in it. For example, original drafts of the Constitution would have made treaties self- executing. Shat meant when you entered into a treaty it automatically applied as part of your law. The British did not like that and they insisted that be changed. It went through George Reid and it was changed.
Significant changes were made in the drafting process to our Constitution from the United Kingdom. It is true, of course, that we do have the power to change everything in the Constitution itself that did not necessarily apply to the Constitution Act, which is a British act of parliament. At least up until 1986 we properly did not—and it is arguable—have the power to change the preamble and what are known as the covering clauses which are the first eight clauses of that British act of parliament. Since the enactment of the Australia acts in 1986, all power is now in Australian hands to change that document in its entirety which means we could repeal and re-enact our Constitution totally as an act of Australia without any British involvement.
CHAIR: Which is something that happens in many countries. I have come across the Thai Constitution and they seem to write their Constitution every election almost. It is a different process.
Ms ROWLAND: As someone who was trying to work there on telecommunications and broadcasting «matters» , it creates an incredible amount of uncertainty for getting in laws and regulations in some key areas.
CHAIR: We have had a question or a comment from Lou Taylor: 'I don't suppose anyone addressed the absence of any Indigenous voice on the round table panel.' At the previous round table that we had on this I think we had Ms Lowitja O'Donoghue and another lady whose name I have forgotten. A round table was pulled together very quickly. Larissa Behrendt was on the last round table. There will be future round tables and we will try and make sure that there is a stronger Indigenous voice raised. I have a question from Paul Killdeer: 'Do witnesses support machinery act reforms requiring equal amounts of money for yes and no campaigns and preparation of neutral information for campaigns?
Mr Waterford : In general principle I agree with Sir David about the need for equality about it but there is no tradition of this whatsoever and there have been occasions when there has scarcely been a no case presented because the no case is usually drawn up by members of the parliament who voted against it and there have been next to unanimous cases that have gone through the parliament. Be that as it may, I think that we ought to actually regard citizens as adults capable of weighing evidence and considerations on both side. It is almost always possible to find somebody who can frame a cogent case against something who can be regarded as representative of the matter. I think in that context, that Sir David is right and it is reasonable to give both sides.
CHAIR: Here we have social media commenting on your comments as we are progressing. When this document was written and they talked about referendums, the booklet was the only way of getting information out.
Prof. Twomey : They did not even have one of them at the beginning either.
CHAIR: So things have changed. Would you like to comment on the question and the social media as well?
Prof. Williams : I can make a comment firstly in answering that question. As has been suggested, it is often the case that there has been no funding and no booklet for the no case amongst the successful referendums. Of the eight successful referendums, five have not had a no case funded because there has not been anyone within parliament who has voted no and that has meant that the referendum machinery act has not been triggered to produce a no case booklet.
CHAIR: I am not sure if Alex Hawke and Denis Jensen have articulated whether that was their thinking in voting no the other day for the local government one.
Prof. Williams : I think more broadly my point is the referendum machinery legislation is in a bad way and it leads to some consequences where there should be a no case and there is zero. Literally, for five of the eight there has been nothing at all and people should have access to information for both sides. On other occasions it becomes very ad hoc. On this occasion and in 1999 we have rules made for the referendum and I think it is very unsatisfactory that it happens this way. Personally, if it is done outside of a referendum campaign, I am quite happy with the idea that there should be significant upfront funding for the neutral that gives people access to information generally about what the proposal is and what it means. That should be the focus. There should then be funding for the yes and no partisan positions but, in a sense, that is a secondary thing.
The most important thing is to get enough information to even know what it is about. The evidence is that the partisan information does not help people at all because they do not even know the basic information to make sense of the partisan positions. But of those partisan positions, I do not necessarily think it should just be equality.
I think that there may be reasons for some referendums--such as the 1967 referendum on Indigenous peoples where there was no parliamentary opposition—you would fund it according to a formula of how politicians have voted in parliament. That is one plausible formula. There may be others that do that but again the problem is that you do not work this out in the context of a referendum. You work out a fair mechanism years in advance and that is where I think the government should have implemented the Mark Dreyfus recommendations years ago, not in the midst of this referendum.
CHAIR: But still one in ten Australians voted against that, without a no case.
Mr Waterford : It is also worth remembering that the 1967 referendum went with another referendum proposal that went virtually unanimously through both chambers of parliament, except that at the last moment two and maybe three DLP senators—I think—decided they were against it. Those were the nexus proposals that broke the link between the House of Representatives and the Senate. Those three people put up a campaign which was the familiar, 'Why are we giving more power to Canberra?' style of thing and with a bit of a mixed state thing. That one was resoundingly defeated.
CHAIR: Effectively by three people.
Mr Waterford : Yes. And yet another proof, if you like, that if there is substantial opposition in a community that is represented in a parliament you will never get up.
Mrs MOYLAN: I do not know why Alex Hawke, the member for Mitchell, voted against it but in Western Australia there is a strong disposition of the West Australian government not to support the referendum. Some members feel they have an obligation therefore to support their state. That is possibly one of the reasons why Dr Jensen has not supported it.
CHAIR: There is also a suggestion that MPs were absent because they did not support it.
Mr Waterford : Peter Reith undermined a referendum in the early 80s and that was a piece of inspired work as well. That was originally not with the party behind him, but just a piece of sabotage where he showed all of his political skills.
Prof. Warhurst : I know public funding is all the go, but I would entertain the possibility of not funding the yes and no cases at all. I would put all the money into a neutral information campaign. I would have thought the same back in 1999 if I had been asked. If the costing of referendums is a problem, the Commonwealth should save its money. If there is real community engagement there are plenty of ways of raising money for a campaign by the yes and no movements in the broader community. By extending the largesse of the Commonwealth and setting up the campaign in that way perhaps that is not a good thing as far as engaging with the community is concerned. It takes away the necessary community campaigning which includes raising money for your campaign. I throw that idea out. Professor Williams was suggesting that his first priority was the neutral campaign, and I agree with him. I would not put a great emphasis on funding the yes and no campaigns at all.
Prof. Twomey : I agree. That is basically what I was going to say. They should put the money into neutral, making sure it genuinely gives information to people so they have enough to make a decision. The republic neutral campaign was ridiculous. It was an ad with people going down the road and being told you could go this way or that way. That told people nothing. You want a genuine campaign giving information. I agree that they should not be funding either the yes or the no case. If people have views, they can use the ordinary methods of making those views known. They can use social media, they can use the media and speak about it. Politicians have ample means of publicising their views. I do not think it is a matter for Commonwealth funding.
Ms ROWLAND: I think Mr Waterford said that it is members of parliament who oppose it or support it.
Mr Waterford : They formed a committee, and that writes the case.
Ms ROWLAND: Interestingly I have been to the AEC website where there is an online brochure with the time line of the referendum process. It gets down to: 'The bill is passed by an absolute majority in the other house' and then 'Referendum process begins' with arrows going two ways one saying, 'Members of parliament who support the proposed change prepare the 'yes' case' and the other, 'Members of parliament who oppose the proposed change prepare the 'no' case'.
Prof. Twomey : That is right.
Mr Waterford : That is why I said that. If something has gone unanimously through the parliament, there is no 'no' case at all. That has historically been the situation.
Dr Appleby : If there is no case coming out of the Commonwealth parliament there could be no cases mounted by the states and by other communities. That is something we have to remember.
Mr Waterford : Not with public funding.
Ms ROWLAND: That is exactly what Professor Williams said.
Sir David Smith : My point is that publicly funded campaign, if we are going to have it, should be equally funded for both sides of the debate.
Ms ROWLAND: The civics education campaign would be neutral, wouldn't it?
Prof. Williams : As a matter of fact, I think the civics campaign should not be funded by either the yes or the no case. It should be people who do not have a position and are seen as credible and sitting in the middle with no interest other than to provide information that enables people to make up their minds.
Prof. Twomey : A point of comparison: it does not have to be partisans on either side who write the yes or the no case. In New South Wales, traditionally when there have been referenda, it is not the politicians who write the yes and no cases. It is the bureaucrats who do it and their aim is to write as fair a yes/no case as they can. I have looked at the files on this in the past and they sent it out to various constitutional experts and others to get them to comment, so the various constitutional experts from different universities would come back with their comments to try to get a yes/no case that provided information rather than pushing particular agendas. That is the case in New South Wales. It is not a partisan yes/no case. Interestingly, referenda in New South Wales are vastly more successful than referenda at the Commonwealth level. I think it is something like an 80 per cent success rate, as opposed to the success rate at the Commonwealth level.
CHAIR: I want to have a sweep through for final comments before I wrap up. I will then ask for future topics for another round table in the 44th Parliament.
Prof. Warhurst : This may have been said already, but I am an advocate of a plain-speaking constitution in some sense. I would like attention given to having a constitution which, firstly, describes the system of government which operates in Australia, the Westminster system. At the moment it does not do that.
CHAIR: A lot of mentions of the Prime Minister et cetera.
Prof. Warhurst : Yes, all those sorts of things. It should not be a case of one side or the other on that issue. In a modern democracy, we should be able to have a constitution which goes to the issue of community engagement. If you have a body of words which conceals rather than explain the real situation then people will take less of an interest in it. As well as clearly describing the system of government in Australia, I would give some attention to the wording which is used to make those descriptions, so that words which are out of date or words clearly not used in everyday speech do not appear. We need a constitution which is an everyday constitution. These are some bigger picture aspects of constitutional document reform which do not go to the yes/no of particular proposals for change but improve the document, in my view. This would set a basis for engaging in constitutional reform proposals, if you wish, probably with a better chance of success.
On the question of success, I take Sir David's position, but my position would be that people do not always get it right and I also do not think the Commonwealth government always gets it right. But I suspect it is somewhere in between, and if Sir David's committee of common sense were to look at it, we probably would have had more than eight successful referenda. If it was a 50 per cent success rate then that is probably a reasonable reflection of reality.
Prof. Twomey : Following on from what Professor Warhurst said, it is an interesting exercise but it is much easier said than done. I have looked at this in a different context, looking at a constitution for the Northern Territory if the Northern Territory achieves statehood. I was asked to prepare a draft framework, just the nuts and bolts of the sort of constitution you would have for a new state. In doing that, I faced all those dilemmas. The first one is: do you include in your constitution things like relevant principles and conventions? I put in the draft, and I assume someone will knock this out at some stage, not only references to the Premier and the cabinet and their roles but also principles of ministerial responsibility, both individual and collective. I put those things in, but the other side of it is once you put them in you also need to put in a provision saying that these are non-justiciable, because the last thing you want is the High Court having to make a decision as to whether a minister needs to resign over the latest crisis. You need to be able to balance the two: if you put in principles and those sorts of things, you need to balance it by making these things nothing that you can go to the High Court over.
The other dilemma was terminology. On the one hand, yes, if you are writing a constitution for the Northern Territory that has to be approved in the constitutional convention of people who are not legally trained and then approved by the people in a referendum, it has to be comprehensible to them. They are not going to approve something that they do not understand.
But there is another real risk when you change the terminology. If I take something like 'office of profit under the Crown', which means nothing to anyone on the street, and change that terminology to something else the risk then is the courts will say: 'You haven't used that well-accepted term. You have got different terminology. It means something different.' So there was a constant balancing between on the one hand trying to be clear and comprehensible and at the same time hoping that you are not using terminology in a way that a court would then decide means something different from what you intended. So it is actually a very difficult task.
Prof. McKenna : That of course is every constitution makers great dilemma, isn't it?
Prof. Twomey : Particularly when you are updating something that is basically over 100 years old.
Prof. McKenna : Yes, but I think in the broad debate about education it is really important to—
CHAIR: Sorry, I am going to have to formally close the committee because Ms Rowland has to leave. We will finish off, but it will not be as the constituted committee.
Resolved (on motion by Ms Rowland):
That this committee authorises publication, including publication on the parliamentary database, of the transcript of the evidence given before it at public hearing this day.
Ms ROWLAND: I would like to thank the committee, the people who appeared, the audience, those who joined us interactively and the secretariat staff.
CHAIR: Thank you, Ms Rowland. We might finish the end of those comments, if that is alright.
Prof. McKenna : I have one sentence to back up what John and Anne have said: people will remain ignorant of the Constitution until the Constitution speaks a language that they understand. The ignorance is directly connected to the language and that is one of the big reasons we have to change the Constitution.
Sir David Smith : I would like to finish by quoting another distinguished constitutional lawyer and barrister, with great respect to the two constitutional lawyers we have here. I admire both of them for their work. I am referring to SEK Hulme QC, whom they will both know. He said in 1992:
One provision of the Constitution makes the Executive power exercisable by the Governor General. Another requires the Governor General to summon an Executive Council. Another empowers him to appoint officers as Ministers of State, and says that they shall be members of the Executive Council, and that they shall not hold office for more than three months unless a member of one House or the other. There is little more. Not a word about parties, about majorities, about the election of Ministers by Caucus, about resigning if a vote of no confidence is carried, or about any of a host of such «matters» . In England and in the Australian colonies these «matters» were governed by constitutional convention, and the Founding Fathers took it for granted that when on 1 January 1901 the words they had written came to life, they would find those conventions waiting to attach.
Mr Waterford : Just picking up on the Northern Territory problem, the ACT (Self-Government) Act, which is an act of the Commonwealth parliament and also in need of, if you like, repatriation and naturalisation, actually dealt with some of the issues of which Anne speaks and in novel terms. The ACT government, for example, is a republic in a sea of monarchies. It has no administrator and no governor in the Northern Territory sense of the word. It has explicit provisions for the election of a Chief Minister and mechanisms for doing so, for the appointment of other ministers, for the way in which legislation comes into effect of a sort that are relatively normal in what you might call constitutional style documents. It is not all that difficult to read, but I do not think the citizens of the ACT necessarily love it or are familiar with it any more than the citizens of Western Australia—
CHAIR: They are the most educated people in Australia.
Mr Waterford : But it is not their daily or nightly reading material. In a sort of a way, the less one has to refer to a constitution the better, because usually it implies that some sets of interests have come into collision. I yearn for noble sounding sentiments and preamble-style documents and whatnot, but I often think it is not that terribly bad if legalistic words are used to delineate powers or whatever because, hesitant though I would normally be to quote Owen Dixon, there is something remote and legalistic about these divisions of things that necessarily involves close study rather than mere populism or sentiment.
Dr Appleby : I would like to come back to the earlier discussion and the relationship between the High Court's role in constitutional interpretation and the parliament's role. We have talked about the parliament's role in constitutional interpretation but also in constitutional reform. Parliament needs to make sure they are engaging a dance with the High Court and listening to the High Court when the High Court sets limits but also when the High Court says 'We do not have the tools to deal with this issue.' That is something that has been lacking in the last few years.
Prof. Williams : You did ask the question what you might do next. It would be good for the committee to take stock of these sorts of roundtables but try to identify something that can feed more directly into action, if nothing else. Should it look at doing the sort of work that the 1959 inquiry did? Is it time that parliament had a systematic look at these «matters ? Or perhaps it should just focus in on the noncontentious issues—the sorts of constitutional changes that have been lurking around for a long time but perhaps could be progressed while we debate more fiercely other things? It would be good to see some direct engagement in the questions that might go forward.
CHAIR: Thank you very much for your participation and for coming at such short notice. I realise it was hard for some people to come along. I look forward to the 44th parliament doing something similar with more broad ranging discussion.
Committee adjourned at 12:07