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Amending our Constitution.



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Robert McClelland MP

Shadow Attorney-General

Federal Member For Barton

Contact: Simon Banks Ph: (02) 6277 4323 or 0419 638 587

 

 

AMENDING OUR CONSTITUTION

 

 

THE CLIMATE FOR CONSTITUTIONAL REFORM

 

Last Saturday’s referendum result was the 35 th and 36 th referendum defeats in the 98 years of our existence as a nation.

 

Out of 44 proposals only 8 have been successful.  They were:

 

•  Senate elections (12 th December 1906), which made minor alterations concerning Senate elections and the terms of Senators;

•  State debts (13 th April 1910), which allowed the Commonwealth take over of State debts;

•  State debts (17 th November 1928), which formalised the position of the Loans Council;

•  Social Services (28 th September 1946), which gave the Commonwealth Parliament power to provide certain social services;

•  Aborigines (27 th May 1967), which gave the Commonwealth power to make laws for Aboriginal people resident in the States and to include all Aboriginal people in the national census;

•  Casual vacancies (21 st May 1977), which was aimed at ensuring that a replacement Senator to a casual vacancy should be from the same party as the departing Senator;

•  Territory votes (21 st May 1977), which gave residents of the Australian Capital Territory and the Northern Territory the right to vote in Constitutional referendums;

•  Retirement of judges (21 st May 1977), which provided for a retirement age for all Federal judges;

 

No referendum has been successful in the last 22 years of this century.

 

Whether we like it or not the m echanism for amending our Constitution, which is set out in section 128, is extremely rigid and stubborn.  Section 128 arose from an expedient compromise in the Constitution Convention deliberations of the 1890’s.  Viewed at that time, by people who were the architects of our nation, who felt a spirit of engagement in the political process and who were passionate about that debate, section 128 undoubtedly appeared rational.

 

On paper section 128 appears to give something to the Commonwealth and also to the States, something to the executive and legislature and also to the people as well as the politicians.

 

Our Constitutional Founders had justified optimism in the prospects of our nation.  However, they over-estimated the extent to which ordinary Australians would engage with their system of Government.  It has been argued that, instead of an effective and balanced mechanism for Constitutional evolution, section 128 exists as a booby trap that will explode and destroy most proposals for Constitutional change.

 

I am passionately of the view that Australian democracy is based on far more than the black and white words contained in the Constitution.  It is based essentially on the common sense of our people and the relative balance of our national political leade rship.  In one sense we have embraced civic participation to an extent that few nations have through the compulsory vote.  Whether they like it or not, and approximately 80 percent of us do, all Australians are compelled to express their opinion as to who should govern them.  However, the question remains as to whether that civic participation compelled by compulsory voting is sufficiently meaningful to ensure the health of our democratic institutions.

 

I will argue that unless we as a nation politically empower all Australians so that they are equipped to consider and have the self confidence to make decisions about important national issues then we are, at best, condemning our democracy to one of stagnation.  This, in turn, has the potential to significantly effect our national economic and social development.

 

It is surprising that while referenda are vitally important political events in our democracy very little research has been undertaken into Australian’s voting behaviour in respect to them.

 

It is frequently argued that the requirement for a “double majority”, where a successful referendum must receive not only a majority of Australians voting for change but also a majority of voters in a majority of states has created an insurmountable hurdle.  However, the figures of unsuccessful referenda do not back that up as a major problem.  For instance, if the requirement of a majority of four states was reduced to that of only half the states then the number of successful referenda would only have been increased by a total of three.  If only a national majority of voters had been necessary there would only have been added an additional two successful referenda. 

 

The main impediment to Constitutional change has been the difficulty of securing 50 percent of the national vote for a yes case.

 

Speaking as a politician who, of necessity, is one of the originators of a section 128 referendum [1] , I am perhaps in a poor position to make a judgment of the motives of voters in rejecting the November 6 th Referendum.

 

Objectively speaking, however, the strong negative vote in less affluent areas suggests that either or both that the yes campaign did not sufficiently engage ordinary Australians and/or that ordinary Australians were relatively easily and certainly successfully disengaged from the proposal presented to them despite opinion polls suggesting that an overwhelming number of Australians want an Australian Head of State.

 

Given the lack of research into voter behaviour at referenda perhaps the best means of analysis is to study the methods adopted by those who opposed change. 

 

One of the opening lines in the formal no case was “if you don’t know -vote No”.

 

Professor Crisp has commented on the frequency with which that tactic has been adopted in referenda in the following terms:

 

Objective assessment of Constitutional problems as such is an abstract, complex, technical business for which the average citizen is usually ill equipped and disinclined, while the problems may be so complicated as to be ill suited to a simple and satisfying ‘yes’ or ‘no’ vote.  The temptation, therefore, is to ‘play safe’ and ‘let things be’ [2] .

 

That observation is particularly pertinent to last Saturday’s referendum.

 

In my travels, attempting to explain the model presented to voters, I was frequently asked what would be the powers of the President.  In reply I commented that the powers would be virtually identical to those exercised by the Governor-General.  It was at that point that I entered very difficult territory.  I was invariably asked the necessary sensible follow up question “well what are the powers of the Governor-General”.

 

My response was to distinguish between the black and white wording of our Constitution which gives the Governor-General an unfettered discretion to appoint Ministers, to disallow a law within 12 months of it being passed, to determine Parliamentary sittings and, indeed, to exercise unrestricted power as commander in chief of our armed forces and political reality.  Invariably, seeing the alarm of the questioner's expression I would immediately attempt to explain that those powers which, after all are the powers of a vice regal dictator, weren’t actually exercised.

 

Then became the hard part of explaining our system of responsible government where the executive of the day is accountable to the democratically elected representatives of the Parliament and indeed, conventions that have developed whereby the Governor- General will only act on the advice of the Government of the day.

 

Invariably, I lost the voter at about the point of referring to a vice regal dictator and I was pretty dismal in my recovery after that.

 

Our system of Government is, indeed, based on abstract, complex technical and legalistic principals.  It is, in that sense, fertile ground for sowing confusion and uncertainty.

 

Indeed, Professor Howard, who has analysed formal yes and no cases which have been presented in past referenda, has commented that no cases are traditionally designed to confuse and “is usually a totally unreliable guide to what the amendment is all about” [3] .

 

Indeed, without the combined national leadership reassuring voters one wonders whether there was ever any prospect of success for last Saturday’s referendum.

 

Interestingly, earlier this year a United States intern allocated to me under the Australian National Internships Program prepared a paper for me in which she predicted the defeat of last Saturday’s referendum even before intense opinion polling started [4] .  Rhonda Evans-Case perceptively commented:

 

Referenda are often cited as examples of direct democracy, for they offer the public a rare opportunity to actually determine Government policy.  However, beneath the veneer of this participatory rhetoric lies a certain truth that proponents of referenda may be reluctant to acknowledge.  Referenda for Constitutional change are generally elite driven [5] .

 

As previously mentioned, this is necessarily the case in Australia where referendum proposals are driven by the “political elite” in the sense that a referendum involves voters considering a proposed law which has been passed by Parliament.  Voters do not initiate nor draft the proposal but merely have the opportunity to give or refrain from giving their stamp of approval.  If both the majority of Australians and the majority of States approve a referendum it actually goes directly to the Governor-General without any reference back to the Parliament.

 

A significant impediment to Constitutional change is the distrust of politicians among ordinary Australians.  As Hugh McKay reports that distrust has now, for a significant portion of the community, grown to complete contempt [6] .

 

Obviously, political decisions are intricately involved in Constitutional change.  Clearly, the Government of the day will determine whether and when an issue gets on the agenda for Constitutional change.

 

One remarkable feature about last Saturday’s result was the size of the yes vote in more affluent areas in which, research suggests, the constituents have a higher level of education [7] .

 

The first time it really struck me that the referendum was in trouble was on the occasion of my participation in a debate arranged by The Daily Telegraph .  The newspaper had extensively advertised the debate and to accommodate a large attendance arranged the venue as Parramatta Park in Western Sydney.  Despite the extensive advertising and proximity to the referendum there were fewer than 100 people who attended. 

 

For much of Australia, Mark McKenna’s description of the Republican movement in the early 1990’s remained relevant.  McKenna described the push for a republic as “a minority of intellectuals fighting a minority of rabid loyalists - with the great majority of Australian’s showing little interest in the debate [8] .

 

The first point to note about that disengagement is that it “creates an opportunity for ambitious, entrepreneurial elites or sub-elites to intervene and represent, or at least claim to represent, those contrary public views” [9] .

 

While, in a free and democratic society it is the right of each and every citizen to be as connected or disengaged from the political system as they like, our democracy as a whole has a responsibility to ensure:

•  first, that the disengagement has not resulted from unfair deprivation in terms of economic or educational resources; and

•  secondly, if it is, to ensure that the phenomena of apathy and disengagement is not exploited by those “counter-elites”.

 

There is evidence of a perception among citizens in any democracy that “Governments will be self serving” in pursuing change and therefore any change is to be viewed with suspicion [10] .

 

Nevertheless, while the role of the people in a referendum is “largely passive” [11] .  They are nonetheless given the role of assessing the merit of the proposal and exercise a final power of veto.  As Rhonda Evans-Case perceptively predicated earlier this year:

 

Thus, despit e all of the time, effort, and resources expended by elites to get a proposal through the rigorous process of Constitutional change, if they have ignored non-elite orientations, have neglected to involve the public in the debate and cultivate favourable public opinion, or have failed to address non-elite concerns, then their proposal will likely fail.

 

The challenge for our society becomes how do create a civic culture in our nation where ordinary Australians feel sufficiently engaged such that they take an interest in proposals for reform and have sufficient confidence in their own judgment so that they are not exploited by a misleading fear campaign or 'vote No because you don’t know'?

 

The extent of the problem cannot be overlooked nor can it be dismissed by those who would seek to shut down the debate by feigning outrage by claiming that to point out lack of understanding among ordinary Australians is to insult them. 

 

The facts cannot be ignored.  For instance, according to a study commissioned by the Department of Prime Minister and Cabinet in 1994, only 18% of Australians surveyed showed some degree of understanding of the contents of the Constitution [12] .

 

Research conducted by the Department immediately prior to the 1999 referenda show considerable lack of understanding by the Australian people about how our system of government presently works and what would change if Australia became a Republic. [13]

 

Clearly, both long term and short-term strategies are required as the report of the 1994 Civics Expert Group pointed out.  If the basic content of both the Constitution and also the principles of constitutional practice are not routinely taught in our schools, then for most ordinary citizens, it is unlikely that they will invest the time and effort which is required to process technical arguments and the theoretical principles underlying the Constitutional change [14] .

 

It also highlights the need to amend our Constitution so that it better reflects the reality of our government.  If the Constitution were an ordinary statute it would have been given a major overhaul years ago.  Its failure to reflect reality is a fundamental barrier to people, not familiar with the intricacies of constitutional law, understanding it.

 

How can we achieve that objective?

 

First, we should amend our Constitution to remove spent and transitory provisions and to reflect the agreed conventions that determine how it operates.

 

Secondly, we must be prepared to accept that in many areas our Constitution is no longer serving the national interest.  It either represents out-moded values or it acts as an impediment to future national economic growth or the efficient delivery of social services.

 

Some in the recent referendum debate claim that 'we have the best constitution in the world'.  To the extent that it has provided us with a stable and effective democracy that is true.  But the disengagement of many Australians from the political process and their lack of confidence in it threaten the stability of that democracy.

 

If our Constitution is no longer ensuring confidence in government and if it is increasingly struggling to meet the needs of a modern internationally competitive economy and inefficiently delivering social services then 'it is broke' and it is a national imperative that we should fix it.  Perhaps, more pertinently, we must equip and empower our citizens so that they are capable of understanding and addressing the argument for change.

 

 

REMOVAL OF EXPENDED PROVISIONS

 

There are numerous examples of spent or transitory provisions in our Constitution.  For example:

 

The third paragraph of section 5 provides that “the Parliament shall be summoned to meet not later than 6 months after the establishment of the Commonwealth”.  The provision should be repealed as it has clearly been expended [15] .

 

The last four paragraphs of section 15 contain transitional provisions consequent to the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 .  These paragraphs are no longer relevant and clearly no vacancy pre-dating that alteration exists.  Those provisions should accordingly be repealed [16] .

 

Section 26 provides for the number of Members of the House of Representatives i n the first Parliament.  That section clearly expired 98 years ago and should be repealed [17] .

 

Section 69 deals with the transfer of State departments to the Commonwealth.  That section last served its purpose 98 years ago and it should also be repealed because it is expended [18] .

 

The second paragraph of section 83 empowers the Governor-General-in-Council to draw money from the Treasury to sustain departments of state transferred to the Commonwealth for the holding of the first elections for the Parliament.  That provision has also clearly been expended and should be repealed [19] .

 

Section 87 provides that, in the period of 10 years after the establishment of the Commonwealth, not more than one quarter of the revenue from duties of customs and of excise shall be applied towards Commonwealth expenditure.  That section is now redundant as the Federal Parliament has otherwise provided and should be repealed [20]

 

Section 89 deals with payments by the Commonwealth to the States before the introduction of uniformed duties of customs.  That provision is again clearly redundant and should be repealed [21] .

 

Section 93 provides for payments to states for five years after the imposition of uniformed duties of custom.  Again that provision is now spent and should be repealed [22] .

 

Section 95 deals with the imposition of duties of customs by the State of Western Australia during the period of five years after the imposition of uniformed duties of customs.  That section has also clearly been spent and should be repealed [23] .

 

The last paragraph of section 125 provides that “the Parliament shall sit at Melbourne until it meets at the seat of Government”.  Since the establishment of Canberra, that provision is spent and should be repealed [24] .

 

Amendment of Provisions Made Rundundant by Convention

 

While the 6 th November 1999 has confirmed the continuing relevance of section 2 of the Constitution which provides for the appointment of the Governor-General by the Queen reference in that section to the Governor-General having “such powers and functions of the Queen as her Magistracy may be pleased to assign to him” should be repealed.  In its current form, the section suggests that there are some powers that the Governor-General cannot exercise unless the Queen has expressly assigned them [25] .

 

To the extent that the Letters Patent made under section 2 continue to have constitutional effect, they should be incorporated into our Constitution or regulated by ordinary legislation.

 

Section 3 of the Constitution provides that until Parliament otherwise provides the salary of the Governor-General shall be “10,000 pounds”.  This section should be replaced with an expression that does not become dated such as 'such annual sum as the Parliament provides' [26] .

 

Section 56 provides that a vote, resolution, or proposed law for the appropriation of revenue or money shall not be passed unless the Governor-General has recommended it.  According to convention the Governor-General always acts on the basis of Ministerial advice but the section should be amended to expressly provide for the Crown’s financial initiative to be exercised by the Governor-General only on Ministerial advice [27] .

 

Section 58 provides an unfettered discretion to the Governor-General as to whether he assents to a Bill.  Clearly, convention has applied so that the Governor-General exercises that power only on Ministerial advice however the section should be amended to expressly include that proviso [28] .

 

Similarly, section 59 provides for the disallowance of any law within one year from the Governor-General’s assent.  Section 59 was intended to continue imperial surveill ance of Australia’s law after we became a nation.  The provision has never been exercised and is inconsistent with Australia's status as an independent nation.  It should be repealed [29] .

 

Similarly, section 60 provides for laws reserved for the Queen’s pleasure.  Once again, section 60 related to perceived need for imperial surveillance of the Parliament of Australia at the time of Federation.  Those circumstances clearly no longer exist and that section should be repealed [30] .

 

Section 62 provides for the existence of a Federal Executive Council to advise the Governor-General.  However, our Constitution does not recognise in any section the existence of the Prime Minister.  It would be appropriate to amend section 62 to expressly provide for a Prime Minister to be appointed as Head of the Government [31] and for the Governor-General to appoint the other Ministers of State on the Prime Minister's advice.

 

Section 68 vests the command of the Naval and Military forces in the Governor-General as the Queen’s representative.  Given the calibre of Australian Governors-General that power has not been abused.  However, it is unsafe in its present form and should be amended to specifically provide that the Governor-General may only exercise the powers associated with being the Commander in Chief of the Defence Forces in accordance with Ministerial advice [32] .

 

Section 117 of the Constitution deals with rights of residents in States but refers to a resident as being “a subject of the Queen”.  Clearly that reference is anachronistic and should be replaced with the phrase “an Australian Citizen” [33] .  Further, the section should be amended to refer to a resident of any mainland territory equally with a resident of the State [34] .  A transitional provision such as that proposed in the Constitution Alteration (Establishment of Republic) 1999 [35] would also be necessary.

 

The schedule to the Constitution sets out the oath of office that must be sworn by each Member of the House of Representatives and Senator prior to taking their place in the House or the Senate.  The note to the oaths refers to the “King or Queen of the U nited Kingdom of Great Britain and Ireland for the time being” in light of the enactment of the Australia Acts of 1986 those words should be omitted and replaced with the wording “Australia” [36] .

 

 

WIDER STRUCTURAL REFORMS

 

As previously stated, the Constitution no longer reflects the social values or economic needs of the modern Australian state.  This gives rise to a range of amendments to the Constitution which should be considered.

 

Removal of Racially Discriminatory Provisions

 

Section 25 of the Constitution provides for the non counting of persons disqualified from voting in a State on the basis of their race the purpose of reckoning the number of people of that State or of the Commonwealth.

 

Clearly, this provision is contrary to the principles of a fair and democratic society and the provision could probably be described as being 'morally spent'. 

 

Section 25 clearly contradicts the spirit and substance of a right to vote and the principle of one vote one value [37] .

 

The section is also legally redundant as the Racial Discrimination Act 1975 makes it illegal for any State to discriminate against a person on the basis of race.

 

It is impossible to justify this provision remaining in our Constitution if we are genuinely discussing issues of reconciliation with Aboriginal and Torres Strait Islander Australians.  It is simply offensive.

 

Section 51(xxvi) should also be amended.  The 1988 Constitutional Commission acknowledged that the concept of race referred to in that provision was outdated.  The Commiss ion also recognised that the initial intended use of the power against minority groups such as ethnic Chinese, Kanakas and Afghans is now clearly abhorrent.  The Commission favoured amending the provision to provide that the Commonwealth only has the power to make laws in respect of 'Aborigines and Torres Strait Islanders'. [38]

 

The Native Title Amendment Act 1998 has also raised the issue of whether section 52(xxvi) should be further restricted to coincide with Australia's international legal obligation under the Convention on the Elimination of All Forms of Racial Discrimination .  The Hindmarsh Island Bridge Case [39] has left open the question as to whether section 52(xxvi) allows the Parliament to enact laws that discriminate against the people of any race.  That possibility should be removed.

 

Cross Vesting of Jurisdiction between the different Court Systems

 

The re Wakim matters [40] , recently decided by the High Court, have brought about the demise of an important cross vesting scheme which has operated for over 10 years as a means of overcoming jurisdictional disputes between the state and federal courts in Australia.

 

In general language, the schemes enabled courts of either state or federal jurisdiction to exercise a combined jurisdiction to resolve the totality of matters in dispute between litigants rather than requiring them to duplicate proceedings in either the state or federal arena [41] .

 

The re Wakim cases considered a specific corporations law cross vesting scheme which was contained in the Corporations Act 1989 (Cth) and the Corporations Act of each State and the Northern Territory.  While each State will pass a Federal Courts (State Jurisdiction) Act to validate past decisions which have been decided under the cross vesting schemes, the High Court’s decision will create great inefficiency in our legal system particularly in respect to resolving matters under the Corporations Law .

 

The decision will also impact on the area of Family Law and Commonwealth administrative bodies that exercise functions conferred on them under State law [42] .

 

These problems were foreshadowed 10 years ago with the 1998 Constitutional Commission recommending that the Constitution be amended to empower State and Territorial Governments, with the consent of the Federal Parliament, to confer State and Territorial jurisdiction respectively on Federal Courts [43] .

 

Similarly, the 1998 Constitutional Commission also recommended that the Constitution be amended to provide the Federal Parliament with the power to invest any Court of a Territory with Federal jurisdiction [44] .

 

The orderly regulation of Australian corporations has been a factor that has been encouraged international trading corporations, particularly those trading in the Asia-Pacific region to establish their regional or international headquarters in Australia.  Graham Hill has persuasively argued [45] that anything less than an appropriate constitutional amendment will not address the difficulties that have emerged from the re Wakim decisions.

 

It goes without saying that failure to remedy this area has the potential to dissuade corporations from establishing or continuing to use Australia as their corporation's base and that will necessarily have detrimental economic consequences for our future prosperity.

 

Powers of the Parliament

 

The Commonwealth Law Reports are filled with cases interpreting the powers of Parliament as set out in section 51 of the Constitution.

 

In many instances the applicant in those cases has been one or other of the State Governments legitimately attempting to protect an area of states rights.  Those cases will continue to be of great importance and will be the subject of vigorous debate on either side depending on one’s philosophical opinion as to the appropriate centre of Government.

 

There are, however, many areas where the powers of the Parliament have been construed so narrowly that they have presented an impediment to Australia’s economic development.  Several committees and commissions that have reviewed our Constitution since the 1950's have considered these areas.  Regrettably, very few of the resulting recommendations have been acted upon.

 

There comes a point where we must ask ourselves how long can we tolerate a situation where our Government is impeded in its working to such an extent that it will have consequences for our economic and social prosperity. 

 

Sensible recomm endations for reform of the Federal Parliament’s powers include:

 

The 1956-59 Joint Committee recommended that the trade and commerce power, contained in section 51(1), should be amended to expressly provide the Federal Parliament with the power:

(a)  to e stablish a marketing authority for primary products [46] ; and

(b)  to make laws with respect to consumer credit [47] .

 

The 1988 Constitutional Commission also recommended that Parliament’s powers to make laws with respect to trade and commerce should be exte nded by deleting “with other countries, or among the States” [48] .

 

The latter of these recommendations is particularly important.  It is an absurdity that in a nation of 19 million people, we have 8 different sets of commercial and business law.  This is grossly inefficient even though the various State and Territory laws have much in common.

 

Postal Telegraphic Telephonic and Other Like Services

 

The limitations of this power recently came to light in respect to the Government’s Electronic Transactions Bill 1999 .  The Federal Government’s advice was that it was unable to legislate comprehensively because of limitations with this power.  Instead, the Commonwealth will rely on a national legislative scheme that is yet to take shape.

 

Showing some foresight, the 1956-59 Joint Committee recommended that Federal Parliament be provided with an express power to make laws with respect to broadcasting, television and other services which involve the communication, transmission or reception of signs, writing, signals, images, sounds or energy by means of electromagnetic systems [49] .  A similar recommendation was made by the 1973-85 Constitutional Convention [50] .

 

The 1988 Constitutional Commission took a broader approach and recommended that the Constitution provide the Federal Parliament with the express power to make law with respect to any means of communication [51] .

 

Copyrights, Patents and Trademarks

 

The 1973-85 Constitutional Convention recommended that placitum 51(xviii) be expanded to expressly include modern developments in property rights over broadcast material and also industrial designs, protection of services, marks and rights of breeders of plants [52] .

 

While no constitutional impediments have been raised in respect to the Government’s Copyright (Digital Agenda) Bill 1999, which will be debated in the House later in the year, that Bill includes provisions relating to the retransmissions of broadcast material.  It will be in no-ones interests for the detailed scheme that is proposed in the legislation to subsequently be set aside on the basis of a constitutional challenge.

 

The 1988 Constitutional Commission similarly recommended updating placitum 51(xviii) to specifically provide the Federal Parliament with the power to make laws with respect to trademarks and other like protection for the products of intellectual activity in industry, science, literature and the arts [53] .

 

The issue of gene technology is, of course, one of considerable controversy and, whatever view one has of the development of that technology no one could sensibly argue that it is inappropriate for Federal Parliament to have the constitutional power to regulate the area.

 

The Corporations Power

 

Limitations of the corporations power were one element of the problem in the re Wakim decisions and frequently we see legislation based on the corporations power extending to some trading entities usually defined as “constitutional corporations but not, for instance, applying to other business entities such as sole traders or partnerships.  The application of the unfair dismissal provisions in the Workplace Relations Act 1997 are but one example.

 

Again, as early as 45 years ago the 1956-59 Joint Committee recommended that Parliament be provided with a broader express power to make laws with respect to corporations [54]

 

Similarly, the 1988 Constitutional Commission recommended that Parliament be provided with express power to make laws with respect to incorporation, organisation and administration of corporations [55] .  Further, the Commission recommended that Parliament be given the power to make laws with respect to financial, investment and other like markets and services.

 

Divorce and Matrimonial Causes

 

Section 51(xxii) gives the Federal Parliament the power to make laws in respect to divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.  As a result of the cross vesting legislation the limitations of this power has not, to date, proved a substantial difficulty because the Family Court of Australia, being a federal court which has also been vested with State jurisdiction.

 

The re Wakim decisions now casts considerable doubt over the Family Court exercising State jurisdiction in respect to, for instance, de facto couples and their off spring which has the potential to not only cause great inefficiencies in our system but the potential for children of those couples to suffer in the confusion.

 

It is noteworthy that the 1988 Constitutional Commission, in that context, recommended that placitum 51(xxii) be replaced to provide the Federal Parliament with power to make laws with respect to divorce and matrimonial causes, property and financial rights between de facto couples, adoption, legitimacy and determination of parentage, custody and guardianship of children, parental rights and maintenance of children [56] .

 

Service and Execution of Court Documents Throughout Australia and Conflict of Laws

 

Section 51(xxiv) gives the Federal Parliament power in respect to “the service and execution throughout the Commonwealth of the civil and criminal process and the judgements of the Courts of the States".

 

Legal practitioners frequently confront problems regarding conflict of jurisdictions.  Indeed, I recall from my university days that it was probably the most complex subject which I studied.  It is an area crying out for legislative codification.

 

In that context, the 1988 Constitutional Commission recommended that Parliament be provided with express power to make laws with respect to principles of choice of law [57] .

 

The Industrial Relations Power

 

One of the most litigated sections of the Constitution is section 51(xxxv) which gives the Federal Parliament the power to make laws for “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits for any one state” [58] .

 

Indeed, at this time, there is currently a case before the High Court of Australia which has been bought by the CFMEU challenging among other sections section 89A of the Workplace Relations Act 1997 and the related transitional provisions, which have stripped industrial awards back to 20 core provisions.  Whatever views one may have of the morality or otherwise of those provisions, it is not in the interests of any participants in industrial relations for there to be constitutional uncertainty surrounding the Federal Parliament's power.

 

Practitioners in this area would appreciate that the complications with creating an industrial dispute were so extensive that submission to the jurisdiction of the Australian Industrial Relations Commission has virtually become a matter of consent.  Unless a party agrees to the finding of an industrial dispute there are innumerable points of contention which can be taken regarding the formulation of logs of claims, the service of logs of claim, and the authorisation of logs of claim.

 

In that context, as early as 1956 the Joint Committee recommended that Parliament be provided with a broader express power to make laws with respect to “terms and conditions of industrial employment” [59] .  The 1988 Constitutional Commission recommended that placitum 51(xxxv) be repealed and replaced with the broad power of “industrial relations”.  Whether that term is replaced with the phrase recently adopted by the current Government of “Workplace Relations” is a matter of debate however, in any event, the recommendation would be equally as powerful.

 

Bill of Rights

 

The 1988 referenda show the difficulty of incorporating even limited rights into our Constitution.  Notwithstanding those referenda, the desire of Australians to see their fundamental rights set out in the Constitution continues to be an issue of interest and debate.

 

However, in my view, it would be better to establish a legislative Bill or Charter of Rights as a first step towards constitutional incorporation.  Australia is the only major western nation that does not have a constitutional or legislative charter of rights.  For a nation that once led the world in democratic reform this is a strange turn of events.

 

Traditionally the argument against such Charters has been that they er ode the supremacy of Parliament and that it is the Parliament that has been the protector of our rights.  Given the level of distrust of politicians manifest at the recent referenda I do not think that the Australian people share that view.

 

In any event, the Blair Government's Charter of Rights demonstrates that it is possible to construct a proposal that seeks to respect the rights of the citizen whilst retaining parliamentary supremacy.

 

I think Australians across the political divide will accept a constitutional Bill or Charter of Rights if they see a legislative charter working for them.

 

It is fair to say that until recently there has been some antipathy among conservatives to the recognition of these rights.  The present Government's cuts to the Human Rights and Equal Opportunity Commission and legal aid and its approach to reform of discrimination complaint handling mechanisms is evidence of that.

 

However, I believe that this is starting to change.

 

The Human Rights and Equal Opportunity Commission's Bush Talks program has underlined how a notion of fundamental human rights is essential to the maintenance of basic service delivery to rural and regional areas.  As a result, Australians who previously saw human rights as giving trendy minorities 'special' rights are now beginning to see that the right to reasonable standards of health, housing and education are a meaningful way to retain or restore the services they need.

 

Participation in Referenda

 

My colleague, Bob McMullan has also raised in recent days the need for section 128 to be amended to reflect the distinct interests of Australians living in the ACT and the Northern Territory.

 

Currently, section 128 only counts the people of the Territories for the purpose of determining whether a majority of Australians support a constitutional amendment.  Their votes do not count in determining whether the majority of voters in a majority of States support the proposal.

 

I know that this was galling to many Australians living in the Territories as they legitimately asked why their vote should be less worthy than that of Australians living in the States.

 

As the recent referenda show, the political interests of the people of the ACT are not necessarily the same as other Australians.  In the Republic referendum over 63 percent of Australians resident in the ACT voted YES.  This was approximately 17 percent higher than the national average.

 

The interests of the people of the Northern Territory will probably be resolved when the Northern Territory is admitted as our seventh State.  However, constitutionally that is not an option for the people of the ACT.  Section 125 of the Constitution provides that the seat of Government must be located in a territory controlled by the Commonwealth.

 

Recognising the genuine and legitimate democratic interests of the people of the Territories is essential to the continuing health of our polity.

 

Australians showed in 1977 that they were prepared to give some recognition to these aspirations.  Prior to the successful amendment made to the Constitution in that year, the people of the Territories had no say in referenda at all.

 

The people of the Territories have a combined population larger than Tasmania.  The ACT's economy is larger than Tasmania's.

 

Australians living in the ACT and the Northern Territory have legitimate political expectations that I am confident, and given the opportunity, fair minded Australians will not ignore.

 

 

CONCLUSION

 

There are many other issues of constitutional reform that I could discuss.  And I want to put it on the public record that the views that I have expressed today are my personal views and not necessarily official Labor Party policy.

 

What I have sought to show is that there is a real national interest in debate in Australia about constitutional reform.  Regrettably, while the manifest distrust of politicians persists, it will be difficult for the likes of me to pursue this agenda.

 

But, as events such as Australia Deliberates show, when Australians are given the opportunity to engage in constitutional debate they do show an interest and are keen to follow the outcome through.

 

It is in the national interest that we educate Australians about our Constitution.  Ignorance is fertile ground for campaigns of fear and confusion.  Perhaps the greatest indictment of successive Governments, which have failed to address this issue, was the apparently successful call of the "no" campaigners" to voters that "if you don't know vote No".

 

I firmly believe, however, that the lack of civic knowledge is a matter that affects all of us and we all have the capacity to do something.  As parents we can inquire of the effort being made in our children's schools to educate and enthuse the next generation about these matters which will be of vital importance to their future in a rapidly changing world.

 

The legal profession has a special responsibility not only to their clients but to the community as a whole to continually point out and voice their concern about the inefficiencies and illogicalities that arise from many areas of our Constitution, which are rapidly becoming inadequate to manage modern political, social and economic necessities.

 

It is also in the national interest for us to re-engage our citizenry in the political process.  Modernising our Constitution is a necessary part of that wider objective.  As the involvement of citizens in the process of change through peoples conventions and where necessary by consultation through indicative plebiscites.

 

None of my analysis assumes that if we had a more knowledgable and engaged people that the result of last Saturday's referendum would have been any different.  Many Australians of good conscience and for their own reasons rejected that proposal.

 

However, we should all be concerned if a fear of, or lack of interest in, change is the primary motivator and not a genuine rejection of the change proposed.

 

I hope Australians will take up this challenge to reinvigorate our polity.  It is in our national interest that this takes place in the years to come.  I will certainly be encouraging all Australians and working alongside them to see that it is done.

 

 

[1] A section 128 referendum is actually a proposed law passed by the Parliament which is subject to approval by the citizens of Australia.  If approved the proposed law goes straight to the Governor-General for assent without any reference back to Parliament.

[2] L F Crisp, Australian National Government, Longman Cheshire, Melbourne, 5 th Edition 1983, p51.

[3] Colin Howard, Australia’s Constitution, Penguin, Ringwood, Rev. Ed, 1985, p135.

[4] The Republic Referendum:  A Democratic Elite Perspective, prepared for Robert McClelland, Shadow Attorney General by Rhonda L Evans-Case, Australian National Internships Program, 2 nd August 1999.

[5] Ibid p1

[6] Mackay Report “Mind and Mood” June 1998.  It is regrettable that this mind was inflamed and exploited during the referendum campaign.

[7] Interview with Rod Cameron of ANOP, ABC’s AM program, Monday 8 th November 1999.

[8] Mark McKenna the Captive Republic:  A History of Republicanism in Australia 1978-1996 (New York City: Cambridge University Press, 1996) at p235.

[9] Evans Case, p21.

[10] Campell Sharman.  “Changing the Constitution:  The Politics of Government Self Interest” in Canberra Bulletin of Public Administration, No. 55 June 1988 11-15, p11.

[11] Paul Harris.  “Democracy and Referendums” in Allan Simpson (Ed). 1992 Referendums:  Constitutional and Political Perspectives (Occasional Publications No. 5 Department of Politics, University of Wellington), p58.

[12] Report of the Civics Expert Group.  1994, Whereas the People, Civics and Citizenship Education (Canberra:  Australian Government Publishing Service), p133.

[13] Referendum Public Education Research, Referendum Taskforce, Department of the Prime Minister and Cabinet, May 1999.

[14] Ibid at p133.

[15] 1973-85 Constitutional Convention 1975: p174, resolution 15: 1976 p206, resolution 12.

[16] 1988 Constitutional Commission: pp191-194, Paras 4.326-4.344.

[17] 1956-59 Joint Committee on Constitutional Review 1956-59: p19 Paras 124-127.

1973-85 Constitutional Convention: p174, resolution 15: 1976: p206, resolution 12

1988 Constitutional Commission p176-199, paras 4.250 and 4.325.

[18] 1988 Constitutional Commission: pp357-363, paras 5.222-5.242.

[19] 1973-85 Constitutional Convention, 1975: p175 resolution 15: 1976: p207, resolution 12, 1988: pp831-834, paras 11.296-11.316.

[20] 1973-85 Constitutional Convention, 1975: p175, resolution 15; 1976: p207, resolution 12.

1988 Constitutional Commission p845, paras 11.373-11.374.

[21] 1988 Constitutional Commission, 1988: p845 paras 11.373-11.374.

[22] 1973-85 Constitutional Convention, 1975: p175, resolution 15; 1976: p207, resolution 12.

1988 Constitutional Commission p845, paras 11.373-11.374.

[23] 1973-85 Constitutional Convention p175, resolution 15; 1976: p207, resolution 12

1988 Constitutional Commission p845, paras 11.373-11.374.

[24] 1973-85 Constitutional Convention, 1975: p175, resolution 15; 1976: p208.

[25] 1988: pp340-346 paras 5.144-5.173.

[26] 1973-1985 Constitutional Convention, 1975: p174, resolution 15; 1976; p206, resolution 12.

[27] 1988 Constitutional Commission pp243-247, paras 4.591-4.611.

[28] 1988 Constitutional Commission: pp82 and 83 paras 2.167-2.172.

[29] 1973-85 Constitutional Convention pp173 and 175, resolutions 14 and 15; 1976 pp205 and 207, resolution 11 and 12: 1983: p295, resolution 5(a).

1988 Constitutional Commission: pp82-83 paras 2.167-2.172.

[30] 1988 Constitutional Commission pp82-83, paras 2.167-2.172.

[31] 1988 Constitutional Commission: pp316-337, paras 5.30-5.127.

[32] 1988 Constitutional Commission: pp346-350, paras 5.174-5.191.

[33] 1973-85 Constitutional Convention p175 resolution 15; 1976 p208, resolution 12.

[34] 1973-85 Constitutional Convention p177, resolution 20, 1976: p209 resolution 19.

[35] Third paragraph of clause 4 of Schedule 2, Constitution Alteration (Establishment of Republic) 1999 .

[36] 1988 Constitutional Commission pp79-80 paras 2.150-2.156.

[37] 1988 Constitutional Commission: pp155 and 157, paras 4.146-4.159.

[38] 1988 Constitutional Commission: pp707-713, paras 10.352-10.380.

[39] Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998)

[40] Re: Wakim ex parte McNally, Re: Wakim: ex parte Darvall, Re: Brown; ex parte

Amman and Spinks v Prentice , (1991) 163 ALR 270

[41] J urisdiction of Courts (Cross Vesting) Act 1987 and the various States and Northern Territory Cross Vesting Acts.

[42] See for example part 8, division 3 of the NSW Corporations Act .

[43] 1988 Constitutional Commission p371-373, paras 6.29-6.39.

[44] 1988 Constitutional Commission: pp389-390, paras 6.115-6.123.

[45] “The demise of cross vesting” 27 Federal Law Review 1.

[46] Joint Committee 1959: pp120-133, paras 873-978.

[47] Joint Committee 1959 pp145-148, paras 1088-1116.

[48] 1988 Constitutional Commission: pp775-789 paras 11.11-11.86.  Section 101 would require a consequential amendment (1988) pp838-845, paras 11.337-11.372.

[49] Joint Committee 1959 pp81-86, paras 586-624.

[50] 1973-1985 Constitutional Convention, 1975 p176, resolution 16: 1976: p208, resolution 14.

[51] 1988 Constitutional Commission pp650-656, paras 1050-1080.

[52] 1973-1985 Constitutional Convention, 1975 p176 resolution 17; 1976: p208, resolution 15.

[53] 1988 Constitutional Commission: pp666-669 paras 10.140-10.153.

[54] Joint Committee 1959: pp108-112, paras 784-823.

[55] 1988 Constitutional Commission -: pp789-794 paras 11.87-11.118.

[56] 1988 Constitutional Commission pp669-690, paras 10.154-10.250.

[57] 1998 Constitutional Commission pp702-707, paras 10.326-10.351.

[58] An excellent text on the subject is George Williams, Labour Law & The Constitution , Federation Press, 1998.

[59] Joint Committee 1959: pp86-106 paras 625-783.

 

 

 

ROBERT McCLELLAND MP

Shadow Attorney-General

 

13 November 1999

 

 

 

jy  1999-11-16  17:11