Despite decades of failure, Australia’s constitution can be modernised
The following opinion piece by Vice-Chancellor and President, Distinguished Professor George Williams AO, and David Hume, was first published by the Australian Financial Review (opens in a new window) on 30 August 2024.
Most Australians were not alive the last time it was updated. This is why the nation needs to work out a way to pass referendums.
Sir Robert Menzies once described referendums as one of the labours of Hercules. In the wake of nine failed polls since 1984, some might see the challenge as more Sisyphean than Herculean.
It has been almost 50 years since Australia last approved a change to the Constitution. Most Australians were not alive the last time the nation said “yes”.
The lesson many have taken from the failure of the Voice referendum is that pursuing constitutional change is politically risky and that governments are better off focussing on issues over which they have more control. It would be unfortunate if Australians were to form the view that the path to constitutional reform was now blocked.
Giving up on constitutional reform would be a good outcome for Australia if there was broad agreement that the Constitution was fit for purpose. But many parts of the Constitution reflect the time at which it was drafted in the late 19th century – and not contemporary Australia.
If the nation were drafting a constitution today, it would be difficult to see the community wanting to include a clause like section 25, which assumes that the states can disqualify persons of a race from voting in elections. It is also difficult to see Australians agreeing to leave out any reference to important aspects of governance, such as the prime minister.
If previous generations had given up on constitutional reform, the country would still be living with a constitution that excluded Indigenous Australians from the population count and made no allowance for casual vacancies in the Senate.
Democratic deficit
The reality is that while the text remains static, it does not prevent the meaning of the Constitution from evolving. What it does mean is that the primary custodian of new meanings is the High Court of Australia, rather than the people.
Over time, while the words in the Constitution have remained frozen, the High Court has discerned implied freedoms and guarantees and has developed new and often expansive interpretations of Commonwealth powers.
The Constitution undoubtedly gives the Court the power to interpret the Constitution, and the common law tradition has always allowed for the law to adapt to changing values and community needs. But the more work that is done by the High Court, the greater the democratic deficit.
Rather than giving up on constitutional reform, the focus should be on getting the process right. The framers deliberately made constitutional reform difficult, but not impossible. Australia needs a new model for progressing constitutional reform, based on two foundations.
First, new institutions and processes are needed for generating proposals, educating the community and bringing ideas with broad popular and political support to a vote. This requires a systematic approach that moves away from the current system that incentivises misinformation and polarisation to instead favour engagement and compromise.
Second, these new institutions and processes need to be informed by the preconditions for a successful referendum. There are straightforward reasons why so many referendums have failed – and equally clear approaches that can enhance the likelihood it will pass. Referendum success should be based on four pillars: bipartisanship, popular ownership, popular education, and sound and sensible proposals.
Making reform normal
Constitutional reform needs to be normalised. Australia should set up a constitutional commission, charged with reviewing the Constitution, generating widely supported proposals for reform, consulting the public, and then recommending them to parliament.
The recommendations of the commission should feed into a regular, popular constitutional convention, convened once each decade or “half-generation”. The convention should consider the recommendations of the constitutional commission as well as proposals put to it by the federal parliament, a majority of the states or by petition of a large number of individual Australians.
The goal should be to have a process that makes bipartisan commitment and broad, well-informed popular support more likely. Nothing can guarantee political commitment, but the process can raise the political cost of any group reneging on its support.
The referendum process also needs to be modernised. Many of the rules for holding referendums can be traced back to the first referendum procedure statute, enacted in 1906. They prohibit the Commonwealth from spending money supporting a referendum, even though the vote can only go ahead where it has the considered support of parliament. The rules also fail to rule out misinformation – and unsurprisingly truth is one of the first casualties in any referendum campaign.
The lesson from the Voice referendum is not to despair at the prospects of constitutional reform. Instead, we must change the way that Australia goes about the process. If we follow a different path, we can be much more confident of getting to yes.
David Hume is a barrister and George Williams is the vice chancellor of Western Sydney University. They are the authors of People Power: How Australian Referendums are Lost and Won (UNSW Press).
ENDS
3 September 2024
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