How to make our nation better

By George Williams
The Age, 20 July 2001

Sir Gerard Brennan, a former chief justice of the High Court, has argued persuasively in a major lecture this week that the Australian constitution needs a rewrite. Unfortunately, Australia has a dismal record of constitutional reform. Only eight out of 44 referendums have passed. The many failures have been expensive, with millions spent on ballots and important opportunities lost to better reflect contemporary aspirations.

None of the eight successful referendums brought about a major revision of the constitution. It has yet to be updated to match the needs of the nation in 2001, as opposed to 1901. As a result, while the constitution provided an effective framework for the political and legal issues that faced Australia for the first 100 years of Federation, it does not provide as strong a framework for the second century.

There are many reasons why the constitution ought to be rewritten. Here are five.

1. It does not reflect how our system of government actually works. It does not mention some of the most basic elements, such as the prime minister or the cabinet. The text suggests that real political power is held by the Queen's representative, the governor-general, who is named as commander-in-chief of our armed forces and is given the power to appoint and dismiss ministers. The constitution apparently appoints the governor-general as a form of dictator, who is given the power to rule the nation according to the wishes of our overseas Queen.

2. It has failed Australia's indigenous people. They played no meaningful role in its drafting, and it cast them as outsiders to the Australian nation. When the constitution came into force in 1901, it even discriminated against them by excluding them from the taking of the census. These discriminatory provisions were deleted in 1967, but nothing was put in their place. The pattern of exclusion has yet to be replaced by even a bare recognition of the existence of indigenous people.

3. It should be rewritten to better enable governments to promote growth in our modern economy. The federal vision in the constitution is inconsistent with today's understandings of the Australian economy. The economy does not consist of discreet sectors of commerce within each state or even within Australia. We require standardised laws in many areas so that businesses are able to effectively trade in national and global markets. Companies should not be required to comply with different, and possibly conflicting, laws across the several Australian jurisdictions.

This has been recognised by state and federal governments, who have cooperated to create national regulatory regimes. Unfortunately, the High Court has found that the constitution does not always allow the creation of seamless codes of national business regulation. Unless the constitution is amended, cooperative regulation of truly national concerns may not be possible in areas such as GST price monitoring and the regulation of genetic technology and GM foods.

4. It should be amended to better protect human rights. The rights it does contain are scattered and offer little real protection. The best first step would be for parliaments to enact a bill of rights. After certain rights had operated well within an act of parliament, they could be inserted into the constitution itself.

5. The text suggests Australia is not an independent nation. It establishes the monarch of the UK as our head of state, with the governor-general as her representative. The now obsolete section 59 even grants the Queen the power to disallow any law passed by the Federal Parliament. Yet Australia is now politically and legally independent, thereby creating a symbolic conflict with the text of the constitution. If symbolism is an important value within the constitutional system, then the constitution ought to be amended to establish Australia as a republic with an Australian as our head of state.

The arguments for constitutional change are compelling, with the call for a republic being only one, arguably less important, part of the equation.

We should not wait too long to renew the process of reform in this and other areas. The price of failure may be high, but the costs of not trying are higher still.

As Gough Whitlam argued as far back as 1970: "Existing constitutional arrangements do not provide an adequate, far less an ideal, framework for the solution of contemporary problems. We are entering the future mounted on a penny-farthing bicycle."

Professor George Williams is director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales.

Email: george.williams@unsw.edu.au