Reflection depicts a portrait of long ago

By Helen Irving
The Australian, 11 April 2001

WHAT do we see when we look in our constitutional mirror? Is it a familiar face, one we know well and have known for many years? A reflection that speaks to us of a long but useful lifetime, its features clear and instantly recognisable? Or do we stare at it and find only something bewildering, like the face of a friend from the distant past whose details are so altered with age that we have trouble being certain it is really the same person?

The centenary of Federation is surely the right time to ask such questions, a suitable moment to clear away the dust and have a peep. Perhaps we will like the old face; perhaps we won't care one way or another. But, 100 years after the Constitution started functioning, we owe it to ourselves to look long, even hard. The mirror is not yet cracked and the silver is not yet beyond repair but we may be surprised – indeed dismayed – at what we find, or fail to find, looking back at us.

Once upon a time, Australians looked in the mirror and saw themselves as the fairest of all. By 1901, after almost five decades of imagining a constitution and 10 years of building one, they were exhilarated. In the words of South Australian premier Charles Kingston – an uncompromising radical democrat – it was "the most magnificent Constitution into which the chosen representatives of a free and enlightened people have ever breathed the life of popular sentiment and national hope". As they celebrated the inauguration of the commonwealth, those same free and enlightened people agreed, finding it a sublime and glorious instrument, a charter of democratic citizenship, a beacon for the future of world democracy. I am speaking of the Constitution that we have inherited – almost unchanged – from that time.

The same Constitution we now believe to be so dull and pedestrian that many find alien and some regard as democratically, even morally, deficient. Certainly – like every other functioning federal constitution in the world – it contains many mundane, businesslike provisions. Certainly in its style it is very different from what we might write today. But there is no historical evidence that it was the product of a deliberate strategy on the part of any particular interest group. The Constitution was written in response to a wide range of interests and wishes. People knew and understood the debates, and when they looked at the completed product they saw in it almost nothing that they did not recognise. This is not the case today. The Constitution is probably unintelligible to most Australians.

There are a number of substantive reasons for this shift in understanding. At the time it was written, certain sections in the Constitution were intended to be purely transitional, operating only during the first couple of years or so of the commonwealth.

Second, Australia's relations with Britain have undergone many changes since 1901, and a range of sections that refer to the old imperial ties are no longer operative.

Third, the institutions created and authorised by the Constitution are described in confusing and even misleading ways. What they do say depends upon a body of unwritten conventions and lies largely between the lines.

Fourth, many of the issues of the 19th century are not the issues of today. The Constitution, among other things, distributes powers to make laws between the levels of government. It gives the commonwealth powers over national matters and, in theory at least, leaves the rest to state parliaments. What was thought of as national 100 years ago may not be what we think of as national today, and vice versa.

In addition to all this – not a flaw in the Constitution as such, but a difficulty in the context – we are surrounded by American movies and courtroom dramas that reinforce the idea that constitutions are declarations of great and passionate sentiment or that they contain, necessarily, a fifth amendment. Even otherwise educated commentators confuse the US constitution with the Declaration of Independence, or the 14 amendments that make up the Bill of Rights with the whole constitution. They conclude that Australia's is not a real constitution and that the means of rectifying this deficiency is simply to put in references to values or rights.

Genuine and merited as was the sentiment surrounding the Constitution's birth in 1901, we cannot restore our faith in it merely by telling and retelling the historical story. Understanding the story is important – it saves us from making absurd claims or reinventing the wheel – but understanding the Constitution is more important.

What is to be done? First, the easy part: remove the detritus, those transitional sections that, without controversy, have no further currency in anyone's eyes. Send them to a constitutional elephants' graveyard. Who, for example, would seriously cling to section 88, which tells us: "Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth"?

Then move to the deadwood, those sections that were once living but are now obsolete because changes have taken place in Australia's constitutional relations with Britain during the 20th century.

The next step is to identify those sections that should be rewritten or new sections that should be included to give an accurate description of our fundamental democratic practices. These practices are neither temporary nor obsolete. They are indeed the core of our constitutional framework for a democratic polity and, as such, they should be stated clearly, not merely inferred.

I do not deny that our Constitution has worked and continues to work well. It is a restrained, minimalist document and much of what it does say is still a functioning description of our practices.

But even its staunchest defenders would have to admit that the Constitution often works well because what it says is ignored.

It may be difficult and would certainly take time to get things right, but why should we prefer a constitution that says in places the opposite of what it means, in preference to a constitution that strives for accuracy?

In 1897, the Federal Convention received many petitions from individuals and groups, asking for particular things to be included in the Constitution. Some of these requests were met. For example, the reference to Almighty God in the preamble, and a provision for individual states to control the sale or consumption of imported alcohol, ended up in the Constitution. A good number of other requests were rejected.

In our imaginary exercise of writing the Constitution in 2001, we will have to make similar decisions. A bill of rights and a statement of national values will certainly be high on the list of requests and many petitioners will support them. If I were a member of our imaginary federal convention, I would rise to my feet to argue the negative case.

A bill of rights, if entrenched in the Constitution, attempts to set down as eternal and unchangeable what is, in fact, constantly evolving. The framers of Australia's Constitution are often taken to task for failing to protect rights. But what might they have included?

What – other than our confidence that we are right where others were wrong – makes us entitled to entrench our own view of rights?

It is all very well to propose such changes, but how will we achieve them? Most Australians know that most referendums have failed. Only eight out of 44 questions have got through the net. People support referendums only when they can see some point in the proposed change.

So, what am I saying? That the Constitution needs changing, that it needs a total rethink. But is my conclusion no more than that we need a practical, plain-words Constitution, with the deadwood cut out, with our democratic institutions and practices stated in an intelligible way, and with the national sorted out from the regional and powers distributed accordingly? This would certainly be an improvement on a constitution that is both uninspiring and unintelligible. But for many there will remain something inherently unsatisfying – even empty – in a purely functional constitution.

A constitution, as Edmund Barton said, is not a dog licence. It is not a simple act or ordinance that states bluntly what has to be done and whether someone can or cannot do it. At the same time, it is not a desideratum. It cannot be a wish list or a prayer or an alternative national anthem. It has to function, not just by having a practical connection with our political and legal system, not just because it has to guide our political institutions. It also has to serve a community of diverse and evolving values.

When we look in the constitutional mirror, we do not yet find the frame empty and the reflection blank. But unless we engage with the Constitution in a manner unparalleled since its creation, unless we remove and renovate much of its content, and reaffirm what we want to retain, we will find in the future that this is the result. We shall have a constitutional identity only in our past, and our dreams of alternatives shall become surreal. The judges on the High Court will become the nation's psychoanalysts. The silver will have come away completely from the back of the mirror. Resilvering is an expensive and difficult business. Few tradesmen with this skill are still around. Let's not wait until they have passed on.

Helen Irving is director of the 1901 Centre at the University of Technology, Sydney. This is an edited version of the 10th and final Barton lecture organised by the NSW Centenary of Federation Committee, to be broadcast on Radio National on Sunday from 5pm. Full texts of all the lectures can be read at: theaustralian.com.au