Kirby On the Rigidity of the Constitution

From a recent Michael Kirby speech [pdf]:

For example, our Constitution is too rigid. It is one of the most difficult in the world to amend. This feature of Australian legal arrangements can sometimes protect us from the risk of mistakes, as in the Communism referendum of 1951. But the rigidity also helps produce a national constitutional lethargy that despairs of needed alterations and of fresh thinking about our basic governance.

This doesn’t survive empirical scrutiny.

This is a bar graph of the referendums and the % of states voting for it, as well as the percent of population. A larger version of this graph can also be viewed.

For an Australian referendum to pass it requires an absolute majority in both houses of parliament, a majority of electors and a majority of states. The Communist referendum that Kirby mentioned did not get a majority of electors (49.44%) or states (50%), so would not have passed under a system that only required a majority of electors. Menzies illiberalism was not saved by the constitution in this instance.

A few referendums got more than 50% of the elector’s vote but not a majority of states, such as three of the 1946 referendums on social services, marketing and industrial employment; but this was after having been rejected constantly in prior referendums.

With Australia having a small number of states this makes any alteration of the constitution require a massive majority, and those that have passed, have done so overwhelmingly. For instance the retirement of judges passed in all states and with 80% of the electors vote.

In reality though, we can say that the requirement for the majority of states is not necessary. The outcomes are pretty much the same. I suspect it was introduced as part of the ‘federal’ character of the system, where the majority of electors was the ‘national’ character of the system – but either way it does not make enough of a difference to warrant its inclusion.

So why is the Australian Constitution difficult to change?

It isn’t really, but then, why have so many referendums failed? The problem is the quality of the referendums. If you categorise them into Democracy, Centralisation (increasing the power of Canberra), Illiberalism and Other (Republic and preamble), then you get a graph like this:

Notice the overwhelming number of referendums to centralise and how few passed. Voters have been rejecting centralisation. Most of the referendums to increase the power of the national government stopped in 1948, by this time the federal government was able to expand their power without the need to go to referendum.

This was mainly through having the power of income tax, which was gained in the emergency of WWII, and the increasingly national-minded, as opposed to federal-minded, High Court which has been a supporter of centralisation. A good example is Workchoices. There have been three failed referendums to gain Industrial Relations as a National Government responsibility. Workchoices achieved that power without having to go to referendum through a High Court decision.

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30 Responses to Kirby On the Rigidity of the Constitution

  1. Jacques Chester says:

    An illuminating take on things, Cam, but flawed because you took Kirby seriously. The man writes well but is as slippery as an eel in the rush to achieve his trendoid lefty goals.

    More generally, the turning points towards centralisation are 4-fold, High Court-wise:

    1. The Engineers Case
    2. Uniform Tax Case 1 & 2
    3. The Tasmanian Dam Case

    and now

    4. The WorkChoices Case

    The general pattern has been for the High Court to expand the powers of the Commonwealth by either giving it more practical power (ie the power to tax income) or more legal power by reading various bits of s 51 as wiiiiiiiiiiiidely as possible.

    All of which suggests to me that we replace could Australia’s coal fired power plants if we just hooked dynamos up to the corpses of the first High Court justices.

  2. cam says:

    Jacques, I thought the same about the constitution until Felix questioned it. The expansion of the federal government hasn’t been a left or right thing, it has been consensual from all parties. Kirby is spot on with comment:

    In recent decades, the substantial loss of real power from Parliament to the Executive and from the Executive to the Head of Government has become clear. In many ways, our Constitution no longer truly describes our system of government, as it is practised.

    We do not have a lively national discussion about new checks and balances in the Constitution. … Another, connected with the lack of genuine constitutional debate, concerns the common disrespect for federalism in Australia. Yet the federal system of government can often be a wise system, specially suited to features of the modern age.

  3. Ken Parish says:

    So why is the Australian Constitution difficult to change? It isn

  4. Jacques Chester says:

    The expansion of the federal government hasn

  5. cam says:

    Ken, If you look at the democracy category there is still under a 50% success rate. That is much higher than the overall numbers though. There are instances of bundling through the referendums were unpalatable ones were put with democratic ones. The four years for the Senate and House in the 1988 bunch are of that style. Arguably the preamble referendum and how it was conducted contributed to the distaste for the final republican model.

  6. IMHO Cam is right that it’s not that hard to change the constitution in a technical sense – much easier for instance than getting a 2/3 majority in one or both houses. And I was pleased to see Ken saying what I would have said. The Australian people are an apathetic and conservative bunch and if a major party opposes a change then it’s doomed at a referendum.

    Question: Can anyone find any occasion where the ALP acted as outrageously as the Coalition did in 1988 in opposing perfectly reasonable referendum proposals (I presume) to get some jollies as an Opposition)?

  7. Ken Parish says:

    “There are instances of bundling through the referendums were unpalatable ones were put with democratic ones. The four years for the Senate and House in the 1988 bunch are of that style.”

    You’re correct in the sense that the 4 year term proposal included reducing the Senate’s term from 6 years to 4 as well as increasing the Reps maximum term to the same length, as well as providing for simultaenous elections. Moreover, referenda for simultaeneous elections had been put and rejected 3 times previously, in 1974, 1977 and 1984 (though achieving an overall majority in both 1977 and 1984 – the overall majority ion the 1977 referendum proposed under the Fraser government was 62%, but all 3 smaller State voted decisively against it). The problem is that increasing the Reps term and not changing that of the Senate (whether to 4 years or eight) negates several of the more compelling reasons for a longer Reps term, in that it would make it virtually impossible to hold Reps and Senate elections at the same time. Moreover an 8 year Senate term is rather anti-democratic due to its excessive length.

    Thus the 1988 proposal for 4 year terms for both Houses seems eminently sensible, although it would no doubt have been wiser not to link it with a simultaneous elections requirement in view of that question’s history of failure in the smaller States. Given that there is a powerful political, practical and financial imperative in favour of keeping Reps and Senate elections simultaneous other than in very exceptional circumstances in any event, it would have been more prudent to rely on those imperatives rather than attempting constitutional entrenchment of the simultaneous requirement. It’s an example of reform over-reach albeit understandable. Moreover, given the Fraser government’s advocacy of simultaneous terms in the 1977 referendum, it’s difficult to ascribe any principled motives whatever to the Coalition’s opposition in 1988.

  8. gilmae says:

    Tangentially, might I suggest that some of you learned chaps go over to http://en.wikipedia.org/wiki/Referendums_in_Australia and dump some detail into the individually linked stubs on each referendum and plebiscite.

  9. gilmae says:

    In response to Nicholas’s question, the 1913 Monopolies referendum was put up by the ALP who then proceeded to oppose the 1919 Monoplies referendum put up by the Nationalists; bloody mindedness, although you could probably make the argument that since the 1919 referendum had a three-year sunset clause that the ALP was merely opposed to the Nationalist party trying to get the power for themselves and themselves only.

  10. Gilmae – my question was a genuine one so thanks for the response.

  11. Patrick says:

    On the other hand, the High Court’s willingness to be flexible in practice but largely rigid in doctrine probably vitiates much of the need for referenda.

    Also, whilst I would be the first to say that there are many things that could be done differently in Australia, and doubtlessly quite some that could be done better, our Constitution is a bit of a star.

    As I asked once before on this site, can anyone name five contemporary constitutions that have been around longer than ours (I haven’t checked recently, but I vaguely recall it being possible)? Being a pedant, I think you should exclude England, whose Constitution is apparently in limbo.

    And the mere fact that our Constitution has been around essentially unchanged for over a hundred years, and our Constitutional sub-structure for perhaps some centuries, is in my view priceless. Extremely few countries in the world can boast a better practical substantiation of basic rights, indeed for all that some people tend to fall in love with Scandinavians and their neighbours, I could be tempted to argue that no other country does this better.

  12. gilmae says:

    If you accept Kirby’s thesis that the constitution no longer describes the Federation in practice then the constitution is also in limbo.
    I lean towards agreeing with the idea because I concur Jacques that those five High Court cases subverted the intention of the constitution, skewing it towards the federal government to the detriment of the states that the founders were striving so hard to preserve.
    At the risk of sounding like a whining member of the American right, the High Court isn’t really the vehicle to be making radical changes to the nature of the federation even if it is just by rethinking what certain ambiguous passages mean or allowing the federal government to play Nomic.

  13. Patrick says:

    If you accept Kirby

  14. gilmae says:

    Perhaps. I think we mean the same thing even: if the paths taken by Australia and the UK to reach that point are different; and the degree to which either constitution is in in limbo differ.

    The UK is probably much more so since, as you say, the entire point of the constitution has been undermined and not amended. I think the point of the Australian constitution has been undermined and then replaced with the skewing from the states to the central government. Engineers started the process and the Uniform Tax Laws delivered the coup de grace by taking the inherent vertical imbalance to its logical conclusion. The Work Choices case is really just icing on the cake; every one seemed to know how it was going to pan out based on Engineers even if a lot of us sort of allowed hope to triumph over experience.

    There’s a lot of similarity between the Tasmanian Dams case and the Factortame. Both involved external entities being given an extraordinary amount of power over internal matters. The difference being that the ALP was really just using it as an excuse to do what they wanted.

  15. Ken Parish says:

    First on Australian federalism, I don’t accept the oft-stated claim that the combined effect of Engineers, Uniform Tax Cases, WorkChoices case, Tassie dams etc has been to destroy federalism as a workable organising principle for our constitutional system (although clearly the balance has been decisively altered). But that was foreseen by the more prescient Founders from the beginning e.g. Alfred Deakin with his famous “chariot wheels” remark about likely Commonwealth fiscal dominance, not to mention his suggestions that the Senate would quickly end up voting on party lines rather than being a “States’ House” in any meaningful sense.

    Despite a major power shift on favour of the Commonwealth flowing from high Court decisions over the last century, we still have a viable federation. The capacity of the Commonwealth to override the States in core areas like health, education, roads, power, water, town planning, local government etc etc as a result of the WorkChoices case has been drastically overstated by some commentators. Much of the commentary on WorkChoices has been seriously hyperbolic. Control over corporations does not give the Commonwealth anything remotely approaching a comprehensive ability to legislate in these areas in the absence of State government co-operation. Moreover, the US Supreme Court’s longstanding interpretation of the Commerce clause in its Constitution confers considerably more power on the federal level of government than the WorkChoices decision does on our Commonwealth government via expansion in the scope of the corporations power.

    Nor does its current level of control of the purse-strings confer decisive overall control on the Commonwealth. The States could constitutionally implement state-controlled income taxes, taxes on all services and (at least arguably) consumption taxes on goods whenever they wanted. No aspect of the Uniform Tax Cases or Ha’s Case prevents this. The States refrain from re-entering the broad-based taxing field because they don’t actually want to do so, nor does it make sense for them to do so as long as the Commonwealth remains generous/fair to the States in the way it distributes Grants Commission funding. Most of what we hear and read about this area is empty theatrical posturing. The ubiquitous blame-shifting does succeed in confusing many people about who is actually responsible for neglect or incompetence in particular areas of government, but politicians would shift blame and seek to confuse the voters, while most people wouldn’t bother to find out the truth, irrespective of our exact constitutional arrangements.

    Looking at fiscal relations more broadly, the entire Grants Commission/Loan Council edifice is one of the great and unique achievements of Australian federalism, and quite rightly the envy of many other countries. The same is true of the various federal intergovernmental heads-of-government structures like COAG, SCAG etc. See this article from this morning about the efficiency and huge (and mostly little-understood) benefits of Australia’s current federal system. We should be celebrating Australia’s phenomenally successful federal system, not exhibiting an unjustified constitutional cringe about its imagined inadequacies, which are far less than the defects in the system of just about every other country I know.

    As for the Factortame case, in one sense it merely takes the UK to a similar position to that of the Australian Constitution, whereby the highest court adjudicates the boundaries of constitutional power instead of parliament being legislatively sovereign/supreme in a Diceyan sense. However, the critical difference is that the HoL (following the ECJ) has elevated the laws and parliament of a (mostly) foreign confederation, of which the UK is merely a constituent part, to supremacy over the laws of the British Parliament, despite the fact thast UK citizens have never knowingly voted to subordinate their sovereignty to the EU. I can’t imagine this being tolerated in either Australia or the US, but for whatever reason it doesn’t seem to have become a major political issue in Britain. It’s as decisive a constitutional change as that effected by the Revolution, Bill of Rights 1688 etc, and achieved not only without bloodshed but without most Poms even clearly being aware that it’s even occurred. In effect, Britain is now in large measure just a State in a European super-federation, but with very few of the federal checks and balances deliberately built into Australia’s Constitution to protect our own States from overweening Commonwealth power.

  16. Ken Parish says:

    “There

  17. gilmae says:

    The decision whether to domestically enact a treaty remains entirely that of an Australian polity

    Hence my qualification, which probably could have been worded better: “The difference being the Australian government gets to pick and chose when it fulfills the bete noir of the Right and allow foreigners to tell us what to do.”

    I just thought it was interestingly similar, albeit in a superficial manner.

  18. Paul says:

    Only ONE House Of Parliament needs pass a Constitutional Amendment Bill for it to get on the ballot paper. See the section below.

    BTW, be fun to watch whichever House of Parliament arguing this with the High Court.

    =====================================================
    COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 128
    Mode of altering the Constitution [see Note 1]

    This Constitution shall not be altered except in the following manner:

    The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

    But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first

  19. Ken Parish says:

    Paul

    Your conclusion needs qualification because it ignores the role of conventions in our constitutional system. Section 128 is not generally regarded as a source of any of the G-G’s reserve powers. That being so, the words “the Governor

  20. Paul says:

    Where in the Constitution is the word “convention” ?

    Conventions are whatever the High Court decides they are when it refers to them as it talks about our constitutional system.

    Was not suggesting Section 128 was source of any of the G-G

  21. Patrick says:

    Conventions are the point of our Constitution and the reason for its stability. Our Constitution is frankly close to as good as it gets, but if you wacked it on say, Iraq or East Timor, it wouldn’t work.

    It works because, as I alluded to above, it is built on a few centuries of accumulated political and legal tradition.

    Conventions are not so much written into our Constitution as the rock upon which it is built.

    Also, I agree with KP that Factortame and Tassie Dams are not the same. Not at all.

  22. Mike Pepperday says:

    Paul, you will find

  23. Patrick says:

    Er, kinda back to the issue…
    I have no idea, I confess, what Paul’s s 128 comments are getting at.

    But more to the point! The basic point is that our Constitution, in the sense which Paul seems to be using the word, is largely unwritten. The words in the written document wouldn’t mean anything if not backed by the centuries of shared experience that gives them meaning and practical application.

    This is self-evident – but for an illustration, consider the respective two clauses:

    Pretty similar, huh? But actually radically different – one is in the Constitution of the United States of America, and the other is in ours. We copied theirs – but it didn’t pan out the same way at all.

    To say that the Constitution has been ‘distorted’ by the High Court appears to me a pretty difficult claim. Perhaps Engineer’s was a distortion, (there are some suggestions that Dixon, who I believe was a junior counsel in the losing side, seemed to think so).

    But we don’t have anything as egregious as, eg, Roe v Wade. We really only have a written document supposed to delineate the arbitrable boundaries of power between the various entities in our federation (it is after all federation that necessitates a written Constitution), which the Judges on the High Court (and sometimes the Federal Court) must apply to given cases as best they may. The ‘rest’ of our Constitution, the actual operation of the governmental entities, is largely unwritten, or if you prefer, political.

    So there is no sense in describing, eg, Cabinet, as illegitimate. Cabinet works as it always has (which is to say, flexibly). It doesn’t affect our federal balance. So it is not written. But it is not for as much misunderstood.

  24. Ken Parish says:

    I agree Patrick. BTW I’d be interested in your own assessment of the state of federal balance/health of the federation in the wake of WorkChoices.

    As for the several bizarre comments above, Schorel-Hlavka is a serial loopy who often turns up and posts obsessive-compulsive, repetitive and incoherently. He is best ignored. I haven’t struck this Paul before. He seems to be a horse of a similar colour, though somewhat less extreme. I’ll start deleting their comments if they persist in this thread, because they add nothing to intelligible discussion and may serve to confuse readers who don’t have enough legal understanding to know whether what they’re saying is complete nonsense (it is).

  25. Ken Parish says:

    Actually I DID delete Schorel-Hlavka’s 2 comments but I’ve left Paul’s ones there because they’re not quite as radically silly.

  26. gilmae says:

    I suspect that a proposition that is openly-, vociferously- and widely-supported enough by the people of Australia to persuade the Prime Minister to advise the Governor-General to place it on the ballot in such a situation would have passed the House anyway on the grounds of wanting to get re-elected.

  27. Patrick says:

    Re Workchoices, I frankly haven’t read any very recent Constitutional decisions with the kind of attention necessary to make very serious comments.

    From a high level, though, I think it was an unfortunate case. I think this, not because I didn’t think the legislation was constitutional – there was not really that much doubt about that (well, there was near-unanimity at roadtosurfdom that it wasn’t, but Tim Dunlop’s bizarre commenters aside I never actually met or heard of a constitutional lawyer who didn’t think it would go through). I think it was an unfortunate case because I think it did slightly alter the federal balance in two ways, as I attempt to explain below.

    It was constitutional because, basically, there was no good enough reason why it wouldn’t be, and the default answer is: ‘constitutional’. But I think that the mere fact of having it litigated has still shifted the real (political) balance of power to the Commonwealth (although less than the simple fact of the Commonwealth actually asserting that power in the first place).

    One way of explaining this, as I see it, is as follows:

    To explain, as I see it, the effect of having it litigated, imagine that the areas of State and Commonwealth responsibility are shown on a map. The clearly legally-delineated areas are marked in say black (State) and white (White). Inbetween each black and white area is a grey zone representing a political, negotiable space of essentially shared potential power. The nature of our Constitution is that almost every border has a reasonably large grey area – even in areas where the Commonwealth does legislate the States often could still legislate. Completely white areas such as copyright are rare.

    The space that workchoices covers was one of the larger grey areas, although the referral of powers had made it much paler grey (reflecting the effective reduction in State ‘bargaining power’ with respect to corporations legislation). But now, a swathe of what was that grey space is now clearly white (ie the States cannot effectively even threaten to wield power in this area and a large swathe of what was probably darkish grey (that is to say an area in which the States exercised practical authority with minimal Commonwealth influence) is now quite pale (ie the contrary now applies, and the Commonwealth exercises considerable practical authority).

    Probably not very clear!

    But in summary, I think it slightly tilts our federal balance to the Commonwealth and slightly reduces the ‘political’ (or negotiatable) borders of our federal space. The first is possibly negative, possibly positive, depending on your perspective. The second, I think, is clearly negative.

    Since the States were the ones pushing the issue, and it wasn’t legally that unclear, I think it is an unfortunate case where a public relations stunt has altered our federal balance in a way that on the whole I think is negative.

  28. cam says:

    Mike, BTW, when I look at the bar graph, Cam, it only adds to 41. It should be 44, I think.

    IIRC I left out the plebiscites.

    cam

  29. Bazza says:

    Not being trained in such matters, I can’t say much about the technicalities but I can offer a mug voter’s perspective on why so many referendums fail.

    I simply don’t trust the buggers. As far as I can see, no government ever goes to a referendum unless it can see a political payoff for itself.

    Repeated referendum losses, I suspect, are down to that one simple fact – our political masters have lied to us so long and so loudly that we no longer believe anything they say. We ordinary punters simply assume that whatever proposition they put up will include some sort of political sting in the tail, and applying the precautionary principle, we vote it down.

    And generally speaking, I reckon we’ve done a pretty good job so far…

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