Discovering original constitutional intentions

My Re-imagining Australian federalism post a couple of days ago resulted in an interesting discussion with Mike Pepperday.  Mike argued that my suggestion for tweaking federal division of powers by having the States negotiate for a more adequate assured share of Commonwealth-generated revenue by offering to refer to the Commonwealth under Constitution s 51(xxxvii) some aspects of particular State powers (e.g. control of the waters of the Murray-Darling; policy and prudential but not operational oversight of health and education) was objectionable.  I think it’s a sensible refinement of the division negotiated at the end of the nineteenth century.  It embodies a sort of corporate governance approach to public governance.  That is, the federal government acts as the Board of Directors (policy and prudential oversight); the State government exercises senior operational executive control; and local government bodies and specialist local boards make and implement decisions at the local level.

However, Mike Pepperday’s objection does not relate to whether governance arrangements revised in that way would work better, but to what he sees as a fundamental democratic principle that the suggestion offends:

I do not think we should reason that because Australians won’t pass referendums, their will should be by-passed by using those sections. The two major parties have become tight, closed, little power corporations. It is undemocratic for them to be arranging constitutional power transfers through elite bargaining.

But is this in fact a fundamental democratic principle?  And even if it is, does State referral of powers offend it?  Surely this would only be so if there was some reasonably universal principle that significant changes in public governance arrangements should only be made by popular vote, or that this was the evolved Australian political tradition/culture, or that it was what the Founders who wrote our Constitution actually intended.

On the first point, it is very common for western democratic constitutional systems to provide for constitutional amendment by ordinary legislation enacted by Parliament (rather than by popular vote).   Britain and New Zealand are examples of Westminster systems which employ that method.  Indeed all the Australian States can and do amend their own constitutions by that method (Queensland adopted a brand new constitution as recently as 2001). In federations, it is common for the constitution to provide for amendment by majority vote of the State or provincial parliaments (rather than by popular vote).  That is the case with Canada and the US.  The referral provision in Constitution s 51(xxxvii) effectively provides just such a mechanism.  It provides for the Commonwealth to have law-making power over “matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law“.

On the second point, use of the referral power is very much part of the evolved Australian political tradition/culture.  Recent examples of referral  include powers to allow the Commonwealth to enact uniform national corporations law and family law regimes and to supplement anti-terrorism laws in the wake of 9/11.

The third point is in many ways the most interesting.  Did the Founders who drafted the Constitution intend that State referral of powers be used in the way I’m suggesting?  I used the Australian Parliament’s excellent ParlInfo advanced search function to find out.((It allows easy searching of a huge range of resources, including the transcripts of Constitutional Convention debates of the 1890s and Hansard going right back to 1901. ~ KP))

I discovered that a couple of delegates to the 1897-8 Convention, notably Dr John Quick, did share similar concerns to those of Mike Pepperday, as the Convention transcript for Thursday 27 January 1898 shows:

Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention could be obviated by some such provision as that which he suggested. But this matter has struck me also from another point of view, and it seems to me that the provision affords an easy method of amending the Federal Constitution, without referring such amendments to the people of the various states for their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it becomes an amendment of the states’ Constitution, incorporated in and engrafted on the Federal Constitution without the consent of the people of the various states . On the other hand, if that be not so, and the states can, after making such reference, repeal such reference, what is the result? You have a constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the provision is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution.

Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal Constitution.

Dr. QUICK.-In this way. At present clause 52, which we are now discussing, deals with the powers of the Federal Parliament. It defines those powers in specific terms, in specific paragraphs. Very well. Then, if under this sub-section power be given to the state Parliaments to refer other matters to the Federal Parliament, to that extent the powers of the Federal Parliament are enlarged, and therefore there is an enlargement of the Constitution. This enlarges the power of the Federal Parliament, and when a law is passed by the Federal Parliament, it becomes binding on the citizens of the states the Parliaments of which have made reference; and if these laws are binding, I say they become federal laws, and those federal laws may be administered by federal courts. Consequently, these referred powers become federal powers, and to that extent this becomes a means of amending the Federal Constitution.

An HONORABLE MEMBER.-The state Parliaments may refer some subjects to the Federal Parliament without the consent of the people.

Dr. QUICK.-True, the state Parliaments may refer some subjects to the Federal Parliament without the consent of the people of the states -that is my point-and to that extent the powers become grafted on the Federal Constitution in a manner directly different from the mode provided by this Constitution.

Mr. BARTON.-You can make amendments in your Constitution without referring to the people.

Dr. QUICK.-That is so, but there is a distinct provision here that there is to be no amendment of the Constitution without first such amendment being passed by the Federal Parliament, and then submitted to the people of the states , and there must be a majority of the people and a majority of the states before such amendment can become law.

However, Quick’s concerns were discussed and resolved by this subsequent exchange:

Sir JOHN DOWNER (South Australia).1-I cannot see any of the difficulties which Mr. Deakin, Mr. Symon, and Dr. Quick anticipate in connexion with this sub-section. This, of course, is to be an inelastic Constitution, which can only be altered after great thought and with much trouble. We define what are to be the boundaries of the Constitution of the Commonwealth. We leave everything else to the states . It may be that questions may afterwards arise which concern one, two, or three states , but which are not sufficiently great to require a complete revision of the whole Constitution, with all the troublesome proceedings that have to be taken to bring about a reform. It would much facilitate matters if these questions could be referred to the Federal Parliament.

Mr. DEAKIN.-It would not be an easy process. You know how hard it is to get even two colonies to agree to anything.

Sir JOHN DOWNER.-It would be easy compared with an alteration of the Constitution.

Mr. DEAKIN.-It would not be too easy.

Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the Constitution, but it is a power that can only be exercised with great difficulty. We also have a power of quasi-arbitration, which the Commonwealth Parliament can exercise in an easier way, although not without some difficulty, at the request of one or more states . Now, is not that a good principle? I do not think many honorable members will say it is not. It is suggested that we are allowing the states to throw upon the Federal Parliament a responsibility they ought to take themselves. My answer is that every state wants to aggrandize itself, to increase its authority, and it will only be in very extreme cases that the states will resort to this means of getting rid of a difficulty. In an extreme case, is there any harm in having a comparatively easy method of reference, not to troublesome negotiations, nor to the Imperial Parliament, but to the Federal Parliament.

Mr. BARTON.-It might be impossible to dispose of the matter excepting in that particular way.

Sir JOHN DOWNER.-Yes.

Mr. O’CONNOR.-Take a case of dispute regarding a boundary.

Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance. What could be more proper than that Victoria, if she became reasonable for once, should say-“Look here, we know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and will refer the matter at once to the Federal Parliament”? Who would blame her? Certainly not South Australia. Even in connexion with the question of rivers some point might arise that might concern two or three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state. …

Placitum thirty-seven (the referral power) was then adopted unanimously on the voices.  One striking aspect of the debate, however, is that there seemed to be a common assumption that referrals under s 51(xxxvii) would only be by one or a few States.  Perhaps they intended or assumed that adjustments of power involving all States and therefore of universal/national concern should be affected only by referendum?  However they certainly didn’t say so in the text of the Constitution.  The prevailing High Court approach to questions of the Founders’ intentions is that the interpretive task starts with reading the text itself but extends to divining purpose or intention if necessary through examining sources external to the text (e.g. the Convention debates).  But generally the Court says that it does not heed the Founders’ “hopes and aspirations” for a provision in the face of clear words that don’t express that hope or aspiration.  There’s lots of room for argument in those propositions, however.  Is the intended scope of referrals a question of mere “hopes and aspirations” or is it the fundamental intention or mischief which gives the provision its meaning?  And to what extent should we regard the intentions of some of those who drafted the Constitution as necessarily determinative?  Recently retired High Court Justice Michael Kirby, for one, rejects the notion of the “dead hand of the Founders” as the predominant factor and argues we should adopt a “living tree” approach to interpreting the Constitution.  Is that just trendy post-modern relativism?  What we can say with certainty is that most referrals over the last few decades have involved all States and have been held valid by the High Court.

  1. Yes, it really IS Dolly’s forebear. ~ KP []

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Patrick
Patrick
10 years ago

Possibly, noting some of the tone of their comments, they simply couldn’t concieve of anything which all the States could agree on which would not also easily pass a referendum.

I admit to never really understanding what Kirby meant by a living tree other than that the Constitution should protect whatever he thought it should.

I can happily accept that it has to be applied to very different facts and that this can be very difficult, but I can’t really see much merit in seeking to interpret it as meaning something other than what it does, merely to make life easier for certain people. Worse, the living tree usually seemed to be fertilised with various international norms (social and cultural ‘rights’ spring to mind!) which are emphatically not accepted by anything like a majority of Australians.

After all, the referral system, as well as the referendums mechanism, both provide plenty of flexibility. An expansive approach to executive and Cth power has already provided plenty more without needing to give up on the whole Constitution thing altogether.

Alan
Alan
10 years ago

I think you will find that Britain, Israel and New Zealand are the only democracies where the parliament can amend the constitution by ordinary legislation. Both Britain and New Zealand make fairly frequent use of referendums on major issues — electoral reform, EU membership, the Irish peace process, Scottish and Welsh devolution.

Mike Pepperday
Mike Pepperday
10 years ago

“it is very common for western democratic constitutional systems to provide for constitutional amendment by ordinary legislation enacted by Parliament (rather than by popular vote).   Britain and New Zealand are examples of Westminster systems which employ that method.  Indeed all the Australian States can and do amend their own constitutions by that method”

As Alan indicates, I think that that in most of the West referendums are needed to change the constitution. These example you give – Britain, NZ and Aus states – to support your case don’t do it very well:

1. Britain’s history, right up to the present day, is of changes which devolve power. That means their system is faulty. The United States was one of the first places to complain of inadequate English democracy and I think all the US states require a referendum to alter the constitution. Whether Washington connives with the states as we do – well, it wouldn’t surprise me.

2. NZ is not Westminster but West German. NZ ditched Westminster precisely because their “elected dictatorship” (Geoffrey Palmer’s term) wasn’t working. The situation where the pollies could set things up to suit themselves led to severe distortion of the economy. By luck, the Kiwis escaped from that mould relatively easily. (It is luck PNG is probably not going to have – there we are waiting for the colonels to sort it out.)

3. I don’t know anything about Queensland’s new constitution but the other states’ constitutions (those acts that people agree constitute the constitution) (a) have special requirements for change, typically absolute majorities in both houses, which is very different from a quiet political deal and, (b) also show some changes to provide more popular input. One of them is PR in the upper houses but there are also referendum provisions. For example, in NSW a conservative govt legislated for a referendum requirement for abolition of the upper house. When Lang (I think) tried to repeal this legislation, the Privy Council ruled that the legislation cannot be repealed – except by referendum. Knowing this, WA ca 1980, and Victoria ca 2003, (maybe other states, I don’t know) legislated referendum requirements for certain provisions of their constitutions.

In my opinion, the lack of referendum requirements in the Australian states and NZ is a democratic deficit, not evidence that this is a way to define democracy. It is surely not a justification for politicians to get around the Commonwealth Constitution. As Alan points out, Britain does seem to have de facto referendum requirements. They just held one on AV. There have been many transformations of electoral systems in Australia but I can think of only one instance where there was a referendum for it.

Democracy is not a precedent set by this or that country’s practice. Democracy is rule by the people. In a perfect democracy every person who is affected by a rule would have a precisely equal say in making that rule. Democracy is a matter of degree: a given proposal for rule change might increase or decrease the people’s influence.

Whether a federal constitution gets changed by the states voting, as in the US, or by the people voting as in Switzerland and Australia, is not immediately germane. Section 51(xxxvii) is allowing the executive to entirely circumvent changes to the written Constitution. In particular it allows them to avoid referendums. They are frightened of the people. After Port Arthur, when Howard was trying to get national gun agreement he threatened a referendum. That was how it was spoken of: a referendum was a “threat.” Our professional politicians, scurrying back and forth between focus group and shock jock, seem trapped by their powers: reading the latest poll they desperately try to apply their power to ensure the next election. With efforts directed toward keeping the menagerie tame, how can they possibly exercise leadership?

In many respects, our written Constitution is surreal: the PM doesn’t exist and the Governor-General is a dictator. But section 51 is not surreal; it is clear and specific. Subsection xxxvii says “Matters referred… by… any State…” It doesn’t say: “Matters, including any of those in the other sub-clauses of this section, referred by any State.” This doesn’t rule the other parts of s51 out but it also doesn’t rule them in.

As you say the founders’ intentions are most interesting. What I take from the 1898 discussion is (i) there is an assumption that no more than a couple of states would ever agree on anything which means my complaint about them all agreeing with the feds to sell powers for money was not quite foreseen (though Dr Quick impresses me) and, (ii) they were assuming the matters referred under xxxvii will be additional to the specific matters of s51. At any rate, their examples – boundaries and rivers – are not among the list.

To regulate the Murray-Darling, federal, coercive power is apparently needed. It doesn’t look like the states will agree without it. That sounds like the ideal use of 51(xxxvii). You began that previous thread proposing to deal with health through that sub-section. That is not ideal. I ask again: why not hold a referendum? We know why: it might give a result inconvenient to the politicians. All the states and Cth agree to do something yet the people, if asked, wouldn’t agree. Therefore don’t ask. This is ridiculous but instead of being outraged we think it is normal.

It is now way past the slippery slope stage. It is standard practice to employ dodges in order to avoid referendums. If you actually wanted to drive people into the arms of the shock jocks, isn’t this exactly the way you would do it? Australia has evolved a serious democracy problem.

Peter Patton
Peter Patton
10 years ago

Luvvies – and particularly the legal academic of the breed – cannot help themselves blaming the “conservative” Australian working class, and its gullibillity being no match for oleaginous democracy-haters, like Howard the monarchist, hey what! The last time this was tried on me in a uni tutorial, I calmly and politely said “pig’s ass”.

The Australian people have been been a wake-up to, firstly ALP referendum-hucksters, and their constant absue of s.128 during the earlier to mid 20th century to put us all under the Canberra/socialist jackboot, and second, there more recent tiredness with merely concentrating all political and economic power in Canberra, they now want to take it out of Australia all together, and hand it to the devils in Geneva.

Peter Patton
Peter Patton
10 years ago

Oh, and Ken, the luvvie-lawyer connection was not made apropos of you. You’re actually a quite civilized example of the breed.