Should we have an Australian Constitution?
Most Australians are aware that we have a federal Constitution, but few will have seen it.
Very few Australians would be aware that our federal Constitution forms part of a United Kingdom Act of Parliament. In view of our place in the world as an independent nation I am urging that our Constitution should be transferred or ‘relocated’ to an Australian document.
I am suggesting a scheme or proposal to enable this to be done with the subsidiary aim of making that document the single point of reference for our fundamental enacted constitutional law. At the same time, obsolete provisions could be removed and some modern format changes made.
The relocation has been devised to occur with no change in the day to day operation of the Constitution, and no disruption of the daily activities of government, business or community life. Its legal effect would remain unchanged or virtually the same. On the other hand, the proposal, if adopted, would clearly involve the most radical restructuring since 1900 of the fundamental legislation affecting the Commonwealth and States, and of course, the community at large. Obviously we need to get it right. For this reason it is important for specialists in this area to be closely involved with the proposal as it develops. In consulting with the community as a whole the process needs to be one that is respectful of the fact that as individuals we see things differently.
This essay gives an outline of the proposal – for more details go to ‘Concept Draft’.
What does ‘relocation’ involve?
Ordinary legislation does something like this from time to time. For example, ‘section 12 is relocated as section 29’. It’s a bit like moving the furniture around. It simply means changing where a section or other provision sits in a law or document by renumbering it, but otherwise it remains the same.
My proposal is that the provisions of the Constitution would be moved to another document (which I’ll call the Australian instrument). This would be identified as the document certified by delegates appointed by the Australian parliaments. At the end of the process, the provisions of this document would become the Constitution. In this case, the provisions it contains would have been moved without renumbering.
Some other issues
There are some other questions to be considered: do we need special legal authority to do this to the Constitution? And also, what should be the scope of the relocation? In other words, do we need to move all the furniture, or should we leave some of it behind? Should we give some of it a bit of a polish-up before we move it? I’ll return to these questions later.
To anticipate an obvious question, would the proposal make Australia a republic? No, in this respect the Constitution would operate in exactly the same way as it does now with a Governor-General and the Queen as Head of State.
Another important question, would the proposal give new powers to the Commonwealth or States, or change the balance of power between them? Again, no. The focus of the proposal is on revising the environment and form of the Constitution rather than changing its legal effect.
But before exploring more of the proposal, we must first be clear about the status of the Constitution as a part of the UK statute book (see the graphic ‘find our constitution’).
The Constitution as a UK statute
In the 1890s the colonies of Australia (as the States then were) feared the territorial ambitions of some of the European powers in the Pacific. And while it might now seem hard to believe, a trip within Australia to, say, Melbourne or Adelaide could involve a customs inspection of your baggage!
These were some of the reasons why the colonies had been talking on and off for years about joining together in a federation. A federal government could do some things (such as defence) on behalf of all the colonies more effectively than any single colony. While the colonies were all self-governing (some had had 40 or so years of experience), their legal powers were limited. The only way that a federation could be created would be for the United Kingdom Parliament to pass legislation that would apply across the whole of Australia. An Act to do this was passed and brought into operation on 1 January 1901.
The federal Constitution therefore forms part of an Act of the UK Parliament known as the Commonwealth of Australia Constitution Act (for convenience, I will call this the Constitution Act). That Act, of course, was only one of a number of UK Acts passed in 1900. If you had access to a volume of UK statutes passed in that year, you would notice that the Act passed immediately before the Constitution Act was the Uganda Railway Act. Similarly, the Act passed immediately after was an Act about County Council elections. In the same year other Acts were passed on subjects as diverse as raising money for the war in South Africa and prohibiting child labour in underground mines.
In other words, our federal Constitution, while the product of significant thought and negotiation in Australia, began its life in a fairly unremarkable way. It was just another statute in a stream of legislation issuing from a Parliament that had as part of its business the management of a vast empire stretching across the world. While Australia occupies a large land mass, its colonies were merely a handful out of many in almost every corner of the globe.
The other unremarkable feature of the federal Constitution is that it was not the product of a revolution. Australia was seen to be linked to the ‘mother country’ (as the UK was often called) by something like family ties; Australians tended to look to the UK for leadership in all areas of life. While Australians had an awareness of their own national identity, they nevertheless saw themselves as ‘British’. The Constitution reflects so much of this. It was a document cobbled together over about 10 years by a group of people with significant experience of the practicalities of government.
Yet after a century of federation, in a world very different from 1900, it seems odd that our federal Constitution still ‘sits’ on the UK statute book. In one sense there is no problem with that. It is not as if the UK Parliament is threatening to repeal or amend the Constitution Act. In 1986, in its Australia Act of that year, the UK Parliament gave up the residual legal powers it had to legislate for Australia. If it now sought to revive the exercise of those powers, the action would not be recognised in Australia; life here would go on as normal. Our institutions would remain intact. Nothing would significantly change.
So what is the problem? It is a matter of appropriateness. Our Constitution should be found in an Australian document. As previously noted, moving its provisions would not change or significantly change its effect. Equally important is the fact that the relocation would provide an opportunity to make a number of housekeeping changes to shorten and modernise the text of the Constitution. And the process of relocation – involving the appointment of Australians of all walks of life as delegates to certify the Australian instrument – would greatly increase national awareness and ‘ownership’ of the Constitution.
Can we do it? (the question of legal authority)
Yes we can! I am proposing that we would use the normal procedure laid down by the Constitution. In other words, a Bill would be introduced into the Commonwealth Parliament to alter the Constitution (but only after a long period of consideration and consultation). The Bill would need to pass both houses and be submitted to referendum. And of course, the proposal would not take effect unless people across the whole of the country supported it.
Section 128 of the Constitution gives power to alter its provisions. Some have argued that ‘alter’ is wider in scope than a mere power to ‘amend’. The courts have always said that section 128 needs to be read broadly. More recently its interpretation has been affected by a growing awareness of our national independence, and further heightened by the withdrawal of UK legal sovereignty about 25 years ago. There can be no doubt now that under section 128 we have as much authority as we need to make whatever changes to our Constitutional arrangements as our people approve. Finally, because the ‘alteration’ would operate as a relocation of the Constitution, the argument that section 128 does not extend to the so-called ‘covering clauses’ would be irrelevant. (See the graphic ‘find our constitution’)
How much ‘furniture’ should we move? (the scope of the relocation)
It should be emphasised that section 128A would contain the full text of all the provisions to be relocated. This is of critical importance so that everyone considering the proposal could see exactly what would be relocated.
Choices would also need to be made about the scope of the relocation. The Constitution could be relocated with minimal change, or the opportunity could be taken to do some housekeeping along the way. In deciding what should be relocated we need a mix of expert advice and community views.
Reasons to ditch or polish up some of the furniture:
- the Constitution is more than 100 years old and contains a lot of dead wood (for example, section 84 deals with the transfer of officials from the States to the Commonwealth in 1901 as a result of changed functions; a junior staff member aged 15 at that time would now be approaching 125 years of age!)
- some provisions reflect colonial or outmoded practices (for example, section 59 gives the Queen a power to disallow any law passed by the Parliament within a year of its making; the power has never been exercised, and the Queen does not have this kind of power in relation to the Australian States or the UK)
- section 25 reflects values and beliefs that most would now find abhorrent: it says that people disqualified from voting on the basis of race under a State law are not to be counted in calculating the number of members in the House of Representatives for that State
- the Constitution reflects outmoded assumptions about the place of women: its provisions assume that each of the Governor-General, senators, members and voters is a ‘he’; (Curious at a time when both the Governor-General and Prime Minister are a ‘she’!)
- generally, the Constitution uses a more elaborate form of writing than is used in legislation nowadays (for example, ‘section twenty-one of this Constitution’ rather than ‘section 21’).
Provisions to be considered for relocation (or otherwise relevant):
- the preamble at the beginning of the Constitution Act should be made a preamble to the Constitution (but it needs a bit of a tweak – to read more about this, go to ozhomenow.net)
- some of the covering clauses (see the graphic ‘find our constitution’)
- possibly a provision about the application of the rule of law and responsible government as ‘underlying principles’, and the interpretation of the Constitution as a ‘statute’ (whether this is needed is a technical question for the experts – see ozhomenow.net)
- because ‘the people’ are the ultimate source of the Constitution, whether they should be given greater prominence in altering the Constitution under section 128, and the possible extension of that section to the ‘replacement’ of the Constitution
- certain other UK laws (the Statute of Westminster, 1931 and the Australia Act 1986 (UK)) also apply in Australia and affect the operation of the Constitution (and State constitutions) – equivalent provisions should go into the relocated Constitution
- some other ‘housekeeping’ provisions to do with citation and publication of the Constitution
- section 128A (the relocation mechanism) would contain some provisions of a technical nature (for example, an ‘objects’ clause to make it clear that its purpose is to maintain the identity, continuity and continued effect of the Constitution in the Australian instrument- see ozhomenow.net)
Once the relocation has come into effect, the State and Territory Parliaments would be required to request the Commonwealth Parliament to repeal (to the extent they apply in Australia) the then superseded (1901) Constitution, the Statute of Westminster, 1931, the Australia Acts (UK and Commonwealth), and perhaps some other superseded UK Acts.
Complications, risks and change
There is no doubt that this proposal would require co-operation between the Commonwealth and States, and significant leadership in its presentation to the Australian people. Everyone knows that the Constitution is very difficult to amend. I am also conscious that much of what I propose might seem too complicated and perhaps over-ambitious. In this regard I am encouraged by the assessment Williams and Hume make in their recent book People Power about the 1928 referendum (at p 113). They describe that proposal as ‘complicated’ and yet it was passed because it had a lot of support. On the other hand, the two referendums that failed in 1926 were ‘straightforward’. So why not set our sights high? Is it really impossible for us as a nation to develop and ultimately agree on an Australian ‘home address’ for our own national Constitution (perhaps a bit shortened and modernised)?
In describing the effect of the proposed relocation, I have included qualifiers like ‘virtually’ the same and no ‘significant’ change in effect. I realise that some will fall on these qualifications and demand to know why we should make any change if there is the slightest risk of something going wrong; of something unforeseen happening. My response is that the proposal assumes a long and careful study of its details and implications. In this way risks can be reasonably managed. There were risks and uncertainties facing the Australian Colonies when they came together; we too face risks and uncertainties in our own time. We face them in our personal life; when we start a new relationship, when we bring a child into the world, when we start a business or take a job overseas. Everything of value carries with it risks. Unless we face risks we will not grow, either as individuals or as a nation.
How many metres of Constitution do we need?
As one who has been to the Archives Office in Canberra and gazed on one of the original copies of the 1901 Constitution, I must say it is a disappointing experience (though the display in the Federation Gallery is well worth a visit). All that can be seen is a small booklet bound with red ribbon whose cover proclaims it to be the Commonwealth of Australia Constitution Act. Not a word of its text is visible. If we ever did relocate our Constitution into an Australian document, wouldn’t it be wonderful if we could see it all – displayed Bayeux tapestry-like? I would like to look at the certifying signatures spread out along its length, and then at the helpful notes forming part of the display telling me something about the people who had appended their signatures. A little snapshot of some of the amazing people of this wonderful land.
John Christensen is a lawyer with almost 40 years experience as a legislative drafter in Australia and overseas. He has been a visiting lecturer in Legislative Processes at the University of Canberra, and has lectured in a similar course at the Australian National University.