An introduction to the Australian Constitution – Professor Fiona Wheeler

The following text is a transcript of a session presented by Professor Fiona Wheeler, ANU College of Law, at the 2010 ACT Schools Constitutional Convention held at the National Archives of Australia on 15 September 2010.

Professor Fiona Wheeler: Well it’s a very great pleasure to be here with you this morning to introduce you to the topic of the Australian Constitution because it’s a topic that’s very close to my heart, as Margaret [Margaret Fleming, National Archives of Australia] explained. It’s always fascinated me. When I interrogate why that’s so, I think it’s largely because of my abiding interest in Australian politics and Australian history. Because you can’t understand our Constitution without understanding something about Australian politics and history. Conversely, I’d argue that you can’t fully understand Australian politics and history without knowing something about our Constitution.

So those two topics are closely enmeshed. But before you hear from me this morning, I’d actually like to turn the tables on you and hear from you. I’d like to begin by posing two questions to you. The first question is what does the Australian Constitution do? So can you describe some of its basic features? The second question is a bit different. What should our Constitution do?

To collect your wisdom, what I’ll do is I’m going to use this whiteboard and divide it into two. So there are two questions. What does the Constitution do and then this 'should' question. What should the Constitution do? So even if you’ve come to this convention today knowing very little about the Constitution, you should at least be able to have a good go at answering that second question. What should it do?

So I’d like you just to take a few minutes, turn to the person next to you or into your school groups and just in buzz groups, discuss each of those questions and then I’ll ask you all for your contributions in about three or four minutes. So get to work. What does the Constitution do, what are some of its basic features and what should it do? Let’s see if we can get some answers to these questions up here on the whiteboard.

Let’s begin with what does the Constitution do? What are some of its basic features? Who’d like to kick me off? I saw that hand up the back first.

Male 1: It defines how a country is run.

Fiona Wheeler: Okay, so rules for the governing of the country. Great, excellent, what else? Yeah?

Female 1: More specifically use [our] guidelines for the way the executive parliament and legislative branch work.

Fiona Wheeler: Okay, so the executives are the parliament, which is also known as the legislature. What’s the third branch of government? Judiciary, okay excellent. So establishes – indeed I would, to be more specific, it actually establishes the Commonwealth parliament or legislature, executive and judiciary. Okay the three classic branches of government. What else? Yes?

Female 2: It also looks at those two branches individually and sets out specifically how they should work.

Fiona Wheeler: Yes, exactly. So it establishes them and in addition, sets out rules for their functioning. Other things? Yeah, at the front there?

Male 2: Further within that, defines the separation of powers.

Fiona Wheeler: So in establishing the parliament, the executive and the judiciary and setting our rules for their functioning, one of the guiding principles there, is the separation of powers. That is a very long established principle of government and essentially the objective there, is that a society will be more free, it will enjoy more liberty if power isn’t united in a single set of hands but rather is disbursed. In this case, across three branches of government.

What’s another mechanism for the dispersal of power in Australian society that is actually pivotal to our Constitution? Somebody else? There’s another form of division of power in Australia? It’s quite obvious in fact.

Male 3: The states.

Fiona Wheeler: Yeah, federation. Okay so the Constitution establishes Australia as a federation where power is divided between the Commonwealth and the states. So the Constitution establishes Australia as a federal system or a federation. Other things? We don’t have to be exhaustive here today but other things that the Constitution does? Yeah?

Male 4: We could say that rather than going into rules of every facet of governing country, it sets the minimum ground rules, as it were, so the political system fills the gap, works within that but it sets a minimum standard…

Fiona Wheeler: Yeah. So these rules for the governing of the country, they are framework rules, you’ve each got a copy of the Constitution with you and you can actually see it’s a small document. If I had the Australian taxation legislation here, I’d probably need a small handcart to push it along, there are volumes and volumes of it. But paradoxically an instrument that is as important as the Constitution is very, very slim and that’s because, as was explained, it establishes the basic framework or parameters for the operation of Australian government but much of the detail is fleshed out through acts of parliament or common law.

Okay, anything else? Yeah.

Female 3: It defines the power of the prime minister and the governor-general and also sets out how resolutions pass through parliament.

Fiona Wheeler: Yes. So it certainly describes how legislation is passed. So how a bill becomes an act of parliament and in establishing the executive, it certainly talks at length about the governor-general. Does it mention the prime minister though? No and that’s one of the things that I’ll come back to in the course of my presentation. I’ll just take one other contribution from up the back there. Yes?

Male 5: Corollary [unclear] it sets out what subjects [unclear].

Fiona Wheeler: Yeah that’s a corollary of – in fact our federal system in large part – and again I’ll come back to that in remarks that I’ll have to make in a moment. Now we haven’t said much about – certainly this list is not exhaustive but what I can see is you already know a great deal about the Australian Constitution and that’s excellent, well done. I’ll have a few words to say in a moment, just fleshing this out a bit further.

We haven’t said much about what the Constitution should do but maybe we can come back to that at the end of our session this morning. So let’s put that on hold and we’ll come back to that in question time because I think there are some important issues to think about there.

So let me build on the very good start that you’ve given me this morning by giving you a bit of an overview and pulling some of those threads together. The Constitution as you probably know came into force, it came into operative force in 1901. It was the legal document that brought the six Australian colonies together into a federation and we’ve already mentioned that Australia is a federal system.

So I’d argue that the single most important thing that the Constitution did, was to create, to bring into being a new national or central political body called the Commonwealth. As we’ve already seen in doing that, the Constitution provides for a Commonwealth parliament or legislature. We can almost glimpse it from here. It provides for a Commonwealth executive government which the Constitution notionally places in the hands of the governor-general as the representative of the Queen but which in practice is headed by the prime minister.

The Constitution also provides for a judiciary specifically for a high court of Australia. Now in doing that, in providing for a Commonwealth parliament, a Commonwealth executive and a federal judiciary, in doing that, the Constitution of course didn’t abolish the existing colonial parliaments, colonial executive governments and colonial courts. Rather they were retained under our federal system as state parliaments, state executive governments and state courts.

Now I want to say something in a moment about this federal division of powers between the Commonwealth and the states but before I do so, a crucial feature of the Constitution that’s been implicit in your contributions and in what I’ve said thus far, is that it’s the highest law of the nation. In particular unlike ordinary laws, the Constitution can’t be changed by act of parliament alone. A question that I always put to the first-year law students that I teach at the ANU College of Law is why does the Constitution bind us in that way? Why is it higher law? Does anyone want to have a go at answering that question? It’s quite a curly one. It’s a difficult question. Why is it higher law in that way?

I saw your hand first, yes.

Male 6: [Unclear] parliamentary capability.

Fiona Wheeler: Well that’s one of the consequences of it being higher law because the Commonwealth Parliament can’t enact any law that it likes. Sometimes the High Court will strike down Commonwealth laws because they exceed the Constitution, they are unconstitutional. My question is why does the Constitution have that effect? Yeah?

Female 4: I would say because the Constitution in itself sets out not only how parliament should run and therefore it would be setting out something that could change it which is just weird and also it sets out how other laws are made. So in those instances it is above those other laws.

Fiona Wheeler: Yeah you’re absolutely right, but what gives it that special status? What authority lies behind that? So yes?

Male 6: It’s because basically in order for the Constitution to change, people have to elect it and would happen in a referendum and that way the parliament can’t change its own laws and what it can and can’t do without public knowledge.

Fiona Wheeler: Okay you’re getting closer to it. As I said, this is a really difficult question and it’s exercised the minds not only of constitutional lawyers but of legal theorists. So just to flesh out the answer to it, in fact the question is so tricky, the constitutional lawyers, we answer that question differently today to the way that question would have been answered in 1901. In 1901 when the Constitution first came into force, the legal explanation of why it had the status of higher law is that it was passed by the Westminster Parliament in London and at the time Australia was a British colony and the Westminster Parliament was a paramount legislature. It had overriding power for Australia and therefore Australian parliaments, executives and courts were subject to the overriding power of the British legislature, the imperial parliament.

Though I should just point out the text of the Constitution was drafted in Australia by Australians, the so-called founding fathers. Once they’d settled their text, they got in the steamer, they went to London and the text of the Constitution was passed through the imperial parliament. But of course today, Britain has no legal authority over Australia. So that’s no longer a convincing contemporary explanation for the binding force of the Australian Constitution. Today, I think most constitutional scholars would say that today the Constitution derives its status as higher law by virtue of its acceptance as such by the legally and politically sovereign Australian people and one indication of that is the procedure for amending the Constitution in Section 128 which involves a referendum of the Australian people.

So as I said, a tricky question and you could go to university and write a PhD thesis about that and perhaps still not get into all the intricacies of it. But I think it’s a fascinating thing to be thinking about. But look with that excursion, let me go back to the federal division of powers. We’ve heard from you this morning that you’re well aware that the Constitution being a federal constitution allocates some areas of responsibility to the Commonwealth and leaves others to the states. The way the Constitution does that, the way in which it sets up that federal division of power is by naming certain topics on which the Commonwealth can make laws. If you pick up your constitutions, you’ll find those topics on which the Commonwealth Parliament can make laws largely in Section 51 of the Constitution. By default the unlisted matters are left to the states alone. So if you have your constitutions handy, turn to Section 51 and you’ll see that list of topics over which the Commonwealth Parliament has law-making authority.

So can you name me some of those topics? What are some of the subject matters over which the Commonwealth in our federation has power to make laws? Yes?

Male 7: Trade and commerce with other countries and among the states.

Fiona Wheeler: Yeah absolutely. So if you think about the Commonwealth legislation regulating import and export of goods in and out of Australia, that’s made under that provision of the Constitution, Section 51.

Male 8: Marriage.

Fiona Wheeler: Marriage, yes. So you may be aware that family law in Australia is largely governed by Commonwealth legislation, the Family Law Act 1975. What’s another topic? Yes?

Male 9: Aliens and their natural – I don’t know…

Fiona Wheeler: Naturalisation, yes. So of course one topic that’s much discussed in the media is the topic of immigration, of asylum seekers, that is a Commonwealth responsibility by virtue of that provision of the Constitution. Can you see climate in that list? Terrorism? Human rights? What about the internet? Okay, who said yes to the internet? Where’s the internet?

Male 10: Postal, telegraphic, telephonic and other like services.

Fiona Wheeler: Well done, well done. Yes I mean climate’s not in the list, terrorism isn’t, there’s not an express power over human rights but I think it’s generally accepted today that the Commonwealth Parliament has authority over the internet by virtue of that grant of power in 51(iv). When the Constitution was framed, the framers were well aware of the then cutting-edge communication technologies of the telegraph and the telephone. They thought that there would probably be going to be similar inventions and we should allow the Commonwealth as the national parliament to be able to regulate them.

So you’ll see really the quite far-reaching and visionary language of Section 51(iv) which allows the Commonwealth to make laws on postal, telegraphic, telephonic and other like services and I think it’s well accepted. The High Court hasn’t spoken definitively on it but I think it’s pretty well settled that other like services includes the internet which is why again at national level, we’re having this debate about broadband at the moment. It’s seen as a Commonwealth responsibility.

But look, one criticism that is sometimes made of the Constitution is despite a provision like Section 51(iv) that some of the federal division of powers is out of date, that federal division of powers is not necessarily in all respects it’s sometimes argued, suitable for the 21st century. Indeed the words of Section 51, that list of grants of power to the Commonwealth, that list has remained largely unchanged since 1900. But has the balance of power between the Commonwealth and the states remained static over the last century? Has there been a shift? Yeah.

Male 11: The most recent debate I can think of is earlier this year, the government tried to negotiate to take GST from the states for the health reform. There’s an argument that there’s growing federalism, that many powers by virtue of being handed over or by [unclear] trying to take them [unclear] to Canberra.

Fiona Wheeler: Yeah and that’s been the historical experience really over the entirety of federation, although the text of Section 51 of the Constitution, although the grounds for power to the Commonwealth have remained largely unchanged. Since 1900 the balance of power between the Commonwealth and the states has shifted really quite dramatically in the Commonwealth’s favour. Now why has that been so? How could that have happened if the language of the Constitution has remained essentially unchanged?

Well there are two explanations. One is that the High Court has read the grants of power to the Commonwealth in Section 51 quite broadly. So for example, the Commonwealth has power in Section 51(xxix) over external affairs and that power has enabled the Commonwealth to legislate on a whole range of activities including the environment and human rights, because Australia’s entered into international treaties on those subject matters, and the High Court has said enacting a law to implement one of those international treaties is a law with respect to external affairs.

Another reason for the shift of power to the centre, it was alluded to over here and that is the Commonwealth’s financial dominance over the states. Under the Constitution, the Commonwealth is able to raise more money through taxation than the states and money is power. The fact that the Commonwealth has accessed more taxation revenue gives the Commonwealth more clout in the federation.

Okay. Now I’m watching the clock and I’ll need to wrap up shortly. So in the time remaining to me, having talked about federalism and having talked about why the Constitution is higher law, I’d like to conclude by mentioning three other basic features of the Constitution. Again picking up on your contributions but also at the same time segueing into some of your discussion this afternoon and tomorrow. The first of these three things I want to mention is the fact as we noted earlier, the Constitution doesn’t just create the institutions of Commonwealth government, it also says something about the nature of that government. Specifically the Constitution says that the Commonwealth government will be a representative and responsible government and let me just talk briefly to those two ideas.

Representative government is the idea that government represents the people, and we know that the Constitution adopts this basic demographic principle because Sections 7 and 24 of the Constitution say that the Senate and the House of Representatives will be chosen by the people. So that entrenches at Commonwealth level a system of representative government by which government represents the people.

Responsible government though is a different idea. It’s the idea that the government of the day is drawn from the political party that commands a majority of votes in the lower house of parliament, the House of Representatives. We’ve seen a dramatic illustration of that over the last few weeks as we’ve watched the formation of the new Gillard Government. Crucially though as I mentioned earlier, the Constitution doesn’t mention the prime minister. You can read the whole Constitution and look in vain for a reference to the prime minister. Instead crucial parts of the system of responsible government operate because of long established conventions or practices that supplement the formal operation of the Constitution and the role of the prime minister and the crown is one of those.

So when you read the Constitution especially chapter two of the Constitution which begins with Section 61, when you read the Constitution it appears as though the governor-general who represents the Queen runs the government. That’s what you’d think if you read the words of the Constitution literally. But in fact under the conventions of responsible government the governor-general acts only on the advice of the prime minister and Cabinet except save in certain exceptional and sometimes contested situations. We’ve heard about one of those situations already from Deirdre [Deirdre Geelan, ACT Department of Education and Training], the events of 1975 when the then Governor-General Sir John Kerr dismissed Prime Minister Whitlam even though Whitlam had a majority, commanded a majority of votes in the House of Representatives. The basis of the dismissal, Kerr’s rationale for the dismissal being that the Whitlam Government couldn’t get its legislation authorising it to spend money, what’s sometimes called supply and all governments need to be able to spend money to function.

The Whitlam Government couldn’t get its supply legislation passed by the Senate. It didn’t control a majority of votes in the Senate and the Senate had blocked supply. It had refused to pass the government’s financial legislation. So there was this form of stalemate between the two houses that was dramatically and controversially resolved by Kerr’s intervention. The constitutional rights and wrongs of which are still hotly debated to this day.

Okay you’ll have a further opportunity to explore that later on this morning. So that’s my point, that the Constitution doesn’t just establish the institutions of the Commonwealth government, it has something to say about the nature of those institutions.

Now my second point is, we’ve just been talking about the fact the Constitution doesn’t mention the prime minister. Another thing it doesn’t include and I didn’t hear anyone mention this earlier, it doesn’t include a bill of rights. It does contain a handful of rights guarantees, there are some but our founding fathers deliberately, very consciously elected not to adopt a bill of rights like that in America. I suppose the explanation most commonly given is that they placed their faith in the democratic process. In fact in the institutions of representative and responsible government that we’ve just spoken about and which they did entrench in the Constitution, the framers placed their faith in those processes to protect human rights.

Now whether they were right to do so, whether they were right to trust representative government to protect rights has been much debated in recent decades. There were some who would like to see an amendment to the Constitution to add a bill of rights. There are those who would equally oppose that so that’s yet another contemporary controversy about the Constitution.

My third and final point is just to remind you, as we’ve foreshadowed, that the Constitution can be amended by following the referendum procedure that’s set out in the very last provision of the Constitution, Section 128. You’ll be talking in detail about that process tomorrow so I won’t elaborate about it here. But you probably already know that Australians have been very reluctant to formally change the Constitution by referendum. Since Federation, 44 proposals have been put to the people in referenda for constitutional alteration but only eight have succeeded.

The most recent referendum of course was the failed 1999 referendum on becoming a republic. You’ll notice that I haven’t spoken a great deal about the role of the crown or the Queen in the Constitution because it’s not all that significant in terms of the day-to-day operation of the Constitution. As I said earlier, the governor-general represents the Queen. The Queen is our formal head of state. I don’t think there’s any doubt about that under the Constitution. The governor-general represents the Queen but the governor-general is appointed by the Queen on the advice of the Australian prime minister.

So the appointment of the governor-general is in that sense an Australian appointment. The Queen acts on the advice of the Australian prime minister. Of course once appointed, the governor-general acts in accordance with the conventions of responsible government on the advice of her or his Australian ministers. But of course many Australians object even to the symbolism of Australia being a constitutional monarchy although others are equally wedded and passionate about the status quo and I know that you’ll be debating these issues tomorrow.

So I’ve got to the very last provision of the Constitution there, Section 128 and I think that’s an excellent jumping off point to think about some of the issues on this blank side of the whiteboard here. What should the Constitution do? Because if we’re to change our Constitution, the referendum procedure in Section 128 involving a referendum of the people is the obvious and most democratic mechanism for doing so.

So look I’ll leave it there and I’m very happy to answer any questions that you might have.

Male 12: I’ve got a question in regards to Section 51, in particular number 26, where the people of any race for whom it is deemed necessary to make special laws. What is your opinion on that and should it be changed?

Fiona Wheeler: Okay, that is one of the few provisions in Section 51 of the Constitution that has been formally altered at referendum. It was altered at the 1967 referendum because as originally drafted, it contained an exclusion of the Aboriginal peoples. So by deleting that exclusion in 1967, what the Australian people voted for was in effect to give the Commonwealth Parliament general authority over the subject matter of Indigenous affairs. The objective behind that was really to empower the Commonwealth to ameliorate what was then the widely acknowledged disadvantage of Indigenous Australia.

At the same time that referendum also deleted a very discriminative provision of the Constitution, Section 127 that excluded Indigenous peoples from being counted in the census. So that blot on the Constitution was eradicated in 1967. My personal view on other races power, Section 51(xxvi), is I certainly think it’s appropriate that the Commonwealth Parliament has authority to enact laws to ameliorate and address Indigenous disadvantage throughout Australia. Whether that should be through the medium of a grant of power expressed in terms of race, they’re sure about I think, race as a subject matter of power is probably no longer appropriate in the contemporary Constitution. The grant of power isn’t confined, if you read the text of it, to people of an indigenous race or races but indeed to other racial groups within Australia. I think a power expressed in those terms is in many respects not in accord with contemporary thinking about the role of race.

But having said that, I remain strongly of the view that the Commonwealth should have that power to deal with Indigenous disadvantage. I think that’s crucial if we’re to lift the socio-economic indicators to ensure that Indigenous Australians have the same opportunities as the wider Australian community.

Female 5: Under Australian law, isn’t it right that the Commonwealth cannot overturn laws made by the states but can overturn laws made by the territories and – I believe that’s the case and if so, is there any reason under the Constitution why the territories cannot be given the right to make their own laws without fear of them being overturned?

Fiona Wheeler: Okay look that’s a good question in the ACT context. There is a difference between state and territories. The territories, the internal territories, the ACT and the Northern Territory and indeed the external territories, under the Constitution the Commonwealth has general legislative authority over the territories. There’s no federal division of powers between the Commonwealth and the territories. In fact the Commonwealth created the ACT parliament. So the ACT Self-Government Act is an act of the Commonwealth Parliament and theoretically could be repealed by the Commonwealth Parliament at any time.

So under the Constitution the Commonwealth has general authority over territories. It’s different with the states because under the Constitution, the Constitution creates these higher law limits on Commonwealth power, vis-à-vis the states. So the Commonwealth can only make laws on the topics that are given to it largely in Section 51 of the Constitution. If a Commonwealth law doesn’t fall within one of those Commonwealth heads of power, then it’s an exclusive state responsibility. So the Commonwealth’s authority over the states is more constrained than its authority over the territories. But the Commonwealth can still override state laws and let me give you one example of that.

One of the very famous historical constitutional disputes is the one over the building of the Franklin Dam in Tasmania. Tasmania wanted to build a dam on a wild river in the south-west of the state and it enacted legislation to allow that to occur. The federal government was opposed to that and it used its external affairs power to enact environmental legislation that prohibited construction of the dam, and the Constitution provides a provision, Section 109 that says if both the Commonwealth and the states legislate on the same topic, and that’s what had happened here. The Commonwealth had environmental legislation on the Tasmania wilderness area. Tasmania had its own development legislation over the wilderness area. Those two laws were in conflict and the Constitution says that if there’s a conflict between a Commonwealth law and a state law, the Commonwealth law prevails. So the Commonwealth was able to knock out that state law and ultimately stop construction of the dam.

So it’s actually, it’s a bit more complex than it looks at first. But the only way to change plenary or unlimited Commonwealth power over the territories would be to have a referendum. I don’t think the referendum process would support that change because I think – remember you have to get a majority of voters overall and a majority of voters and a majority of state – I think the voters in the states are probably quite happy with the position and the territories the way it is. I think they probably see it a bit differently to a lot of territory residents.

Male 13: I was wondering, does the Queen need to be in Australia to exercise her power of head of state or can she do so from abroad?

Fiona Wheeler: I think she can do so from abroad. So for example when she – one of the very few powers she exercises over Australia is in the appointment of a governor-general – so when Quentin Bryce was appointed I’m sure the Queen was still overseas from Australia, probably in the UK. But of course she doesn’t appoint the governor-general at her own discretion or on the advice of her British ministers, she did so on the advice of, it was a Rudd Government appointment wasn’t it, so the advice of Kevin Rudd and under the conventions of responsible government she naturally took that advice.

So no, she doesn’t actually have to be physically present in Australia to exercise those very limited constitutional functions that she still exercises in person for Australia.

Male 14: I’m probably way out of my depth in this one…

Fiona Wheeler: Go for it.

Male 14: Whitlam dismissal, the governor-general holds the reserve right and the rights granted to him in the Constitution fully except for when the Queen is in Australia. The Queen can only use those rights and powers when she is within the borders so I’ve read. As I said, I’m way out of my depth questioning a university professor.

Fiona Wheeler: So I’m not sure what your question was?

Male 14: It was more or less addressing that…

Fiona Wheeler: Yeah I think – when the Queen is in Australia, the governor-general still remains her representative. So when the Queen visits Australia, the functions of assenting acts of parliament and the like are still carried out by the governor-general. The Queen may perform some ceremonial functions here wearing her head of state hat but the basic dynamics of Australian government don’t change because the Queen has visited Australia. I mean her role in Australian government is very limited today.

Male 14: I just remember reading that the parliament had to legislate on the Queen actually visiting because the governor-general’s considered head of state so she would not have been allowed to actually sit in parliament for when she first came and visited and they had to pass legislation for that.

Fiona Wheeler: Right yeah there may have been some sort of technical traditions or something like that but I…

Male 14: Yeah it was a technicality…

Fiona Wheeler: Yeah.

Male 15: Can I just refer to Section 128…?

Fiona Wheeler: Yes.

Male 15: There’s something about – it says ‘until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half of the electors voting for and against the proposed law shall be counted in any State…’

Fiona Wheeler: Yes.

Male 15: What is the meaning of that particular provision?

Fiona Wheeler: That’s a very good question and in fact, does anyone know the answer to that?

Male 16: Was it in place before we had every state in federation, so that the states that weren’t federated couldn’t…?

Fiona Wheeler: No and in fact the explanation is different. At the time of federation, South Australia granted the franchise to women. Okay? So in South Australia the voters, the people, the voters included both men and women. But in most of the other states, the only people who held the franchise were men. I think Western Australia also had the franchise but it was a late entrant into the federation. So essentially those opening words of Section 128 are there to ensure that in the counting of the South Australian vote at any referendum, it wouldn’t get a double count because it had women and men voting and not just men. Does that make sense?

So it says, where are the words again? It’s Section 128…

Male 16: ‘… until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, …’

Fiona Wheeler: Yes, that’s the reference to men and women voting. Keep reading.

Male 16: ‘… only one-half of the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.’

Fiona Wheeler: Yep, that’s the explanation. But it’s interesting, in the first federal election, the first electoral act gave the franchise to both men and women so it was pretty quickly established that women had the vote in Australia. Yep?

Female 6: In your personal opinion, do you think Australia becoming a republic could in any way jeopardise the morals of the Constitution?

Fiona Wheeler: The morals?

Female 6: Yeah, well like what undermines the Constitution?

Fiona Wheeler: Well okay. I don’t think so and it’s a personal view. I believe that we enjoy the constitutional stability that we do in Australia because we are fortunate to have very robust Australian political and historical traditions. I’m not saying there aren’t aspects of our political or social history that in retrospect are of concern and there were things that happened in the past that shouldn’t have happened. But on the whole I think we’ve been fortunate to enjoy a strong and robust democracy within Australia because of the Australian people and our Australian historical traditions.

Personally I don’t see how removing the notion of the crown from the Constitution is going to change that because the role of an external crown, as I said, in the day-to-day operations of Australian government has been very minimal for a long period of time. So I have faith in the Australian people to run their own show if those final symbolic links with the British Crown are severed. I know others have different views but I think our political and social culture is sufficiently robust and sufficiently mature to take on that challenge.

Female 7: I know that it says that the people of any race from whom it is deemed necessary to make special laws, that’s a point in the Constitution, but shouldn’t there be special recognition in the Constitution for Aboriginal people in Australia, and where do you stand on that?

Fiona Wheeler: Yeah, certainly I understand that we may be seeing a referendum on that issue with the new government and I would support that, and the question is how that’s placed in the Constitution. Could it be in a new preamble to the Constitution, could it be in a provision in the body of the Constitution? But yeah certainly I would be supportive of that.

I think it’s important that the first peoples, the first nation of Australia are recognised in the Constitution and I think it’s important that that specific constitutional recognition in turn feed into renewed practical efforts to address disadvantage in health, in education and in the whole range of other social opportunities.

So I think you need both. I think it’s important to have the constitutional change and the constitutional recognition and for that to work in tandem with other measures.

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