Senator John Faulkner, Constitution Day address
Let me commence by acknowledging the Ngunnawal people on whose land we meet.
A Constitution is a country’s blueprint, setting out the structures of government, the relationship between institutions, and the shape of the nation around them. Constitutions reveal the preoccupations and the hopes at the heart of nation-building.
Think of South Africa, where the ‘Rainbow Constitution’ bears the burden of not only setting out a system of government, but of moving past the long national trauma of apartheid. The Constitution of South Africa explicitly recognises the injustices of the past and honours those who suffered for justice and freedom, while declaring South Africans united in diversity.
Or think of Britain, whose ‘unwritten Constitution’ is called that precisely because there is no single document to be revered as the ‘British Constitution’. Instead, hard-won political and civil freedoms wrested over generations from a once-all-powerful monarchy are protected by the common law, and by deep respect for tradition and precedence. How very British!
A nation’s relationship to its Constitution also tells us about the truths at the heart of that nation.
In America, schoolchildren learn to proudly enumerate the rights granted in amendments. The Constitution takes its place alongside the Declaration of Independence as a founding document for a new democracy in the New World, drafted by men proud to declare ‘give me liberty, or give me death!’
In Australia, a 1987 survey for the Constitutional Commission found that almost half the population did not even realise Australia had a written Constitution. Certainly, few schoolchildren – or adults – could confidently quote the sonorous phrases of section 51 or proudly declare that section 80 gives them the right to trial by jury – in certain limited circumstances which the government of the day can decide!
Our Constitution was drafted as neither an act of defiance nor one of reconciliation. It was created by pragmatic idealists, crafting a blueprint for a new nation, combining high hopes with low compromises. Their vision – a nation for a continent – was a grand one. The problems they had to overcome were more pedestrian. Not defiance of distant empire, decades of oppression and division or the negotiation of profound shifts in power relations. Instead, our founding fathers struggled to negotiate the finicky interrelations of multiple jurisdictions, competing agendas and different-sized railway gauges. Is it any wonder our Constitution is technical rather than sweeping, mechanistic rather than grandiose?
As Greg Craven wrote:
America’s constitutional architects were dashing men in tight breeches, rather fond of revolutionary uniforms. They had a romantic, faintly raffish appeal. [...] our founders […] were large men – bulky, stodgy, profusely hairy […] Appallingly, they were regularly photographed in all their Victorian horror, peering awkwardly at us like a herd of walruses washed into a parliamentary chamber.
Indeed, by choosing today, 9 July, to celebrate Constitution Day – for which, I can today announce the Government’s in-principle support – by choosing 9 July, we are commemorating the day Queen Victoria signed the Royal Commission of Assent enacting the Bill passed by the British parliament to provide for the creation of the Commonwealth of Australia. Not for us a great battle, where patriots spilled blood creating a new nation, nor a revolution with armed crowds of citizens replacing the government with one more to their liking.
No, the creation of Australia’s Constitution was orderly, parliamentary and profoundly democratic. Unlike the dashing founding fathers of the USA, our founders were directly democratically elected by the people of what would become the Commonwealth of Australia. And the Constitution they drafted was adopted by popular vote in every colony.
The Constitution drafted by our stodgy, walrus-whiskered founders and submitted for their contemporaries for democratic ratification is silent on many matters of great importance to governance in Australia – the office of prime minister, for example. Nor do we find any mention of the Cabinet or of political parties – all so critical to the stability of our parliament and governance.
Neither do we read of COAG – the body that today comes closest to making the Australian federation work. A complex web of intergovernmental agreements and ministerial councils, a superstructure built around the federation, COAG was never contemplated by the framers of our Constitution. As a ‘workaround’ for the problems of our federal system, the current framework for intergovernmental co-operation operates at a cost to transparency and accountability. When the Standing Committee on Legal and Constitutional Affairs conducted a recent roundtable on Constitutional reform, this was the single issue the committee felt strongly enough about to make a recommendation, recommending that ‘the Australian Government introduce the requirement for intergovernmental agreements to be automatically referred to a parliamentary committee for scrutiny and report to the Parliament’.
COAG and many other fundamental parts of our federal architecture may have been unimagined, unconsidered, or so obvious to the founding fathers that no reference was considered necessary. They are certainly nowhere to be found in the blueprint for our federation.
How serious a problem are these oversights and omissions? Opinions vary, even in the small and rarefied circles of constitutional scholars. Certainly, whatever flaws our Constitution contains do not rouse the passions of the Australian people.
Australians, on the whole, regard the Constitution with neither ardent pride nor simmering resentment – a sort of sceptical resignation might be the best way to characterise our nation’s relationship to its Constitution. It might not be the flashest constitution on the block, but it gets the job done, on the whole.
Indeed, you could say that the Australian Constitution is the stump-jump plough of constitutions. The stump-jump plough, invented to allow farmers to plough their fields without the long and arduous process of clearing the mallee roots first, was a peculiarly Australian invention for a purely Australian situation. Like our Constitution, it’s designed to go over obstacles without actually removing them. Like our Constitution, it isn’t particularly elegant, but it is remarkably effective.
And like our Constitution, its relevance to the modern world is questionable.
Recent questions of constitutional change have been concerned with both the symbolic and the functional. Should we have an Australian head of state, rather than the Queen of England? Should our Constitution guarantee us individual rights? Should our Constitution reflect more clearly the way our government actually operates?
Our track record on constitutional change suggests that any amendments will be difficult to achieve. Thirty-six of 44 referendums since Federation have failed. There has not been a successful referendum since 1977. With the exception of the race powers referendum in 1967 and the social security referendum in 1946 – both changes in response to a demonstrable, and demonstrated, social need – referendums which have been passed have been, on the whole, rather minor repairs.
Our Constitution was drafted by matter-of-fact men solving immediate and concrete problems. We are a matter-of-fact nation, and worry about the Constitution only as it impacts our lives; and when it comes to constitutional change, we are pretty hard-nosed there too.
When it comes to constitutional change, Australians want proof there is a real problem – and they want to be sure that any proposed solution will work.
It’s easy to see where they’re coming from.
Our Constitution has faced – and survived – some real problems, with demonstrated stability and resilience. Like a reliable old family FJ Holden, it occasionally starts to make an alarming rattling noise – and in 1975 ran straight off the road! But, despite predictions of catastrophe at the time, subsequent decades of careful driving have kept the Constitution on the road. We’ve made some changes over the years, including a major service with the Australia Act 1986, and while some might yearn for one of the new, shinier models on the market, on the whole Australians don’t seem to have been persuaded that they shouldn’t just stick with the Constitution we have.
Does that mean that advocates of Constitutional change should just give up? I don’t believe so. Even the most reliable family car inevitably comes to need new tyres, new brake pads or a new clutch.
Our founding fathers were not foolish enough to think that, after a century that had taken the world from sailing boats to steamships, from horses to motorcars, the century ahead would not hold new changes and new challenges. Nor do I believe they were so vain and self-important – well, except for Henry Parkes – to want their Constitution written so deeply in stone that subsequent generations would be impractically constrained by a document receding ever further into the mists of time.
Indeed, they gave us a mechanism to change the Constitution. It has rarely been used successfully. Perhaps we could blame the mechanism. Or perhaps we should look at the changes proposed and the way they have been presented. Some even blame the Australian people.
Constitution Day, I hope, will be an opportunity to consider these issues – an opportunity for Australians to not only celebrate our Constitution but to engage with it, to consider what we value and what we might change, and to weigh up ways those changes might be achieved.
Although it does not detail many individual democratic rights, our Constitution is nonetheless a deeply democratic document in its genesis. This should surprise no-one. Australians’ commitment to democracy is deep, longstanding, bordering on the radical. We have been world leaders in democratic innovations such as women’s suffrage, secret ballots, and compulsory voting. Any changes proposed for the Constitution can only hope for success if they pass the test of Australia’s instinctively democratic and egalitarian temperament.
So too, our Constitution is an exercise in solving visible, immediate problems, and change, to be successful, must be perceived to be a solution to a genuine problem – and a solution where any inherent risk is outweighed by the danger of letting the problem fester. Changes veering too far towards the highfaluting, justified solely by symbolism and ideology, will not win support from a nation proud to define itself as deeply sceptical. Deeply sceptical of those with tickets on themselves, or in positions of power – even, or perhaps especially, the ones they elect themselves, the government.
Those of us who believe our Constitution should grow, not just be expanded through interpretation, have no choice but to work within the constraints the Constitution itself provides. Any argument for change must be, first and foremost, one which will convince a majority of Australians in a majority of states.
Ironically for a national blueprint with such profoundly democratic origins, our only mechanism for constitutional change is an awkward mix of democracy combined with federalism – five of the referendums that have failed were supported by a majority of voters, but failed to win support in a majority of states. Trying to win change through a constitutional referendum can be profoundly frustrating, and hawking lofty ideas in the tawdry marketplace of political communication is seen by some to be a distasteful exercise. But make no mistake, there is no other option.
Often indifferent, always determinedly democratic, and highly resistant to being ‘snowed’ by politicians or interest groups, the Australian people and only the Australian people have the power to decide to alter the Constitution.
Some believe that Australia’s abiding scepticism about constitutional change has conferred stability to our system of government. Today, that stability is beginning to look increasingly like stagnation.
I believe that there are a number of changes to our Constitution that would improve governance and make our Constitution more relevant to Australia today.
Some are long overdue, like the removal of potentially racially discriminatory provisions from the Constitution, in particular the deletion of section 25 of the Constitution and the amendment of placitum 51(xxvi), to ensure it cannot be used to discriminate against Indigenous Australians.
Some would improve governance – fixed four year terms for both houses of the federal parliament, constitutional reform to prevent the Senate rejecting, deferring or blocking appropriation bills, and changes to make all Australian citizens able to contest Commonwealth elections.
And some go to ensuring the continuing relevance of our Constitution. The Constitution should reflect the actual practices and conventions of our system of government, including that the head of state should act on the advice of the government enjoying the confidence of the House of Representatives. So too, the Constitution should express the values, aspirations and ideals of the Australian people.
Achieving any of these changes will take more than conviction and more than logic. Achieving these changes will take realistic assessment of the reasons for the success or failure of past referendums, will take the patient construction of bipartisan consensus, will take honest argument with the Australian public about the need and the reasons for change. And achieving these changes will take the willingness to endure setbacks and rebuffs from the voters and the fortitude to continue in the face of what may feel like failure.
This may seem difficult, even daunting. But if our Constitution is worth being kept relevant, worth being made to work, then it is worth all the effort and the slog and struggle inherent in campaigning for change.
And I hope that Constitution Day will be an opportunity for all of us to begin engaging with the Constitution and with the process of constitutional change.