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ACM Home arrow Anthems arrow Constitutional Essays arrow Lessons For Australia From Commonwealth Countries: The Canadian Experience

Lessons For Australia From Commonwealth Countries: The Canadian Experience Print E-mail
Written by Ian Holloway   
Friday, 20 August 1999
In a government like ours, the Crown is the abiding and unshakeable element in government. Politicians may come and but the Crown remains and certain aspects of our system pertain to it which are not dependent an any political party. In this sense the Crown is the consecrated spirit of Canada. Robertson Davies


Australia and Canada share more in common than almost any other two countries on earth. They share a common political root. They share a legal system. They share a federal system of government. They share a military tradition. They share an ethnography. They share an odd, yet appealing, mix of British reserve and American openness.

These things alone make the Australian-Canadian comparison an apt one. But there is another, rather more contemporary, aspect of the similarity Today, Australia and Canada are both troubled countries; countries with a grave sense of unease. Both are smallish nations trying to grope their way through, and find a place in, the post-colonial, post-industrial, post-modern world. In both countries, people are asking the same sorts of questions: what exactly does it mean to be an Australian or a Canadian at the cusp of the twenty-first century? How can one maintain a national distinctiveness in an era where national borders no longer mean much? How is one to reconcile the realities of multi-ethnicity and multi-culturalism with long-held (if imperfectly realised) Anglo-ideals of equality and the rule of law.


Perhaps it is a reflection of fear of the sheer enormity of questions like this, but they have given rise to another similarity: in both countries, the debate over these issues has come to be phrased in curious, almost distorted, terms. On neither side of the Pacific has the focal point of the debate been the philosophical foundations according to which society is ordered. Nor has it involved a search for any sort of consensus about national values or ideals. Instead, in both Australia and Canada the national unease has been reflected in an almost pathological obsession with the formal terms of the Constitution.


Elsewhere, I have described this state of affairs as "the spectre of constitutionalism". By this I meant a fixation with the form, rather than the substance, of the terms of a country's constitution, and a desire to alter its form in a fundamental way without realising that this in fact is being done, and without paying heed to the consequences which will necessarily follow on from the alteration.


In using this characterisation I was speaking, of course, in the context of the Australian republican debate. As a relative newcomer to Australia, one of the things I have found most striking about the republican movement here is how it misses the point. Or, rather, how it skirts around the real essence of the problems facing this country. The most critical part of a constitution is not the document itself, but the dynamic that exists under the constitutional order to support a country's social and political life. To put it a different way, the most critical part of a constitutional debate has to do with the small "c'' constitution, rather than the capital "C" one.

I do not make this observation with any smugness or feeling of superiority. On the contrary, in a great many respects, the essence of the debate that is taking place here has a very, very familiar ring to the Canadian ear. For even though Canada does not have an organised republican movement, it hasjust like Australia-been gripped by the spectre of constitutionalism. But the Canadian experience with constitutional pathology has, in fact, gone much further down the road than the Australian, and there are some valuable lessons to be gained from looking at the Canadian experience with the overall process of formal constitutional change, and the effects that it can have upon a society's underlying values. In short, I think that by looking at the Canadian experience with constitutional reform, Australians might help draw their own debate into sharper focus.


The Monarchy is not a problem in Canada ... it is not an issue at all. The Rt. Hon. Jean Chretien.Prime Minister of Canada.


Canada's head of state is Her Majesty Queen Elizabeth 2. Section 9 of the Constitution provides that Executive authority in Canada is "declared to continue and be vested in the ". But quite apart from the form of the Constitution, it is clear that there is no question but that the form of government contemplated by the new nation was a monarchical one, which resembled in spirit the government of the United Kingdom. Like the Commonwealth of Australia Constitution Act, the Canadian Constitution' was a creation of the Imperial Parliament, but also like its Australian counterpart, it had its origins in a draft prepared in Canada, by Canadians, for Canadians.' The preamble to the Constitution makes plain the common understanding of the framers. "Whereas", it begins,


the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom ...


As in Australia, a Governor General is appointed to act on the Crown's behalf, and to carry out public functions in the Queen's stead. As the Earl of Dufferin, one of the first holders of the office, once put it, the Governor General of Canada is "the head of a constitutional State, engaged in the administration of a Parliamentary government."

In contrast to Australia, however, the formal position of the Crown in Canada seems quite secure. Section 41 of the Constitution Act 1982 provides that in order for there to be a future constitutional amendment which would affect the position of the Crown, there must be unanimous agreement among the federal government and the provinces - something which, given the fractious nature of Canadian federalism, is difficult to imagine ever occurring. Nevertheless, Canada has been embroiled in a round of nearsteady constitutionalism since the 1970s -since the Prime Minister of the day, Pierre Elliott Trudeau, made it his ambition to alter the Canadian constitution.


The monarchy is the last bulwark of democracy. The Hon. Daniel Johnson. Premier of Quebec


Canada, as most will know, was formed in 1867, out of a federal union of four British North American colonies: Nova Scotia, New Brunswick, Quebec and Ontario. Over the years which followed, the remainder of Britain's North American possessions joined the union, the last being Newfoundland, which became a province of Canada in 1949. At present, Canada consists of ten provinces and two territories, although one of the territories is due to be sub-divided into two separate territories in 1999.


As has been noted, the Canadian Constitution, like the Australian, was a statute of the Imperial Parliament. Unfortunately, however, unlike the framers of the Australian constitution, the Canadian "Fathers of Confederation", as they are known, could not agree on a formula with which to amend the Constitution. This being the case, after confederation constitutional amendments still had to be passed by the Imperial Parliament on Canada's behalf.


This was a theoretically anomalous situation, to be sure, but in the pragmatic Canadian way (another characteristic which Australia and Canada share, many claim) a convention was developed whereby if the federal government wished to amend the constitution in a way which would affect provincial competence, it would first seek the support of a substantial number of the provinces. Following this, a request would be made of the British Parliament, which would pass the amendment without question."


From a theoretical perspective, this was rather anomalous, but it permitted the Canadian constitution to develop to make provision for things which could not have been contemplated by the Fathers of Confederation in the 1860s. Nevertheless, Mr Trudeau made it his life's mission to rectify the theoretical deficiency He was to be the one who succeeded in "bringing the Constitution home" (as the rhetoric of the day had it) where everyone else had failed. Accordingly, he came up with a plan which would accomplish two things: first the British would surrender all remaining rights they had to legislate for Canada (much as was done in the Australia Acts). A necessary precondition to this, of course, was coming up with an acceptable amending formula, so that Canadians could formally amend the Constitution themselves. In addition, the Trudeau plan called for the entrenchment in the Constitution of a Bill of Rights (known in Canada as the Charter of Rights and Freedoms).


When you think about it, the American Revolution was promoted by the French. And they, Quebec, refused to join. It was nothing to do with language but a lot to do with religion. And they felt more secure in the main, Catholics in Canada. More security for the religion, what the Monarchy was giving them in those days, compared to the Americans. So they stayed. The Rt. Hon. Jean Chretien. Prime Minister of Canada


Without going into the detail of the story (though it does make for interesting reading), the bottom line was that in political terms, Mr Trudeau succeeded in his goal through the sheer force of will. Initially, he was opposed by a number of provinces, but he managed to win them over. If they did not agree, he said, he would go to London unilaterally (as by virtue of the Statute of Westminster 1931 he could do).` In the end, the province of Quebec was the sole holdout. Trudeau's chosen solution in the circumstances was to reach a deal with the other nine provinces and simply to ignore Quebec's opposition.


Now one might have different views about the nature of the relationship between the French and English speaking populations in Canada, but the fact that Canada's sole francophone province did not participate in the patriation process was of tremendous symbolic importance. While the fact is that one doubts that the Quebec government would have agreed to anything which was acceptable to the rest of Canada, it is no exaggeration to say that most adult Quebeckers - even Quebeckers who have no sympathy for the separatist cause-felt betrayed by the actions of the federal government.


It is that feeling of betrayal that has been responsible for the repeated failed attempts since patriation in 1982 to bring Quebec back into the constitutional fold. The first attempt began shortly after the election of a Conservative government in 1984. Brian Mulroney, the new Prime Minister, immediately began to seek amendments to the Constitution which would be acceptable to Quebec. This set of constitutional proposals came to be known as the "Meech Lake Accord", after the location of the Prime Minister's summer residence, where the proposed terms had been agreed upon. The Accord would have given Quebec special rights in the constitution which no other province had. These included a formalised role in the regulation of immigration, a constitutionally entrenched role in appointments to the Supreme Court of Canada, and a right of veto over future constitutional amendments. The Accord also included a formal, but undefined, statement that Quebec constituted a "distinct society" within Canada. While the Accord had been agreed to by each of the provincial premiers, in order for it to come into force, it had to be ratified by resolutions of each provincial legislature by 23 June 1990.


The inclusion of a "distinct society clause", in particular, rankled many Canadians, and in the end, the Meech Lake Accord failed. Two provincial legislatures failed to ratify it in time. In Newfoundland, the Premier did not want to put it to a vote in the Legislative Assembly, because he knew that it would be resoundly defeated, and he did not want a formal political message of rejection to be sent to Quebec. In the western province of Manitoba, the sole native member of the Provincial legislature successfully used stalling tactics (which were entirely lawful) to delay the vote until after the deadline had expired.


As one might expect, this led to bitter resentment in Quebec. So the provincial government-which at the time was proCanadian in orientation-issued a set of "minimum demands", which of course included the "distinct society" clause. But by then, other groups: native peoples, women, other cultural societies-began to say that if the constitution were to be amended to address the concerns of Quebec, then the opportunity should be taken to right other perceived constitutional wrongs. So this time, the federal government was forced to put together a very complex package which tried to reconcile all of these competing goals.


Not surprisingly, in trying to come up with a package which could please everyone, the government ended up in pleasing no one. Many French-speaking Canadians were unhappy because they felt that their historical status as one of the two founding peoples of Canada was being forgotten. Most native groups were unhappy because they felt that their longstanding grievances were not being given sufficient consideration. And some women's groups were unhappy because they felt that important issues of gender equity were being overlooked.


Nevertheless, in the end, the Government managed to cobble together a deal - this time called the "Charlottetown Accord". But what made the Charlottetown proposals different from the Meech Lake Accord was that they provided that the Accord be put to a referendum. This was somewhat unique, for unlike in Australia, referenda are not part of the Canadian political tradition.


In the campaign leading up to the referendum, which was held in 1993, Canadians were subjected to a media blitz. Voting "Yes", they were told, was the only way to save the country" Moreover, most of the so-called "chattering classes" were urging a "Yes" vote. The leaders of all three of the political parties, a number of university academics, retired members of the judiciary - all were telling Canadians that even if they did not like the deal, they had to vote "Yes" in order to keep Canada together.

Yet, despite this extreme pressure, in what is probably one of the most noble chapters in Canadian democracy, the Canadian people said "No".


They said "No" to a deal that had been arranged by people who did not really have a sense for what ordinary Canadians-the Canadian "battlers", so to speak- felt and believed. They said "No" to having a deal forced upon them by the social elites, and being told that they then only had one way in which to exercise their franchise. And they said "No" in a huge majority.


But as good as this assertion of what North Americans call "grass-roots" democracy may have been in principled terms, after the second rejection Quebec's feeling of bitterness and betrayal became even more profound. So a separatist government was elected in Quebec and, as most will remember, the provincial government in 1995 held a referendum on separation which only lost by about one per cent - less than fifty thousand votes!


For the Monarchy is much more than a person. It embodies the constitutional framework of our freedoms, the set of beliefs and attitudes of tolerance that make up this great country and make it distinctive. The Queen is the syinbol of what we are today and the history of which we are the result and which is part of us. If Canada were to abolish the Monarchy we would be abolishing the syinbol of our distinctiveness. The Hon. Henry Jackman. Lieutenant-Governor of Ontario.

So what does this say about Canada today? And more importantly, what lessons does the Canadian story hold for the Australian constitutional debate?


To be blunt, in social terms, the Canada of today is in many ways not a pretty sight. Many will remember the 1993 federal election when the Canadian Conservative party was virtually wiped out. It was reduced from two hundred and fifty-odd seats in the Parliament to just two. In truth, however, the real story is not in the garish headline that accompanied the Conservatives' fall in fortunes, but rather in the social aftermath that the electoral pattern reflected. Simply put, Canada is today in a Balkanised state. Region has been pitted against region, and group against group.

Republicans have from time to time argued that the Canadian scenario could not take place in Australia, for here, there is no single group like the French in Canada to act as a focus of division. But I am not so sure. For one thing, were, say, Western Australia or Tasmania-or both-to vote "No" in a republican referendum, it seems to me that the damage to the Australian federation could be nearly as great as that which resulted from the exclusion of Quebec from the constitutional agreement in 1982. Moreover, in a post-Mabo, post-Wik Australia, one could imagine that a failure to secure formal Aboriginal support for whatever constitutional change is attempted could in symbolic terms actually surpass the damage caused by the perceived slight to Quebec. And lest there be any doubt at all about the fragile nature of Australian social unity, one need only consider the disharmony revealed not so long ago by Pauline Hanson's public statements about race and immigration.

Furthermore, there is here in Australia a burgeoning "rights culture" which could easily fuel the same sorts of fighting over pieces of constitutional pie that has taken place in Canada of late. Many will remember, for instance, Dr Carmen Lawrence's statement at the 1995 Labor Party conference in Hobart that Australian women are "hungry for the exercise of power". So, too, are many other groups in society, one imagines.

For 200 years, the Monarchy has been the most important influence in keeping our country together and creating a truly unique and distinct society in North America. Bill Vankoughnet, M.P.


There is another aspect of the move to cast off the ties which bind us to the past. That is the lure of the United States. If the desire to become a republic is a function of wanting to be Australian, this is something about which Australians ought to think very hard. As I have written elsewhere," the plain fact is that as with Canada, the cultural threat to Australia today does not lie in the British Isles, but in America In global economic terms, the United States may well be a country whose day is passed, but a glance at any weekly listing of the top television programmes, or in the display windows of any sporting goods shop, will make plain just how powerful an urge present-day Australians feel to consume the American lifestyle.


One cannot of course speak of the pull of continentalism as one can with Canada, but the force is almost as powerful. Even assuming that many republicans are sincere in their own "Australianness", there should be little doubt in anyone's mind that, given today's climate of economic rationalism, such a formal and symbolic break with the past as would take place with the formation of a republic would only exacerbate the process of Americanisation of Australia.


One does not mean to sound alarmist, but as any Canadian will tell you, cultural suffocation is a slow process. There is every likelihood that in the event of an Australian republic, the process of Americanisation would be so slow, and on a daily basis both so pleasant and convenient, that it would go unnoticed by the majority until the die had been irretrievable cast.


A nation may make a Constitution, but a Constitution cannot make a nation. Alpheus Thomas Mason


So, at the end of the day, what is one to make of all of this? Well, in my view, there are four broad lessons for Australia in the Canadian experience:


The first is that the business of constitution-making is a very complicated one. As I have already argued," a plebiscite would cloak the whole process of constitutional alteration with a false air of simplicity. It will build up hopes that the brass tacks of actually re-writing the document will deflate. This can only be harmful.


Secondly, one must realise that it is impossible in this day and age to consider constitutional amendment in isolation. People in favour of change may suggest that it can be done quicklyand cleanly. Well, the simple fact is that it cannot. Once a constitution is opened up, especially in a rights conscious society, it becomes a Pandora's box.


Thirdly, at the end of the day, it is the people who have the final say. Not the politicians. Not the media. Not the academics. Not the business community. The decision must be made in the end by ordinary Australians. In saying this, I am conscious of the fact that Australians have had a great deal more experience with referenda than Canadians. But as I have suggested, it is almost certain the any plebiscite will be accompanied with a publicity campaign which will urge that a vote against change somehow amounts to a vote against Australia.


Fourthly, and finally, constitutionalism is very distracting. At the very same time that Canada was going through round after round of constitutional wrangling, the Reagan /Thatcher economic revolution of the 1980s was-for good or badtaking place. Unfortunately for the Canadian economy, the simple fact is that the national attention was monopolised (even though many Canadians were quite tired of the whole thing) by constitutionalism. One does not mean to draw too long a bow here, but it is arguable that the degree to which Canada was hit by the last recession was in part a result of the fact the for the greater part of a decade, the nation's attention was diverted from the problems which affected the daily lives of Canadians.


Constitutionalism has had profound consequences for Canada. If Australia decides to continue along the same route, the changes wrought here will be just as irreversible as they have been in Canada. Of course, there are problems in society that need to be addressed. Being a human creation, society will always be imperfect. Nevertheless, our goal ought always to be to strive for improvement. But in light of the Canadian experience, any dispassionate observer would urge Australians to think long and hard before viewing a change to the Constitution as the key to national rejuvenation.

 
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