Our Constitution - The Will of the People
Written by ACM   
Tuesday, 10 August 2004

Once again, George Williams (Constitution a dud vehicle, 1 January) seeks to belittle our constitution. Almost all of the pillars of our nation came with settlement – the rule of law, the English language, that State institution above and beyond politics, the Crown, and of course, our Judeo-Christian culture. The subsequent introduction of parliamentary democracy was inevitable.

Federation was not. It was only achieved through agreement by the people on the terms establishing this "indissoluble Federal Commonwealth under the Crown." The constitution was never intended to read as a stand-alone course in elementary civics. Of course it has to be read in the context of its history and law as well as those conventions which wisdom and experience indicate should remain unwritten. These for example require the Governor-General to act on the lawful advice of the Prime Minister. As we know this is subject to the Governor-General’s higher responsibilities to the constitution - and thus to the people - the so-called "reserve powers". The constitutional "crisis" in 1975 was not in the Governor-General’s withdrawal of Mr Whitlam’s commission. Rather it was the Prime Minister’s refusal to accept that he could not govern without supply. (Perhaps the most curious aspect of the 1999 referendum debate was Mr Fraser’s assertion, put with a straight face, that there would have been no dismissal under the 1999 republican model. There would have been. But it would have been the other way around: Mr Whitlam dismissing Sir John Kerr.)

The achievement of federation was extraordinary. As Sir John Quick and Robert Garran observed, never before had a group of self-governing, practically independent communities, without external pressure or foreign complications chosen of their own free well to - come together as one people - through a deep conviction of national unity.

The constitution divided sovereignty between the Commonwealth and the States. Only four powers would be exclusively Canberra’s (as the capital was to be named). Then there was a list available to both, but where the Commonwealth would prevail. The rest were reserved to the States. This was to be enforced by the High Court. But after 1920, with the appointment of avowed centralists, the High Court rewrote the constitution in Canberra’s favour. As it did subsequently in the unwarranted expansion of the external affairs power, and the effective denial of a growth tax to the States. So let us hope the transfer of the proceeds of the GST will restore the financial autonomy of the States. As the American Founding Fathers pointed out in the Federalist Papers: "In a federation, the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants."

Notwithstanding past High Courts’ determination to rewrite the constitution - the present court is more inclined to act with proper judicial restraint - Mr Williams is unhappy.

He laments the difficulty in amending the constitution, with only eight out of forty four referenda approved. (One of them, to give the social services power to Canberra may only have survived because it was never challenged.) But most of those rejected involved either more powers for Canberra, or some fiddling for political advantage with the constitution. Others were ostensibly attractive baits in which similar proposals were camouflaged.

The point is that the people are far too smart to allow this. They clearly want a federal Australia. And in a democracy, why should their will be flouted or castigated?

The Founding Fathers knew how even constitutional plebiscites could be abused, particularly in France. Instead they chose the Swiss style constitutional referendum, which requires details of the proposed change to be known in advance. This guarantees that the people’s true will can be ascertained.

As Quick and Garran wrote, this requirement is not to prevent or resist change. It is to prevent change being made in haste or by stealth, to encourage publish discussion and to delay change until there is strong evidence that it is "desirable, irresistible and inevitable".

Few constitutional systems provide such a guarantee. Australia is indeed fortunate to have had such Founders.