April 3

” Frozen continent”: republican pessimism

 

 

 

…leading republican pessimistic about another referendum…

History goes against Kevin Rudd's ambitious plans for constitutional change, Professor George Williams concedes in The Sydney Morning Herald of 29-30 March 2008, in a piece entitled “Frozen Continent”. 

He points out that the Rudd government is committed, either by its announced policies or through the party platform, to change the constitution. 

The changes include fixed four-year terms for the federal Parliament, some sort of vague undefined republic, recognising local government and restoring co-operation in federal-state relations.

The government may also propose referendums to take over state hospitals if the state governments continue to mismanage them, and to recognise indigenous peoples in a new preamble to the constitution.

However in the history of the commonwealth of Australia, Labor has only had one referendum success.

This was the 1946 social services referendum. There are serious doubts whether it was actually passed as the Constitution requires.[i] If this view is correct, it is of course too late to review this.

Labor’s last attempt, the four referendums in 1988, despite initial optimistic polling, failed dismally.

Of the 44 referendums, eight have succeeded. Five gained a national majority, but failed to pass federally. That is a majority of states did not support the proposal.

Professor Williams points out that none of the eight successful changes was a major revision. Changing to a republic certainly would be a major change, although the republican movement tried to paint the 1999 referendum as changing little.

But Tom Kenneally, the first president of the ARM broke ranks when he declared on channel 9 that it would becoming a republic would be  the most significant change since federation.

…no failed referendum put again ever passed…

Professor Williams makes the point we also made in The Cane Toad Republic in 1999. The Australian people have never voted "yes" to a proposal after rejecting it on a previous occasion. Three were put twice, two proposals were put three times, and three proposals on five occasions. All eight failed. (Some would no longer been necessary, because of judicial reinterpretation of the constitution.)

These historical precedents are not encouraging  for republicans.

Professor Williams refers with apparent approval to frequent constitutional changes in other countries. But most are not examples Australia would wish to follow.

He also does not mention the fact that activist judges, centralist federal politicians and state politicians preferring to be dependants on Canberra have, through reinterpretation, skewed the Constitution away from what the people have approved.

…criticising a constitutional strength…


He says one reason for a refusal to change is that the constitution does not match how government works in Australia, not mentioning for example, the prime minister or the cabinet.

 The problem he says is that Australia's constitution makes sense only when it is read against the assumptions and conventions Australia inherited from the Westminster system of government in Britain. 

We are very surprised that Professor Williams sees this as a problem. It is not. It is a strength.

This was an argument the establishment republicans  used  in the 1999 referendum campaign.

In our view this is a distinctly unwise and dangerous argument. It is unwise because the constitution was never intended to be a complete primary school text. If the constitution is not understood, the fault is not in the text but in standards of education in the country.

Our advice is to fix that; don’t try to “fix” the constitution. You can’t.

Not everything of course can be reduced into writing. Gareth Evans and Paul Keating finally decided that it was impossible to codify the conventions surrounding the reserve powers of the Crown.

Indeed, it is unwise to try. By writing too much down, the evolutionary development of conventions is thwarted.

That potential for evolution is one of the strengths of our system.

There is a danger too  in writing something down. The meaning may be changed. This may  only become apparent when the text is interpreted by a court years later.

… campaign slogans …

Professor Williams also says fierce partisan battles over arcane questions of constitutional law often produce an "if it ain't broke, don't fix it" response to referendum proposals.

But slogans have long been  a valid part of campaigning.

Slogans are a way of summarising an argument. They should be true and they should obviously be effective.

It is not as if the republican movement does not use slogans.

“ A mate for head of state”[ii] was the latest. It was the work of a high powered group led by the prominent author, journalist and broadcaster, Peter FitzSimons. However it  was neither accurate  nor effective. Attracting widespread ridicule from the media, and no interest from the public, it soon disappeared.

At the 1999 republic referendum, he says, the "no" case combined this argument for the status quo with two other slogans, "Vote No to the Politicians' Republic" and "Don't Know – Vote No", with devastating effect. (The latter was Alan Jones’, who dominates Sydney talkback radio.)

There was a third one.  It was that the proposed republican constitution would be the only one in the world  under which  “it would be easier for the PM to sack the President than his cook.”

All of the vote No slogans were true. As to their effectiveness, the testimony is in the referendum vote – nationally, all states, and 72% of electorates.

 

 


[i] Justice Ken Handley: “When "Maybe" means ‘No’”, Samuel Griffith Society, Upholding The Constitution, Vol 14, chapter 3. ( 1902)

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