October 29

Recent fads of the Australian Constitutional Change for Change’s Sake Brigade


The 2009 10th Annual National Conference of ACM


Coolangatta Queensland 24 October 2009


Among the dominant faction of our political elite the Australian people have acquired a bad name. The reason is simply explained: whereas members of the elite almost always want the ordinary punters to record an affirmative vote at referendums the people take the opposite view. Consequently the Australian people, in the view of that elite, have a bad record when it comes to reforming the Constitution.


I take the opposite view. The fact that only eight out of 44 proposals put to the people to change the Constitution have succeeded says much about our politicians. It does not say that the people have been foolish. Quite the contrary. Ordinary people are, in my opinion, always a lot smarter, more tough-minded and more fair-minded than the political class believes them to be.


So, why have only eight out of 44 proposals succeeded? I think there are two reasons. First, politicians are motivated by the promotion of their own glory. Second, politicians are subject to fads. That is why I have titled this talk “Recent fads of the Australian Constitutional Change for Change’s Sake Brigade.”


To understand what I mean let us go back one hundred years. We imagine we are in October 1909. Alfred Deakin is our great Prime Minister, currently serving the third of his three terms. Waiting in the wings is another great Prime Minister, Andrew Fisher. He has already served a short term of seven months (from November 1908 to June 1909) but is waiting for the landslide victory he will inevitably enjoy in the autumn of 1910.


At that time no one would have said the Australian people had shown bad judgment in the matter of amending the Constitution. Only one proposal has been put – and it was carried easily at a referendum held in conjunction with the December 1906 general election. So no one thinks the framers of our Constitution made a mistake to bring the people into the process. The Americans had not done that but we had – and we were proud of it because it demonstrated the fact that we were ahead of the Americans in democratic thinking.


At that point, however, the first fad sets in. It goes from 1910 all the way through to 1951. That fad takes the form of supposing that the welfare of the Australian people can best be advanced by adding to the powers of the Commonwealth Parliament under section 51 of the Constitution.


From 1910 through to 1951 there were 23 proposals put to the people. Of those, 20 proposed an amendment to section 51 to add power to the Commonwealth Parliament. Only one was accepted. The other 19 were rejected. Given the unique nature of the one success I feel I should say something special about it.



Section 51 of the Constitution provides as set out below. Note, however, that I show the powers as existing at the time of Federation and I only show the powers relevant to this paper.


The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:-


(xxiii.) Invalid and old-age pensions:

(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is necessary to make special laws:


It is worthwhile for me to give the circumstances of the one success. It occurred in 1946 when Ben Chifley’s government became the only Labor government ever to achieve an amendment to the Constitution. The referendum was held in September 1946, in conjunction with the general election of that year, the only election Chifley won. The new power given by the people reads as follows:


(xxiiia.) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:


The interesting point is that most of these various payments had been made ever since introduced by the Fisher Government which ruled from April 1910 to June 1913. The payments were made under the general revenue power of the Commonwealth. However, the High Court cast doubt upon the constitutional validity of that being done, so Chifley decided that it must be placed beyond doubt. In other words the people merely voted to confirm the status quo. They did not perceive they were giving extra power to the Commonwealth at all.


The last of the 20 proposed amendments to section 51 to be put forward was that by Bob Menzies in September 1951. He sought power to deal with communists and communism. That was the consequence of the High Court ruling invalid the Communist Party Dissolution Act of 1950. He sought power to overturn that ruling.


This was an interesting case. For once the progressive forces in Australia advocated a NO vote – and they were successful. Menzies learnt the lesson of that defeat. Although he ruled for another 14 years he never tried to change the Constitution by referendum again.


My further thoughts about the fad of 1910 to 1951 tell me of the wisdom of the Australian people. Although the High Court was often disposed to give the Commonwealth more power the people were not. Their decisions can be justified on one of two counts. In some cases it would have been a bad thing if the extra powers were given. In other cases it was quite un-necessary that the Commonwealth be given the extra power. In effect the people were telling the politicians not to waste their time.


With the election of the Whitlam Government in December 1972 we usher in the next fad, the so-called “simultaneous elections” proposal. It runs until September 1988 when the Australian people say NO for the fourth time. However, before I outline that phase of our constitutional history I must say something about a unique referendum held in May 1967 when Harold Holt was Prime Minister.


Actually at the May 1967 referendum two proposals were placed before the people. The results, NO to the first question and YES to the second, demonstrated the ability of the Australian people to take the bait but not the hook.


It was the first proposal which really interested the politicians. It would have amended section 24 of the Constitution to allow the size of the House of Representatives to expand irrespective of the size of the Senate. Section 24 reads as follows:


The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.


The number of members chosen in the several States shall be in proportion to the respective numbers of their people. . .(Here follows a formula).


But notwithstanding anything in this section, five members at least shall be chosen in each Original State.


The proposed amendment was unanimously approved in the House of Representatives but struck resistance in the Senate which, nevertheless, approved it by a majority of votes. The important thing, however, was the verdict at referendum. Once it was explained to the people by its opponents the Australian people rejected it in every state except New South Wales. Its opponents claimed, quite correctly, that it would ruin the Senate.


The second question was the most successful in Australian history. Approved by an affirmative vote of 91 per cent it was the famous Aboriginal question. Originally its purpose was simply to repeal section 127 of the Constitution which used to read as follows:


In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.


However, a late change was made. It was to amend section 51 (xxvi.) to delete the words “other than the aboriginal race in any State”. See above. Consequently the people did, in fact, grant an extra power to the Commonwealth. However, it was not explained in that way. Since there were no opponents of the proposal, ordinary people just accepted the idea that its purpose was simply to promote Aboriginal rights.


I return to the “simultaneous elections” fad. This proposal was rejected when put by the Whitlam Government in May 1974, rejected again when put by the Fraser Government in May 1977 and rejected yet again when put by the Hawke Government in December 1984. Its form was changed and the Australian people rejected so-called “parliamentary terms” when put by the Hawke Government in September 1988. Some would say that the 1988 verdict was the first rejection of four-year parliamentary terms. I would argue that it is better seen as the fourth rejection of so-called “simultaneous elections”.


The essential idea was to tie Senate terms to those of the House of Representatives. There was, as they say, “something in” that idea. So far we have had 42 general elections for the House of Representatives. We have also had 40 Senate elections, of which seven have been Senate general elections (in 1901, 1914, 1951, 1974, 1975, 1983 and 1987) and 33 have been periodical elections for half the Senate. Perhaps more importantly we have had six separate House of Representatives general elections (in 1929, 1954, 1963, 1966, 1969 and 1972) and four separate periodical elections for half the Senate (in 1953, 1964, 1967 and 1970).


So, although there was “something in” the push for “simultaneous elections” it does not require much thought to know that the purpose of the proposal was to give more power to the Prime Minister. Under that proposal, at any time the Prime Minister could dissolve the House of Representatives and automatically dissolve half the Senate. Thus the opponents always called it the “simultaneous dissolutions” proposal. They also pointed out (as is clear from the above statistics) that simultaneous elections were never a problem under our present well-designed Constitution.


I wrote above about the ability of the Australian people to take the bait but not the hook. That was well illustrated in 1967. It was illustrated again in 1977. In that year three amendments were approved but “simultaneous elections” (the one the politicians really wanted) was rejected.


The 1988 proposal was different from those of 1974, 1977 and 1984 in that it proposed to amend section 28 as well. Section 28 provides:


Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.


The 1988 proposal was to change “three years” to “four years”. Thus the 67 per cent NO vote of 1988 (failing hugely in all six states and both territories) constituted the first rejection of the four-year term proposal and the fourth rejection of so-called “simultaneous elections”. That particular fad was now deemed to be over.


I come now to the third and fourth fads. These are still around but I have no doubt that history will show both of them to be fads. The first is the republic and the second is the proposal for a fixed term of four years for the House of Representatives. Both proposals would do great damage to our present well-designed Constitution.


During the 1999 referendum and in the years thereafter I wrote a great deal about the republic. Consequently I feel that now I can do little better than quote myself. In 2002 I jointly edited the book Constitutional Politics: The Republic Referendum and the Future and the other editor was Professor John Warhurst who was on the other side of the debate. The descriptions of the editors on the back cover the book were as follows:


John Warhurst has been an active registered supporter of the Australian Republican Movement since the early nineties while Malcolm Mackerras has been equivalently active with Australians for Constitutional Monarchy.


John Warhurst is Professor of Political Science at the Australian National University. His recent books include . . .


Malcolm Mackerras is Associate Professor in Politics in the University of New South Wales at the Australian Defence Force Academy in Canberra. His most recent book is . . .


The main chapter by me was written jointly with Professor William Maley, himself a constitutional monarchist. Titled “1999 Republic Referendum Results: Some Reflections” its concluding paragraphs read as follows (pages 110-112):


What ultimate conclusions can we draw about the results of the 1999 Republic Referendum? In our view, three stand out. First, voting for the republic was an inner metropolitan phenomenon. Second, voting for the republic was correlated with income and socio-economic status, which to a considerable degree explains the failure of the ALP to successfully mobilise a decent majority of its 1998 supporters to vote for the republic in 1999. . . To these factors we would add a third, which augurs poorly for future attempts to bring about a republic. This is that ‘republic’, in the abstract, is an expression of a nebulous concept. One of the reasons opinion polls show high support for a republic is that their questions are often cast in a nebulous form. In a referendum, however, it is always necessary to specify exactly what the term is to mean and, in 1999, this very act of specification split republicans into two hostile camps: those concerned with national symbols and those concerned with popular empowerment.


The latter worked to defeat the brand of ‘republic’ on offer, since this was the only way to keep ‘their’ republic alive. Should ‘their’ republic one day be on offer, it is by no means certain that those who voted for a nominal republic in 1999 would support a substantive republic at that time. From this, a political scientist might conclude that the monarchical status quo is the Condorcet winner, namely that option which, even if not supported itself by a majority, can garner enough support to defeat any alternative. To put it another way (as one commentator did on the night of the referendum), one might fairly describe the republicans as a circular firing squad.


We have just introduced what many will think of as a new term. It is one we think should appear in any glossary of Australian electoral studies: ‘Condorcet winner’, after the French mathematician, philosopher, historian and republican politician, Marie Jean Antoine Nicolas de Caritat, Marquis de Condorcet (1743-94). Any significant work of international psephology includes a definition for this term, namely ‘a candidate who can beat any other in a pairwise contest’. To be a Condorcet winner you need a decent level of minority support. If your support falls too much you then become a ‘Condorcet loser’.


While the idea of the Queen as a candidate for election may seem strange, that is the Australian reality. Our picture of the future is that there will be a plebiscite some day in which, say, 75 per cent of voters assert that they want ‘a republic with an Australian head of state’. Then an actual republican constitution (with a popularly elected president) will be put to the people. Not only will that ‘maximalist’ model be more heavily defeated than its ‘minimalist’ predecessor, it will give Sir Robert Menzies joy from his grave. Having watched his beloved Kooyong gave a 23,000 vote majority for the republic in 1999, he will laugh as Kooyong gives a 23,000 vote majority for the Queen in 2009.


Another term will then be added to the glossary: ‘Neverendum’. Faced with the Queen’s victory in Referendum One, then Referendum Two, people will switch off, muttering this new word. As the Americans would say, ‘If it ain’t broke don’t fix it’.


It should be stated that the republic fad has not yet reaped the whirlwind of the simultaneous elections fad. However, I am in no doubt that it will, eventually. It is simply a question of how much of the time and the money of the Australian people the politicians choose to waste. It will reach the “Neverendum” phase, though admittedly much later than in 2009! At that point the republic will be officially declared dead.


The other fad of the present time is the idea of a fixed four-year term for the House of Representatives. It is now in hibernation, however, for two reasons. The first is that Kevin Rudd, having once proclaimed himself a believer in the fixed-term solution to a non-problem, has now discovered the virtues of the present arrangements. Courtesy of the present, thoroughly sensible, arrangements he now has some power over the Senate which may actually give ground on his Carbon Pollution Reduction Scheme. If it does not give ground it faces dissolution under section 57 of the Constitution. There would then be a Senate general election in which those who opposed his CPRS would be suitably punished by the Australian people.


The other reason why this fad is now in hibernation is the disreputable state of the New South Wales Labor government. However, it should not be forgotten that, once the Rees Government is defeated in March 2011, the fixed four-year term in New South Wales will appear to become respectable again. Bearing in mind that Western Australia is moving to fixed terms the argument will be that, with nearly all the states and territories having adopted this reform, the Commonwealth should follow suit.


This proposed reform is worthy of vigorous opposition. However, I am sure it will fail and will eventually be seen as a fad. There is a simple reason for that. The wisdom of the Australian people can be relied on. By contrast in all the states and territories, excepting Queensland, the politicians have been allowed to fix these things for themselves. In Queensland the people have already said NO to the four-year term so the people now have only three years to put up with a government of which they wish to be rid.


Before I conclude I wish to write some words about John Howard. As a consequence of his insane Work Choices legislation I have become one of his critics. However, he deserves a defence against two accusations made by some Howard-haters.


The first accusation is that he rigged the 1999 republic referendum against the republic. Nothing could be further from the truth. Any fair-minded person would surely acknowledge that he treated the republicans generously. The appointed delegates were sensibly chosen and a majority actually voted for the republic model which eventually emerged from the February 1998 convention. The other half of the convention was composed of the elected delegates. Although there was some criticism of the form of popular election (voluntary voting by post) it needs to be noted that the legislation passed the Senate with little trouble in August 1997. Even such staunch republicans as Senator Bob Brown and Senator Brian Harradine voted for it.


The truth is that John Howard gave everything to the republicans that they could reasonably have hoped for. Indeed the circumstances of the 1999 referendum were ideal for the republic. Yet, in the end they could not even manage to carry a single state!


The other unfair accusation made against Howard is that he abused his power, as Prime Minister, to name the election date: hence the (now dormant) demand for the fixed term of the House of Representatives. I deny that Howard ever abused his power in this matter. I also deny that any previous Prime Minister ever abused his power. Consequently I have written a separate paper titled “Early General Elections for Australia’s House of Representatives” which elaborates on my thinking in this matter.


Finally, I should say that there is one reform of the Australian Constitution which I do favour. It is to amend section 44 which now reads:


Any person who –

(i.)               Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or

(ii.)             Is attainted of treason, or has been convicted. . .

(iii.)           Is an undischarged bankrupt or insolvent: or

(iv.)           Holds any office of profit under the Crown. . .

(v.)             Has any direct or indirect pecuniary interest. . . . . . . shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. . .


This section tells us a very interesting story. In July 1997 there was a report from the House of Representatives Standing Committee on Legal and Constitutional Affairs. The report was titled “Aspects of Section 44 of the Australian Constitution: Subsections 44 (i) and (iv)”. Here was an all-party committee which unanimously recommended a change to the section.


If our politicians today were as they were in the good old days (by which I mean in 1906) they could have placed this amendment before the people at a referendum to accompany any general election since then. If they had done that they could have claimed a reform implemented by a combination of themselves and the people. Why, then, have they not done that? The explanation is simple: they want glory for themselves. They are not really interested in constitutional reform.


(Malcolm Mackerras is Visiting Fellow in Political Science, School of Humanities and Social Sciences, the University of New South Wales at the Australian Defence Force Academy in Canberra.)


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