David Flint & Daniel Lahood
[This appeared in The Australian Financial Review on 14 June 2023]
Referendum. It’s not too late to hold a people’s constitutional convention to consider the question of constitutional recognition.
With the Voice referendum in trouble, it is not too late for the government to think laterally. If, instead of the people being brought in at the end of the process just to vote, why not bring them in now with an elected, unpaid constitutional convention?
This is a solution to the issue of constitutional recognition argued from as long ago as 2015 by one non-profit organisation which, whatever the views of its members, declines to take a position on suggesting how people should vote on the issue which, it says, is beyond its remit.
That organisation – Australians for Constitutional Monarchy – is the only one in existence with a living experience of running a successful case in a referendum.
The ACM put in a submission on this to the recent parliamentary inquiry into the Voice referendum. Not only was this ignored but, curiously, it was also not even listed as a submission.
Apart from running a successful referendum campaign, the ACM has long been interested in the law and practice relating to referendums and plebiscites.
An unpaid convention could be elected this year by state and territory-wide electorates, with say 114 delegates, or about half the size of the present parliament. Much of the work could be done by committees online, with a draft produced early next year that could be put to the people in mid-2024.
The ACM decided it would be beyond its remit to support either side in the Voice referendum, but made its views known about the process. Despite unfair criticism, the ACM believes the Howard government set the correct standard in the republic referendum, ensuring absolute fairness in the process for both sides.
We believe the Albanese government could learn from the republic referendum, for example, by not funding information advertisements that are too close to advancing the Yes case.
In an earlier parliamentary inquiry this year, the ACM submitted that the government should reverse its initial plan to drop the crucial Yes/No booklet.
Associated with this was an argument that the booklet should go to every voter, except those who indicate an online preference. In 2013, claiming cost savings, the referendum law was amended to send the booklet only to each address on the rolls, no matter how many voters lived there.
The ACM warned that the garbage bin would be the likely destination of a Yes/No booklet addressed ‘‘To the Householder’’.
In its ignored submission, the ACM also drew attention to the fact that the founders of our nation had introduced the Swiss-style referendum, requiring a double majority, only as a safeguard. Never intended to prevent change as such, it was only designed to prevent change made ‘‘in haste’’ or ‘‘by stealth’’.
Its purpose was to encourage ‘‘public discussion’’, and to delay change until there was ‘‘strong evidence’’ that what was being proposed was ‘‘desirable, irresistible and inevitable’’.
This is a high bar, entirely appropriate to something as serious as changing one of the world’s oldest constitutions still in force and, thus, one of its most successful.
In the submission, the ACM referred to the position it had taken when, in delivering the 2015 Neville Bonner Oration, then-prime minister Tony Abbott had called on the ACM to support the then proposal for Aboriginal constitutional recognition.
The ACM’s response, repeated later to a 2015 parliamentary inquiry, was that the best way to support the proposal was by arguing for the involvement of the people from the beginning through an elected and unpaid convention.
The alternative would be for the politicians to delay presenting their proposal to the people as the last step. That is why most referendums are rejected.
The best way to achieve a satisfactory result for the issue of constitutional recognition in the current debate is to follow the founders’ advice on constitutional change.
It is certainly not too late for the people of each state and territory to be invited to elect unpaid delegates to a representative constitutional convention to consider the question of constitutional recognition.
The process could follow the Corowa Plan, which was crucial in achieving Federation. This would involve a political understanding that while the convention’s draft recommendations are subject to widespread examination and debate, its final recommendations would be put direct and unchanged to the people.
Once the convention has completed its work on the Indigenous issue, the nation could take advantage of the existence of such a unique and valuable assembly.
The ACM suggests it be given two important tasks.
First, to consider how best the constitutional system could be maintained during any future crisis such as the COVID-19. Second, to undertake what would be the first review of the Constitution by an elected convention in well over a century.
Although the Constitution has worked reasonably well, there is clearly a need to significantly improve the governance of our country. The existence of an elected convention of unpaid delegates would offer the nation many unique opportunities.
And, of course, the final decision on anything would always be left to the people.
David Flint is ACM’s National Convener and Daniel Lahood is the organisation’s Young National Convener.