December 13

The plebiscite:a disreputable subversion of the Constitution [ Part 1]

 The constitutional safeguards are there "…not to prevent or indefinitely resist change…but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible and inevitable".

 (Founding Fathers, Sir John Quick and Sir Robert Garran)


 When it comes to its amendment, our federal Constitution prescribes one method — and one method only — for change. This is the Australian referendum. (Or rather, the Australian adaptation of the Swiss referendum.) Our Founding Fathers were well aware of the difference between a constitutional plebiscite and a Swiss-style referendum.
 While a plebiscite is an acceptable method of finding out the peoples' views on some aspect of legislative policy, it should not be used in Australia to achieve constitutional change. Why? Because the Founders knew how easily a constitutional plebiscite could be an instrument of abuse and duplicity. Napoleon Bonaparte, and his nephew Napoleon III, had demonstrated precisely this.

 The Swiss were well aware of this because Bonaparte himself had tried out the constitutional plebiscite on them — after he had invaded them. So the Swiss devised a way of ensuring that the people could never be duped. This requires the politicians seeking change to put all their cards on the table before the people vote. This is the Swiss referendum.

 It is this the Founders wrote into the Constitution. Now we have a plan to circumvent, indeed to subvert, our Constitution. According to this plan, before any referendum on a republic, we are to have the French dictator's favourite device, the constitutional plebiscite. And not one, two! That alone is bad enough. But there is worse.

 Remember that this plan comes from the same people who failed, over the decade of the '90s, to come up with an alternative republican constitutional model which would work. They failed in 1993, and they failed again in 1999. Knowing this, they are now asking, they are inviting and indeed beseeching a vote of no confidence in the existing Constitution.

 If successful, this will next lead, of course, to a vote of no confidence in the flag. 
If they can get a vote of no confidence in the Constitution, they actually intend this be followed by a constitutional vacuum to last over the decade. This is breathtaking in its irresponsibility. So we are to have a "public education" campaign, then a second plebiscite, then some sort of a drafting exercise in which they will whip up yet another republican model (their third), and finally a referendum the result of which they cannot guarantee.
Given the quality of their work over the last decade — at a direct cost of more than $150 million of taxpayers' money — it is more likely than not that their next, and third, attempt would also fail. This is not the way the Founders prescribed for constitutional change.

 It goes against the spirit of the Constitution, which clearly and expressly prescribes only one way for constitutional change. This is the constitutional equivalent of going the wrong way in a one-way street.

The plebiscite is a disreputable and dishonest distraction, a subversion of the Constitution. How did we ever get to this point?

Let me in the next column remind you of  the events that led up to the making of this plan. Then let me try to assess what is being proposed against what was so clearly intended by the Founders of our Constitution. And then I would like to say a few words on repeat referenda. 

[A fuller discussion of this subject may be found in a paper published in Upholding The Constitution: Proceedings of The Samuel Griffith Society 2001 Volume 13 Chapter 8] 


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