Tuesday, 10 January 2012

The spirit of our constitution

The spirit of our democracy doesn't lie in the constitution


If you find politics interesting and want some holiday reading then try Robert Putnam's Making Democracy Work. His research and writing is not party political, but it penetrates some of the big issues in democratic politics.

The Putnam research into the differences between politics in the north and politics in the south of Italy provides some fascinating data on underlying social capital in Italy and consequently the differences in the type and quality of regional governments.

Without trying to provide a summary of Putnam (there is a lot of material on the internet), for me, his work reinforces the reality that the beating heart of our democracy is not to be found in legislative enactments, but in the egalitarian spirit of the Australian people.

Whilst, of course, our formal institutional arrangements are fundamental to the success of our political system they are not everything and certainly are framed by concepts such as an independent judiciary and a free press. The Australian constitution is now part of that mix but Australian citizens were already free and imbued with the democrat spirit well before the constitution came into effect.

Sometime between now and the 2013 federal election there will be two proposals to change our constitution. One of the defining aspects of Australia's constitution is that it can't be changed without first being put to the people in a referendum. State parliaments have also made allowance for direct democracy and a majority of those plebiscites have been passed.

At the federal level, most referenda have been lost and, in my opinion, the most common reason for rejecting referenda has been that many propose an increase in Commonwealth powers at the expense of a more decentralised political system. The Australian public have often shown they are not keen on centralising power in Canberra; they prefer political power to be more diffuse.

The two proposed referenda have not been announced.

One will propose that the federal constitution recognise local government. A similar proposal in 1988 was convincingly rejected and it will defy history if it is not rejected for the second time. One simple reason taxpayers money should not be wasted again is that the local government proposal will only add a layer of confusion when most people would expect the second referendum to be more important.

Details of the proposal for a referendum to acknowledge Aboriginal and Torres Strait people in the constitution have not yet been released. Apparently the details will be released this month. I do not prejudge the proposal, although it does raise some questions.

Firstly, as others have said before, the genius of our system for constitutional reform is that the people are not just masters of the final steps toward successful change but in the past, the first steps have also been conducted under the public supervision of the people.

The matter of process is not a side issue. John McMillan who wrote in the early 1990s about referenda with Gareth Evans and Haddon Storey (LIB Vic) put it this way:

Agreement on the procedures for constitutional debate is as important as the proposals themselves.

And in Papers on Parliament Number 13 in November 1991 he said about the 1988 referendum:

...the referendum was held before the Constitutional Commission had finally reported, one of the four proposals was framed at variance with the Commission's Interim Report, there had been no real public debate, national and state opposition to the referendums seemed certain, and the Government adopted a low key strategy that the proposals should largely sell themselves.

On this occasion I am not sure that the process will be any better. The process was initiated by the Government and the Greens before the people had any say at all. As a result, instead of a public debate, the handpicked committee are now pressing their case before the people have been given any say at all. The process will produce a fait accompli; a "take it or leave it" option. I expect there to be a lot of debate about the proposals but the Government's failure to honour past practice of a people's convention or at least a substantial commission, has already undermined any prospects of success.

Secondly, if the proposal is likely to change the basic structure of the constitution then its prospects will be minimised. In 1988, the Hawke government proposed the incorporation of a mini bill of rights. The intent was to provide for freedom of religion, trial by jury and compensation for property acquisition.

In each case, obviously there was, and still is, strong public support for the concepts. And initially when polled, it seemed that each proposal would have support above 70 per cent. Prior to the 1988 vote, the worst result for a referendum was 34 per cent in the Whitlam years. The rights referendum set a record low of 30.79 per cent. No-one could possibly suggest that the result indicated a lack of support for freedom of religion. The advocacy of a 'No' vote by the Australian Catholic Bishops Conference did not signal anything other than a concern about how the constitutional change could have unforeseen consequences which would then be difficult to change. And given that there was no pressing need for change, the proposal was defeated.

One of the strongest arguments was the problem inherent in a bill of rights. That problem arises when the words in the constitution end up before unelected judges who then have to decide what it all means. In the US, this has triggered huge profits for lawyers and policy uncertainty for everyone else and no greater freedom of religion than here.

The whole point about our constitution is that it never claimed to be the "be all and end all" of people's rights. However worthy may be one cause, I doubt that the Australian public will support a significant rewriting of a constitution that has worked so well for so long.

For me Robert Putnam's work demonstrates that the spirit of our democracy is more likely to be found in the hearts and minds than in the constitution. And similarly the future wellbeing of Australians whether Indigenous or otherwise will be more in their own hands and good government than in constitutional reform.

1 comment:

  1. The proof that our constitution means next to nothing to State and Federal government is in Section 115: "A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts." Our States have neglected to take the Federal government to task over this, but rather they have simply allowed the Federal power grab in one of the most basic of our constitutional freedoms - the ability to save and spend in a currency that cannot be debased.