Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Hansard source

I want to speak tonight on constitutional change, but, before I do, I want to add my voice to that of the member for Werriwa in relation to capital punishment. I have a very sharp memory of attending a vigil in Melbourne with hundreds of others at the time of the hanging of Van Tuong Nguyen, an Australian in Singapore’s Changi Prison, on 2 December 2005. He was hanged despite calls from the former Prime Minister, from my party—then in opposition—from this parliament, from every state parliament and from tens of thousands of Australians. The very first thing we need to do is to pursue through diplomatic efforts the banishing of the mandatory death penalty. It is the first step in getting rid of the death penalty everywhere. Courts everywhere must have the discretion to impose appropriate penalties, which means that judges must have the choice of leniency.

Labor has traditionally had a very longstanding commitment to changing the Constitution. By that I mean not simply reforming the administration of the Commonwealth but actually changing the words of the Constitution by formal amendment. There are very many reforms to government which can only occur by actually changing the words of the Constitution. These include large reforms like the republic, or more procedural reforms like a move to fixed four-year terms, or structural reforms to federal-state relations. All of these would require formal amendment of the Constitution.

Constitutional change has been a persistent theme in public debate and calls for change were a feature of the recent 2020 Summit held on 19 and 20 April this year. The Prime Minister has just released the report of the proceedings of the 2020 Summit, and the reports from several of the streams—not just the governance stream—show that many ideas for constitutional change were raised at the summit. In the governance stream there was a very clear call for Australia to become a republic, which is of course a major constitutional change and was the subject of the last unsuccessful attempt at constitutional change. Other top ideas from the governance stream included the amendment of the Constitution to include a preamble; a call to formally recognise the traditional custodians of our land and waters, our Indigenous people; and a call for the Constitution to be amended to remove any language that is racially discriminatory.

The report of the 2020 Summit records other constitutional ideas discussed in the governance stream, including calls for an entirely new Constitution, a call for rewriting the Constitution to make it intelligible and accessible and an aspiration to increase public involvement generally in constitutional and governance processes. As I have mentioned, the Constitution was raised in other streams of the summit, particularly in the context of federal-state relations, with many suggestions that the Constitution simply does not reflect the current state of federal-state relations in this country.

These are not new ideas. They have been raised repeatedly for decades. They have been raised not only in academic circles; they have been raised at constitutional conventions. They have been raised repeatedly in this House. They have been raised in reports of committees of this House and of the Senate, and all political parties have called in recent decades—I do not say just in recent years—for some quite substantial changes to the Constitution. There is a recognition that a document which was drafted in the 1890s and adopted at the start of the last century is very unlikely to be appropriate in all respects to Australian society in the 21st century.

That recognition is not new either. I quote from something Sir Paul Hasluck, the former member for Curtin, said when speaking as Governor-General in 1973, opening the Australian Constitutional Convention then. He said that that convention was called to consider ‘whether the Constitution which was framed in the 1890s is wholly acceptable to us over 70 years later in a changed Australia in a vastly different world’. I would be lot more direct: the Constitution is undoubtedly in need of reform.

It is also not new to say that there is dissatisfaction about the division of federal and state functions. Sir Rupert Hamer, former Liberal Premier of Victoria, had this to say at the 1973 Constitutional Convention:

People in a federation should know clearly which government is responsible for which function and who is to answer to them for the manner of its administration. It is equally fundamental that each government should have the full means and ability to carry out each of the functions for which it is so answerable. That is not the condition of government in Australia today.

The ideas about the language of the Constitution raised at the recent 2020 Summit are not new either. The writer Donald Horne, in typically pithy fashion, said this in 1977:

In all the liberal-democratic countries, there isn’t a less democratically expressed constitution than Australia’s.

All of those problems that were identified in the seventies continued to be identified in the eighties and through the nineties and remain with us 30 years later.

Those who drafted the Constitution envisaged that it would change. They did not see the document which they participated in writing as being written in tablets of stone and they provided in section 128 a means of amendment, which of course is passage of a bill through this parliament, followed by approval in a referendum by a majority of the people in a majority of the states and an overall nationwide majority. There has of course been a dismal record of achieving constitutional change. The figures are well known: there have been 44 attempts, of which only eight, or 18 per cent, have been passed by the people. It is what led Geoffrey Sawyer, the noted constitutional lawyer, to describe Australia back in 1967 as ‘constitutionally speaking, the frozen continent’. The rate of change has slowed even more in recent decades. The last successful referendum was in 1977, and the period since, 1977 to 2008, is the longest period in Australia’s history without constitutional change. We have not had even an unsuccessful attempt since 1999 and, quite possibly, unless there is a very quick move—that is, a referendum held next year—this will be the first decade since Federation without even one referendum proposal.

What is to be done to break through this seeming national writer’s block in terms of our Constitution? Certainly, I would urge Australians interested in government to keep talking about change, and all political parties need to keep working for changes which will attract consensus and bipartisan support.

As part of that work, the House of Representatives Standing Committee on Legal and Constitutional Affairs held a roundtable discussion on 1 May this year involving 14 Australians with constitutional and legal expertise. The committee hopes to report to the House later this year on the very useful discussion at the roundtable. It included changing the way we change the Constitution—in other words, amending section 128 itself—but, given the dismal recent history of amendment of the Constitution, this may not be the catalyst for change which is now needed. There was also useful discussion about the machinery of referenda. The yes/no booklets which we use now are a format which was prescribed in 1912 and quite probably simply do not work any longer as a means of informing the public. Certainly, we need to look at different means of informing the public about constitutional change—means which recognise the different ways in which people now participate in political debate.

There was general agreement at the roundtable that referendum proposals are much more likely to succeed with bipartisan support and to get to that point there needs to be very widespread public support. In particular, some of the participants at the roundtable commented on the long lead time which led to the success of the 1967 referendum recognising Aboriginal people. In order to achieve the change to the Constitution which is recognised as needed, we will need to take care with the process which is followed and indeed the proposal which is first put forward to try to break the deadlock which seems to have arisen. I would suggest that the proposal for fixed four-year terms may be such a proposal. It is an idea whose time has come. All Australian states and territories except Queensland have now moved to four-year terms.

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