On changing a constitution

I was already thinking about constitutional change this week, in the context of wondering about how much lasting damage a far-right government could do in Italy. Then I read Peter Brent at Inside Story on Australia’s history of constitutional amendment.

Brent starts by saying “Australia’s Constitution is difficult to change — and that’s as it should be. A country’s constitution is its legal DNA, and it shouldn’t be altered lightly.” Unlike Italy, where the referendum is relatively rare, in Australia it is the only means of amending the constitution.

And as Brent points out, the failure rate of those referenda is very high. Since 1901, 44 changes have been voted on, but only eight have been approved.

Is that a problem? Before answering that, you need to know something about the sort of changes that get proposed. I’ve broken them down into three categories:

• Proposals to give the federal parliament power to legislate on additional matters. There have been a wide range of these, including monopolies, prices and incomes, industrial disputes, essential services, aviation, communism and much more.
• Proposals to weaken checks and balances in the constitution – by, for example, abolishing fixed terms in the Senate (a perennial favorite), making constitutional amendment easier or allowing the House of Representatives to greatly outnumber the Senate.*
• Miscellaneous proposals, often of a fairly technical nature, including those concerning state debts, filling Senate casual vacancies, retirement of judges, insertion of a preamble and recognition of local government.

Pause at this point and consider how you think the success rate might vary for these different categories.

The answers are very striking. There have been 23 referenda in the first category, of increasing federal power, of which only one has been carried (on social services, in 1946). In the second category, removing checks and balances, there have been seven proposals, all of them defeated.

Almost all the successes have been in the third, miscellaneous, category: 14 proposals, of which seven have been carried.

There is also a political difference. In the first two categories, Labor and non-Labor governments have had equal lack of success, although Labor has made twice as many attempts. But in the third category, Labor has proposed five changes, all of them defeated, while non-Labor governments have proposed nine, for seven wins and two losses.

You can draw your own conclusions from that, but one thing at least is clear: it does not show a population that reflexively votes “no” on an indiscriminate basis. It looks as if voters have a strong set against giving more power to Canberra, but are otherwise reasonably open to change.

Personally I think that’s a good thing. But even if you disagree, it’s important to recognise what’s going on. Brent has a lot of sensible things to say about the referendum record, but it’s remiss of him not to mention this key point.

What if, like Italy, we had a provision where a two-thirds majority in each house could pass amendments without going to referendum? Would bipartisan consensus have ensured that, over time, “our Constitution would look quite different,” as Brent thinks it would?

On some things, yes. Fixed Senate terms would probably have been legislated away, as would the nexus between House and Senate numbers. And some proposals for increased federal power would probably have been approved – although how much difference that would have actually made is unclear, since creative interpretation by the High Court has allowed expansion into many of the same fields anyway.

I’m not convinced that the overall picture would look very different. For example, Brent says that the racial provisions in the constitution would have been fixed, but he doesn’t explain how. The problem there has been that the Coalition parties are opposed to anything that looks like part of a bill of rights, and it’s hard to see how progress can be made without that – referendum or not.

And that’s also the problem with Brent’s centrepiece, the current debate over an Indigenous Voice to parliament. He inexplicably takes at face value the Morrison government’s claim to be seriously interested in resolving the issue, and suggests that “without the self-fulfilling referendum dynamic dragging out the worst in our MPs” there would be an opportunity to reach consensus.

I’m afraid I see no basis for that at all. A vote in parliament might be different from a referendum campaign, but it’s still a political process and driven by fundamentally political motives. The current government shows no sign of interest in good policy for its own sake (nor is the opposition much better), and the hypothetical ability to by-pass a referendum would be most unlikely to change that.

In other words, I don’t think the precise nature of the mechanism has been the main problem with Australia’s history of constitutional (non-)amendment. The problem is that the things politicians most want – additional power – are things voters don’t want to give them. And by constantly trying, they have poisoned the well of constitutional change.

But the flip side is that, as the figures above showed, voters are reasonably receptive to change when it doesn’t look like a power grab. Good news, at least, for an attempt to reform section 44, if only our politicians were willing to try.

* I have included the 1999 republic proposal in this category; as a republican myself I don’t believe it would have had that effect, but that was the basis on which it was opposed. More generally, some of my categorisations could be disputed, but the pattern is so clear that one or two either way wouldn’t really make a difference.