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

This report of the Standing Committee on Legal and Constitutional Affairs of the House of Representatives entitled Reforming our Constitution: a roundtable discussion is a largely bipartisan report, both as to the need for constitutional change generally and support for some particular reforms such as the removal of the section 25 of the Constitution, which is a directly racist provision, and as to possible changes to section 44, which deals with qualification for membership of this parliament. I thank the speakers who have preceded me, the members for Moreton and Blair, both of them members of the legal and constitutional affairs committee also I thank them for their participation in the roundtable and the work of the committee which has led to this report.

There is an important message in this report in the bipartisanship which is reflected in its text, and that is that there is a recognition by the Legal and Constitutional Affairs Committee that we need to learn the lessons from past experience of referendums. And those lessons are: that without bipartisan support there is unlikely to be change to the Constitution; that to get bipartisan support there needs to be support not only from parliamentarians and members of the major political parties but also from the public; and that there needs to be public involvement and a groundswell of public support.

The Aboriginals referendum of 1967 is probably the best example of the generation of public support and the building of a groundswell. There was a long and very public campaign over some 20 years, and the referendum in 1967 was supported with a resounding vote of over 90 per cent. The Senate casual vacancies referendum in 1977, which was the last occasion on which there was a successful referendum, was prompted by the events surrounding the filling of casual Senate vacancies which, on one view, led to the 1975 dismissal of the Whitlam government. And it could be said of that 1977 referendum that the changes proposed and agreed to in the referendum were well understood; certainly they were resoundingly supported, being approved in all six states and with 73 per cent of the popular vote.

The deputy chair of the committee, the member for Fisher, put the need for community involvement very well on the tabling of this report when he said that the public ‘must enjoy a sense of ownership of the process’. Indeed, this is a recurrent theme in this report. The report looks at the machinery of referendums, which of course is part of the process of constitutional change. The booklets with the yes case and the no case which we currently use are a procedure that was prescribed in 1912 and, quite probably, are a procedure which does not work any longer as a means of informing the public. One of the roundtable participants, Professor George Williams, who is a professor of constitutional law, told the committee that during the republic referendum in 1999 not one of his constitutional law students had read the booklets containing the yes and no arguments. It is apparent that information mechanisms which were appropriate for 1912 are unlikely to be appropriate for 2008 and beyond.

Very many Australians now engage in politics through the net, through television or through other means, and we need to pay attention to this if there is to be community engagement with constitutional change. It is worth recording what another of the roundtable participants, Mr Peter Black, of the Queensland University of Technology law faculty, said on this subject. He referred to a group of Australians as ‘digital natives’, saying that they:

... spend more of their recreation time each week surfing the net than they do watching television, let alone any other recreational activity. They have grown up in this environment. The ability to make the case through YouTube or Facebook applications, or through a range of other online tools, should be an important part of any education and public ownership process.

That observation is salutary because it indicates that there is a very real need to consider whether we need to move beyond pamphlets containing a yes case and a no case, a procedure that, as I said, was prescribed in 1912.

The committee in its report supported the idea of regular constitutional conventions as a means of giving opportunities to the public to engage in debate on constitutional reform. But as well, I would suggest, we need to consider forms of community consultation. The consultation in 2005 in Victoria which led to the charter of rights enacted by the Victorian parliament in 2006 shows that it is possible to engage with the community on fundamental rights and law reform issues. That process involved more than 2,500 written submissions, 55 community meetings and 75 more focused meetings with government and non-government bodies. It was conducted by a four-person consultative committee: a former Victorian Liberal Attorney-General, the Hon. Haddon Storey; an Olympic basketballer, Andrew Gaze; a community leader in disability issues, Rhonda Galbally; and Professor George Williams. This was a model of community consultation that was not in any sense top-down and that meant that the proposal for a charter, which was the focus of this extended consultation process, was not seen as just an idea of politicians. If there is to be another constitutional convention—and we have had one in each of the last three decades—it is very clear that a long period of community consultation leading up to it would make the convention much more reflective of community ideas.

Turning to the specific ideas canvassed in the report, they include the committee’s sole direct recommendation in relation to scrutiny of intergovernmental agreements. The report also sets out the debate which occurred at the roundtable on other constitutional reform ideas, including fixed four-year terms for the Commonwealth parliament and qualification for membership of this parliament, particularly section 44 of the Commonwealth Constitution and particularly the parts of that section which deal with foreign allegiance, and the office of profit under the Crown disqualification.

There were ideas concerning the constitutional recognition of Aboriginal and Torres Strait Islander people, including the possibility that that constitutional recognition might be included in a preamble. There was some discussion of, and indeed general agreement about, the need to remove section 25 of the Constitution. There was discussion about a concept of Australian citizenship in the Constitution. I suspect that many Australians would be surprised to learn that there is no definition of Australian citizenship in the Constitution. As well, there was discussion, which is set out in the report, about the possibility of either constitutional recognition of human rights in the form of some kind of constitutional bill of rights or a legislated charter of rights.

In relation to the scrutiny of intergovernmental agreements, it is probable that the difficulty of amending the constitutional provisions concerning federal-state relations and the unwieldy nature of the referral of power provision in the Commonwealth Constitution has led to the proliferation of intergovernmental agreements that we see today. As was discussed at the roundtable, there are some hundreds of these agreements between the Commonwealth and the states. Almost all of them are secret in the sense that they are not scheduled to any act of parliament, they are not readily accessible and they are not available to members of the public when they request them. As a consequence, a very important area of federal-state relations is not transparent and it makes any sense of accountability extremely difficult. Certainly it cannot be said to be consistent in any way with notions of open government that there should be these hundreds of intergovernmental agreements. It is worth noting that the legal and constitutional affairs committee of this House made a similar recommendation in 2006 in its report on harmonisation of the legal system, and it is to be hoped that the government will look seriously at this particular recommendation in the report—that is, there should be parliamentary scrutiny of intergovernmental agreements in a similar form to the way in which there is now parliamentary scrutiny of international treaties through the Joint Standing Committee on Treaties.

On four-year terms, this is a matter which would involve an amendment to at least section 28 of the Constitution, if not some other provisions. Section 28 of the Constitution is the provision which specifies three-year terms for this House. There are separate provisions which deal with the Senate. At Federation, all of the states except Western Australia had three-year terms but over time all of the states except for Queensland have moved to four-year terms, and in Queensland this is being very actively discussed. The consequence of this is that most Australians have had an opportunity to see four-year terms in operation, and that creates a good climate for considering four-year terms for the Commonwealth parliament. The report sets out some of the discussion about four-year terms and also notes that the issue of whether the terms should be fixed is itself a separate issue. Certainly, this is not a new idea. The Joint Standing Committee on Electoral Matters, in its report after the 2004 election, with apparent bipartisan support, recommended four-year terms for the House of Representatives.

If I could briefly mention section 25 of the Constitution, this is a provision which refers to the possibility of Australians being disqualified from voting on the ground of race. That is a startling provision even to mention. There is no such disqualification anywhere in Australia at the present time. It is to be sincerely hoped that there never would be again. It is an outdated provision which should be removed, and it was striking that there was very clear agreement among all the members of the committee that section 25 should be removed from the Constitution. Professor Hilary Charlesworth, an eminent professor of law at the Australian National University, said this in very direct terms at the roundtable. It is worth quoting her words. She said that section 25:

... is quite an extraordinary provision to have in a constitution. Were a Martian to pick up our Constitution, they would get quite a shocking reflection on current modern Australia.

Happily, as I said, there are no disqualifications on the ground of race, but the provision simply should not be in our Constitution.

There was a very strong call at the recent 2020 Summit for a preamble or, alternatively, some form of recognition of Aboriginal and Torres Strait Islander people in the Constitution. Again, the preamble is certainly not a new idea. The last failed referendum in 1999 put a referendum to the Australian people but it was rejected, and I would suggest that it was not so much the idea of the preamble that was the problem; it was that the proposed preamble then put to the people was seen as being imposed in a top-down way rather than being generated out of a lengthy process of consultation. It might be that recognition of Indigenous people should be provided other than through a preamble. The national reaction to the apology given by the Prime Minister on the first sitting day of this parliament suggests that there would be support for some form of recognition of Indigenous people in the Constitution. Certainly, it is clear that it would need to be achieved through consultation.

The 2020 Summit showed that there is real interest in the Constitution. There were calls for constitutional reform, not just from the governance stream but from other streams as well. This roundtable in May and the report before the House are intended to prompt further debate and to perhaps inspire Australians to engage with our Constitution, to recognise its importance as the founding document for our nation, to seek reform so it is a relevant document that reflects Australia as it is now and to debate how it might shape our nation into the next century.

Question agreed to.

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