Constitutional reconfiguration

Katharine Gelber, University of New South Wales

Glenn Patmore The Big Makeover: A New Australian Constitution (Labor Essays 2002) Pluto Press, 2002, (288 pp). ISBN 1-86403-147-6 (paperback) RRP $32.95.

This is the latest in the Labor Essays series, published by the Australian Fabian Society and featuring contributions from academics, policy practitioners and Labor Party activists. The theme of this year’s collection is reform of the Australian Constitution. The authors’ suggestions for change are not, however, limited to textual amendment of the constitutional document via referendum. On the contrary, this collection engages with a range of considerations bearing on constitutional reform, including the examination of statutory law reform and the system of government in Australia as interactive elements in Australia’s constitutional configuration.

The book is a rather eclectic mélange. Some chapters deal with themes already being debated and canvassed in other literature and public fora. Examples include the chapter by Linda Kirk which argues for a review of the powers of the Senate including the removal of its power to reject, defer or block supply, and Robert McClelland’s chapter arguing for a Bill of Rights. McClelland argues in favour of a concise, statutory charter of rights, which would prevail over other legislation unless that legislation expressly contained a ‘notwithstanding’ provision. He favours limiting the role of the courts to declarations of inconsistency with the Charter, and favourably cites George Williams’ proposal that a parliamentary committee be established which would examine the extent to which Bills comply with the charter and be open to public submissions. These proposals are fairly straightforward and have merit, in that they seek to overcome the practical problems involved in attempting to enact a constitutional Bill of Rights, given the failure of referenda on such issues in the past, concerns that charters of rights devolve decision-making from elected representatives to the courts, and the perception by members of the public that such charters are driven by politicians rather than a reflection of genuine community concerns. However, the brevity of the chapter means that justifications for these policy positions remain fairly superficial.

Other chapters raise themes outside the mainstream debate on constitutional reform per se and thus present new facets which are both interesting and worthy of consideration. Examples include arguments for reform of public funding of political parties by David Tucker and Sally Young, focussed on achieving greater fairness and better deliberation during election campaigns by inter alia changing the emphasis for funding from past performance and guaranteeing some television access to all candidates. The authors acknowledge that the High Court rejected a previous attempt to achieve this last aim in 1992, but hope that it may nevertheless still be possible. Joo Cheong Tham advocates the placing of a ceiling on private funding to political parties, to prevent graft and policy corruption.

These arguments are a welcome contribution to the constitutional reform debate.

As well as a wide range of contributors and ideas, this collection gathers together a mixture of thematic concerns—from citizenship to gender, from indigenous concerns to republicanism. Jenny Morgan takes issue with the assumption that constitutional rights discourses are appropriate for minority groups, conceding that they may have some limited value. Geoff Clarke explores the prospects for a treaty with indigenous people, underpinned by regional agreements, and which would address the failure of the constitutional founders to recognise the presence of indigenous peoples. He considers the prospects for a constitutional amendment affecting such a treaty. James Terrie and Richard Fidler’s interventions into the contemporary republican debate are personal accounts of the progression of the campaign since the 1999 referendum. Terrie advocates a more honest and thorough process of discussion to maintain and build on public, in principle, support for a republic, while Fidler talks about the ‘moral exhaustion’ of the monarchist cause in Australia, and developments within the Australian Republican Movement. Glenn Patmore specifically addresses the question of the powers of a future head of state, arguing for a ‘re-envisioning [of] the political relationship between the head of state and the Prime Minister’, such that the head of state would become the guarantor of ‘democratic government’ and would be empowered to act against the Prime Minister only when a constitutional convention were contravened, or the continuity of democratic government were imperilled. Kim Rubenstein argues that debates over conceptions of citizenship, such as who constitutes the Australian community and how women can be guaranteed an equal opportunity to become head of state, can be used to broaden the republican debate in Australia.

Any collection attempting to cover all these themes, deal with statutory, government and constitutional reform, and elucidate proposals for institutional reconstruction is attempting to do very many things, so the volume necessarily trades off depth for breadth. Nonetheless, the resulting collection should appeal to those with a general interest in constitutional change in Australia, a specific interest in thinking within the Labor Party on constitutional change, and students in search of material presented in a more engaging and forthright style than the conventional textbook provides. The authors are making clear arguments in favour of specific institutional reforms, arguments which are a welcome contribution to the constitutional reform debate.

Dr Katharine Gelber lectures in the School of Politics and International Relations at the University of New South Wales. Her book, Speaking Back: the Free Speech Versus Hate Speech Debate was recently published by John Benjamins Ltd.

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