February 15th 2014

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Articles from this issue:

EDITORIAL: SPC Ardmona and Holden: Australian icons disappear

CANBERRA OBSERVED: The Abbott government's economic dilemma

ENVIRONMENT: Bushfires rage because of whitefellas' ignorance

AUSTRALIAN CONSTITUTION: Our constitution is the best, so why change it?

SCHOOLS: Two recent rival threats to sensible teaching

EDUCATION: Rhymes of the times: poetry's still important

ECONOMIC AFFAIRS: Harvard economist re-thinks free-market orthodoxy

TAIWAN: Innovating to achieve a clean and green future

SOCIETY: Sexual madness in an age of 'polymorphous perversity'

AUSTRALIAN HISTORY: Why no posthumous VC for naval hero Robert Rankin?

LETTERS: Jeffry Babb; Trevor Dawes; Alan Barron.

CINEMA:  Investigating private investigators:  
Sam Spade and The Maltese Falcon

BOOK REVIEW The red traitors in FDR's administration

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Our constitution is the best, so why change it?

by James Allan

News Weekly, February 15, 2014

There are two ways of understanding disagreement on important public issues. One way is to assume your own view is the result of some sort of pipeline to God, indisputably good in other words, and so all those who disagree with you are either dumb, malevolent or in need of some re-education.

The other way is simply to recognise that a lot of smart, nice, well-informed people simply disagree on all sorts of important issues, ranging from euthanasia to how to deal with those trying (dare one say illegally?) to come to this country by boat, over to labour relations, or to whether to amend our Constitution, and more.

Professor James Allan.

Notice that on this second understanding of disagreement the obvious way to resolve issues is to count us all as equals and vote, a process otherwise known as democracy. As for the first way to understand disagreement, well, notice that it rests on the rather implausible premise that by some cosmic fluke your moral and political antennae quiver at just the perfect frequency; that you are the pinnacle of moral evolution as it were, while all the many people who disagree with you are somehow substandard.

I start by mentioning that because almost all of the talk I have read of late on amending our Constitution to insert some sort of recognition of indigenous peoples clause seems to me to be premised on the view that change is self-evidently good and that opponents either need to be re-educated or exposed for the racists they are, or some combination of the two.

But that is plain out bunk. And it’s bunk whether it comes from the left of politics (as in the past) or whether it now comes from the right of politics.

First, let’s be clear, writing and amending a constitution is not a matter of the heart, as Tony Abbott suggested recently. No, it is about producing a document that will stand the test of time and that (in my view) will allow democracy to flourish so that our children and grandchildren can make decisions for themselves.

And that is a matter of hard-nosed calculation with more than a little cost-benefit analysis. It is not a matter of emoting or tugging at the heartstrings.

So let me turn to this issue. To start, you need to realise that Australia is one of the oldest democracies. Yes, our young nation has been a democracy — a successful democracy — longer than all but a half-dozen or so other countries on earth. And that is in part because the Constitution we have is, in my view, the best written Constitution on the planet.

What we have sure as heck ain’t broken. And that is something for any sensible person to consider when people push for change.

There is this, more crucial, second consideration. In the past two decades our top judges have taken to interpreting our written Constitution in a way that I think is very hard to defend. Twenty years ago the High Court discovered, or read in, or flat out made up (according to taste), an implied freedom of political communication.

I count myself as one of the biggest free speech adherents in the country and, in substantive terms, I like this outcome. But as a matter of honestly interpreting the words of our Constitution, these cases strike me as so implausible as to be laughable.

And in a democracy where all of us count equally with an equal vote to choose people to make social policy, that is a very bad thing.

Or more recently, in a couple of voting rights cases, our High Court in my view issued two of the least defensible and most interpretively implausible decisions I have read since coming to this country. In both instances they overruled the elected parliament and struck down statutes passed by the elected representatives of the people.

And they did so, in my view, with virtually no textual warrant from our Constitution. They treated the words as some sort of jumping-off point for seeing the Constitution as a “living tree” that can be pruned and altered over time — but of course only by them, seven unelected ex-lawyers.

Of course not everyone sees these cases the way I do. But notice that once you go down this road, it becomes something of an unknown how a change to our Constitution today will be treated by a future High Court in 15 or 20 years.

Let me be frank. I am an ardent adherent of letting the numbers count and of democratic decision-making. And I fear that this mooted change to our Constitution to insert some sort of recognition clause might be used by latter-day judges to do all sorts of things unimaginable, or pooh-poohed today.

If you doubt that, ask yourself how many people back at the start of the 1900s thought that the phrase “directly chosen by the people” could be used by judges to dictate when the electoral rolls could close or that some of those in prison could vote when parliament said they could not. The answer is that none of them back then thought this. They thought they were leaving these issues to the parliament.

So when people today assure you that the words they propose to insert will transfer no power to our unelected judges, there are some sensible grounds for being sceptical, at least until we see what explicit words emerge as the proposed amendment.

Frankly, I am mildly doubtful that anything nearly explicit enough to reassure me will emerge. But who knows?

Here’s a third reason for scepticism about this proposed change. I spent 11 years teaching law in New Zealand. In many ways I loved the place. But to hear some proponents of this constitutional amendment point across the Tasman to the Treaty of Waitangi over there, and to do so as some sort of model we ought to copy, frankly beggars belief.

Here is a small taste of what has happened in New Zealand in the name of this short three-clause treaty. First, the judges there have simply invented a “partnership” principle — they’ve decreed that there is some sort of partnership between the crown and Maori.

Then there is talk of “Treaty principles”, though no one honestly has the slightest idea what this one-page 1840 signed document has in the way of principles. It is just a springboard to read in the desires of today’s metropolitan elite.

Then there are all the race-based divisions it has fostered in New Zealand. There are the weird divisions between tribal and city Maori and the endless “final settlements” that never prove final. And there’s the way it fosters rent-seeking behaviour that benefits the tribal elite far, far more than the poor in cities.

Put bluntly, the renewed emphasis on the treaty in New Zealand has undermined democracy. I repeat, it seems bizarre to me that proponents of change here in Australia would want to hold up New Zealand as a model for us to emulate.

So, yes, we can all keep an open mind on this issue until we see the proposed wording of any mooted change to our Constitution. But let’s be clear and honest. There are solid, powerful and democratically motivated grounds for being very leery of this suggested constitutional change.

James Allan is a native-born Canadian who has practised law at a large firm in Toronto and at the bar in London. He has taught in Hong Kong, Sydney and Dunedin, New Zealand, at the University of Otago. He is currently Garrick professor of law at the University of Queensland. A slightly shorter version of this article appeared in The Australian (January 30, 2014). 

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