Is a referendum on local government needed?

The need for a referendum to reference local government in the Australian Constitution is debatable according to Dr Bede Harris. The senior lecturer in Law at Charles Sturt University asks why more important constitutional issues are not being addressed.

The proposed referendum on recognition of local government illustrates how skewed are the priorities of Australian society when it comes to constitutional reform.

First, in relation to the local government recognition proposal, whereas it is doubtful that the amendment is really necessary, the best that can be said is that it will do no harm.

The Commonwealth Parliament has a constitutional power to make grants ‘to the States’. Some local governments are concerned that this means that the Commonwealth can’t make grants to local governments.

This concern is probably ill-founded: Local governments are institutions created by State legislation. If challenged, a grant direct to a local government would therefore probably be seen as a grant to an organ of the State in which the local government was located.

But even if that argument is wrong, what is certain is that an indirect grant to a local government, effected by granting money to the State government on condition that it be passed on to the local government, would be lawful.

This is why I said that the referendum is unnecessary, but would do no harm, as it would recognise a practice that is already in existence.

Leaving aside the referendum on local government, the more important question is why the really important constitutional issues are not being addressed. There are many aspects of our constitutional arrangements which are defective and which are far more urgently in need of attention than the status of local government. Let us focus on just three areas, and pose a question in relation to each.

The first is: Is it consistent with the principles of human dignity and freedom that most of our rights are at the mercy of a majority in Parliament, be it federal or State?

The fact that only a handful of express and implied rights are protected in the Constitution means that we have yet to accept the philosophy underlying the international recognition of human rights which occurred after the horrors of World War II and the holocaust. That international consensus, which led to the promulgation of the Universal Declaration on Human Rights in 1948 elevated the concept of human dignity and the protection of human rights that it entails into a fundamental principle that all legal systems were required to respect – and there was no exemption in the Universal Declaration to the effect that fundamental rights are subordinate to the will of the majority or that democracies need not protect them.

Rights are fundamental attributes of human dignity, and the removal of an individual’s rights by a Parliament elected by his or her fellow citizens is no less morally permissible than is the removal of rights by a monarch or an oligarch. It is well to remember that an overwhelming majority of German voters approved of the 1934 Enabling Act which deprived political opponents of the Nazis of their civil rights. Clearly rights are of little value if they can be removed by a passing majority of prejudiced voters.

My second question is: If we were designing the Constitution today, would we be satisfied with an electoral system that fails to reflect the views of voters, and creates an unbreakable duopoly shared by the two main political blocs, Labor and the Coalition?

How can it possibly be consistent with the fundamental democratic principle that the legislature should accurately reflect the political sentiment of citizens, for parties to get 10 or 20% of first preference votes nationwide, and yet receive no representation in the House of Representatives? And how can it be consistent with democracy that a party can win more seats in the House of Representatives, and thus win government, while obtaining fewer first preference votes than the opposition – an event which is by no means uncommon, and which has occurred in five times in the last 50 years?

The unjust and antiquated single-member constituency electoral system must be replaced by proportional representation. Not only would this make our Parliament truly representative, it would also broaden the pool of talent from which politicians are drawn, because aspiring politicians would know that they had a future outside the two current political blocs. This development would also serve to reduce the draconian internal discipline imposed by the two major parties on their members and would lead to more consensual politics, because under a proportional representation system, dissident MPs could mount a credible threat to leave and form a new party.

The third question is this: Is it consistent with responsible government – the idea that members of the executive, and in particular Ministers, are answerable to the legislature – that ministers regularly refuse to appear before parliamentary committees and instruct public servants not to do so?

In theory the law of parliamentary privilege requires members of the executive to appear before parliamentary committees and to answer questions if summonsed. However, this has never been tested by the courts at federal level, for the simple reason that despite the fact that there are multiple examples where ministers have refused to answer questions, opposition parties have declined to press the point or to take legal action to enforce it.

A striking example of this occurred during the Children Overboard hearings, when the opposition controlled the Senate and sought to question government ministers as to their knowledge of the falsity of claims that children had been thrown off boats by asylum seekers. Despite refusal by the government to allow former ministers and serving bureaucrats to give evidence, the opposition declined to use its majority in the Senate to force them to attend. The reason for this was simple: Today’s opposition is tomorrow’s government, and the opposition was unwilling to create a precedent that would one day be used against them – yet another example of how the duopoly that dominates Australian politics operates.

I would therefore argue that the text of the Constitution itself should mandate that the executive answer questions posed by members of parliamentary committees and that, unless able to discharge the onus of proving why a defence of public immunity should apply, that failure by a member of the executive to answer should be prosecutable as an offence against parliament, punishable by a fine or imprisonment. To be truly effective, responsible government needs the teeth which it currently so obviously lacks.

The three proposals would attract vehement opposition from both major parties. The changes would expose the major blocs to competition from smaller parties, would reduce the power of government vis a vis the individual and would force Ministers to answer uncomfortable questions put to them by parliamentary committees.

The primary tactic that is used in Australia to dissuade the public from supporting constitutional change is fear – fear that a Bill of Rights would somehow create a judicial dictatorship and a displacement of Parliament, fear that proportional representation would lead to governmental instability, and fear that enhancing the power of parliamentary committers would compromise the confidentiality of internal government deliberations. Yet each of these fears is groundless:

From its inception our Constitution has contained four freedoms against which laws enacted by Parliament can be tested – and invalidated – by the judiciary. Incorporating a full Bill of Rights into the Constitution would change the scope, but certainly not the nature of the judicial function and would provide the individual with an effective remedy against abuses of rights by the government.

As for proportional representation, while it is true that it almost always leads to a coalition government, empirical research across multiple jurisdictions bears out that it is simply not true that governments become thus unstable. It is, after all, in the interests of partners to a coalition that their governments survive as long as possible, and this promotes governmental stability. Here it is worth noting that Germany, which has proportional representation, has had exactly the same number of post-War governments as has the United Kingdom which does not.

Finally, in countries such as the United States, where legislative committees have coercive powers to compel members of the executive to answer questions – and can seek court orders compelling them to do so if they prove recalcitrant – the courts have proved adept at developing the defence of public interest immunity so as to balance the needs of legislative oversight and governmental confidentiality – for example by determining in in camera  hearings whether the executive has a legitimate claim as to why questions should not be answered. The reality is that only an infinitesimal minority of questions put to politicians would fall into this category.

The reason why politicians are so easily able to inspire fear of constitutional change in the public in Australia lies in the fact that people are, in the main, uninformed of the Constitution, are unaware of its weaknesses and of how it favours established political interests, and lack the tools with which to critique it.

It is for this reason that I would urge for a reform of the teaching of civics in Australian schools so as to incorporate the teaching of values against which people can test current constitutional arrangements.