What are voters’ attitudes to constitutional change?

| September 23, 2014

Australians have been asked what they think of a constitutional reform. Bede Harris says the survey indicates that voters are far more willing to consider reform than has previously been supposed.

As the author of a recently published survey on Australian voters’ attitudes to constitutional reform, I am shocked but not surprised at the low level of constitutional literacy revealed by the results. On the other hand I am heartened by the fact that, when given sufficient background information, voters are far more amenable to constitutional reform than might be expected.

The survey consisted of 26 questions asked of a representative sample of 616 registered voters, covering a range of possible reforms, relating to the electoral system, a Bill of Rights, the accountability of the government to Parliament, federalism and an Australian Republic.

The survey had unique aspects: It was the first survey to canvass views on multiple reform issues – as opposed to single-issue surveys – conducted in the past 30 years. Furthermore, the fact that background information was given in many of the questions meant that it was also the first fully-informed survey.

First, the negatives:

One of the questions asked respondents whether they had ever been taught how the Commonwealth Constitution works, and 51% said they had not, either at primary school or at high school. Given the widespread ignorance about how the Constitution works, it is unsurprising that people are nervous about changing a mechanism they do not understand.

Yet there is clearly a thirst for knowledge – 95% of respondents said that they thought that school children should be taught more about it.

So far as willingness to entertain reform is concerned, among the most significant findings were the following:

75% of voters thought that the electoral system should ensure that parties are represented in Parliament in proportion to their share of the national vote, while only 25% were opposed. A majority (58% vs 42%) still remained in favour of proportional representation even after being told that that system would almost always result in a government being formed by a coalition of parties. This is significant, because electoral reform is really the key to reform of the rest of the Constitution. Apart from giving us a Parliament which truly reflects the will of the voters, as distinct from one where a party can win 20% of the votes nationwide and yet win no seats, it would also break the current Coalition–Labor duopoly.

A very large majority (81% vs 19%) supported the proposition that there are certain fundamental rights that Parliament should not be able unreasonably to limit or remove; and 66% of voters believed that the most effective way to remedy breaches of rights was through the courts (versus 14% via political lobbying at election time and 20% via petitioning the government).

The positive attitude to constitutional protection of human rights was reflected in the fact that 59% of voters favoured the inclusion of a full Bill of Rights in the Constitution, with the courts having the power to invalidate laws in breach of it, with 28% undecided and only 14% opposed. This was one of the most significant findings, because it shows that voters support a judicially enforceable Bill of Rights once they understand what that concept entails. Indeed, when respondents were then given a list of rights such as are found in the Universal Declaration on Human Rights and the Canadian Charter of Rights and Freedoms and were asked whether they should be included, in most instances support for their protection rose to over 90%.

An area in which there was very strong public support for constitutional change related to the accountability of Ministers to Parliament. We are often told that voters are disillusioned with the political system, and the findings on accountability indicate why. Voters are particularly frustrated by Ministers’ refusal to answer questions put by parliamentary committees: 96% of respondents said that Ministers and public servants should be required to answer questions put by parliamentary committees, 89% said that Ministers who refuse to answer questions or who instruct public servants not to do so should face penalties for contempt of Parliament.

The most significant finding in relation to governmental accountability was the fact that 85% of respondents were of the view that when Ministers claim that there are national security or other grounds for refusing to answer questions, the issue as to whether immunity exists should be decided by the courts (using in camera proceedings if necessary).

This would be a really significant reform. At the moment, Ministers thumb their noses at parliamentary committees and are never called to account. This is because it is in the interests of the two main political blocs, Labor and Coalition, never to initiate contempt proceedings even when their opponents are in power, because to do so would establish a precedent that could be used against them. If we reformed our constitutional law to allow any member of a parliamentary committee to compel answers, and to permit Ministers to refuse only if they could prove to a court that it was in the public interests for them not to answer, it would revolutionise responsible government.

In the United States, a Supreme Court decision in 1927 established that Congress can compel cabinet members to testify before committees and that recourse will be had to the courts if they refuse, and this power was used on several occasions during the Watergate scandal. It is an irony that whilst Australia supposedly has a system of responsible government, Ministers are less accountable to the legislative branch than in the United States where responsible government does not apply.

Other results of the survey were less surprising: Despite the fact that in 2006 the federal system was estimated to cost the economy $ 20 billion per year, 55% of voters supported the retention of federalism, while 45% wanted Australia to have a single government.

The survey indicates that an Australian republic has the support of only a bare majority of voters – 52% in favour vs 48% opposed, although if Australia did become a republic the vast majority of respondents (73%) would want the President to be directly elected. More important than the issue of a republic, however, is the fact that 64% of voters would like to see the reserve powers of the Governor-General codified, that is, made into binding law in the Constitution, rather than relying on unenforceable convention for their observance. It was also interesting that while 56% of voters were concerned that, if Australia became a republic, an elected President might abuse the reserve powers, 71% said that their concerns would be assuaged if the powers were codified.

The survey indicates that voters are far more willing to consider reform than has previously been supposed – but reform will be achieved only if voters demand it, as they did in New Zealand in the 1990s when proportional representation was adopted.

There is a sinister fact behind the truism that constitutional reform in Australia requires bipartisan support, and that is that the two major blocs are united in ensuring that reforms that would undermine their power should not succeed. Many reforms, such as proportional representation, a Bill of Rights and the enhancement of parliamentary control over the executive would do just that.  Perhaps voter disenchantment with how our political system works will lead to demands for reform.