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Upholding the Australian Constitution: The Samuel Griffith Society Proceedings |
I wish to say something about the proposed review of the Constitution which, it seems, is intended to proceed until the year 2000. The review is to commence, we are told, with a public process of education a suggestion which is no doubt well meant, although some might find it patronising and others might wonder exactly what are the constitutional theories which it is intended that the members of the public should be taught.
The sort of amendments to the Constitution that are likely to be approved at a referendum will depend very much on the attitude and belief of the electors. If the public can be convinced that a unitary form of government would be preferable to a federation, or that the Commonwealth Parliament is prevented from enacting beneficent legislation because its powers are too limited, they will be likely to favour the increase in the powers of the Commonwealth that will undoubtedly be proposed.
If the public can be persuaded that the wise policies of the executive government are likely to be frustrated by an uncooperative Senate, or even by the possible exercise of the reserve powers of the GovernorGeneral, they might agree to the removal of some of the checks and balances that remain in the Constitution.
On the other hand, if the public does not believe that Canberra has a monopoly of wisdom and efficiency, or that it is good for the nation to have two sets of bureaucrats dealing with the same questions, or that the States should be reduced almost to impotence, they might support amendments that would confine, rather than expand, Commonwealth powers.
Since in the end no constitutional amendment can be made without the approval of the electors, it is important that any process of education should give them an accurate and balanced view of constitutional theory and practice, and not a slanted one.
Federalism is of the essence of the Australian Constitution. That seems to me self evident, but such is the diversity of opinion on constitutional questions nowadays that I suppose there are some who would disagree.
It is a necessary characteristic of a federation that the functions of government are divided between governments at two levels, and it would seem natural to conclude that the division should be made by allocating to the States all those functions which they are able to carry out effectively, and by giving to the central government only those functions which the States are unable to perform for themselves. Indeed any other basis of division would seem purely arbitrary.
Clearly, it was the intention of the framers of the Australian Constitution that the functions of government should be allocated between the States and the Commonwealth in that way. That intention has however been defeated. So wide a meaning has been given to some of the provisions of the Constitution that the Commonwealth has become, if not quite omnipotent, certainly omnipresent it can intrude into literally every field of government.
Two developments, in particular, have made possible this expansion of Commonwealth power. The first is that some of the powers specified in Section 51 of the Constitution have been given a meaning far wider than the framers of the Constitution ever contemplated.
As everyone here is no doubt aware, the provision that does most to make Commonwealth power ubiquitous is that which enables the Parliament to make laws with respect to "external affairs". It is hardly an exaggeration to say that it would not make any practical difference if the word "anything" were substituted for "external affairs" in that provision.
One particularly dangerous side effect of the broad interpretation of this power should be noticed. Section 109 of the Constitution, which renders invalid any law of a State which is inconsistent with a law of the Commonwealth, usually works well enough. If a State law becomes invalid, there is usually a Commonwealth law on the same subject there is no vacuum. But under the external affairs power the Commonwealth has enacted laws which prevent the States from legislating on those subjects although there is no Commonwealth legislation relating to those subjects. That was the effect of the first Mabo decision by which a State law, with respect to lands within the State, was held invalid. A new limitation on State power was added to those expressed in Chapter V of the Constitution.
Another instance of an expansive construction of a constitutional power which has had side effects which were presumably unintended is provided by the history of Section 51(xxxv), which gives power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. I shall not take time to trace in detail the development of the artificial doctrine of paper disputes, and of the principle that a union has a capacity greater than that of the employees it represents. It is enough to say that the important role indeed the essential role which the Courts gave to the unions in the working of the system of conciliation and arbitration was directly responsible for the great increase in trade union power that occurred in Australia during this century, and gave Australian trade unions a strength greater than that which they have almost anywhere else in the world. The situation of unions in Australia is exceptional, but many people regard it as natural because they are accustomed to it.
A second cause of the expansion of Commonwealth power has been the extensive use of Section 96 of the Constitution, which enables the Parliament to make grants of financial assistance to any State on such terms and conditions as the Parliament thinks fit. The Commonwealth now collects about 50 per cent more revenue than it requires for its own purposes. Out of the excess it makes grants to the States, which themselves raise only about half of the revenue they need.
The States are hampered in establishing a workable tax base by the fact that they are prevented by the Constitution from imposing duties of excise an expression which has been construed widely, and in some cases unpredictably. The States thus depend on the grants which the Commonwealth provides, often on conditions which require the States to apply the money for purposes which the Commonwealth has no power to effect directly.
True it is that there is probably no subject in respect of which the Commonwealth could not legislate if it went through the right motions to invoke the external affairs power, but where it presently has no other power it can get its way by financial coercion.
These distortions to the working of our federal Constitution do not inevitably follow from the fact that the provisions which confer power on the Commonwealth have been given an expansive interpretation. The Commonwealth is of course not obliged to exercise its powers expansively. It might conceivably take to heart Shakespeare's dictum that it is excellent to have a giant's strength but tyrannous to use it like a giant. However, the Commonwealth is unlikely to embrace any such policy of self restraint. History shows that power, once tasted, is addictive. Those who have it resent limits and restraints on its exercise. It is certain that in any review of the Constitution the Commonwealth will seek further powers.
It is almost certain, also, that the Commonwealth will seek to include in the Constitution a guarantee of what will be described as basic rights. The question will then arise what rights should be guaranteed.
It is certain that, if a bill of rights comes to be framed, all those pressure groups, to whose influence our politicians so readily succumb, will urge that their own interests be made the subject of constitutional guarantees. Indeed, some of those groups have already announced that this is their intention.
Unfortunately it is a characteristic of many special interest groups, in Australia and elsewhere, that they tend to exaggerate a case which is not without some merit, and make claims which are distinguished neither by fairness nor moderation. Politicians give in to such claims, as some recent legislation in Australia shows. Thus in a bill of rights we might expect to find guarantees of gender equality (whatever that may mean), and of the special rights of indigenous inhabitants, trade unions and socalled ethnic groups, and even of the protection of the environment.
The effect that would be given to constitutional provisions of that kind is entirely beyond conjecture but what is clear is that they could seriously inhibit the powers of elected legislatures to carry out policies for which they had a mandate and which the majority of the community supported.
Even if no provisions of that kind were included in a bill of rights, and protection was afforded to such apparently desirable objects as life, liberty and property, the Courts would be drawn into political controversies which in a democracy should be settled by the elected representatives of the people. The experience of the United States shows how in the result both the democratic process and the integrity of the courts may suffer. As President Lincoln said, in 1861: "If the policy of the Government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in original litigation.....the people will have ceased to be their own rulers". The decisions of the Courts, under an entrenched bill of rights, would prevail over legislation even if that had been supported by an overwhelming majority of Parliament and of the electorate.
The actions of a later American President showed how the Courts themselves may be affected if they take it on themselves to decide political questions. In the 1930s President Roosevelt found that the Supreme Court consistently overruled his New Deal legislation and similar laws of the States. He believed that he had a strong public support for his legislation and blamed the conservatism of the elderly justices; six of the nine were over 70. In 1937 Roosevelt proposed to Congress that the law should be changed to permit him to appoint an additional justice for every one aged 70 who did not resign, so that the size of the Court might be increased to 15. Within a very short time the Court staged something of a constitutional revolution, and began to uphold legislation of the kind that it had previously invalidated it was said at the time that a switch in time had saved nine.
No lawyer can approve of Roosevelt's proposal, but no wise lawyer can fail to see the moral taught by those events. Subsequently, American Presidents have not found it necessary to go so far, but Presidents and Senates alike have shown that they often look more to social and political attitudes than to legal ability when making judicial appointments.
If Australian Courts had the power to decide purely political questions, as they could under a bill of rights, no one can doubt that they would become similarly politicised, or that their capacity to perform their essential role, of impartially protecting rights and freedoms under the law, would be put at risk. At present the rights and freedoms of our citizens are protected without a bill of rights at least as successfully as they are in the United States or in any other country which has a bill of rights.
I have mentioned only a few of the issues that would arise when constitutional amendment comes to be discussed. There are no doubt some minor changes, of no great importance, which might with advantage be made to our Constitution, and upon which everyone might agree. When it comes to reforms that would really matter, there will be much greater difficulty in reaching agreement.
Those attempts to amend the Constitution that have failed in the past have often been seen as politically motivated. If any effort has been made to involve the public in the process of formulating proposed amendments, rather than entrusting the task to persons picked by the Government, it has not been successful. If it is intended now to make a genuine attempt to involve representatives of all sections of the public in a serious discussion of possible constitutional reforms, without any preconceived commitment to change of a particular kind, that will be welcome. However, as I have endeavoured to suggest, conflicting views are held on matters of fundamental principle and those views are wide apart.
When federation was achieved there was general jubilation in Australia. The future was viewed with hope and confidence. Today living conditions are generally very much more comfortable than they were in 1901, but optimism has evaporated. The public attitude is one of disillusion, pessimism and even despair.
Whether the distortions that have occurred to what was a workable federal system have played a part in this deterioration is a matter for debate. Certainly the drift to centralisation has resulted in a multiplication of bureaucratic interference and of cost that we can ill afford. If the Commonwealth needs further powers, they should not be such as to provide further avenues of intrusion into State affairs, or to result in overlapping and unnecessary administrative expense.
Any review of the Constitution should not lose sight of the fact that the best reform might be to make the Constitution work as it was originally intended to do, providing for a true federation and a true democracy.
When this Society commenced, Mr Stone wrote to me saying that the chattering classes were devoted to the general notion that the Australian Constitution was hopelessly outmoded and needed to be brought from the horseandbuggy stage and propelled into the 21st Century. The Society should, he suggested, be formed as an antidote to the chattering classes, so that sane and scholarly discussion of constitutional issues could proceed.
This clearly is true. We all seem to be at the mercy of the chattering classes. In Australia they seem to be particularly virulent. The current Republican debate over the past decade has drawn them all out.
There was Patrick White who could be coaxed out of his mansion, an old curmudgeon with a teacosy on his head, and persuaded to denounce, in a fusillade of rather verbless sentences, the social system which had always cocooned him in immense wealth.
There was his mate Manning Clark who would hint darkly that unless the monarchy were abolished "blood will stain the wattle".
There was Thomas Kenneally, ever ready to announce his Worship of Whitlam, his devotion to the left, and his detestation of everything else. He thinks too little and talks too much.
And of course there is Donald Horne. He has an honorary degree from one University, and is a Professor of another, but never took a pass degree at the only university he attended. Notwithstanding, the leitmotif of his writings is that Australia does not appreciate intellectuals, a group in which he does not shrink from numbering himself. No doubt he would take to the Queen if she started to read Engels. It was during his aegis as Chairman of the Australia Council that we witnessed some surprising grants: there was a grant of $334,890 to the ABC to permit 21 persons of nonAngloCeltic backgrounds to broadcast, so that the public should have the opportunity of listening to "accented" voices on air. There was also the grant of a capital sum to enable eight Aboriginal women to walk from the South Australian/West Australian border to Koolyanobbing once a season to search out and remove the evil skeleton weed. O scion of Newton! O heir to Einstein!
They have their overseas counterparts. In New York, for example, there is Susan Sontag, ever ready to champion any progressive feminist cause, and Noam Chomsky, who is always ready to denounce as fascist anything which the USA or the UK government does. Then in the United Kingdom there is the unspeakable Pilger.
Belloc once said of the heretics: "The wind will blow them all away". Would one could say the same about the chattering classes. But alas, one cannot. Till the end of recorded time they will babble and scribble and chatter, because they can do nothing else. However, they are a danger as well as a pest, and there are real prospects they may impair the very Constitution we are all concerned to preserve.
One way of appreciating what I mean can be gleaned from a close reading of the leading judgment in the Mabo Case, the judgment of Brennan J. His Honour said there were two ways of approaching the question of whether the natives in question owned the land in question. One way was to apply the existing legal authorities. One would be pardoned for thinking that a lawyer would find such a course attractive, particularly if it was his duty to apply the law. But his Honour spurned such a course and thought it more palatable to invent a new law. Why? Because, he said, it was required by two imperatives: "the expectations of the international community" and "the contemporary values of the Australian people".
This is all a mite curious. As for "the international community", who are they? How does one discover their "expectations"? Their views were not handed down by Moses and the prophets, nor does his Honour seem to be referring to the prominent international lawyers. And, even if one could locate such a body and discover its views, why should its views take precedence over those of the "existing authorities" which in fact lay down the law? In this struggle between the "existing authorities" and the "expectations of the international community", one has the uneasy feeling that all which is meant by the latter term is the overseas members of the chattering classes, Miss Sontag, Mr Chomsky, the unspeakable Pilger and the like.
And in determining the "contemporary values of the Australian people", where does one go? Not to the past Justices of the High Court, not to the judges of the lower courts, not to the States of Australia, not to the people in referendum, but, again, one feels, to one's very own chattering classes, who have thus ceased to be a mere nuisance and have become translated into a source of law.
The situation may be worse still. One must contemplate s.51(xxix), the "external affairs" power. This was the subject of an excellent paper by Dr Colin Howard at the July conference, who said of the power:
"Still less should it assume a character that invites any government to extend the scope of Commonwealth legislative power almost at will".
Dr Howard's star at the moment is not in the ascendant with the chattering classes. I see in one newspaper article that he is labelled the puppet of the mining industry, although he has not yet acquired the status of being a clericalfascist hyena.
Our convener, John Stone, has also recently written of the pivotal importance of the external affairs power. His views, which do not differ greatly from Dr Howard's, have recently been described as "offensive" by the Aboriginal Law Bulletin. Both challenge the new orthodoxy that the Commonwealth arbitrarily can expand the boundaries of its power by the simple expedient of entering into a treaty on a new subject. But, with respect, both gentlemen have underemphasised the danger. It is, unhappily, clear from the Tasmanian Dams Case that under the "external affairs" rubric the Commonwealth may not only extend its powers if there is a treaty on a new matter, it may also do so in the absence of a treaty if the new matter involves a question of "international concern". How, one asks, can a matter become a question of "international concern"? Presumably, by a lot of foreigners talking about it. This raises the horrendous prospect of a new campaign the preservation of kangaroos, the banning of breastfeeding, the destruction of sheep on the grounds of pollution, whatever started by one of our own chatterers, who incites his New York counterparts, Miss Sontag and Mr Chomsky, who jointly influence their UK colleague the unspeakable Pilger and lo! one has a question of "international concern", empowering the Commonwealth to legislate on the question. In this way, the chattering classes will not only be a source of law but a touchstone of expanding Commonwealth jurisdiction.
None of this has anything to do with what our founding fathers intended, but that apparently does not matter. None of it has much to do with interpreting the written document which is our Constitution, but that apparently does not matter either. Armed with this anarchy, and fortified by the right to disregard all decided cases which Sir Gerard Brennan perceived in Mabo, the High Court gives the appearance, perhaps, of swinging violently between extreme positions now (as in Mabo) abolishing rights we always had; now (as in Australian Capital Television Pty Limited v Commonwealth of Australia) protecting rights we never had; punishing the people for rejecting a bill of rights by inflicting up to seven new bills of rights on us like it or not; with the prospect of being guided in their endeavours by the siren song of the chattering classes.
And now I come to launch the book, which is made up of copies of papers and addresses made and given at the Society's inaugural conference on 24-26 July in Melbourne. It was a resounding success, and many of the papers delivered there were of major academic importance and of great practical relevance.
It started with an address by Sir Harry Gibbs on rewriting the Constitution, which was delivered by an amanuensis. It told one simple truth after another. Indeed, simple truth is Sir Harry's utmost skill. We have had some more simple truths from him this evening. He pointed out that the Constitution's basic idea was that the Australian continent was to be occupied by only one nation, an idea which is inconsistent with the notion of a treaty with the Aboriginal people. It is a pity he could not blowdry his few remaining hairs and make this announcement in a sobbing voice before the television cameras. It is one of Sir Harry's great achievements to utter simple truths in a way that makes them seem blindingly obvious, although they were not so before he uttered them. He also deplored the idea that we should welcome change either for change's sake or because the year 2000 was approaching or because the horseandbuggy had disappeared or because other more fortunate nations like Pakistan change their constitutions from week to week. This was an idea which was further pursued by SEK Hulme in a paper which John Stone has rightly described as "delectable".
Indeed, there is a positive virtue in refusing to change. As Montaigne said:
"There is in public affairs, no state so bad, provided it has age and stability on its side, that it is not preferable to change and disturbance."
This attitude is not confined to French philosophy. It is shared by the Australian people. That is why they always vote "no" at referenda. If Parliament wants constitutional change it will have to elect a new people.
That is one reason why one hopes the High Court will refrain from radical change in interpreting the Constitution, because the people cannot signify their approval or disapproval to changes caused by curial decision.
The inaugural address was given by Peter Connolly on the important question of Constitutional right. In it he made some perceptive observations on Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360. That case, amongst other things, is authority for the proposition that s.92 of the Constitution did not confer on the citizen any personal individual right of freedom in interstate trade, although it is hard to see why Sir Owen Dixon was wrong in expounding the view that the section was meaningless unless it gave such individual protection.
It is worth reflecting upon the droll result: in Cole v Whitfield the idea of an individual right to enforce s.92 disappeared from the Constitution into which it was written, whereas in Mabo a newly invented right which is not even in the Constitution was held to confer individual rights.
There were excellent contributions on the current Monarchy/Republic debate from Mr Frank Devine, Sir David Smith, Mr John Paul and Mr Bruce Knox. Their various papers stressed many important aspects of the debate: that being a Constitutional monarchy does not give Australia any real problems, that the proponents of Republicanism have not fully thought out their positions are we to have a figurehead President, or an executive one? Is a President of any kind to have reserve powers or not? How will one deal with the question of having a royalist State within a Republican Commonwealth? These are, however, somewhat negative arguments. There are more positive reasons for the continuation of the monarchical status quo. One might do well to contemplate Walter Bagehot's statement:
"The best reason why Monarchy is a strong government is that it is an intelligible government. The mass of mankind understands it."
One of the pinnacles of intellectual reasoning on the monarchy question I wish to quote to you. It comes from Sister Veronica Brady, quoted in Professor Donald Horne's new book "The Coming Republic", probably being launched at this moment. It reads as follows:
"I'm Irish on both sides, fourth generation Australian, so that's a good reason to be a republican if you're Irish like that you can't see any need for the British establishment. You ask why canonise the people who shipped out so many of our ancestors? But leaving that aside, for Australia the monarchy is costly, it encourages snobbery and is the epitome of suburban values. The Queen herself might be an admirable woman, but the media turn fairy tales kinky with their treatment of the dizzy dames her sons have married."
One cannot comment. One will not, of course, mention feminist logic. But it is an interesting example of puerility or, perhaps, that is a sexist word; perhaps one should say "puellaility".
Professor Cooray delivered an important paper on the High Court. All lawyers know that Sir Owen Dixon said that it was the business of the High Court to be legalistic in its approach to its cases. We have all accepted that. But now the current Chief Justice has suggested "that legal reasoning should not be pursued so far", and that decisions must take into account "fundamental values". As Professor Cooray pointed out, this new approach involves some problems:
(a) How does one determine what values are "fundamental"?
(b) How does the new approach cope with the fact that at any one moment different people have different "fundamental values"? (c) How will the approach cope with the fact that tomorrow's "fundamental values" will be different from today's? (d) Is it valid to entrench "fundamental values" which are nowhere mentioned in the Constitution? We must all ponder these things.
But probably the highlight of the Conference was the paper of that archwit of Melbourne legal circles Mr SEK Hulme, a paper teasingly entitled "Constitutions and The Constitution". I wish I could have said the things he said: never mind, in the future I shall. One utterance perhaps should be repeated because it symbolises what most of the delegates to the Conference felt:
"Where there is no need to change the Constitution, there is a need not to change the Constitution."
I have great pleasure in launching the book.
It is a privilege to be able to join fellow members of The Samuel Griffith Society today for the launching of this book. The volume contains the text of the proceedings of the inaugural conference in Melbourne last July. The chapters come from a wide and diverse range of contributors, drawing on many levels of experience in public affairs and the study of public questions.
The inaugural conference, this publication and the notable gathering in Perth tonight make a clear declaration of the chief purpose of the Society, namely to ensure that the debate on the Constitution of the Australian Commonwealth should be an intelligent debate, and that any changes that may have to be made to our Constitution should only be made after the widest range of thought and opinion has been canvassed.
I myself have a conservative approach to revision of the Constitution, for I believe that the basic purpose of having a Constitution and for giving a Constitution one shape or another is simply the better government of Australia. A Constitution is not just a piece of draftsmanship, but an agreement about working together for a common purpose and practical arrangements for the government of Australia. A good foundation needs stability.
It may seem very arrogant for me to say on an occasion such as this, and in the presence of a gathering as learned as this, that I personally feel that I have two great advantages whenever I enter on a general discussion of the Australian Constitution. Firstly, I have not been trained to the profession of the law. Secondly, I have always been much more deeply interested in Australian government than in the practice of Australian politics. I hope that you will see those words simply as a valid claim that I join in discussion about the Constitution with fewer inhibitions than does the text-book lawyer or the party politician.
The outcome of the first advantage I claim for myself is that I think of the Australian Constitution as more than the written text drawn up in 1901 and I see discussion of the Constitution as wider than argument about the interpretation of that text.
The second advantage is that I do not read the Constitution as a political manifesto or a statement of political objectives. Rather I regard the Australian Constitution, in the widest sense of the term, as the accepted and established description and I use the word "description" knowingly as a word that will not satisfy any good lawyer of a system and structure of government, of the institutions by which government is conducted, of the relationship between those institutions, and the distribution of powers and functions between them. It is a description of the accepted arrangements by which public affairs can best be transacted a manmade set of arrangements for handling better, daybyday, those matters that arise in the government of a nationstate.
Now, of course this certainly does not mean that I ignore or even disregard in the slightest degree the fact that the text of a written Constitution of the Commonwealth of Australia exists, nor fail in reverence for the text. I see that text primarily as the outcome of an agreement between six selfgoverning colonies to federate in order to form the Commonwealth of Australia in 1901, and to achieve the ideal of one people living together in one continent. Perhaps the briefest way to summarise this view is that I rely on the text for settling questions of function and powers, but look beyond it for the discussion of purposes and principles (or the immediate tasks) of Australian government.
At the time they agreed to federate, the Australian States were singularly blessed by the fact that there was no dispute or doubt about our territorial boundaries or our origins, and consequently our territorial integrity and sovereignty were unquestioned. The ethnic, social and linguistic similarities (almost the homogeneity) of the population gave us ground for the slogan of one people for one continent. Before the point of time when the colonies agreed to federate, there was a history of the development by each of them of the structure of government, the growth of political institutions, and the usages of political adjustment and compromise. Earlier than that there was an inheritance from centuries of change in the British Isles.
I count it to have been my good fortune to have come up through the Australian education system during a period when the teaching of history in school and university led me progressively through the study of the way our modern political institutions were developed and the law and custom of the Constitution took shape. Consequently the Australian Constitution of 1901, shining and virginal in the halo of infancy, was for me the culmination of a constitutional history, both in the Mother Country and in each of the colonies. The ideas, experiences and practices derived from that history were just as much part of our Constitution as the text.
Again speaking rather arrogantly or what is worse rather snobbishly I regret that, so often in public discussion about constitutional reform in Australia, so many eager political practitioners take the floor assertively only to reveal that they do not know any constitutional history, have scant understanding of modern political institutions, and see the machinery of government in the same way as they see a motor vehicle to which they have been given sole possession of the ignition key. For the same reasons, whenever reform is in the air, we always see an untidy and eager swarm of amateurs who crowd the opening sessions of any Constitutional Convention, each with his pockets bulging with the complete draft of a wholly new Australian Constitution, to be tabled as soon as he has been able to throw the old one into the waste paper basket.
I shall turn now from expression of my prejudices to another theme. This theme is that the Constitution of 1901 has shown a remarkable quality of being able to encompass and to prove workable in a succession of great changes in the course of the past century. If the history of that century yields a lesson it is not that our nation needs a more elaborate constitutional text so much as it needs political wisdom, clearer understanding of where our interests as a people and a nation lie, and above all more of that singular talent for working together (with some forbearance for each other's shortcomings as well as a zeal for serving the common good) that is the characteristic of good government in a parliamentary democracy.
Perhaps you will allow me to give a personal touch to a quick cursory survey of the century of change through which I have lived. It is just seventyfive years ago almost to the day that I was in the last year of primary school, waiting to sit for the annual scholarship examination. It was November, 1917 and we were celebrating the opening of what was called the TransContinental Railway. We were told that part of the "promise" that had been made to Sir John Forrest at the time of Federation had now been honoured. The east and the west were linked by rail. Each child was given a souvenir of the memorable event.
Already in 1917 the waging of the war, and especially the story of the Gallipoli landing, had given schoolboys of those days a new and livelier sense of an Australian patriotism larger than our local pride in our own sand patch. At Gallipoli Australia had gained a proud identity.
Then, in the early postwar years, when I was at secondary school, the aeroplane flew into our daily life. The first airline in Australia was opened on the western coast. Qantas followed in Queensland. The first great intercontinental flights, both in the northern hemisphere and from Europe towards Australia and then across the Pacific, made the front pages. The importance of civil aviation, both commercially and socially inside Australia, appeared almost as naturally as the dawn. Where do we build the airfields? Who runs them? Who regulates the industry? Then wireless telegraphy came into vogue and we had what were then "wireless" stations to tell us the news.
During the same period the early postwar development was marked by the promotion of migration, extensive overseas borrowing and land settlement schemes. We young men were emerging from secondary school into a land of opportunity in the early nineteentwenties. Railways were thrusting into an undeveloped interior.
During the same period some of us were introduced to international affairs by occasional enthusiasts in University circles. We became aware of the international status of Australia as a member of the League of Nations, a mandatory power in the Territory of New Guinea and the phosphate islands in the Pacific, and as signatory at Versailles. In a vaguer way, our country, following mainly a Canadian lead after the Chanak crisis, had gradually moved into something known as Dominion status a sort of certificate which Australia treasured but seldom used in asserting our place in the world at that time and our future links with the Mother Country and the surviving parts of the Old Empire. Our Prime Ministers still went regularly to Imperial Conferences.
During this period in the thirties Australians thought seriously of many emerging problems at home. There was the GiblinCoplandBrigdenDyason inquiry into the effect on our economy of the Australian Tariff; the Peden Royal Commission into the Constitution; the setting up of the State Grants Commission to iron out the inequalities between the States. Australian governments moved into interstate discussion and sometimes agreement. The financial agreements and new arrangements for tax collecting were arranged. Transport was seen as an Australiawide problem. Overseas borrowing was coordinated. Industrial relations became more than a matter that could be handled separately and also required interstate consultations.
Then came the economic depression with its political, social and economic effects both in the life of the community and in the management of public affairs. We realised painfully that we were not fully masters of our own fate. We were subject to what happened elsewhere in the mood of the times many Australians would have said we were victims of what happened elsewhere and we had to make painful adjustments. Trade transfer policy, Empire preferences, overseas debt, massive unemployment at home all these put a different aspect on government. The young Commonwealth of Australia, still only in the early thirties of its age, was being obliged to face the realities of being a selfgoverning dominion and no longer a favoured colony in a great Empire.
War came in 1939. The theme I am developing simplifies at this point. For the waging of a total war, the defence powers of the Australian Constitution meant that a single purpose could be served by a single authority. Functions and powers matched each other. Government centralised, and the fact that a task needed to be done virtually meant that under the defence power the due authority had the power to do it.
In the course of the war a change of government brought the Labor Party into office. It would be a fair historical judgment to say that, at this period in the history of the Labor Party, centralised government was itself seen as a desirable goal. For many of its members, the key word in debate about the future Constitution was "unification". Furthermore, from a variety of sources and influences, an influential element in the Labor Party had become doctrinaire socialist. They not only saw centralised power as a desirable form of government, but also saw their temporary possession of office and centralised power as the method to make changes towards a planned socialist state.
You will recall that, apart from the natural wartime transformation which I have recounted, Dr Evatt was active, first to promote the 14 powers referendum to increase Federal powers, but also to promote the concept that the external affairs power of the Commonwealth meant that when Australia entered into international agreements, the commitments it made as a nation endowed the Federal Government with power to give effect to them.
The referendum lost, but the purpose of a stronger central government and the socialist objective remained until the reversal at the general election of December, 1949. Some of you may recall that some of the wartime controls remained until the eve of that election, and that issues such as the nationalisation of banking and medicine (just to mention two examples) were prominent in the campaigning.
Under the demands of total war, uniform tax had been accepted as a necessary measure, and Federal domination in finance had been established.
During the war, necessarily more and more talent was drawn into the service of the centralised government. Some of the best men in the public service of the States, in private industry, in academic studies, and in various forms of management and technical expertness were serving the nation in new capacities. For the most part, each had a precise job to do and no need to hesitate about having power to do it. Towards the end of hostilities, the work of government became focussed more and more on the allocation of manpower, the distribution of a due share in resources to one activity in preference to another, the choice of one venture or the meeting of one prospective need in preference to another.
Both as part of the necessities of wartime and as part of the occupational interest of those engaged in administration, we moved steadily into a routine where someone with undoubted authority and possessed of undoubted power decided what should be done. It was great fun to be able to move people around. Alongside them, enthusiasts for a new order were moving confidently towards a planned society. Postwar reconstruction was both the name of a government department and a political objective. This was a fascinating period in Australian history. As one who was in the midst of it and who has written inadequately about it in the Official War History, I hope more critical studies of it will be made.
Then, at the election of December 1949, there was a change. Doctrinaire socialism had a setback, prospects for nationalisation were rejected, the ideas about a planned economy and a planned society had to be adjusted. Wartime centralised government gave way to the usages of peacetime.
At this point I shall repeat what I have written in other places. One of the great services which Menzies did for Australia in the years following the 1949 election was the restoration of the orthodoxy of Australian government, both in respect of the place and the functioning of the public service and the relationship between the Ministers and the public service. I rate this as one of his greatest achievements. He brought good order back into the processes of government, restored the public service to its traditional honoured place in the executive as a career service, and paid constant scrupulous respect to Parliament. We who had been reading Dicey as students in the nineteenthirties were recalled to his principles in the nineteen fifties.
Thus we entered on the second half of the century of the Australian Commonwealth in fairly good constitutional shape, and certainly with the foundations still firm.
Now here we are forty years later, looking beyond 1992 towards the next century. Drawing on an old man's memory of the passing decades, I suggest that the changes in the second half of the century have been more varied, deeper and less readily comprehensible than those in the first half. Personally, I can scarcely recognise in Australia today many of those characteristics which I thought were native to Australia in 1950.
In the field of domestic politics I suggest that in the nineteenfifties Australia returned to the traditional lines of Australian development both as regards objectives and methods. There was still a major task to be done in transformation from wartime to peacetime; relocation of population, training and occupation for those who were demobilised from one form or another of wartime activity, restoration of trade and industry to a peacetime pattern with opportunity for private enterprise, the review and cancelling of unnecessary controls, regulations and restrictions. There was a great backlog of need for housing, services and utilities, and deficiencies in such areas as the post-office, telephone service, public transport and power for industry.
At the same time, and linked with these demands, was a planned promotion of immigration, including acceptance of an obligation in respect of wartime refugees and displaced persons, mainly from Europe. That period of planned immigration also saw the promotion of some major public works and a careful annual budgeting of the intake of migrants. Special measures were taken to assist the assimilation of the newcomers to the Australian way of life. Good neighbour councils, classes for the teaching of English, and organisation of welfare were encouraged to help New Australians find an easier way to acceptance and opportunity.
This is not the place for an evaluation of that period of immigration but, looking at Australia thirty or forty years later, I suggest that in all walks of Australian life today in trade, industry, science, academic life, technology and social advancement, one sees many outstanding citizens who as New Australians in the nineteenfifties found that this was once again a land of opportunity.
Other features of the earlier postwar period were the building throughout Australia of educational facilities, health services and a wide range of activities and benefits embraced by the term social welfare. The scope of public aid widened considerably. As I have already suggested, this was done mostly along traditional lines. Access to higher education was more open. Notably, in both education and health (as also in fields such as transport), the improvement meant FederalState cooperation.
During the same two decades of the fifties and sixties we faced new problems in the economy. I suggest our approach to them in the Menzies era might be described as orthodox both in policy and in administration. Soon after the political changes in 1949, there was a draining away of the various "think tanks" which had been making paper plans in various back rooms of government. Happily for many of the persons concerned, the post-war expansion of tertiary education gave them opportunity to work usefully at a new desk, or should I say from a more elevated academic pulpit.
The Treasury resumed its strong and central role both in economic analysis and the shaping of the Budget. Three points in the current orthodoxy were: watch the level of employment and keep unemployment below 2 per cent of the workforce; watch the overseas balances and the terms of trade; and, thirdly, check inflation. The phrase which Menzies repeated again and again to his Cabinet was: "We are walking the knifeedge of inflation". So public expenditure was rigorously examined in detail each year after a decision whether the economic outlook allowed a balanced budget or the financing of a deficit. In the legends of the period many little wizards were credited with being those who ruled in the darker recesses of government, but my own testimony is that this was a period of strong Treasury influence, with Menzies himself the upholder of the three objectives I have listed and respect for Treasury advice.
Later we had to face problems set by changes in world markets and in the opportunities for Australian trade. It is not immediately relevant to my theme to discuss other aspects of our economic problems, and particularly the new postwar situation in respect of overseas trade, investment, access to markets and the relationship of these world-wide factors (mostly beyond our national control) to any policy or development of our physical resources or the use of our technological and managerial capacity. Nor will I discuss strange aberrations of recent years which seem to an old fogey like myself to have landed Australia in an unholy mess. The only rather sour comment I make is that I cannot understand how it was that private greed and personal profit seemed for a period to take front place in shaping national economic policy, and why so many excursions were made by governments in areas that might well have been left alone. Perhaps it was the fortuitous circumstances that a mineral boom, exploiting idle resources which we had done nothing to create, left some statesmen blinking in the glare.
In this quick cursory review of a century I have drawn on my memories, for I am writing this address in the temporary isolation of a place where the only document I have on file is the daily chart recording my pulse beats. My only purpose has been to support the propositions that Australia has undergone great changes during the century; that Australia today is a nationstate vastly different from the collection of colonies that federated in 1901; that the issues we faced and the policies which we had to shape throughout the century were perpetually changing; and above all else, that the future will be much more brutally challenging to us than the past. Through all this, it is not the Constitution that hampered us in the handling of public affairs or prevented governments from working together. To sum up, the lesson is not that we can only prosper if we write a new text or make major amendments to the old one, but rather that we need higher political skill and forbearance in using our Constitution.
Late in the nineteen sixties an amendment to the Constitution was made of the power to make laws in respect of Aborigines. I would doubt myself whether this was a well considered judgment of the Australian people on the constitutional question alone. Rather it was an expression of opinion that we should do more to help the Aborigines and to redress the wrongs they had suffered. I would also suggest that the eventual historical judgment on whether it was either a necessary or a wise decision will be made on what has happened to the Aborigines since that redistribution of powers. Now, in the early nineties, are the prospects for the future of Aborigines and for the Australian nation better than they were in the early seventies? The amendment to the Constitution certainly does not appear to me to mean or (in the new language of the interpreters of the Constitution) to imply that there shall be two systems of law in Australia, or two different classes of Australians.
As I have indicated at the beginning of my rapid summary of the changes taking place in Australia during the century, my theme is simply that the Constitution gave a sound basic structure, system of government and the political institutions for handling the changes. It proved sufficiently adaptable to meet the changing needs of an emerging and evolving nation. Our Constitution is not an outworn obstacle to political wisdom or administrative skill. Perhaps the shortest way to summarise my view is that I can see no strength in arguments that we need a new Constitution, or a new system of government, even if there are very strong arguments for the need for some adjustments to meet changes in Australian needs.
In conclusion, may I be permitted to make remarks about the contemporary scene and the future. On the future I shall be brief, for I have no claim to be a prophet. It should be clear, however, that we are moving into an era where world affairs will be vastly different from that period since the French Revolution during which the nationstate emerged and old Empires crumbled. How long will the nationstate continue as a significant unit in decision making, both as regards what happens inside the borders of each nation and in its dealings with other nationstates? Already many of the nations which assert both their nationalism and their independence are not in fact masters of all they do, but are subordinate, either as mendicants or clients to other powers. Already some of the more significant nations are grouping protectively. Are we likely to be moving into a new era of economic imperialism, in which many fatal decisions on whether a nationstate survives or prospers, or in brief terms what it can do as a nation, are not left in its own hands?
I pose that question starkly, for it may present the ultimate test of the wisdom of what we are doing in Australia in the few remaining years of our first century as a nationstate. The journalists sometimes put it even more crudely by asking of the future: Who owns Australia? How do we service our growing overseas debt? Who controls further investment in development? Where does opportunity lie in a continent that we once called the land of opportunity?
For the time being, however, we are still a nationstate trying to be our independent self in a world of nationstates. Survival, independence, and integrity, and our own identity as Australia are still, I assume, national aims. If so we need to cherish more than a hope that it will be so. A nationstate needs cohesion, a single clear focus of loyalty, and a rallying point of patriotism that supersedes sectional advantage. As a community of people living together, we have room for a wide diversity of interests, customs, creeds and styles of living, but as a society, organised as a nationstate, cohesion, a single loyalty and a body of law applying equally to all citizens, and respect for one government under the rule of law seem to be essential. In my gloomier moments I fear that in Australia today these essential qualities are being eroded sometimes by design, mostly by carelessness and often by thoughtless blather about whatever happens to be the latest buzzword.
I turn from these doubts to matters more directly related to our Constitution.
The matter that chiefly causes me concern is the pretension of the executive to be the source of power rather than the custodian of power. This is shown frequently in the relationship between the executive and the legislature and also in the daily usages of political life. Having obtained a majority of votes at an election, a party thinks of itself as gaining office, having a mandate to govern, and having won a victory at the polls. They think of themselves as being "in control". I would not go quite as far as the eminent British statesman, Hailsham, did recently when he referred to the office of Prime Minister as an "elective dictatorship", but we have had some indications in recent Australian history that Prime Ministers (and State Premiers more so) think of themselves in that way. They act as though their role was to control Parliament rather than being answerable to it.
Alongside this tendency there has been a weakening and in some cases total disregard of the unwritten conventions of our Constitution. A convention is a code of proper behaviour, something like the good manners of politics. For example, a Minister resigned if he was found to have misled Parliament; in the process of the introduction and passage of all stages of a Bill, and transmission from one Chamber to another, sufficient time was allowed for debate; question time was an opportunity to obtain information, and not to have another Donnybrook brawl. Convention requires recognition and respect of the place in a bicameral system of each Chamber. An old convention was that the Executive made its Ministerial statements and announcements to Parliament. Some recent incidents suggest that the Executive finds the National Press Club in Canberra a better forum and, moreover, I cannot recall any recent instances where the Press Club has been called as many dirty names as the Senate gets from the Prime Minister. Respect for the conventions as well as the text of the Constitution is a basic requirement of parliamentary democracy.
Another matter of concern is the damage done to the career public service, and the deterioration of the role of the public service in the whole business of governing. The lower and middle ranks of the public service provide the routine daybyday transaction of public business in a similar way to the management and staff of any great multifaceted organisation, and it is good for Australia that they do it efficiently, promptly and in an evenhanded way. The top levels of the public service come close to the apex of decision- making and giving effect to decisions. They have a professionalism in their own fields, from training, depth of experience, technical skill and total commitment, similar to the professionalism on which we depend in a surgeon, scientist, engineer. These qualities require a career service that is apolitical, independent and not beholden to parties or persons for favour.
I see signs in recent years that the public service in Australia, both Federal and State, is not understood and used as well as it should be by those who are temporarily in office as Ministers, and that the value of their services in advice, decision making and administration in the daily processes of government is being lost. Part of the trouble is that new Ministers are a bit frightened of public servants because they are better than the Minister himself. They talk of them as bureaucrats. The only reason to fear bureaucracy is when Ministers are not competent, diligent and intelligent enough to evaluate truly the information and advice they receive and to act responsibly and decisively as Ministers.
Alongside the deterioration of the part of the public service in government we have seen the growth in recent years in the personal offices of successive Prime Ministers of something resembling a presidential bureau, with consultants, advisers, special advisers, personal assistants, speech writers, the occasional tycoon and much else, all beholden to the Prime Minister himself. One of these days, if ever Parliament revives a memory of Stuart days and challenges the divine right of Prime Ministers, it will find its Laud, Stafford and Buckingham with other candidates for attack in the presidential bureau.
Lastly my other concern is with what is happening in the electorate. I shall not elaborate on this point, but only suggest that the ultimate way to getting better members of Parliament, a stronger Parliament and more highly competent Ministers is through the electorate. How does one ensure that a majority at the polls means that voters have made a carefullyconsidered, deliberative and wellinformed choice between great national issues, between candidates and between party policies? One enters on a topic more complicated than any discussion of the Constitution.
As I have indicated in my main theme, our biggest worries in the government of Australia are not whether the text of the Constitution is perfect, but whether we have enough wisdom or even enough plain common sense to govern our nation wisely.
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URL: http://www.austlii.edu.au/au/journals/SGSocUphAUCon/1994/11.html