17.5 The Betrayal Of The Commonwealth Constitution By The High Court
From The Role Of A Constitution by LJM Cooray (1996)

Human history demonstrates that the main exploitative power is government. Where private power operates exploitatively and unfairly, this is invariably as a consequence of powers, patronage and benefits granted by governments and legislatures to private associations and individuals. The essential role of the Constitution is to place limits on the powers of government (drawing on (i) to (v) of the factors listed above in this section, 17.1). Limitations on the power of governments supplementary to a Constitution include a representative democratic system, political liberties enjoyed by citizens and the rule of law.

The most important of the factors which make provision for restriction on government is the Constitution. A Constitution may lay down the permissible area of power for a legislature and a government and place restrictions on exercise of power. The American Constitution and the amendments incorporating fundamental rights provide such a document. The problem with the American Constitution (as with the Australian) is that judges belonging to the interventionist tradition have rewritten the Constitution. The American Constitution is hardly referred to nowadays. A recent article in Commentary is titled "The Disappearance of the Constitution". The American Bill of Rights has become discredited in many quarters. The fault is not with the Constitution and the amendments, but with the manner in which the judiciary interpreted them. The American Bill of Rights contained important brakes on the power of governments and Congress which have been devalued by the judiciary. Nonetheless America would have been a less free society if not for the Constitution and the Bill of Rights. In the heyday of American liberal interventionism, the Constitution and the Bill of Rights provided some barriers.

Constitutions were intended to provide limitations on the power of legislatures and governments. Extension of power under the Constitution was to be granted only by the people. However, both the US and the Australian Constitutions were effectively changed, and power conferred on legislatures and governments, by the judiciary.

Do Australians have an excellent Constitution which does not require amendment? The Constitution Act of 1900 as originally drafted was an admirable document. The reality however is that the High Court has rewritten the Constitution. The High Court, in the context of legislative initiatives, has presided over a substantial relocation of power from the States to the Commonwealth, contrary to the intentions of the drafters and contrary to the wishes of the people as expressed in successive referenda. There are thus serious problems with the Constitution, which demand attention. The Constitutional Commission and its agencies as established, were incapable of addressing and did not relate to the real problems of the Constitution.

The reason most commonly advanced by the advocates of constitutional reform is that the constitution, being drafted in the circumstances of the last century, has become unsuitable for present needs. This type of argument, however, begs the question of what are the needs of the present times? The general tenor of the reformist argument is that present circumstances require greater powers for government, in particular, the central government, in order to more effectively manage the economic and social life of the community. The reformists seek to modify the constitution in order to eliminate what they perceive to be obstacles to the achievement of this object. But the fundamental question remains whether this is an object which the community desires. The pathetic record of the attempts at reforming the constitution reflects the fact that the reformists have failed to address themselves honestly to this question. The electorate has time and again rejected proposed alterations to the constitution which have tended to increase the powers of the central government. There is a clear message in these popular reactions, but the reformists refuse to heed it. All statistics indicate that the majority of Australians do not identify their well being with the enhancement of the powers of government. But this is a fact that the reformists seem unwilling to recognise.

There are two underlying perspectives which pervade the attitudes of the reformists and the work of the Constitutional Commission and its agencies. They are (i) a belief that further expansion and centralisation of government power is essential and beneficial and (ii) the Australian people are ignorant and uneducated and therefore the superior wisdom of the Constitutional reformers must enlighten the people.

The belief in centralisation and increased government power is an ideological point of view. The reformers, however, treat it as a self evident fact of life. To them — more government is required to deal with the problems of Australia and the changing conditions and the complexities of modern life demand more government. There is no appreciation of the existence of an alternative philosophical view nor of the strong argument that the ideology of freedom and limited government was responsible for the movement of western society in Australia from feudalism and abject living conditions for the vast majority to a prosperous modern democracy with reasonable living conditions for the vast majority. See also comments on public choice theory.

There are many reasons for the failure of referenda in Australia. However, the most significant cause for the failure of referenda in Australia is generally overlooked. Twenty-six of the thirty-eight referenda questions posed involved attempts to enlarge the Commonwealth's power at the expense of the states. Only two of these twenty-six were carried, the social services proposal and the 1967 proposal to delete a discriminatory reference to Aboriginals in the Constitution, where no counter-argument was put. Whereas the High Court since the 1920's has been consistently increasing the area of Commonwealth power, contrary to the intention of the draftsmen, and undermining the federal compact, the people have consistently opposed the enlargement of Commonwealth power. The less populated states have always been suspicious of domination by the centre and by New South Wales and Victoria.

This is the main factor in the failure of referenda. It is an eminently reasonable stance which has been adopted consistently by the large majority of the Australian electorate. The less populated states entered the federation only as a consequence of guarantees provided by the Constitution, many of which the High Court has ignored. In this context they can scarcely be expected to grant more power to the centre.

Proponents of constitutional change have tended to equate centralism with reformism and also centralism with nationalism. This equation is false. The ever-increasing size of government is widely recognised as being at the root of many of the problems which face Australia and other democratic countries. The people have been more perceptive in realising this than the so-called "reformists", who have wanted to centralise power in Canberra under the illusion that centralised power equals reform and is a recipe for good government.

The argument put by so-called "reformists" is that the voters are conservative, they are deceived by emotive propaganda, they must be educated and the constitution must be changed with changing times. These arguments tell us more about the persons who use them than about the voters. They illustrate the contempt which many reformists have for the people of Australia, and the elitist perspective that they, and they alone, know what is best. They believe with unashamed arrogance that through centralisation of power they can solve complicated human problems.

The Labor Government's approach to constitutional reform is based on a conviction that a constitution should serve the aims of a government which holds power at a given moment. The Labor politicians and theorists seem to be at a loss to understand why the electorate, which endorses their policies from time to time does not also accede to their requests for more constitutional power. There is a simple explanation for this reluctance. When political parties make promises they do not demand greater powers. When the electorate considers particular benefits offered to it, the prospect of constitutional change does not enter into its calculations, for such offers are not made conditional upon the grant of more powers (or extra taxation for that matter). But when government proposes constitutional changes, the electorate considers them specifically and, as the record shows, generally rejects them. If the promises of political parties are made conditional upon the grant of more powers or the restriction of liberty, there is no doubt that the public will reject both the benefits and the demand for power. The Labor Party in particular has never had the courage to tell the public the cost of its programs in terms of money and liberty. Instead it adopts programs and then seeks to gain more power for their implementation through subterfuge.

The Labor approach is based on a misconception of the role of a constitution. A constitution is not an instrument for particular times but a charter for posterity. That is not to say that a constitution should remain permanently inflexible. What it means is that a constitution by its nature is not something that can be changed at will to accommodate the wishes of transient majorities in parliament. The Australian Constitution undoubtedly reflects the values of its Founders. There is a case for altering a constitution when values change. But this is easier said than done. How are present community values to be determined? Is a transient majority in the Commonwealth Parliament or a group with a philosophical bias which calls itself a Constitutional Commission competent to decide? What issues should be put to the people?

But there is a more important issue which arises in relation to the present attempt to change the constitution. Should a constitution be pliant to momentary pressures or should it represent a longer-term compact insulated from the vicissitudes of majoritarian impulses? Can a constitution in a meaningful sense operate on the principles of expediency? Any discerning observer will concede that even in the United Kingdom where the parliament is supreme there are fundamental, enduring principles which require observance if that form of government is to endure. In a society such as Australia where there is pronounced diversity of interests (regional, economic, social, ethnic, etc) the need for constitutional certainty is even greater. In such a society the terms of association have greater claim to observance. But we need not go so far. History is quite clear that there are no inevitable trends in social perceptions. What is popular social policy today can be rejected tomorrow. It is evident that the assumptions on which the present proposals for amending our constitution are made, have already been rejected by most Australians. A constitution which is pliant to short-term majority opinion cannot serve its purpose. It cannot protect minorities or individuals. It will be a manipulated statute which will sooner or later fall prey to demagogues and dictators.