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Alex Reilly[*]
The Australian Constitution has proved resistant to alteration since Federation. The failure (with few exceptions) to amend the Constitution may be due to the fact that the Constitution does not need to be changed, as it already contains an excellent model for government. Another possibility is that the failure lies in the procedure for change under s.128 which, requiring a referendum for any alteration to the Constitution, is a more complex, time consuming and expensive process than for the alteration of most other constitutions. It is important to note, however, that the requirement of a referendum is only part of the process for amending the Constitution. All other aspects of the process — creating the impetus for change, the involvement of political organisations in advocating for and against change, the extent of public education campaigns, and the formulation of referenda questions — have either developed by way of convention, are required by existing legislation, or are dictated by the policies of the government of the day. Therefore, if the process for effecting constitutional change is considered to be lacking in any of these ways, there is scope for altering the Constitution without amending s.128. This article discusses these other aspects of the process of constitutional change in Australia. It reflects on the adequacy of the process by comparing events leading to the republic referendum in Australia with events leading to the certification of the Constitution of the Republic of South Africa in 1996.
By the late 1980s it was clear that the apartheid system of government in South Africa would give way to a new political order. When FW de Klerk replaced the more conservative PW Botha as State President of the National Party government, serious negotiations began between the government and the recently un-banned African National Congress (ANC). After protracted negotiations, a two-stage process of constitutional change was developed. In the first phase in 1993, 26 political organisations were represented in a ‘Multi-Party Negotiating Process’ to draw up an interim Constitution. These organisations were divided along lines of race, language, religion, socio-economic background, and political enfranchisement. Given the plurality of South African society, and the many different expectations of post-apartheid constitutional arrangements, reaching agreement on the text of the interim Constitution was a remarkable achievement.
Under the interim Constitution, the first democratic elections involving universal franchise were held on 27 April 1994. After the elections, the second phase of constitutional change began. The Constitutional Assembly, made up of all 490 members of the two houses of Parliament, drafted a new constitution according to 34 constitutional principles in the interim Constitution. It was certified by the Constitutional Court (the existence of which was also part of the process) on 4 December 1996.
The success of the two-phase process of constitutional change is a testament to the maturity of the negotiating process in South Africa. It offers lessons for Australia in the establishment of effective processes for constitutional change. For the new South African Constitution to be accepted as the foundation for a new political order, the process by which it was created had to be representative and consultative. A great deal of consideration was given to establishing an agenda for negotiations. In fact ‘more time and energy was spent on negotiating the process of arriving at the final constitution than on negotiating the substance of it’.[1] At the same time, because of the urgency of constitutional reform, the process was conducted with a remarkable tenacity. Despite numerous set backs, and operating in a climate of political distrust and civil unrest, the stakeholders managed to negotiate a political compromise which resulted in the creation of a constitution containing a comprehensive bill of rights, a detailed division of powers between national and provincial governments, and recognition of local government and traditional leadership. It is the model of a modern constitution.
Key differences between the requirements of constitutional change in each country must be noted. First, South Africa faced a constitutional void that needed to be filled, while Australia has a constitution which enjoys the tacit acceptance of the people. Second, in Australia the republic referendum was about constitutional alteration, not creation. Arguably, the political will to create a constitution is more easily harnessed than the will to alter one. Finally, in South Africa constitutional change was to have a profound impact on the rights of all within the community. In Australia, the constitutional system of government is stable. We enjoy a universal voting franchise, a functioning democratic voting system, and many basic human rights are protected by legislation.[2]
Which political organisations should control and participate in the process of constitutional change is a difficult question. In Australia, the republic debate gained momentum with the establishment of the Australian Republican Movement (ARM) on 7 July 1991, and the Australians for Constitutional Monarchy (ACM) on 4 June 1992. In the mid 1990s, Prime Minister Paul Keating delivered a number of parliamentary speeches on the republic question.[3] In 1993, the Labor government established a Republic Advisory Committee to consider the options for becoming a republic. At this time, the Liberal-National Party coalition was not in favour of constitutional amendment. However, with the issue garnering popular support, in November 1994 the leader of the Liberal-National Party coalition, Alexander Downer, mooted the idea of a people’s convention to consider the republic issue. In June 1995, the new Liberal–National Party coalition leader, John Howard, advocated holding a Convention to broaden the agenda of constitutional change to include ‘other issues of great constitutional significance’ such as parliamentary terms, Commonwealth–State relations and the allocation of legislative and executive powers’.[4] Despite being opposed to constitutional change personally, John Howard kept his promise to convene a Convention.
In South Africa, creating a new Constitution was about changing a political ideology. There was no way that any one political party could have taken control of the process. The incumbent National Party government was the government of a political system that was not recognised by the disenfranchised ANC and other black and coloured organisations. Conversely, the National Party although prepared to un-ban the extremely popular ANC, was in no way prepared to allow it to control the process of change while it still enjoyed control of the public service and the army. The fact that no single organisation controlled the process of change meant that every step of the process towards achieving a new constitutional order was the subject of negotiation.
Also, in South Africa, there was no question that political parties represented their constituents on questions surrounding the negotiation of a new constitutional order. Debate focused instead on the extent and nature of representation of the different political organisations in the multi-party negotiating process. In the end, 26 political parties participated on the basis of formal equality, irrespective of the size of their estimated support. It has been estimated that these parties represented up to 95% of the population.[5] One of many interesting aspects of representation in the Multi-Party Negotiating Forum was the role of women. As a result of concern expressed about the level of participation of women, it was agreed that of the delegates of each political party at the Forum, at least half that is, at least one in two, would be women. There is little doubt that the extent of women’s participation affected the outcome on key issues such as the relative weight to be afforded equality provisions and traditional law.
In Australia, both established political parties through Parliament and organisations established around the question of constitutional change played a role in the process leading to the referendum. Parliament still made all decisions regarding the process by which the proposed changes were resolved and how they proceeded to referendum, whereas the ARM and ACM became the official advocates for and against constitutional change. Through Parliament, the Liberal–National Party coalition government determined that there would be a Constitutional Convention, the parameters of its brief, who would participate, and what follow up action would be taken, but it was the ARM and ACM who dictated the course of debate during the Convention. There were controversies over the level of participation of various groups at the Convention. Of the 152 delegates, 52 were women, eight were young people between the ages of 18 and 25, seven were of Aboriginal or Torres Strait Islander descent, and 12 were from non-English speaking backgrounds. Of these groups, none of whom were represented at the time of the drafting of the Constitution in the 1890s, all but Indigenous people continued to be under-represented.
Events prior to and during the Convention highlighted the problem of the under-representation of women. Prior to the official Convention, women held their own convention to discuss issues of constitutional reform of particular concern to women. On the first day of the official Convention, a motion that the Convention elect a woman as further deputy speaker (alongside the previously appointed male speaker and deputy speaker) was rejected. A motion that ensured gender balance on the committees of the Convention was carried. Representation along other lines did not receive the same attention.
After the Convention, spokespersons for the ARM and the ACM presented the official cases for and against constitutional amendment, and appeared in media campaigns to promote public awareness of the issues. Ultimately, however, the government controlled public participation and education, the timing of referenda, the framing of referenda questions, and the specific wording of constitutional amendments. There is little doubt that some of the decisions made by the government in relation to these issues affected the prospects of the referendum succeeding.
The role of issue-specific political organisations such as the ARM and ACM in constitutional debates has its problems. They often do not have the necessary resources to run education campaigns effectively and, importantly, it might not be in their interests to do so. Also, since these organisations are small and not prominent outside the specific debate, their platforms are not likely to be widely known and they are likely not to be widely representative. But are the major political parties in any better position to coordinate the process of constitutional change? They do not usually represent their constituencies on questions of constitutional change, and certainly not to the extent that they did in South Africa. For example, amongst government ministers there were prominent monarchists (such as the Prime Minister), conservative republicans (such as the Treasurer, Peter Costello) and direct election republicans (such as the Minister for Employment, Workplace Relations and Small Business, Peter Reith). Given the sensitivity of constitutional change, the central role accorded to the people under the Constitution and the questionable mandate of majority political parties on the question of constitutional amendment, great attention needed to be given to sensitive procedural questions leading to the referendum.
The process leading to the creation of the preamble is an example where there was not the requisite sensitivity to procedure. A working group of the Constitutional Convention explored the creation of a new preamble for the Constitution. The group created a list of recommendations for consideration at some future date. Subsequent to the Convention, and without any consultation outside his own party, the Prime Minister took personal responsibility for writing the preamble. A first version, written with the help of the prominent poet Les Murray, was widely condemned. A second version, written after brief consultation with Senator Aden Ridgeway, was only released publicly a few days before the Referendum Bill was passed in Parliament. There was no opportunity for public comment or input.
A preamble is a statement of the whole community, summarising the historical incidence of their union, the structure of their government and their political and social aspirations. It is a statement designed to survive beyond a single political term. At the referendum, the people voted overwhelmingly to reject the preamble. One wonders to what extent this is attributable to a perception that the process leading to its creation was inappropriate.
In South Africa, the Constitutional Assembly was conscious of the need to be widely consultative and to follow proper and transparent processes in the creation of their Constitution. It established a series of committees which were representative of constituents in the new parliament with a bias towards smaller parties. It canvassed widely for opinions on constitutional change, and it conducted a comprehensive public participation and education campaign. The major work of producing a constitutional text was allocated to theme committees. These committees ensured the inclusive nature of the constitution-making process by receiving views from the role players and inviting submissions from the public. Drafting a preamble was the responsibility of the first theme committee. Given the extent of constitutional change, the preamble was a low priority. An ANC and National Party delegate agreed on a form of words in the final week of the process, after intense negotiations had concluded on the substantive provisions of the new Constitution.
The referendum process in Australia is the one example of direct, in contrast to representative, democracy in our political system. It entrenches public participation in the process of constitutional change. In theory, with the people as its guardians, the Constitution enjoys maximum legitimacy. The people can only fulfil their role as guardians if they have a working knowledge of the Constitution and of proposals for its amendment. There needs to be, therefore, an ongoing commitment to public education on constitutional matters.
In 1994 a national civics survey revealed a low awareness and understanding of both the Australian Constitution and the federal system of government. In response to this survey, a ‘Civics Expert Group’ was formed to ‘provide the Government with a strategic plan for a non-partisan program of public education and information on the Australian system of government, the Australian Constitution, Australian citizenship and other civic issues’.[6] In his second reading speech to introduce the Constitutional Convention (Election) Bill 1997, the Prime Minister recognised that if people were going to participate in the debate over the republic issue, ‘they must have an informed appreciation of the issues that they are being asked to decide’.[7] To this end, ‘the Government placed 6.75 million copies of a special insert, ‘Republic — Yes or No?’ in 68 national, metropolitan, regional indigenous and ethnic newspapers around Australia’.[8] The insert described how the existing Constitution worked, and what were the advantages and disadvantages of changing the existing system. The holding of the Constitutional Convention itself helped focus people’s attention on the Constitution. Half the delegates were chosen through a voluntary postal vote. In all, 12 million ballot papers were distributed by the Australian Electoral Commission (AEC), of which 5.6 million were returned, representing a national voter turn out of 46.93% of eligible voters. The Convention was televised nationally, and reported widely by all media outlets. Finally, in the lead up to the referendum, there was a media drive putting the cases for and against the shift to a republic, and the AEC distributed an official ‘Yes/No’ information booklet to eligible voters with a postal address.
The two government publications focused on presenting the cases for and against the shift to a republic. In both publications, members of the ACM and the ARM, or parliamentarians affiliated with these movements, presented the ‘official’ cases for and against change. Not surprisingly, the information provided was highly partisan and adversarial. The cases were not written in answer to useful questions aimed at educating voters of the content, structure and significance of the Constitution. The Yes campaign focused on the symbolism of the change to a republic, and its conservative nature, while the No campaign dredged up every negative argument imaginable, real and illusory. Voters who were previously unsure of the issues were certain to be more confused on reading these documents.
The task of involving the public in Constitution-making in South Africa was enormous. An advertisement at the time summarised the task as being ‘to bring 20 million women, 18 million men, 25 denominations, 31 cultures, 14 languages and nine racial groups’ under the one Constitution. The Constitutional Assembly opened for tender the evaluation of how it facilitated public participation in the process of creating the final Constitution. A non-government research organisation, the Community Agency of Social Enquiry, won the tender. The information that follows is drawn largely from their final report to the Constitutional Assembly.
There were three aspects to the education campaign. The first was to inform citizens of the role of the Constitution, of the work of the Constitutional Assembly and of how the public could participate in the process through making submissions. This aspect of the education campaign was conducted through various means. There was a multi-media campaign on television and radio. This was estimated to have reached 65% of South Africans. Workshops and briefings aimed mainly at rural and disadvantaged communities reached over 95,000 people; 200 members of parliament and 717 organisations participated at 26 Constitutional Public Meetings; and 596 interest groups aired their views and made submissions on the new Constitution at 12 National Sector Public Hearings. Finally, theme committee workshops processed all the public submissions to make sure the appropriate theme committee considered them on time.
The second initiative was ‘the plain language initiative’, a major task in a country with 11 official languages, and many dialects. Various means were used to test how easy the Constitution was to understand, including focus groups with citizens, and interactive workshops and interviews with drafters. Results suggested that the plain language versions were more accessible for a wide range of users.
The final initiative, after the Constitution had been passed by the Constitutional Assembly and certified by the Constitutional Court in October 1996, was the organisation of a National Constitution Week where the content of the Constitution was discussed and copies of the document distributed. During this week 600,000 people attended events, and seven million copies of the Constitution were distributed. Survey results indicated that one-third of South African adults had seen a copy of the new Constitution booklet by May 1997. Of these, half possessed their own copy.
This public education campaign was conducted despite the fact that the people of South Africa were not asked to play any direct role in the process of creating the Constitution. In fact, it has been described by some as little more than an elaborate public relations exercise. And yet, the extent and nature of the public education campaign in South Africa was far more extensive than that in Australia where the people are central to the process of constitutional change. There is currently too wide a gap between the constitutional responsibilities of the Australian people and their ability to fulfil them adequately. For a people with little prior knowledge of the Constitution, and informed only through confusing propaganda campaigns, the slogan ‘if you don’t know, vote no’ sounds very persuasive.
In the past 100 years Australia has evolved into a culturally diverse and morally heterogeneous society. However, it is saddled with a Constitution that has failed to evolve at the same rate due, arguably, to the difficulty of its amendment. The South African experience demonstrates that difficult constitutional change is possible if there is sufficient political will to achieve it. In Australia, this political will will only develop if the people have a knowledge and understanding of the Constitution and of their role in its amendment. Only then will the mainstream political parties be encouraged to take the process of constitutional change seriously.
References
[*] Alex Reilly teaches law at Murdoch University.
[1] Ibrahim, Hassen, The Soul of a Nation: Constitution Making in South Africa, Oxford University Press, 1998.
[2] There are, however, some disturbing anomalies such as the existence in the Constitution of the ‘race power’.
[3] See for example, Keating’s Policy Launch Address for the 1993 federal election, 24 February 1993; and his speech to parliament televised nationally on 7 June 1995 titled ‘An Australian Republic: The Way Forward’.
[4] House of Representatives 1995, Debates, Vol HR 201, 1623–4.
[5] David Welsh estimated that approximately 95% of the population were represented at the forum: ‘Holding the Centre’ (1993) 2 Towards Democracy 2. Lourens du Plessis and Hugh Corder suggest that this may be too high but settle on a figure of ‘at least 85%’: Understanding South Africa’s Transitional Bill of Rights, Cape Town: Rustica Press, 1994, p.7. Note that not all stakeholders were satisfied with their level of participation. The withdrawal of the Inkatha Freedom Party in the middle of 1993 seriously jeopardised the progress of negotiations.
[6] Civics and Citizenship Education, Whereas We the People: Report of the Civics Expert Group, AGPS, 1994.
[7] Constitutional Convention (Election) Bill 1997, second reading speech. Hansard, 26 March 1997, p.3061.
[8] Report of the Constitutional Convention, Vol 1, Report of Proceedings, p.51.
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