Gillard Referenda

Monday 20 December 2010
Australian Financial Review newspaper

Australia has always been famous for its blood sports. In ascending order of brutality, rugby league, chainsaw wrestling and Labor factional politics come readily to mind.

But for sheer gore, nothing comes close to holding a constitutional referendum. This is a bloodbath for professional masochists only.

The reason is simple. With a success record of only eight out of forty four attempts, referenda rival the Geelong Football Club as Australia’s most successful losers. They strive to fail.

This is so clear that it may be that it is the only part of Australia’s constitutional history to dimly penetrate popular consciousness, apart from the Queen’s Birthday holiday. Certainly, they arrive primed on referendum day ready to do their duty and vote no.

They did this so well in 1999 with the republic that there has not been a referendum since. Some people wondered if there ever would be.

Now, in a decision that is less courageous than heroic, the Gillard Government has decided it will hold not one, but two referenda. In a move that would be the diving equivalent of a triple pike with dynamite, the Government will propose the recognition of indigenous people in the preamble to the Constitution, and the recognition of local government in the Constitution itself.

Just to make things more interesting, the two proposals could not be more different.

The Constitution’s preamble is effectively its opening verse. It is where we recognise things of fundamental importance. Its effect is primarily symbolic, rather than legal, but none the less potent for that.

What could be more appropriate than to recognize our indigenous people on the very opening page of the Constitution? We already recognize federalism, the States and the Crown (for now). Surely those who have lived and suffered here over countless generations deserve the same dignified treatment?

This type of recognition will create no new rights, although judges may occasionally refer to it in resolving some legal or constitutional ambiguity. Its effect would indeed be symbolic, but it often is symbols – flags, crowns and football jumpers- that matter most to people.

In fact, the only real danger with the proposal would be if we became too ambitious, and either tried to stuff the preamble with inappropriate legal fire-power, or to abandon amending the preamble if favour of heavy amendment of the Constitution itself.

If we are tempted towards either of these courses, we should recall the grim basic rule of referendum politics: controversy always loses.

It is particularly vital that we remember this in the context of indigenous recognition. Loss here would not be a failure, but a catastrophe. It would replace the national apology with a calculated slap in the face.

The local government proposal seems to be the comedy support act for indigenous recognition. The only thing to be said in its favour is that it will die like a dog.

It is understandable that suburban politicians would like to be mentioned in the Constitution. Probably all of us would quite like our own paragraph, though most would settle for a spot on Oprah.

It is a bit of a problem that local government actually is created by the States, so why does it want to be recognized in the Commonwealth Constitution? It is a little like Kevin Pietersen demanding a place in the Australian team photo.

But the really interesting thing is why the Commonwealth is cooperating with this governmental social climbing. This has nothing to do with constitutional good practice, let alone good government.

Quite simply, Canberra has always wanted to build up local government as a convenient means of undermining the States. If it can work by funding and intimidating hundreds of disorganized local councils rather than six relatively large and co-ordinated States, life will be so much easier for the Commonwealth.

But not for us. We will have moved a substantial step closer to the point where are in the power of a single, overwhelming government, rather than as we are now, where the powers of the Commonwealth and the States are balanced one against the other.

The truly bitter irony is that this referendum from Hell may well bring down the one inspired by Heaven. This is because referenda are expensive things, and where you have more than one in the offing, you usually put both at the same time.

But Australians are deeply constitutionally conservative, and when they suspect one proposal, they generally vote down its partner on principle.

We need to get our priorities clear. Local government can wait.

Greg Craven is Vice Chancellor of the Australian Catholic University