It Needs to Be Simple: Constitutional Change
Here’s my response to the Expert Panel’s recommendations on constitutional change: I will want to know precisely what is proposed for the constitution before I lend any amendment my support. I suspect most Australians will.
Further, the test I apply will be this: what might judges of the High Court make of the proposed wording?
Warren Mundine, former ALP President and an indigenous Australian, has bravely registered some of his concerns. He wrote in today’s Financial Review, “I prefer laws to be made by elected parliamentarians, not members of the judiciary.”
He went on to say: “…I’m concerned that the implementation of vital policies and programs could be delayed for months or even years as legal challenges ask the courts to interpret their constitutional validity.”
Mundine instances Noel Pearson’s welfare reforms in Cape York. He says these involve restrictions on alcohol sales within an area and the quarantining of welfare payments. Would these survive the elevation of anti-discrimination to the constitution? Judges in Canberra would determine whether they do or not.
Prohibition of discrimination against indigenous Australians is adequately covered in statute law. That is unanswerable. But translated to the body of the constitution, these provisions would only be an invitation for activist judges to stretch and re-shape and re-invent its meaning.
What Greg Craven, Gerard Henderson, and others have said about how to win a referendum is entirely true. It’s not enough to have bipartisan support. To get constitutional change in Australia, you need support right across the political spectrum. You require virtually NO opposition. And the proposition needs to be simple. If there’s any hint of unintended consequences – for example, an untidy debate about who exactly qualifies for the description “indigenous” – then the proposition will be defeated. A defeat would be misinterpreted around the world as some sort of indication of residual racism in Australia.
It’s not what the constitution says that counts. What counts is what the people who interpret the constitution claim it says. ‘Keep it simple, stupid’ is the most relevant advice when it comes to constitutional change
Think carefully. Australia’s handling of indigenous challenges has been full of unintended consequences.