CONVERSATION: 15
PLACE:  Wagin, WA
DATE:  Saturday 29 October 2016, morning
ATTENDING: 12
QUESTIONS ASKED:

1. Could WA secede from the Commonwealth? 
   The Constitution does not contemplate a State unilaterally seceding.  The horrors of the US Civil War were well-known to the Australian Convention delegates and they did not want to see a repeat in this country.  However, it would be possible for a State to secede if the Constitution were amended to provide for it to cease to be a State under the Constitution. This would require a referendum and probably a majority vote in every State.  At one time the UK could have unilaterally amended the Constitution (remember, it forms part of a UK Act), but even in the 1930s the UK was reluctant to get involved in what it saw as an Australian political controversy.  Since passage of the Australia Acts in 1986, the UK has relinquished power to make law for Australia.

2. In the Constitution, when did the Northern Territory leave South Australia and become a separate territory?
   On 1 January 1911.

3. When the referendum was held in Western Australia in 1900 to join the federation, weren’t there a lot of people from Victoria and South Australia in the WA Goldfields that skewed the vote?  In other words, but for the Goldfields vote, WA would not have entered the federation?
   I’ve heard this suggested a number of times and so I’ve gone back and double-checked with a couple of authorities.  Overall the vote in favour of the Constitution was described as ‘resounding’, and yes, the size of that majority was of course affected by the folk on the goldfields where the vote was said to be ‘overwhelming’.  But the point was also made that even if the goldfield votes had been excluded, there would still have been a majority in favour of federation.

4. Now it’s time to bring up the GST?
   Which brings us to the Commonwealth Grants Commission!  This is one of the great achievements of the Australian federal system.  One of the big challenges with every federation is devising a way to enable revenues to be shared between regions across a country as effectively and fairly as possible.  Compared to lots of places, Australia’s population is fairly homogenous;  you can imagine places where people from different regions have been nominally brought together, but carry perhaps centuries of relative ignorance and suspicion about their ‘neighbours’.  The underlying philosophy of the Grants Commission, as I understand it, is that a child growing up in one part of the country should — as far as practicable — have the same opportunities as a child growing up somewhere else.  Since the advent of the GST, that body has been given the responsibility of recommending to the government of the day who should get what out of those revenues, but the Grants Commission was on the scene long before the GST, giving this kind of advice to governments of all persuasions as far back as the 1930s.  They (their staff includes mathematicians, statisticians & other specialists) sit down and look long and hard at public finances at State and Territory level and crunch lots and lots of figures.  They consider what services (eg transport) are provided and how much people are asked to pay for those services.  The idea is to try and use hard data as objectively as possible;  ideally, to make the process a little less political.  The intention, I gather, is to try to smooth out some of the bumps different regions experience over long periods as economic activity rises and falls.  Inevitably, there will be times when some parts of the country seem to be paying more GST than they receive back.  I wouldn’t presume to say the system is perfect, but at least an attempt has been made.

5. What sort of process is going to take place for recognition of the Aborigines?
   The short answer is that I don’t know.  I see it, the question of indigenous recognition, as primarily a matter for aboriginal people to drive.  While I am sympathetic, I have no inside knowledge.  

6. Why would it take a referendum to relocate the Constitution from UK to Australia?
   Relocation of the Constitution, while not changing the way the Constitution works in practice, would nevertheless involve its amendment.  The Constitution provides that it can only be ‘altered’ if approved at referendum.  It was never intended that this be too easy, otherwise the States might be destroyed, but I am sure the Convention delegates would be surprised at how hard it has become to amend the Constitution.  Amongst other things, if it gets too hard to change the ‘words’ of the Constitution, what effect does this have on, say, the High Court when it looks at our existing words?  Anyway, referendums are required as a matter of law, but equally important, the very difficulty of the process confers a political legitimacy on what is approved.  Since the Australia Acts at least, but I would say even before then, we have ample power to do whatever we need to do to our constitutional system, provided it is supported by a referendum.

7. Because of the Australia Act, the British Parliament can’t pass a law to move the Constitution to Australia?  Changing where it sits in a statute book changes the law?
   One of the consequences of the Australia Acts was that Britain relinquished the right (not exercised for many, many years) to make laws that would operate as part of the law of Australia (of course, for its own internal purposes, say taxation, it could still make a law taking into account taxpayer activity in Australia).  Coming back to the relocation itself, changing where the Constitution sits does change the law.  It might even be said that in terms of mere text the relocation is primarily more about form rather than substance.  For this reason some folk have said to me, quite reasonably, well why bother?  And yes, there would be expense in doing it (as with the Sydney Opera House), and even risks to be managed (as when we take a new job, or form a new relationship).  But I see an enormous potential payoff.  Relocating our federal Constitution to an Australian document would mark the completion of the task the Convention delegates began more than a century ago. Relocation is about more than the paper record of our Constitution (which only refers us back to another legal system — and we have that paper record anyway), its about having a document that is the very source of our constitutional powers and functions.  If we wanted to (but this is not essential), as part of the relocation we could safely remove at least 1800 dead words from its text, making it a bit shorter — a little easier to see the wood for the trees; we could safely and easily make its text gender neutral (remember, not so many years ago, we had a ‘she’ and a ‘her’ as our Governor-General and Prime Minister?).  To minimise variables and distractions, I would hope that the relocation would not be part of any republican change, but if the republican issue (or Aboriginal recognition) gets up first, the relocation could be done later.  How far we might go needs to be discussed, discussed, discussed, hence a long, long period of consultation.  As an independent nation, it is entirely appropriate that our fundamental constitutional instrument should live in our own document.  Perhaps even more importantly, part of the mechanism for implementing the relocation would be the appointment of Australians from all round the country to come together and verify the document by their signature.  A highly publicised signing ceremony could do more to raise the profile of the document — dare I say catch the public imagination? — than all the civics classes in creation.

8. What was the Commonwealth of Nations?  Do they still have their Constitutions on the UK statute books?
   What had earlier been ‘the Empire’ (I have fond memories of ’Cracker night’!), and later the British Commonwealth of Nations, is now known simply as ‘the Commonwealth of Nations’. It consists of some 50 or so nations, now all independent (some called republics), that were formerly British colonies.  By the 1950s and 60s, when a considerable number of former colonies were obtaining their own constitutions, they were at the same time becoming independent.  This meant that that they were clothed with extensive legislative powers to make more or less whatever arrangements they desired.  I would be very surprised if any part of their constitutional documents sit on the UK statute book.  Of course I must not overlook Canada;  the long patriation process that reached its climax in 1982 resulted in them acquiring for the first time, their own power to amend the Constitution — something we have had since day one, but not available under the 1867 British North America Act as it was then known.  Despite this — as with Australia — their Constitution still sits on the UK statute book.

9. After the draft federal constitution was negotiated and drafted in Australia, it was taken to England where they don’t have their own Constitution.  Am I right?
   Certainly the UK ‘constitution’ can’t be found in any single document.  As a law student many years ago, and a lover of history, I recall a real sense of awe — bordering almost on reverence! — as I began to learn a little of the evolution of the ‘English constitution’.  I loved reading Maitland.  This is not to imply that that evolution occurred within some wonderful onwards and upwards rational process;  at times, things seemed to be happening in circumstances that were dangerous and cruel, with people acting for the most selfish of motives.  I can almost see the early justices on circuit, ‘clip-clopping’ (if the ground was not too wet!) through the countryside on horseback with much of the population seeming to live with dirt, disease, hunger and fear.  Yet out of the mists of time a system of writs and courts emerged, and then a parliament, gradually appeared;  and yes, in part these things were happening because the King was motivated by the need for money rather than any concern for constitution building!  And that English constitution I have alluded to is by no means a thing of beauty.  I see it as a very big, somewhat untidy pile of laws, charters and judicial decisions, and yet people like Maitland were able to look inside and see the most amazing things happening, mostly gradually.  But with the emergence of the successive British empires (note the plural) spanning enormous distances and relying on the crudest, most fragile and erratic communications, there was no possibility of sitting around waiting for a system of courts or a legislature to ‘evolve’ in each colony!  Merely crossing the Atlantic, let alone further afield, could be a hazardous thing, with limited opportunities to consult or seek advice — for at least months at a time.  The leaders of colonies needed to be armed with their own ‘instant’ system of courts and legislature, and if they didn’t quite work as envisaged in the circumstances of their new setting that was a pity.  So the notion of consciously crafting a constitution became important (though for centuries charters had been issued ‘at home’ to establish monasteries and the like, and even Magna Carta could be regarded as a kind of constitution).  

10. Which country had the first constitution?
    That’s a nice question, various communities have lived under codes and other bodies of rules for many centuries, some of them semi-religious in nature.  Whether we would recognise these as constitutions in the modern sense — as instruments of government — is another matter.  There were some quite early instruments in colonial settings not unlike our own.  The first constitution for Virginia apparently dates to 1776, and Connecticut even earlier, 1639.  And when I talk about a constitution as an instrument of government, the line between ‘government’ and business operation might be blurred.  An investor could seek a charter from the Crown with hopes of doing well financially;  the point of acquiring the charter was to receive something akin to a monopoly in trading in a particular place or commodity;  various powers of a governmental nature could attach to the charter, the English East India Company had its own army and navy! 

11. I read the Constitution after seeing ‘The Castle’.  At least the movie made people aware of the Constitution.  I applaud you for doing these talks.
    Thank you.  Reading the Constitution itself is not especially easy.  One cause of difficulty is that it often reflects the polite niceties of nineteenth century politics, on the surface it appears that the Queen and Governor-General are running the whole show on their own.  I would recommend a book by Helen Irving listed in one of the handouts:  ‘Five Things to Know About the Australian Constitution’, it’s a good read.   And the notes written by the Australian Government Solicitor in the front of most official versions of the Constitution also help to place things in context in a fairly concise way.