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I am very pleased to join you this morning.
As you would all be aware, the National Schools Constitutional Convention is the end of a journey that begins with state and regional conventions held around the country.
I was fortunate enough to take part in a panel discussion at a regional schools constitutional convention at MacKillop College in Werribee, organised by, Russell Ives, who, I understand, is here today.
I also have to do a bit of a shout out to a student from the same school as one of my close friends and colleague attended, Senator Dean Smith who shares my passion for constitutional issues. He attended Mirrabooka Senior High School and I understand Zinab Al Hilali is here today too. So, a special ‘hello’ to you from Senator Smith.
Student delegates from around Australia, teachers, organisers, welcome to Canberra and welcome to this Museum of Democracy at our Old Parliament House.
Last Friday saw the passing of the last Prime Minister to serve all his term in this very chamber.
It was actually Malcolm Fraser who had the foresight to develop the much larger building up the hill – our current Parliament House.
This building was always intended as a provisional parliament house, but it took 51 years, until 1978, when Prime Minister Fraser launched a design competition for a new, permanent and more spacious Parliament House.
There is only one member of the current Parliament, Philip Ruddock, who has also served in this building. So our direct links with the events of this building are beginning to pass.
But we are not here to discuss the history of this building, we are here to discuss the document that defines the nature of our polity.
I accepted long ago that I am probably in the minority when I say that I am enthusiastic about our Constitution. I hope some of you here today share this enthusiasm, at best by the conclusion of this event.
Our Constitution is too often disparaged by those who do not agree with the structure it created, who dislike the democratic and federal elements it establishes or, more commonly, claim it has not been changed sufficiently to reflect their own views.
Yet we should be rightly proud of a document that has both stood the test of time and ensured a robust democratic political system in one of the oldest continuous democracies on earth.
A Constitution that has ensured one of the youngest nations on earth has one of the oldest democracies has surely met the key test of success.
In the 1890s, our Constitution was both drafted and approved by delegates elected from the then colonies of Australia in popular elections.
It was then again approved by the people through referenda across the colonies, prior to its formal adoption and enactment through the British Parliament in 1900.
No constitution of that era, and few anywhere in the world, can claim such a mandate from the people. Not even the American Constitution about which we hear so much which was never directly approved by the people nor are proposals for its change put to popular vote at referendum.
The development of our Constitution was not a perfect process when judged by the standards of today, but it was the most democratic constitutional convention, election, drafting and consent process the world had ever seen.
It was remarkable in the late 19th century for there to have been universal male suffrage, as well as female suffrage in South Australia and the vote of our Indigenous people in some colonies.
As we know though, following Federation, as suffrage extended to include all females across the country, it was simultaneously denied to Indigenous Australians. It was only in 1962 that all indigenous Australians were permitted to enroll to vote in federal elections.
When you are reminded that Australia granted the vote to women in 1902 it was via the Commonwealth Franchise Act, clause 3 to be precise. It is worth remembering that the same Act of Parliament of which we are so proud also has an element of which we are less proud – for clause 4 removed the vote from our indigenous people.
Indigenous people were not denied the vote by the Constitution, but the by same people who claimed (and indeed we claim) were being so progressive for granting the vote to women.
It is a folly to blame Australia’s founding fathers for the actions of the Parliament in 1902 in stripping away the right of Indigenous Australians to vote.
This was not a flaw in the Constitution; it was an action of those elected to the first Parliament.
What we now correctly perceive as a grave injustice illustrates an important lesson that I try and urge all my parliamentary colleges to heed: what we think might be the right decision on any given day may, with the turn of history, be seen very differently in the future.
It is also a reminder of the strength of our Constitution and the set of institutions it put in place, which allow our society to respond to attitude changes and the challenges of the time. For just as we acted with respect to universal male suffrage, then the vote for women, we have also readdressed this injustice, albeit too slowly.
To come to the themes of your convention: checks and balances; whether Australia needs a bill of rights and the legacy of the Magna Carta.
Let’s look at the Magna Carta first.
In what may seem like an obscure event 800 years ago, the very foundations of western liberal democracy were formed.
The Magna Carta was drafted after Robert Fitzwalter and his band of barons in England insisted that King John share power and respect his subjects’ rights. On the 15 June 1215, the King agreed.
I understand today we have here Alexandra de Lacy, from Our Lady of Sion College in Box Hill, who is a descendant of John de Lacy, one of the 25 barons involved in the 1215 Magna Carta and entrusted by clause 61 to ensure the King’s compliance with its terms.
The Magna Carta stated that:
“No free man shall be taken, imprisoned, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgement of his equals and by the law of the land.”
In drafting Australia’s Constitution, delegates acknowledged that the rights enshrined in the 800-year-old British document influenced their thinking and its themes become part of the fabric of Australian democracy.
Josiah Symon, a delegate to Australia’s constitutional conventions from South Australia, looked back to 1215 at the same time as he looked forward to the achievement of Federation at the turn of the 20th century:
We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation … The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves.
And the uniquely democratic process reflected this.
The Magna Carta is, in the words of Winston Churchill, “the foundation of principles and systems of government of which neither King John nor his nobles dreamed”.
The 13th century barons could not have dreamt of the Westminster system, its cousin constitutional system in the United States or Australia’s amalgam federal constitutional monarchy.
America’s Bill of Rights spells out freedoms not explicitly indicated in the main body of that country’s Constitution. Its focus is on individual freedoms defined as limits on the actions of the state, even if it was democratically elected.
It is important to understand at this point that democracy is not always sufficient guarantee of individual liberty.
If the majority wanted to ban a political party, for example, as Australia had to vote on in 1952, would that be democratic in the sense we see it today, even if a majority voted for it?
The American Bill of Rights originated from the concerns of prominent American ‘anti-federalists’, that the strong federal system of government enshrined in the US Constitution would pose a threat to individuals. They feared that an elected government could also be tyrannical and threatening. It was a compromise, the American Constitution, and the Bill of Rights is actually a list of amendments because they were added in the years after the formation of the Constitution.
Australia’s own constitutional conventions considered the inclusion of a bill of rights along United States lines. But delegates to those conventions eventually agreed that Australia did not need such a document.
Our founding fathers felt that basic freedoms were protected by elected representatives acting according to the principles of responsible government and by the common law. They felt that they had built sufficient checks and balances into the Australian Constitution. Critically, they also had a greater faith in the liberalism and accountability of regularly-elected Parliaments.
Just as one of the authors of the US Constitution, Alexander Hamilton proclaimed, the entire constitutional arrangement that prevented arbitrary abuse of power was a Bill of Rights
They gave the Commonwealth control over its own elections and put in place Section 128 – the single most important part of the Constitution – which gives citizens, not politicians, the power to bring about constitutional change.
As well as being the single most important part of the Constitution, Section 128 is probably the single most maligned part of the Constitution.
Too often those proposing change, or complaining about the failure of referendums, ignore that there is a sense of public ownership over our Constitution.
I always fail to understand how politicians or democratic leaders can complain about referendum results. It is a clear democratic mechanism.
Of the 36 referendums in Australia that have failed, 34 of them have failed on a national level. Only two failed because they only succeeded in three states, not four, but still had a national majority.
Overwhelmingly, when constitutional change was rejected in Australia, it was done so by a strong national majority.
Attempts to bring about an Australian bill of rights through amending the Constitution have failed.
Indeed, the 1988 attempt to amend the Australian Constitution to extend freedoms, such as religious freedom and guarantees for trial by jury and property, gained the lowest ‘Yes’ vote ever recorded in a national referendum.
While a statutory bill of rights could be enacted by the Australian Parliament, without being included in a referendum, many argue that our rights as individuals in Australia are already protected through having a national Parliament with limited powers.
Just look at some of the cases that have come before the High Court.
Since Federation, the High Court has successfully banned attempts by governments to nationalize certain industries, it has prevented the banning of political parties and it rejected government plans to ban political advertising.
In this way, even without a bill of rights, individual freedoms to private enterprise and property ownership, political and religious freedoms and freedom of speech have all been protected in Australia.
I would like to pose a few questions as you go in to discuss whether or not we should have a Bill of Rights.
Firstly, are they effective? We have had the anniversary of the famous Selma march for civil rights lead by Martin Luther King only a couple of weeks ago. One must remember that the American Constitution had a ban on discrimination on the grounds of race since 1865, but it took until 1965 for the Voting Rights Act to be passed.
Are bills of rights effective when an overwhelming majority of people don’t support their tenets anyway? Because the US Supreme Court simply did nothing to stop the ‘Jim Crow’ laws that discriminated against black Americans, particularly in the Deep South, for decade after decade. It took 90 years for the Supreme Court to take action.
Then we get to the question of what rights do we enshrine? And what type of rights? People like myself tend to think of rights as the American founders did, as freedom from interference. My rights are things that the government and politicians cannot do to me, for example, freedom of speech.
Other people have the view that a Bill of Rights should include the freedom to access things, such as having a right to housing, having a right to education. How do we resolve those clashes?
In some cases in America a budget, a state budget, about how much to spend on education don’t get resolved by elected politicians, they get resolved by courts. Is that the sort of solution we want to put in place in our system?
I have a particularly strong view on freedom of speech. I think Australia’s laws on freedom of speech are far too restrictive. But there are many people in Australia, in fact most politicians in Parliament House, who think Australia’s laws aren’t too restrictive on freedom of speech. Yet the laws we have in Australia would be thrown out by the US Supreme Court in a heartbeat, particularly our laws against racial vilification.
In the United States you can pretty say anything and everything you want unless you are inciting danger or causing imminent danger. The old theory being, you can’t shout fire in a crowded theatre because of the risk of someone being trampled. But you can go out and say the most horrible things and the Ku Klux Klan can go out and march down the street in America. These things in Australia would likely not be legal.
So, how do we resolve what rights we want to protect and when they do clash, how do we resolve the clashes between those who feel that racial vilification impacts on them and those who feel they have a freedom of speech?
We also have the question of consequences.
The great example in the US is that in the late 1950s the Supreme Court finally stood up in famous Brown v Board of Education case to throw out school segregation. This was the first time the US courts had started to enforce the part of Constitution against racial discrimination.
The courts said that you cannot tell a child that they can or cannot go to a school based on the colour of their skin. And that worked well for a few years, but what they then found was that states were trying to get around it, and as they did and the courts kept intervening. The courts then came up with a regime whereby the courts began to oversee school bussing.
Anyone who has ever watched a US television show will notice that the kids all go out the front to get the school bus. And that is because the courts decided that in some areas, if you live in a neighbourhood with a local school, you may not necessarily go to that school. They would try to disperse school children throughout the district so that they could guarantee racial integration.
One of the many issues that this caused was white Americans moving out of these neighbourhoods. Schools effectively became segregated again because the courts did not foresee the consequence a policy like that. They went beyond banning discrimination in trying to design a policy that many people would say that courts are not best equipped to do, that politicians and bureaucrats are.
That was a classic case of unforeseen consequences. These are all very good questions, and they are questions that I hope you debate this week and continue to debate in future years.
As you discuss and debate checks and balances in the Australian Constitution and whether a bill of rights is needed, it might be worth going back and looking at Australia’s significant success in protecting individual rights under the current, democratic and robust Constitution.
Enjoy the debates over the coming days, I look forward to seeing the results in the coming weeks, and it gives me great pleasure to declare this National Schools Constitutional Convention open.
(ENDS)