BY BRENDAN GOGARTY

This post discusses a year-long project to review and potentially reform Tasmania’s Constitution. The process has been both challenging and enlightening given the poor state of the current Constitution Act 1934 (Tas). If nothing else the project will focus much needed attention on the State’s constitutional system.

When I was asked to write on the subject of State constitutions for this blog I was somewhat reluctant; I hardly consider myself a State constitutional lawyer. I suspect that is a common view. There are exceptional State constitutional lawyers, but they are a rare breed. For the rest of us, State constitutions are somewhat akin to elderly patriarchs; treated with respect and just a little sadness at family gatherings, but otherwise forgotten for the rest of the working year.

 The Tasmanian Constitution Act is doddering and frail

In the group of elderly patriarchs, the Constitution Act 1934 (Tas) is certainly one of the most doddering and frail. Various sections have been repealed and are now blank. It dedicates no attention to fundamental institutions like the judiciary. On the other hand, large tracts are spent on relatively obscure issues such as the demise of the Crown (4 of the opening sections at least) whilst doing little to describe what the Crown actually is or how it relates to the Premier and Cabinet. In fact, the establishment of the Governor and Executive Council are found in ancillary letters patent (not available online). Those letters patent reiterate the archaic rule that the Chief Justice act as the Lieutenant-Governor, arguably contrary to the Kable doctrine. Other sections describe income tax laws that are no longer in existence.

Only one provision of the Constitution is entrenched – the duration of the upper house through a supra-majority requirement of two thirds of the Members of the House of Assembly. And even this is only singly entrenched, and therefore easily avoidable. The lack of entrenchment – particularly through referendum – indicates a lack of fundamental character and a deprivation of the popular sovereignty of the people of Tasmania. Although, in all the circumstances that may be a good thing for now.

Perhaps the strangest oversight – I use that term loosely as the issue has been discussed and ignored for decades – is that the Tasmanian Constitution does not empower the Parliament to actually legislate. If this is to be found anywhere it is through an implied reading of its preamble, which cites extinguished colonial legislation from the 1850s, passed for a highly dependent and subordinate colony. Beyond that however, the preamble is silent on who the people of Tasmania are, their heritage, shared values, or expectations for the exercise of legal power in the state.

Despite its importance the State’s Constitution has received scant attention from Parliament or the people

That legislative power and responsibility has to be constructively implied into any constitution raises serious questions about its appropriateness as a governing document.

There is a deeper uncertainty about the relationship between the State’s Parliament and the people. Like other State Constitutions across Australia, Tasmania’s Constitution has never been endorsed by referendum. Nor, in fact, has there been any form of significant, sustained or coherent legislative debate about the powers of the State’s legislature, executive or judiciary or their appropriate limits. The current Constitution Act is a consolidated amalgam of imperial, colonial and state laws rather than any single constitutional endeavour. It lacks the constitutive features you would expect of a fundamental law or one that is supposed to reflect a social contract.

Certainly it is possible to construct a line of authority for state constitutional power back to the people, but it is a much more strained construction than that defining the Commonwealth’s relationship with the people. The Commonwealth was born of the Australian people – or at least those privileged few within the franchise at the time – through the initial referendums following which the British Parliament passed the Commonwealth of Australia Constitution Act 1900 (UK). This connection is maintained by s 128, which requires the people’s vote to amend the Constitution.

Why is the Commonwealth Government strictly subordinate to its Constitution in the exercise of its powers – with all the derivative implications that raises – and Tasmania – which can change almost all of its Constitution in the same way as a single law and never has to ask its people – is not? One would expect the States to move towards a constitutional foundation more in keeping with the new system we forged at Federation. Yet Tasmania has seen little constitutional evolution since 1900, in fact the opposite is probably true.

 Pragmatically there may be little chance of the States moving towards the level of entrenchment and rigidity of the Commonwealth Constitution. However, in Tasmania’s case there is a growing – some might argue urgent – need to examine its constitutional system; if not its underlying basis, then at the very least the role and written expression of that system within its Constitution Act.

An expert and stakeholder led reform project to review and reform the Tasmanian Constitution

Earlier this year the Tasmanian Chapter of the Australian Association of Constitutional Law (AACL) partnered with the Law Foundation of TasmaniaUTAS Faculty of Law, and the Tasmanian Law Reform Institute (TRLI) to undertake a year-long Tasmanian constitutional law reform project. In February we initiated this process with an expert symposium, comprised of constitutional experts from the Crown Law office, the academy, the Bar, the Bench, NGOs and Parliament in a roundtable discussion of the current constitution. A more focused workshop on the following day undertook a section by section analysis of the current Constitution Act.

Tas const roundtable

Left to Right: Michael Stokes (academic), Ben Bartl (Tasmanian Community Legal Centres), Simon Gates (ex Crown Counsel / Legal Advisor to Premier and Cabinet), Rev Prof Michael Tate AO, Justice Stephen Gageler SC, Prof George Williams, Madam Speaker Elise Archer MP, Prof Richard Herr OAM, Anja Hilkemeijer (UTAS Academic), Terese Henning (Director of the Tasmanian Law Reform Institute), Bruce Patterson (Tasmanian Law Society / Law Foundation), [obscured, Michael O’Farrel SC (Solicitor General) Crown Advisor, Department of Justice, Crown Advisor, Premier and Cabinet), Leigh Sealy SC – former Solicitor General], The Hon Peter Heerey (Federal Court – retired – acting judge SCT), [obscured Professor David Clark], The Hon Dr Peter Patmore (former AG), HE Prof Kate Warner AM, Governor of Tasmania.

The materials and discussion from the symposium and workshop are currently being incorporated into a public wiki page  – which can be found at https://wikis.utas.edu.au/display/TCLRP – and will be provided to the TLRI for a formal public law reform project later in the year. In the interim it is hoped that those involved in the project will be motivated to raise awareness of the need and possibility for reform across the sector.

The reasons for the stakeholder- and expert-led approach are two-fold. The first is that, due to the poor state of the Constitution Act 1934 a great deal of constitutional practice is based on convention which is either undocumented, or not centrally accessible. Similarly, much of the knowledge of the practical issues, problems (and workarounds) exists in the corporate memory of those working in the field, rather than in any one written text. The project aims to draw upon this significant institutional knowledge at the outset. Indeed, if nothing else comes from the project, its documentation of the State’s complete constitution will be worth the effort.

The second reason for inverting the usual law reform process is a pragmatic one. Law reform is a fraught and often frustrated process, especially in Tasmania, where several notable law reform projects have failed to translate into legislative or institutional change. Added to that is the fact that reform will necessarily affect the status quo that brought the current government to power – something of a disincentive to change. We consider that momentum for change must be initiated from the agencies and stakeholders who understand and are invested in the constitutional system; particularly those with influence on governmental practice and policy. Achieving early buy-in will not only ensure the reform process is evidence-based but those involved are much more likely to facilitate change from within the system as the project progresses.

Certainly the clearest message to come from our initial expert and stakeholder discussions is a high level of dissatisfaction with the current Tasmanian constitutional framework. There was also a consensus that reform is highly desirable. That level of unanimity is rare. Unfortunately, it is borne of experience in the problems caused by a frail and doddering framework straining to support an entire governmental system. However, that has meant that participants had a genuine investment in both issue identification and working towards long-term solutions.

Engagement and discussion about our State Constitution is already an improvement on what came before

Whether or not our project serves to motivate any substantive change is questionable. Certainly the odds are stacked against us. However, I’m not sure that matters so much as actually engaging with the issues and bringing together the academy, profession, public sector parliament and public.  Just as the awareness of our State Constitutions amongst the public needs to be improved, so does our own as academics. Until we do away with the States – and I suspect that is never likely to happen – we must be cogniscent of the significant power of State governments wield. Rather than ignore them we should constantly ask questions about why and how that power is exercised and how we can ensure it is reflective of contemporary Australian values and legal and social expectations.

Brendan Gogarty is the Convenor of the Tasmanian Chapter of the Australian Association of Constitutional Law and the Chief Investigator on the 2016 Tasmanian Law Reform Project. 

Suggested citation: Brendan Gogarty, ‘State Constitutional Reform: the Tasmanian Experience’ on AUSPUBLAW (11 May 2016) <https://auspublaw.org/2016/05/state-constitutional-reform/>