This post and the accompanying post by Gabrielle Appleby continue a 2021 special series, which is a companion to the Gilbert + Tobin Centre of Public Law’s Global Public Law Virtual Book Series. The aim of the virtual book series is to invite leading scholars in public law around the globe to share ideas from a recent book with an Australian audience, and to engage with Australia-based commentators.

This book forum was co-hosted by the Indigenous Law Centre as a special event to mark the anniversary of the Uluru Statement from the Heart, and the call for a constitutionally enshrined Voice to Parliament. The posts in this forum are also published on the Indigenous Constitutional Law Blog.

BY PAUL KILDEA

Richard Albert’s Constitutional Amendments: Making, Breaking and Changing Constitutions offers a comparative, conceptually rigorous treatment of a complex and significant field in the study of law and politics. In this post I focus on Richard’s ideas about amendment difficulty and how they might help us to make sense of Australia’s recent referendum record and ongoing debates around the constitutional enshrinement of a First Nations Voice.

Australia’s national constitution is famously rigid. The special procedure in section 128 establishes a high threshold for amendment: proposed changes to the text may not be made unless they have been passed by absolute majorities of both houses of the federal Parliament, and then approved at a referendum by a national majority of voters and majorities of voters in four of six states. Since Federation in 1901, Australians have approved just eight of 44 amendments put to a referendum.

Richard’s book brings a global perspective to debates and concerns around the flexibility and rigidity of constitutions. Australia’s experience is discussed alongside that of other nations which have recently resisted formal amendment, including the United States and Canada.

Richard argues that, to make sense of a nation’s approach to amendment, we need to look beyond the formal procedure and take account of ‘amendment culture’. In general terms, culture encompasses attitudes towards the desirability of amendment, independent of any substantive proposal under consideration. In looking to cultural forces, Richard challenges the authority of influential studies, by Donald Lutz and others, that rank constitutions according to how rigid they are based solely on the amendment procedure. For Richard, the frequency of constitutional amendment is a product of both text and culture. He is not the first scholar to observe this, but his contribution adds to our understanding of the meaning and impact of amendment culture.

Richard argues that amendment culture can have one of three effects: it can accelerate, redirect, or incapacitate formal amendment. The notion of ‘incapacitation’ resonates in the Australian context: it recalls Geoffrey Sawer’s charge that Australia is ‘constitutionally speaking … the frozen continent’ due to its slow pace of constitutional change. Later commentators have pointed out that Australia’s constitutional system continues to evolve through judicial interpretation and intergovernmental relations. To the extent that this is the case, we might say that change has been ‘redirected’ through other institutions and processes.

But formal amendment continues to be very difficult to achieve. It is not just that more than 40 years have elapsed since the 1977 referendum, when Australians last voted ‘yes’ to constitutional alteration. Governments have seemingly given up on trying to amend the Constitution. It is more than 20 years since the 1999 republic referendum, marking the longest period since Federation without a referendum. Come November, no one under 40 years of age will have experience of voting in a constitutional referendum.

The amendment procedure helps to explain this: section 128, after all, does set a high threshold. But the procedure has always been challenging, and it is only recently that amendment – and referendum voting – has ceased. For most of the 20th century Australians found themselves voting on a constitutional amendment proposal , on average, roughly once every two years.

This is where Richard’s discussion of amendment culture is useful. It helps to explain why, in a country in which formal amendment has always been difficult, it is increasingly improbable.  While Richard writes about amendment culture in the singular, it may be more apt to think about amendment cultures (plural) so as to distinguish between how different groups think about constitutional change. In nations such as Australia, where the amendment rule confers formal roles on both legislators and citizens via a referendum requirement, it makes sense to distinguish between elite attitudes and public attitudes.

The idea that public attitudes act as a brake on constitutional change is not new. Many commentators have attributed Australia’s referendum record to excessive caution among voters. It is suggested that a fear of the unknown, or status quo bias, leads people to vote ‘no’. There is certainly something to this. But longstanding public support for constitutional recognition of Aboriginal and Torres Strait Islander peoples, including a First Nations Voice, indicates that people are not opposed to constitutional amendment in and of itself. The Australian public remains open minded about constitutional change.

What about the amendment culture among political elites – in particular, elected representatives? They have also adopted an increasingly cautious attitude towards constitutional amendment. This is not surprising given the number of referendum defeats. But it is also influenced by a now well-established view that there are certain pre-conditions for a ‘yes’ vote and that a referendum must not be attempted before all of them are met.

Bipartisan support is the most cited precondition. The idea is that a referendum cannot be carried unless both major parties are behind it. Only then should the people be given their say. On one level, it makes sense: encouraging bipartisanship helps to build political and public consensus. And no referendum has passed without it.

On the other hand, it is unhelpful to mistake correlation for causation, or to translate an observed tendency into a necessity. Bipartisanship pursued at all costs is a recipe for paralysis, delay and minimalism.

The decade-long debate on constitutional recognition provides a good illustration of this. The Expert Panel listed bipartisan agreement as a guiding principle; parliamentary committees have invoked it; both major parties have insisted on it. All along, the proposition itself has rarely been questioned. But who can say with any certainty that the First Nations Voice proposal, with its deep community support, cannot receive popular endorsement in the face of political opposition? Moreover, despite successive governments emphasising the need for bipartisanship, we are no closer to cross-party agreement on the issue. Ken Wyatt, the Minister for Indigenous Australians, tells us that constitutional recognition is ‘too important to rush’.

This is an example of culture incapacitating amendment. A mixture of caution, fear of failure and rigid thinking about ‘pre-conditions’ has made political elites reluctant to attempt the amendment of our constitution. Of course, some of the delay can be explained by disagreements about the form that recognition should take. But there is an underlying reluctance that is observable across different proposals for constitutional amendment – including the recent, aborted push to amend section 44 of the Constitution. Australia is in a state of amendment stalemate.

Is Australia’s demanding amendment procedure responsible for the culture that has built up around it? Or, to put the question in more general terms, is there a predictable relationship between a nation’s formal amendment rule and its amendment culture? The Australian experience, taken in isolation, suggests that the inclusion of a referendum requirement will prompt politicians to fixate on strategic imperatives such as ‘winning’ and risk management, which in turn will generate a generally reluctant attitude towards amendment. On the other hand, the experience of Ireland – where constitutional amendment also requires a referendum – points in the other direction. Its amendment culture seems unburdened by Australia’s caution, fear of failure and attention to pre-conditions. If anything, Ireland’s amendment culture seems to accelerate textual change.

Richard’s book offers a framework for thinking about Australia’s current troubles with constitutional reform. It suggests that the reasons behind our constitutional stasis can only be understood by taking account of the cultures of constitutional politics and how they are impacting the pace of change. In my assessment, it is the amendment culture among political elites, rather than citizens, that is doing most to slow constitutional reform in this country.

Paul Kildea is a Senior Lecturer at UNSW Law and Justice

Suggested citation: Paul Kildea, ‘How culture shapes Australia’s referendum record’ on AUSPUBLAW (11 June 2021) <https://auspublaw.org/2021/06/how-culture-shapes-australias-referendum-record>