Gava, John --- "A People's Convention" [1998] UNSWLawJl 2; (1998) 21(3) University of New South Wales Law Journal 932

A People's Convention

JOHN GAVA [*]

The media hype surrounding the Constitutional Convention masked yet another failure for the Australian people in determining our constitutional structure. Until a genuine people's convention is held where all the delegates are popularly elected, politicians are kept out and all of our Constitution is open for discussion, constitutional change is going to remain hostage to elite groups and their interests.

Of course, the impotence of the people in constitutional affairs is not new in Australian history. In The Invisible State, Alistair Davidson has shown that popular participation in our constitutional history has been minimal, especially when compared to the vigorous and pivotal role of the people in the French and American revolutions. Self-government and independence were, according to Davidson, largely exercises in elite power.[1] As the late Justice Hutley bluntly asserted, "Australia ... does not have to pretend that power comes from the people".[2]

Is it churlish to suggest that the Convention denied the people a role in determining the future of our Constitution? No. How could it be? Half the delegates were appointed by the Prime Minister; he drastically limited the Convention's agenda and even the eventual model for selecting a head of state could not get a majority of this gerrymandered group and is entirely at odds with every poll taken on the preferences of Australians.

If the proposed referendum to change the head of state is passed, Australia will probably slip into constitutional torpor for another century. The politicians will have once more deflected an attempt to inject into Australia's political life any semblance of popular participation beyond the solitary act of voting every three years for otherwise unaccountable politicians.

Rejection of the referendum will allow us to call a genuine people's convention which can then consider wide ranging proposals for the creation of popular participation in government, not just how to choose the head of state. To ensure that this convention really belongs to the people all the delegates should be popularly elected and a 10-10 rule should apply for politicians. Anybody who had been a politician in the 10 years before the date of the convention would be banned from election and any delegate would be stopped from becoming a politician for 10 years after the end of the convention. The Constitutional Convention provided dramatic evidence that politicians have their own agenda of minimising the role of the people in constitutional decisions. Our politicians have no lack of opportunities to discuss constitutional change and no shortage of media attention for their views. The rest of us should be given a chance to have our say.

Of course, we must not be mesmerised by the question which dominated the Convention - whether or not we should have a popularly elected president. In itself the issue is probably not all that important, but it did act to ignite concern about popular participation in constitution-making and political life. One can even believe that the popular election of a head of state, without some form of check and balance, might be unwise, yet at the same time believe that a thorough process of reform of the Australian constitution is vitally necessary in order to entrench popular participation.

In order to provide the basis of a debate, I offer the following suggestions for change. These suggestions would provide more public participation, lead to better government and engender a richer and deeper sense of citizenship than that operating today.

We could begin by looking at the structure of government in Australia. Local, as well as State and federal government should be entrenched in the Constitution and all three should be given a fixed share of tax revenue. As things stand now, local government is at the whim of arrogant State governments.

It is also appropriate to consider whether a new delineation of legislative powers should be made in the Constitution. At present, the Commonwealth has most of the revenue raising power and the States have more legislative responsibilities, while local government is wholly dependent on the wishes of State governments. A new allocation of legislative powers would recognise the changes that have occurred in Australia since 1901, entrench the legislative capacity of local government and reinforce the dispersal of legislative power that acts as a brake on the potential for tyranny.

Our legal system also needs scrutiny. The steady erosion of juries has increasingly diminished the role of ordinary people in the administration of justice. Juries should be reinvigorated and jury service should become a responsibility of all citizens. At the other end of the spectrum, we could consider making the High Court a genuine federal court by allocating one seat to each of the States and the Commonwealth. One can also ask whether a Bill of Rights is necessary and, if so, which rights should be protected. In turn, this would raise the question whether a Bill of Rights would give too much power to an unelected judiciary.

The practices of our State and federal parliaments also need attention. Do we want fixed terms for parliaments? If so, should they be longer or shorter? Should there be limits on the number of times a person can be a member of parliament? Would a popularly elected Speaker improve the working of Parliament? Would a minimum, fixed number of sitting days remove the temptation of governments to rule secretly without the scrutiny of public debate in parliament? Should we have a mechanism for citizen initiated referenda? Does the advent of cheap computing power provide the possibility of constituents directing their MPs how to vote on particular issues or, at least, allowing them to know formally what the constituents think about particular laws and issues?

Should we open up to scrutiny the workings of government and the bureaucracy by creating constitutional protection for freedom of information and whistleblowers? Could we entrench the notion of alternative advice in the Public Service by ensuring that advisers representing churches, business, consumer groups, universities and other tiers of government are placed in all government departments? Lest this be thought an extravagance, one need only compare the cost of a few thousand extra bureaucrats against disasters like the Victorian and South Australian bank crashes and the continuing tragedy of high unemployment over the last 25 years. These disasters might have been avoided, or at least softened, by some alternative advice to the governments involved.

Concentration on formal governmental power, however, is not enough. Corporations and elites wield tremendous, but informal, governmental powers in Australia. Unless this important political role is recognised and steps are taken to ensure that some forms of public accountability and participation are enshrined in their decision making, popular participation in governance will be a sham.

Mark Nadel's analysis of the governmental power of large corporations[3] is directly applicable to Australia. First, the extensive cooperation between government and corporations has blurred any clear boundary between them. The intertwining of the two in `privatised' but heavily regulated industries, such as electricity generation and telecommunications, and the symbiotic relationship of `private' arms suppliers and government, exemplified by major defence projects (the ANZAC frigates and the submarines, for example), are only the more obvious examples of this phenomenon.

Second, the decisions of corporations are significant. The very health of many citizens is more in the hands of corporations than formal governments. The most extreme example is the health of workers in dangerous occupations, such as asbestos mining, but the same point can be made generally about work in most situations. Corporations certainly affect the income and economic well-being of citizens in ways similar to governments. The decision to site a factory or close a mine in a small country town will do more to affect that town economically than the general economic power wielded by governments. BHP's decision to rationalise its industrial base in one State of Australia instead of another is a similar exercise of tremendous, but informal, economic power which is indistinguishable, and often greater, than the formal exercise of policy making by an elected government.

The third area of boundary blurring is where `traditional' governmental functions are delegated to private groups without at the same time ensuring that such groups made are publicly accountable for their decisions. This includes, among other things, the post office, telephones, health, education, roads and prisons, all of which are central to modern life. The impact of privatization and deregulation in the last two decades has only increased the informal governmental powers exercised by corporations.

Corporations are not alone in exercising such power. Professional groups also share in its exercise. A clear example is the legal profession and its ability to generate law; perhaps the purest form of formal political power. The whole edifice of the common law is a creature of the legal profession. Judges, barristers, solicitors and legal academics work together with varying degrees of influence to create and develop fundamental areas of the law. The power of the profession does not stop there. All legislation has to be interpreted and the legal profession is a primary (but not sole) source of interpretation. Perhaps the most topical illustration of the centrality of the legal profession in politics in Australia is the Mabo[4] decision. This was largely the creation of the legal profession and has been at the centre of politics in Australia from the day it was decided.

This is not a call for the nationalisation of corporations or the dismemberment of professional groups. History has taught us the futility of such actions. It may be that there are no obvious mechanisms existing today for the constitutionalisation of corporate and elite power. Obviously their creation will require imaginative political, constitutional and economic thought. Inaction, however, will not do. The problem of informal political power will not be solved by ignoring it. Until some way is found of making the informal political power exercised by these groups politically accountable, our constitutional arrangements will ignore much of the exercise of political power in our society.

John Howard and the self-appointed republicans managed to tame the populist impulse at the Constitutional Convention. We should make sure that this does not happen again by voting against a Clayton's republic and creating a genuine people's convention to discuss a genuine people's constitution.

---

[*]Senior Lecturer, Macquarie University.

[1] A Davidson, The Invisible State: The Formation of the Australian State 1788-1901, Cambridge University Press (1991).

[2] F Hutley, "The Legal Traditions of Australia as Contrasted with those of the United States" (1981) 55 ALJ 63 at 64.

[3] M Nadel, "The Dimension of Public Policy: Private Governments and the Policy-Making Process" (1975) 37 Journal of Politics 2 at 6-8.

[4] Mabo v Queensland [No2] [1992] HCA 23; (1992) 175 CLR 1.