OPINION: This year marks the 40th anniversary of when Australians last voted to change the Constitution. That was on May 21,1977, when the people voted Yes to three proposals, including setting a retirement age of 70 for federal judges. This remains the most successful referendum day in the nation's history.
The years since have produced a depressing array of failures and stuff-ups. Eight further proposals have been put to the Australian people, and all have been rejected. One set of changes in 1988 even produced the lowest Yes vote since Federation. Australia's most recent referendums were in 1999, when the people were asked to make Australia a republic and to insert a new preamble, or opening words, into the Constitution. Neither got close to passing.
Several reforms have been debated since 1999. A referendum seemed certain in 2013 on changing the Constitution to recognise local government and provide for its funding by the Commonwealth. On the eve of the 2013 election, Kevin Rudd deposed Julia Gillard as prime minister, and the proposal was discarded.
Australians have also spent the best part of a decade debating whether to recognise Aboriginal peoples in the Constitution. The idea has been supported by every major political party, and has been the subject of national reports, countless local meetings and years of community campaigning. Despite this, our leaders have not got close to agreeing on a model for change. Instead, every time a decision-point is reached the issue is shunted off to a new committee.
The figures reveal just how poor a time this has been for constitutional reform. The four decades since the 1977 referendum is the longest period in the nation's history without the people supporting a change. This is nearly double the prior record of 21 years between the 1946 and 1967 referendums.
Not only is change proving elusive, but fewer referendums are being put. National votes of this kind used to be a more regular feature of Australian political life. The people have been asked to vote on 44 proposals since 1901, an average of one proposal roughly every two and a half years. It has now been 18 years since the 1999 referendum. This has produced yet another record, being the longest period without a referendum being held.
The failure to change the Constitution, or even to put a proposal to the people, would not matter if the document was in great shape. This, though, is far from the case. Constitutions, like any laws, need updating and renewal. Not surprisingly, the nation's 1901 rulebook is showing its age.
Out-of-date provisions and processes are costing the nation dearly by hampering progress and undermining prosperity. For example, our federal system was written in the 1890s, the age of the horse and buggy. The division of power between the Commonwealth and the states is now ill-adapted to meet modern challenges. The result is a federation full of deadlocks, duplication and workarounds, with higher taxes and poorer services for the community.
Australia is locked in a cycle of constitutional misadventure. We must break out of this by adopting a new method of generating and debating ideas. A reform agenda that for many years has been directed by political opportunism and ad hoc initiatives must be recast by systematic, community-based processes.
Just as Australia has established other bodies to drive change, such as the Productivity Commission and law reform processes, so too should the government establish a small, ongoing Constitutional Review Commission. It should be charged with reviewing the Constitution, generating proposals for reform and listening to and educating the public.
The commission should begin with an overall examination of the Constitution. Holistic reviews of the document have been held at roughly 30-year intervals, reporting in 1929, 1959 and 1988. This means that the next review should report in 2018 or 2019. These processes typically take a number of years, and so 2017 is the right time to begin on a report that should be delivered early in the term of the next Parliament.
The regular processes of the Constitutional Review Commission should involve it reporting to each Parliament on a shortlist of priority proposals for reform. These ideas should offer the greatest benefits to the nation and have the best prospects of being supported at a referendum. After being examined by federal and state parliaments, the ideas should be debated at a popularly-elected constitutional convention held once each decade.
Only proposals that are supported by Australia's parliaments, and by the people at the convention, should be put to a national vote. By this method, the nation can head off holding yet another failed poll. It might also enable Australia to realise the benefits of constitutional change before a half century has passed since our last referendum success.
Professor George Williams is Dean of Law at UNSW.
This opinion piece was first published in the Sydney Morning Herald.