TOPIC 1.4: What is the importance of the Constitution to our Political System?

What is the Constitution?

In the Australian system, the Constitution is an important document and is as alive today as it was when it was first drafted in the 1890s. Especially important is the interplay between the states and the Commonwealth in making the grand bargain of federalism work. Most times the issues are agreed by mutual consent, especially if the Commonwealth offers to pay, to achieve some national outcome. However sometimes, usually when nobody wants to pay, a more formal interpretation of the Constitution is evoked to assign policy responsibility. Occasionally, in a major policy clash between governments, the High Court adjudicates through interpreting the Constitution. Regardless of which bargaining approach is adopted there can be significant impacts on the resources allocated to certain programs. For this reason, you need to understand the role the Constitution plays and perhaps its strengths and shortfalls as discussed in this Topic 4.

If you were a US citizen, you would probably hold considerable reverence for the founding fathers of the US Constitution and the Constitution itself. It could be argued that we are less conscious of it in Australia. However, they must have been great negotiators to mould an agreement from six independent governments.

Some democratic systems rely on constitutions that are very prescriptive, as can be noted by the US Constitution, while others, such as Britain, have no similar document but rely on conventions and common law to establish the ‘rules of play’. Australia, influenced by its British and colonial/State antecedents, as well as modern approaches exemplified in the United States, married the ideas of codified and traditional styles and adopted a ‘mixed’ approach – a constitution; the Westminster system of conventions; and a court (The High Court) to interpret and monitor the constitution, and the legal system.

Federalism, like any organising principle to govern a country, is a ‘socially constructed’ concept (Feeley and Rubin, 2008, p. 9)^[1] and therefore subject to change and variation as the Commonwealth and the states bargain. The Constitution, in one sense, is a contract between the Commonwealth and the states to manage this idea and spells out their respective powers. While it has been effective in enabling Australia to develop, in preserving national integrity and in providing tools to ensure harmony, critics would argue it is difficult to alter (and, therefore, difficult to adapt to modern requirements) and is open to varied interpretation through being relatively vague on some matters (e.g. there is no Charter of Rights or mention of local government).

Of 45 attempts to alter it via Referendum, only 8 have been successful (Parliamentary Education Office, 2023)^[2]. The most recent referendum was held in October 2023 to ask Australians whether the Constitution should be changed to establish an Aboriginal and Torres Strait Islander Voice (Australian Human Rights Commission, 2023)^[3]. 60% of votes cast across Australia were No to the proposition and No was in the majority in every State. The ACT was the only jurisdiction to record a majority Yes vote which was 60% (Australian Electoral Commission, 2023)^[4].

Also, there is a view that the Constitution has unresolved issues around terminating a government and a constitutional crisis could occur as happened in 1975 when the then Governor General, Sir John Kerr, dismissed the Whitlam Labor Government without properly consulting the Government of the day.