3.1
The inquiry’s terms of reference included examining ‘mechanisms to review the Australian Constitution and for community consultation on any proposed amendments before they are put to a referendum’. Many participants in the inquiry offered views and suggestions on how constitutional review could be strengthened in Australia, and how the people could be more effectively consulted on proposed reforms.
The history of constitutional review in Australia
3.2
In the lead-up to Federation in 1901, and in the 12 decades since, Australia’s colonial, Federal, state and territory governments have conducted various processes to consider constitutional change—both specific proposals and more general review.
3.3
Nevertheless, the Committee was told that constitutional reform in Australia—at least at the national level—has to date been approached in an ad hoc manner, usually in connection with an immediate reform issue for consideration, and the political circumstances of the moment.
3.4
Australia has convened a number of national processes of constitutional review since the 1890s. Several mechanisms with broad or general mandates were established, at irregular intervals, up to the 1980s.
Three Constitutional Conventions held in 1891, 1897 and 1898 were the mechanism by which the Constitution was drafted, considered and eventually agreed upon, prior to Federation. While members of the 1891 Convention were nominated by the parliaments of each of the colonies (including New Zealand), the 1897-98 delegates were popularly elected.
A Royal Commission on the Constitution was held from 1927-29, but did not result directly in any matters going forward to referendum, partly due to a change of government soon after its report was presented.
In 1942, a Convention comprising 24 appointed members (including the premiers and opposition leaders of the states) considered proposals for the expansion of various Commonwealth powers in the Constitution, some of which were eventually put to referendum in 1944, but not approved.
A Joint Standing Committee on Constitutional Review operated within the Commonwealth Parliament between 1956 and 1959, comprising eight members of the House of Representatives and four Senators. It presented two reports to Parliament, in 1958 and 1959, covering a range of constitutional reform issues. The Government never formally responded to the committee’s reports, although its deliberations could be seen as laying some of the groundwork for the two referendums held in 1967, and later reviews.
The Australian Constitutional Convention (ACC) was established in 1973 and met six times between 1973 and 1985 in various cities across Australia. Its delegates were appointed by the federal and state parliaments, and comprised representatives of federal, state and local governments and legislatures, including non-government representatives who were involved as equal partners. Over the 12 active years of the ACC, five of its recommendations were put to referendum, three of which were approved.
A Constitutional Commission comprising five prominent Australians (supported by several appointed advisory committees) was established in 1985 and reported to the Government in 1988. This led to the 1988 referendum event in which four proposals for change were put to the people, but none approved.
3.5
The most recent full Constitutional Convention was convened in Canberra in February 1998, to discuss whether Australia should become a republic, which model for a republic should be put to the public via referendum, and under what circumstances and timeframe. The Convention was composed of 152 members, half appointed by the federal Government and half elected via a voluntary postal vote. The appointed members included 40 members of state, territory and federal parliaments including all leaders and opposition leaders, and a number of ministers.
3.6
The 1999 Convention differed from previous constitutional review processes in Australia in that it focused on one specific proposal for reform. It was a key part of the preparations for the referendum on the republic held in 1999, which was not approved.
3.7
In 2010 an Expert Panel on Constitutional Recognition of Indigenous Australians was appointed, with a membership comprising Australians from Indigenous and non-Indigenous communities and organisations, business, community leaders, academics, and members of Parliament. This was part of a process of consideration of that issue which has continued— including through the 2016-17 First Nations Regional Dialogues and National Constitutional Convention (known as the ‘Uluru dialogues’) and current consultation processes, which are discussed later in this chapter.
3.8
In 2011 an Expert Panel on Constitutional Recognition of Local Government was convened, with an appointed membership comprising Commonwealth members of Parliament, local councillors and ‘other prominent Australians’. This was part of preparations for the referendum on that topic which was proposed and legislated in 2013, but did not take place.
Proposals for constitutional review and consultation
3.9
Many participants in the inquiry emphasised the need for more regular or systematic mechanisms for constitutional review, and for discussion of constitutional issues with the Australian people. The newDemocracy Foundation submitted that:
…the Committee should explore new approaches that specifically address weaknesses in traditional approaches to referendums by seeking ‘shared ownership’ of the referendum process rather than something owned by MPs and sold to a sceptical citizenry.
3.10
Benjamin Cronshaw noted the lack of any formal constitutional consideration in more than 20 years, and believed that ‘there is merit to continuously reviewing the Constitution and see what can be changed or amended to meet the needs and interests of contemporary Australians’.
3.11
Stuart McRae, while unconvinced that the Constitution was in need of reform, nevertheless agreed that ‘the government might usefully establish a respected non-partisan body to review, endorse or oppose any proposal before it is put before Parliament or to the people’, and that any proposal for change ‘should be subject to extensive dialogue over many years’.
3.12
Dr Bede Harris believed that an inquiry into matters needing constitutional reform could be referred to an existing or special parliamentary committee, the Australian Law Reform Commission, or a special commission established for the purpose—stating that the mechanism used was less important than ensuring it allowed for ‘the broadest possible consultation with the public’.
3.13
Dr Paul Kildea endorsed the value of deliberative processes used both in Australia and overseas in recent years for public engagement and consultation on constitutional reform:
…many countries are making more use of citizens’ assemblies and other deliberative forums to advance debate about constitutional change… These forums bring together ordinary citizens to learn about and debate important issues and make recommendations to government.
When these assemblies are run well they expand constitutional debate beyond the usual suspects and they help facilitate really meaningful public engagement with constitutional issues.
3.14
Professor Gabrielle Appleby also recorded her support for ‘more regular citizens’ deliberative processes, whether that be through the form of a constitutional convention or otherwise’.
3.15
Mr Glenn Barnes from Citizens for Democratic Renewal advocated that ‘to bring a really consolidated approach to how we handle [constitutional reform], we need a mechanism that draws the broader population into the discussion and has wide publicity of the considerations’, noting also that there were various Australian and international models that could be drawn upon to craft such a mechanism.
3.16
The Attorney-General’s Department (AGD) told the Committee that the Government was ‘supportive of discussion of constitutional issues’ while noting that experience had shown ‘different processes won’t necessarily lead to a yes vote’. The Department also noted that the ability to support consultation events ‘will be at least in part dependent on funding, which is always a question for the Government’.
3.17
Various possible mechanisms for constitutional review and consultation were raised and discussed during the inquiry, as set out below.
A permanent Constitutional Commission/Council
3.18
Professor George Williams proposed that:
Australia should establish a small, ongoing Constitutional Commission charged with reviewing the Constitution, generating proposals for constitutional reform, consulting with the public on draft proposals and, after consultation, recommending them to Parliament.
3.19
The Commission proposed by Professor Williams would receive proposals put forward by any Australian government, parliament or parliamentary committee and any members of the public. It would also be empowered to consider matters raised in other constitutional discussions, and to explore proposals on its own volition. The Commission would decide which proposals to prioritise and take forward.
3.20
While supporting the conduct of regular constitutional conventions (discussed below), Professor Williams saw a permanent Commission as having a valuable role in generating reform proposals and maintaining momentum between those events: ‘I think that’s a pretty cheap way of making sure that the right proposals are generated, that there’s education and the like in between the conventions and that there’s broad political engagement’.
3.21
Citizens for Democratic Renewal (CDR) similarly suggested the establishment of ‘a permanent Constitutional Council of esteemed community leaders to consider the constitution in the light of contemporary society and advocate appropriate change’. CDR proposed that the Council be responsible for drafting any referendum questions and presenting them to Parliament for action.
3.22
Mr Glenn Barnes from CDR elaborated, telling the Committee that:
Rather than just having ad hoc bodies start the process for a referendum, I believe that we should have a referendum council whose role would be studies of the Constitution, aiming to keep it contemporary to our society and, where a desired change is suggested, taking the process on… their role would be to seek out ways and means of engaging the public in the discussion and to be the arbiters of whether we’ve reached sufficient commonality of view in the public to actually move to a referendum.
3.23
Dr Bede Harris agreed that ‘it would be a very good idea to have a standing commission to receive and consider proposals for reform’.
3.24
CDR was conscious that the nomination process and selection of members for such a body would ‘need to be carefully thought through to ensure public confidence in the capability and independence of the council’. It suggested that members could include constitutional experts and ‘long-retired, experienced and respected politicians’ as well as representatives of the public.
3.25
Under Professor Williams’ model, the Commission would have a broad and inclusive membership including former parliamentarians, representatives of local government, constitutional experts and members of the broader community, appointed in a multipartisan way to ensure it could generate ‘broad political and community support for whatever proposals it puts forward’.
Constitutional Conventions
3.26
As noted above, Australia’s Constitution was brought into being via a series of Constitutional Conventions, and further conventions have been convened on an ad hoc basis in the decades since Federation.
3.27
Professor Williams was one of several submitters advocating a ‘regular, popular Constitutional Convention’. Professor Williams proposed that such an event be held every ten years, and draw upon recommendations from the proposed Constitutional Commission, Parliament, a majority of states or a ‘petition of a large number of Australians’. The Convention would debate proposals for constitutional reform and make recommendations to Parliament for submission to a referendum. Professor Williams’ view was that a Constitutional Convention should be broadly representative of the community, while also ‘small enough to allow for real debate’.
3.28
With regard to the proposed ten-year frequency, which he described as every ‘half-generation’, Professor Williams expressed the view that:
It shouldn’t be too often, because the Constitution rightly shouldn’t be changing all the time. It should have some consistency—a sense of permanence about it—but we do need regular engagement. At the moment what we’re lacking is a hook or some regular activity that draws our conversation towards constitutional change…
3.29
Australians for Constitutional Monarchy (ACM) also advocated convening a constitutional convention to comprehensively review the Constitution, proposing that it draw on the model of the ‘Corowa Plan’ Conventions that drafted the Constitution in 1897-98. ACM explained that ‘[w]hat the Corowa plan involves is that, when a convention comes to a conclusion and then consults with all of the parliaments, the idea is that the final draft from the convention goes straight to the people’.
3.30
ACM submitted that such a convention should be held every ten years: while ‘it would be unwise to do this too often’, broad reviews should be undertaken periodically and be ‘special events in the life of the nation’. Speaking with the Committee, Professor Flint from ACM went further, suggesting that ‘I wouldn’t hold it more often than, say, every 20 years’.
3.31
Dr Kildea was another who saw value in a ‘once-in-a-decade’ constitutional convention, adding that such processes should be run openly and in a ‘bottom-up, grassroots way’ to motivate people to get involved.
3.32
Women for an Australian Republic supported the institution of regular constitutional conventions, with elected and nominated participants assisted by legal and other experts, assembled by the Australian Government and/or state governments. It believed that conventions should be held more frequently than every ten years, proposing that they take place every three to five years, to maintain momentum amid a ‘constantly evolving diet of public topics to engage [public] attention’. The Australian Republic Movement agreed.
3.33
Professor Appleby similarly suggested that every five years might be an appropriate timeframe for broad constitutional conventions, with the possibility of more flexible timing for ‘specific deliberative processes’ on topical issues.
3.34
The Law Council of Australia (LCA) submitted that constitutional reform would be assisted by ensuring that ‘the process of constitutional reform, as well as the amendment proposals, are co-designed and co-owned by the public’, through a comprehensive, open and meaningful process of national debate and consultation, such as an annual constitutional convention.
3.35
There was some discussion as to whether one-off, issue specific conventions were preferable to, or should supplement, periodic comprehensive ones. Dr Kildea suggested that some constitutional issues would engage and be relevant to the public more than others, and there may be value in one-off conventions or assemblies to consider particular issues, in addition to more comprehensive ten-year review events. This would also allow flexibility to ‘design a process that matches the issue’.
3.36
Professor Williams acknowledged that it may from time to time be appropriate to hold a convention to consider a specific reform proposal, but advocated that these should be ‘the exception, and only ever in addition to the systematic deliberation proposed by the regular Convention model’.
3.37
As discussed in Chapter 2, inquiry participants were in broad agreement about the potential value of constitutional conventions not just as a mechanism for constitutional reform, but also to inspire community engagement and strengthen public awareness about the Constitution. To that end, many emphasised the importance of getting the model right for such a convention, and particularly ensuring that it allowed for broad and genuinely representative involvement across the Australian community.
3.38
Dr Kildea noted that there were a range of options to structure the process, and examples that had been successfully used both in Australia and overseas that could be drawn upon.
The Irish model – the Constitutional Convention and Citizens’ Assemblies
3.39
During the inquiry, the Irish experience with constitutional reform over the last ten years was raised a number of times in discussion with the Committee as an example worth considering, or even emulating.
3.40
The newDemocracy Foundation specifically recommended that Australia establish a Constitutional Convention based on the model used in Ireland in 2013-14, describing the Irish Convention and subsequent Citizens’ Assemblies as ‘pioneering events in deliberative democracy’.
3.41
The Committee held a hearing via videoconference with three Irish officials who had been directly involved with the Constitutional Convention and the most recent Citizens’ Assembly, to explore the Irish model and what might be drawn from it for possible consideration in Australia.
3.42
The Irish representatives were positive about the success of the Convention and Assemblies; advising that while the process remained ‘an experiment’, the deliberations had generated productive discussion and ultimately resulted in referendums and votes for change, including on sensitive issues such as abortion and marriage equality.
3.43
Mr Art O’Leary, former Secretary to the Constitutional Convention, noted that the unique nature and apparent success of the Irish model had generated a high level of international attention:
There is worldwide interest in the Irish experience, because it does appear as if Ireland’s success in conducting these forums, which provide a safe and respectful environment in which people can have a conversation about sometimes divisive issues, has been interesting to other countries who are in a similar position.
3.44
Mr O’Leary explained that the Irish Convention on the Constitution held 12 weekend-long meetings over a 14-month period between January 2013 and February 2014, to consider ten issues referred to it by a resolution of both Houses of the Irish Oireachtas (Parliament). The Convention comprised 100 members - 66 randomly-selected citizens, 33 parliamentarians (nominated by political parties in proportion to their representation in parliament) and an independent Chair.
3.45
The Convention made 38 recommendations, 18 of which would require the Irish electorate to decide by referendums. To date three referendums have been held on matters proposed by the Convention, two of which resulted in constitutional change. Other matters remain under consideration.
3.46
Dr Catherine Day, Chair of the 2019-21 Citizens’ Assembly on Gender Equality, and its Secretary Dr Mary-Clare O’Sullivan, spoke about the subsequent Citizens’ Assemblies that emerged from the Convention. Pursuant to a further resolution of both Houses of Parliament in July 2016, the Irish Government established the first Assembly which was held from 2016-18 and considered five issues. That Assembly has so far led to one constitutional referendum, in which change was again approved by the Irish people. The second Citizens’ Assembly, on the topic of Gender Equality, was convened in 2019, again upon a resolution of both Houses of Parliament. Its report was presented in July 2021 and remains under consideration by the Government and Parliament.
3.47
While operating in a similar way to the Constitutional Convention, the Citizens’ Assemblies were notably distinct in that there were no parliamentary members: all 99 members of each Assembly were randomly-selected members of the public, presided over by an appointed Chair.
3.48
Dr Day advised the Committee that proposals for four future citizens’ assemblies are currently ‘in the pipeline’ in Ireland.
3.49
While the recommendations of the Convention and Assemblies are not binding on parliament or government, they are obliged to consider and respond to the reports and recommendations of the processes, and Dr Day commented that ‘in a way, the parliament is cutting a stick to beat its own back. It’s not bound by any of the recommendations, but it would be very difficult now to put them all in the bin’.
3.50
The structure of the sessions, and use of facilitators, advisors and advocates, were highlighted as important and carefully-designed elements of the processes. Mr O’Leary commented on the need to bridge the ‘gap in knowledge’ between parliamentarians and public representatives at the Convention, particularly on more technical issues such as reform of the electoral system. Independent facilitators and note-takers were engaged to assist and record the small-group discussions, and to help ensure that all voices were heard.
3.51
Another point made was that identifying and articulating the issues for discussion was crucial. Both Dr Day and Mr O’Leary believed that citizens’ deliberation processes should be triggered by issues needing consideration, rather than scheduled at regular intervals. Mr O’Leary commented that ‘[t]he issue is everything…The setting up of a citizens’ assembly should always be driven by the issue which needs to be considered’.
3.52
Dr Day believed that a regular convention or assembly could ‘become too routine’:
As I said, I think the choice of topic is very important. There may not be a topic on which it's appropriate to get the citizens involved on a regular basis. That's my own feeling. I think there is a danger in Ireland of it becoming a device… 'Let's have a citizens' assembly.' But I think that would devalue the currency. For me, it should really be an important issue on which the citizens want to be engaged and need to have a channel. So I would say the regularity would probably kill it or reduce it to something much more mundane.
3.53
Dr O’Sullivan agreed and stated that:
I think that, in some way as well, the participants need to feel special on some level. If they feel as if they're a conveyer belt going through a very routine process, it may become less attractive to participate.
3.54
While strongly endorsing the Irish model, the newDemocracy Foundation proposed additional elements that should be adopted in Australia, including convening citizens’ assemblies at the state level, and feeding them up into a national conversation, in recognition of the ‘unique federal nature of Australia’s constitutional amendment process’.
The Uluru model
3.55
Professor Megan Davis told the Committee that the ‘Uluru dialogues’ process, culminating in a constitutional convention held at Uluru in 2017, was ‘probably the most recent Australian process on constitutional reform’ and demonstrated the success of a different model, operating within smaller communities and excluding political and other ‘elite’ representatives.
3.56
The process consisted of a series of 12 regional dialogues in communities around Australia. Each dialogue involved an average of 100 Aboriginal and Torres Strait Islander delegates, including representatives of traditional owner groups and community organisations. The delegates were asked to consider, assess and prioritise reform proposals according to the views of their region. The outcomes of the dialogues were then brought together at a National Constitutional Convention at Uluru in order to achieve a consensus position on the form that the constitutional recognition of Indigenous Australians should take.
3.57
Professor Davis described the consultations:
Our experience was we ran a deliberative dialogue process at a national constitutional convention for First Nations people that came off the back, as you know, of about seven years of commitment to constitutional recognition. We ran it in a way that we excluded all what you would call, in a sociological sense, elites from the room… no politicians were allowed in. There were no national congress, no rep bodies. No people who work for Aboriginal medical services or health services who are on huge salaries could attend the dialogue; it had to be voiceless people. It was deliberately crafted in a way that it was not elites; it was the people who never get to have a say…
I think the Uluru dialogues are an example of very good democratic innovation in Australia. We ran this convention that came up with consensus at the end… I wanted to make the point that it's not rocket science in that if you know your community, you can talk to your community… we did exclude the bureaucrats from the meeting so people would feel safe, that they could say things and not worry about the implications for their funding et cetera, and we provided a safe space. We then drew upon all of the experience that does exist in Australia…
3.58
In contrast to the Irish model, Professor Davis regarded it as important that external facilitators not be involved:
I think one of the things we did really well… was that we didn't allow facilitators, so all of the people who led the conversations were local people who knew everybody by name. They knew where they worked and lived; they knew who their families were. It was done in a fashion where people felt safe to roll up their sleeves and engage in something… 'Right. Let's imagine what the future of Australia could look like, and we'll go through this process’.
3.59
Others also saw the example of the Uluru process as a good one to inform future constitutional conventions in Australia. Professor Williams, for example, said that:
I think that the Uluru process is a really good example of… a very successful ground-up process leading to a national convention. It also met my experience: often you go out into communities and they are extremely articulate, extremely interested and often really frustrated nobody has listened to them about this issue, and they want that opportunity. If we were to have the half-generation convention, I actually think it would follow a similar process. You wouldn't just have the one set piece; you'd work it up. You might work it up from school conventions. You'd also have community conventions, maybe based on local government areas, and that would generate enormous grassroots energy and momentum towards a national process.
3.60
In its submission, AGD drew attention to the ongoing Government-led process established following the Uluru dialogues. AGD described its work with the National Indigenous Australians Agency (NIAA) to design an Indigenous Voice to Parliament through ‘high quality and respectful engagement processes’ with Aboriginal and Torres Strait Islander people.
Since late 2019, 3 co-design groups, with 52 members and majority Aboriginal and Torres Strait Islander membership, have engaged in a robust, deliberative and consultative process, to develop proposals for a National Voice and Local and Regional Voices. Through this process, Aboriginal and Torres Strait Islander people have continued to drive decision making about the Indigenous Voice.
3.61
NIAA advised that the process was one of ‘place-based engagement’ adapted to each community’s needs and aspirations, rather than a ‘one size fits all’ model, and stressed the importance of respectful partnerships, building rapport and cultural safety to empower communities and ensure meaningful engagement and participation.
A parliamentary committee
3.62
During the Committee’s Constitutional Roundtable in November 2019, consideration of one particular proposal for change (fixed four-year parliamentary terms) led into more general discussion about whether a joint parliamentary committee would be a useful vehicle to consider constitutional reform issues, and to inquire into and report to Parliament on proposals for amendment.
3.63
As noted above, a Joint Standing Committee on Constitutional Review existed in the Australian Parliament from 1956-1959. In 1999, a Joint Select Committee on the Republic Referendum was established, specifically to examine and report on the bills before Parliament to facilitate the republic referendum that year. In more recent years, select or standing parliamentary committees have been used from time to time to examine specific constitutional matters.
3.64
There has, however, been limited consideration of constitutional reform by the existing House and Senate committees with coverage of constitutional affairs, and there is presently no joint committee dedicated to considering constitutional review or related matters, despite the relevance of both Houses in any process of constitutional change.
3.65
During this Committee’s 2019 Roundtable, Professor Williams spoke about the possible role for a joint parliamentary committee in more systematic constitutional review:
I think things are at a very low ebb, in terms of the [constitutional] conversation generally, and we need to break out of that. One obvious way would be the joint select committee, as this parliament did in 1959, which looked at these issues more holistically, but again with very high levels of community input. It's either that or we need a separate inquiry process…
…you could have a joint standing committee. I do see the merit in a standing committee, because these are obviously ongoing issues that need to be resolved and one of the problems is that there is no regular way of engaging with these matters.
3.66
In the same discussion, Professor Cheryl Saunders was conditionally supportive of the idea:
So, if you were to think of an institutional mechanism—of course a joint standing committee of the parliament on the Constitution is probably a good idea in its own right—it needs to be one that can actually engage with people and not just be talking heads talking down to them, trying to persuade them to vote for things that you want to vote for at the Commonwealth level.
3.67
Professor Saunders has previously endorsed the idea of a joint standing committee ‘charged with making an annual or, at least, regular, report on the Constitution in accordance with agreed terms of reference’.
3.68
In the present inquiry, Women for an Australian Republic supported the use of a parliamentary committee to receive and consider constitutional change proposals from states, territories, organisations, businesses and individuals on an ongoing basis, and similarly suggested the committee should report annually to Parliament on them.
3.69
In his submission that state parliaments should be empowered to propose amendments to the Constitution, Associate Professor Luke Beck proposed the use of a new or existing federal parliamentary committee to receive such proposals from the state parliaments, inquire into them, and report to the federal Parliament.
3.70
The Committee also noted advice that the resolutions establishing each of the Irish Citizens’ Assemblies required subsequent examination of their recommendations by a joint parliamentary committee, as the first step in parliamentary consideration towards ultimate referendums or other legislative or policy changes. Dr O’Sullivan commented that:
…a key thing is that it stops the recommendations sitting on the shelf if…there’s a clear pathway for when the parliament or the politicians will get a chance to feed in and consider the recommendations.
3.71
In addition to a mechanism for review including receiving proposals for constitutional reform and engaging the public in inquiries into them, it was suggested by contributors to the inquiry that such a committee could have other roles once a referendum process is in train. This is further discussed in Chapter 4.
Other forms of deliberative democracy
3.72
Some participants in the inquiry also mentioned citizen initiated referenda, citizens’ juries or related direct democracy models used overseas, including in certain US states and in Switzerland. While not necessarily (or only) related to constitutional change, such models were seen by some as contributing to greater public engagement and empowerment in Australia’s democratic process.
3.73
While overseas examples were often cited in this regard, it was also brought to the Committee’s attention that direct consultation with the people on constitutional or other public policy issues is not unknown in Australia. In its submission, the newDemocracy Foundation cited research documenting more than 48 examples of ‘deliberative engagement practice’ in Australia at the local, state and federal levels. The Foundation submitted that ‘[t]his suggests a national capacity to learn from experience and institutionalise these processes’.
3.74
Professor Flint from ACM advocated for a Swiss-style provision for citizens to initiate regular referendums, telling the Committee that:
If there's a people in the world who are closely involved in constitutional matters, it's the Swiss. Voting is voluntary in Switzerland, but every three months they have to consider a series of referendum proposals both at the federal and the state level but also often at the local level. So they're quite attuned to this. That is because the Swiss constitution provides for a significant degree of direct democracy… I think that that habit of allowing people, by petition, to initiate referendums is very important, and it makes the system very much accountable to the people.
3.75
It was noted that these initiatives sometimes had unforeseen consequences: Mr Walker from the newDemocracy Foundation said that the implementation of citizen initiated referenda in certain US states had ‘turned into a disaster’.
3.76
Women for an Australian Republic drew attention to the strong public response to the (voluntary) plebiscite on marriage equality in 2017, submitting that both referendums and plebiscites should occur more regularly to ascertain the people’s views on important issues, as well as increasing voters’ comfort with voting for change. It proposed introducing a law and voter incentives to facilitate the increased use of plebiscites, as well as ‘deliberative polls’ which could be conducted electronically.
3.77
On the other hand, the Samuel Griffith Society urged caution about the reach and use of citizen-led and informal processes, submitting that ‘[o]ther methods of community consultation, such as Citizen Juries and Deliberative Polling, are no substitute for a referendum’, in which an equal vote is afforded to each eligible citizen.
3.78
ACM did not support plebiscites in areas relating to constitutional change, advocating that on such matters ‘the parliament should proceed directly to a referendum and not go through preceding plebiscites’.
Committee comment
3.79
At its Constitutional Roundtable held in 2019, and again during this inquiry, the Committee was struck by the constitutional review not taking place in Australia currently, or in recent years. It was clear from the Committee’s queries that there is no established process for review, and no department or agency of the Australian Government are mandated to proactively consider or coordinate any general processes of constitutional review or consultation.
3.80
Indeed, the Committee understands that essentially no work is presently done on these issues unless and until a particular proposal for change reaches the point of planning for a referendum. The Committee observes that such an approach allows neither the time nor the environment for more broad, calm and considered review of necessary or desirable constitutional changes.
3.81
In response to the evidence from the Attorney-General’s Department that different constitutional processes ‘won’t necessarily lead to a yes vote’ (see paragraph 3.16), the Committee notes that obtaining a yes vote is not necessarily the object of many of the recommendations made to this inquiry, which are instead focussed on ensuring Australia has a more informed and engaged citizenry.
3.82
The history of constitutional review in Australia is ad hoc and, it could be argued, has met with very limited success to date. The Constitution is the foundation document of Australia’s Federation and nationhood. The Committee considers that it is important enough to warrant a process for ongoing review of whether the Constitution remains fit for purpose and, where relevant, consulting the public on possible change. This should occur independently from ‘live’ consideration of one particular issue or proposed referendum.
3.83
While the Committee considers that it is important to start the momentum on constitutional review and consultation, it is also concerned that any mechanism established for the purpose of constitutional review be meaningful, manageable and sustainable. In this regard, the Committee’s view is that major constitutional consultations, such as conventions, should be important national events, not so regular or routine that they result in public fatigue or complacency.
3.84
The Committee instead sees merit in establishing a parliamentary joint standing committee with a broad mandate to review the Constitution and receive and examine proposals for constitutional change. This averts the possible expense and bureaucracy of a new mechanism; instead using a system that is established and proven, and allows parliamentarians to ‘buy-in’, engage and have confidence in the constitutional reform process on an ongoing basis.
3.85
The Committee considers that in addition to ongoing review and inquiry, an important function of a joint committee would be to consider and make recommendations in relation to any future constitutional convention in Australia, and then to examine the proposals arising from any convention.
3.86
In considering any future constitutional convention, the Committee suggests that there are valuable lessons that could be learned from both the Irish constitutional reform process and the Uluru dialogues. In relation to the latter, the Committee notes the importance of comprehensive consultations with First Nations communities specifically on any proposed constitutional changes relating to them.
3.87
The Committee also notes that any convention would serve dual purposes: not only substantive review of constitutional issues, but as a valuable opportunity to strengthen public awareness and engagement on the Constitution.
3.88
To ensure access to expertise and advice that may assist in performing its duties, the Committee suggests that the joint standing committee could appoint an independent constitutional expert (or a panel of such persons) to advise it and assist in its deliberations, as required. The Committee notes that similar independent adviser roles are presently employed by, for example, the Senate’s legislative scrutiny committees.
3.89
The Committee is cognisant of the possibility that a referendum on Indigenous recognition in the near future may overlap with any broader work on constitutional review. The Committee recognises that this (or any other) ‘live’ referendum would take priority, and may need to be taken into consideration, particularly in relation to the planning and scheduling of any constitutional convention. At the same time the Committee is strongly of the view that the possibility of a specific referendum should not prevent or unnecessarily delay the implementation of a broader, systematic process of constitutional review, as recommended here.
3.90
The Committee recommends that both Houses of the Australian Parliament establish a Joint Standing Committee on Constitutional Matters to operate from the commencement of the 47th Parliament.
The Joint Standing Committee should be:
given a broad mandate to review the Constitution and consider constitutional matters, including receiving and inquiring into proposals for change
able to self-refer constitutional matters for inquiry as well as receive references from either House of Parliament or a relevant Minister
required to consider and make recommendations to Parliament relating to the establishment of, agenda for, and resulting report from, ongoing or one-off constitutional conventions that may be warranted generally or to consider specific reform proposals
mandated to exercise functions relating to the referendum process once a referendum proposal is taken forward by Government and/or Parliament, as recommended below at Recommendation 9.
3.91
The Committee recommends that the Australian Government use the opportunity of any constitutional convention established on the recommendation of the Joint Standing Committee recommended at Recommendation 4 to conduct a program of public engagement, including through media and social media campaigns, to ensure broad public awareness of the convention and help increase public understanding of the Constitution.
This should form part of the enhanced public education effort recommended at Recommendation 3.