The Australian Constitution and human rights: a centenary view

Abstract

Over the course of a century, Australia has developed into a prosperous nation and one of the oldest continuous democracies in the world. The Australian Constitution has played an important role in this. Since 1901, it has withstood crises and the passage of time to produce an effective foundation for economic, social and cultural development and has fostered a stable democracy responsive to and representative of the people. The important role played by the Constitution is perhaps only apparent when our experience as a nation is compared to that of other nations, such as Fiji, where the lack of a stable legal system has led to social and economic discord. A century is a remarkably long time for any framework of government to endure largely unchanged. This achievement actually says more about the character and cultural values of the Australian people than it does about the text of the Constitution itself. Despite a long standing distrust of and alienation from politicians and politics, Australians generally continue to demonstrate a high degree of respect for their public institutions, such as the High Court, and for the rule of law. Public support for the constitutional structure should not be taken for granted. It requires an ongoing political commitment to ensuring that the Constitution enables and remains relevant to the realisation of national aspirations and goals. One hundred years ago, the drafters of the Constitution recognised this. They included in the Constitution a mechanism that would enable the Australian people, in partnership with the Federal Parliament, to reform and update the Constitution. The idea of constitutional reform is thus one that is entirely consistent with the original conception of the Constitution. Under section 128 of the Constitution, an amendment to the Constitution must be: passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice; and at a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of the states. This process has been invoked 44 times, with only eight proposals succeeding at a referendum. None of the eight changes was a major revision of the text of the Constitution. Some of the changes have, however, been of political importance. Two stand out. The 1928 referendum added a new section 105A to the Constitution, which is economically significant in enabling the Commonwealth to make agreements with the States to take over their debts. The 1967 referendum extended the federal Parliaments races power to Indigenous peoples and deleted the discriminatory section 127. None of the amendments since 1967 were of any great importance. In 1977, the Constitution amended to, amongst other things, set a retirement age of 70 years for High Court judges. The Constitution has not been amended according to the vision of its founders to reflect contemporary needs. Hence, it stands much as it did when it came into force in 1901 and continues to reflect the aspirations and values of the framers who drafted it in the 1890s.