# cam commented : Fair dinkum this is a hard read: I don\'t know which judge is writing this, but it is in a different voice to the first part of the decision;

731 The history of the referenda cannot be ignored[850]. Kirby J said this in Durham Holdings Pty Ltd v New South Wales[851]:

\"Nevertheless, the rejection by the electors of the Commonwealth (including those in New South Wales) of a proposed amendment to the federal Constitution, which would have prevented or invalidated legislation such as the amending legislation adopted by the New South Wales Parliament in 1990, suggests a reason for special caution when this Court is invited, but twelve years later, effectively to impose on the Constitution of the State a requirement which the electors, given the chance, declined to adopt.\"

732 What happened in the referenda to which I have referred is particularly compelling because of the repetitiveness and ingenuity of the attempts made by the Commonwealth to gain the power which in this case it now says it has always had. The Court should not disregard that history. The people have too often rejected an extension of power to do what the Act seeks to do for that.

To ignore the history would be, not only to treat s 128 of the Constitution as irrelevant, but also for the Court to subvert democratic federalism for which the structure and text of the Constitution provide. As I observed in Sweedman v Transport Accident Commission[852], constitutions, State and federal are not the property of governments of the day.

and;

734 In summary I would regard the speeches for the referenda, the referenda and their results as relevant to the proper construction of the Constitution for these reasons.

735 The speeches in Parliament for the Bills for them, having regard particularly to the experience, eminence, legal qualifications and knowledge of the speakers, throw much light on the founders\' intentions and the understanding of the meaning of the Constitution of informed, legally qualified, politically astute, responsible people.

The meaning of the words of the Constitution may not change following, and as a result of the failure of a referendum, but it is a distortion of reality to treat the failure as other than reinforcing the received meaning of the words which prompted the attempt to change or enlarge them.

Equally, a successful referendum may provide relevant evidence of received meaning immediately before the vote in it. But in addition, unlike in the failed referenda considered in this case, a successful referendum would also indicate the people\'s discontent with that received meaning. True it is that the construction of the Constitution is a matter ultimately for the Court, aided by qualified advocates presenting arguments to it, but even this Court should not be blind to the inescapable fact that the people do have, by virtue of s 128, a special and unique constitutional role to approve or veto a change.

That, they can only do if they have an understanding of what is sought to be changed. For my own part I do not think it legally radical in the special constitutional setting of s 128, to attribute to the people the same understanding of meaning and of power as their elected representatives who legislated for the referenda to effect the changes, and as the failed referenda show, to be content with them. It is no answer as the Commonwealth submissions implied, that s 128 raises a high hurdle for constitutional change. So it does, and intentionally so.

If Parliament cannot persuade the people to change, it is not for this Court to treat the people\'s will as irrelevant by making the change for them. Every one of the 36 proposals which have failed at a referendum has been accompanied by dire warnings of doom to the Commonwealth and the people, yet the nation prospers and grows.

cam

# cam commented : I think that was Callinan: nt

cam

# avocadia commented : Dare I say his name?: I await eagerly the next column/blog entry by a certain Daily Telegraph manatee denouncing \"activist judges\" in a similar vein to, oh I don\'t know, how about:

Activist judges in the High Court have dangerously flirted with the notion of implied rights but fortunately, under the guidance of the current Chief Justice Murray Gleeson, the common-sense approach has usually prevailed.

# adam commented : You\'re a better man than I: I noticed this vague glimmer of non-doom though. Help us Bill of Rights the judge says - you\'re our only hope.

759 The two justifications selected for a departure from settled authority, \"sense of justice\" and \"social welfare\", are less likely to warrant a departure from accepted doctrine in constitutional cases in this country, in which the absence of a constitutional bill of rights means that it is for legislatures rather than the courts to identify and make provision for these, especially the latter. More basal considerations such as \"ascertainment of founders\' intent\" and \"maintenance of the federation established by the Constitution\" are, in my opinion, safer yardsticks, and more in keeping with the proper role of a Justice of this Court.

I think the reasoning is dubious - it\'s not clear to me why \"social welfare\" should be a more compelling reason than \"individual liberty\" - are they asking for a stick to beat the executive with? Why should a bill of rights be the only constitutional reform supported by the justices that sit in our courts?

# cam commented : I suspect they want one as they have been: contorting themselves in past cases to try and derive legislative protections for things like freedom of political speech. I used to think it was a good thing that we didn\'t have a bill of rights as I thought implied showed greater foundational strength, but it doesn\'t, it is more like spaghetti code that exists outside of the system requirements. So it is largely hidden and arbitrary in execution.

I don\'t understand why social welfare and sense of justice would require rights anyway, both those are well within the rightful domain of the legislature. Liberty is what is intended to be protected with a bill of rights. Maybe they think that the absence of arbitrary government through rights, which the positive is uniformity of law, will help. Don\'t see how.

The other thing that struck me reading through that decision was there is a doctrine, inference, proposition, construction, etc for everything. Basically there are so many to choose from that it gave the impression they can be used to justify any decision or outcome. Certainly the majority and dissent used the same information for different conclusions.

cam

# Felix the Cassowary commented : Two more things to note: The centralisation referenda were mostly in the first fifty years of the Commonwealth, and have fallen off since then. This happens to correspond roughly with the Commonwealth government securing for itself the right to tax income, and the State governments being put on a lead ...

Also, percentages are probably useful for comparison, so using your categories:

• Centralisation: 11% passed,
  
• Democracy: 33% passed.
  
• Illiberalism: 0 passed
  
• Other: 0 passed.
  

That\'s still not a huge difference between centralisation and democracy, but it does suggest that the unwanted centralisation referenda is still largely responsible for the impression that it\'s hard to get our constitution changed.

# cam commented : The centralisation referendums: do seem to skew the impression that it is difficult to change the constitution, when it is better explained that the people were wisely rejecting the expansion in scope of the federal government.

It also appears that due to the inability of the federal government to expand via referendum, they found other means to increase centralisation. As you mentioned centralising tax was one method, the other is the High Court adopting a centralist doctrine (most high court appointees are political not specialist) and aiding the expansion of the federal government at every step. The meaning of excise being a good example and the corporations power another.

It is interesting to note that even sixty years ago Workchoices probably would have required a referendum to go ahead. In the current environment with the House, Senate and High Court predisposed to federal power, there was no thought for the need. IIRC the Senate judged it constitutional though NSW, WA and Tasmania are challenging it in the courts.

cam

# Felix the Cassowary commented : Workchoices: I thought the states had referred IR power to the Commonwealth, and so it was constitutional? Have I missed something?

# cam commented : I think only Victoria has: The Senate determined there were a couple of sections in the constitution which made it possible. Corporations power being one of them. IIRC it was in an APH research note that I read it.

I guess one of the committee hansards will have the information. I will go digging.

cam

# Felix the Cassowary commented : Ah: Being Victorian, I may have conflated our own situation with that of the nation\'s, although I\'m almost certain what I read said something like \"the states (pl.) have agreed to refer IR to the Commonwealth, but are threatening to revoke it\" or some such. Still, I haven\'t read widely on the topic, so you\'re probably right.

# cam commented : Grouping pattern: There also appeared to be a \'grouping\' pattern. Several referendums that were voted on at the same time got similar popular vote results. This implies some weighting goes on voters minds when they vote on these things and it carries through to other - less popular? - referendums on the same ballot.

There is a question here for republicans. Did the unpopular preamble referendum which came from Howard\'s fingers have a negative effect on the republic voting simply by being grouped with the republic referendum?

It is probably a good policy to only put one referendum on a ballot at a time anyway.

cam

# dlatimer commented : The pattern of referenda: It is tempting to look into the statistics of referenda and try to come to some conclusion to take advangage of strategic voting. For example having several items on the one ballot was very successful in 1977, when three referenda where passed in one hit.

Rightly or wrongly, I believe that successful change depends upon the merits the proposal. I do not know if I am right, but I believe that a brilliant republican proposal would not have been sunk by a poor preamble.

# cam commented : One of the referendums tried to: they put rights in with monopolies and all the others that had failed repeatedly.

A quick look the other day when categorising them showed the majority of the referendums to be about centralisation, IIRC I counted about 24 of them or so to be about increasing federal power. Not many were about increasing representation or enfranchisement (a couple were), including rights (a couple were), improved governance etc. A couple were aesthetics too.

They were mainly about centralism, which were the ones that got rejected. Somehow the feds found a way to centralise without the inconvenience of referendums.

I believe that successful change depends upon the merits the proposal

I agree.

cam

# dlatimer commented : Costello and Federalism: What you say about centralism dominating and failing to win referendums is exactly right. But there are exceptions even to that.
 * 1946 social services power
 * 1967 aborigines included in race power

Your comment puts Peter Costello\'s push for a new federalism into its proper light. Nobody would believe it would be successful at referendum, and it is not designed to win the cooperation of the states (under s51.37)

# cam commented : I would categorise the Aboriginal: referendum as one of increasing franchise/inclusion etc rather than centralisation.

I would also include the state debts referendums, which passed, under the centralisation banner. It could be argued that those referendums successfully passing led to the Lyons vs Lang incident which nearly plunged Australia into civil war.

The odd one is the territorians getting to vote in referendums, it failed the first time but passed the second go. Wish I knew more of its circumstances of failing.

cam

# dlatimer commented : I\'ll go along with this.: I attended the ARM 15th Birthday Event last night at the Menzies Hotel in Sydney. Republicans have a habit of picking venues with ironic names.

Anyway, it was quite an occasion. Food good, wine good and even my wife got through the speeches without complaining. The ARM probably raised some money too.

# cam commented : One of the areas that Direct Democracy: would be immediately useful, as you mentioned in the initiative, would be removing many old laws that sit as cruft. Another method would be to only allow the legislative to create laws that have maximum lifetime of 25 years (a generation) and have to be re-voted on to stay in effect. I know laws often get heavily revised or altered, but it would be nice to have initiatives that are like strike tag legislation, or make a parliament generationally revisit laws.

cam

# avocadia commented : Chavez and Nuisance Referenda:

I can\'t say as I was at all shocked when I first heard Chavez would seek a change to the constitution. The man is halfway through the process that Mugabe is at the end of.

The idea of citizen-initiated referenda is well enough and all, but I can see how it could be subverted to paralysing a government. All the opposition needs to do is get together a regular ten percent of the population to put up nuisance referenda time and time again. You\'d have to have some kind of circuit-breaker to prevent a disruptive opposition group from tying up the country in such.

# Alan commented : Chavez: I would hope Chavez does not seek an extension of his own term. I do not see him as the answer to all Venezuela\'s problems. I think presidents like Kirchner and Lula are significantly better for their peoples. Chavez, however, is a much better answer to Venezuela\'s problems than the neoliberal governments that preceded him and which Washngton would like to see back in power.

Comparing him to Mugabe is a charge not even the Bush claque have raised. He\'s been elected twice in processes certified by international observers. He\'s fought off a coup. He\'s a vigourous opponent of the Bush vision for Latin America. Those are much better explanations for the allegations against him than anything boring like reality.

# avocadia commented : Mugabe comparison:

Wow, deja vu. It only seems like yesterday that I was defending Chavez from charges of anti-semitism and suggesting the ugly reality is better reason to dislike him than making shit up.

Robert Mugabe came to power from elections, elections won after international observers forced previous elections to be voided when certain political parties were forbidden to enter. Robert Mugabe instituted a whole series of social programs  to aid the under-privileged in his society. Robert Mugabe passed legislation that allows his supporters to confiscate land. Robert Mugabe doesn\'t have to deal with term limits and Robert Mugabe has had international observers certify his elections, although to be fair everyone laughs at those particular observers.

Meanwhile, Chavez won elections a few years after failing to take government in a military coup - if he had been toppled by a coup I would have called it karma. Chavez\'s government confiscates land. I seem to remember they pay some nominal fee, but let\'s call a spade a spade, it is confiscation.  I have no doubt at all that seven or eight years from now, Chavez will be rigging elections just like Mugabe.

Saying Chavez a better answer to his predecessors is like saying lung cancer is better than skin cancer.

# cam commented : citizen initiated referenda: I agree that it shouldn\'t allow a referendum to be instituted on that alone. Having a bicameral parliament or assembly ratify the referendum would be wiser. Though, even with a formal constitution, tyrants and dictators subvert the norms first while basking in the glow of legitimacy a constitution and democratic system gives.

cam

# Alan commented : Mugabe comparison: Mugabe rejects election observers. Chavez accepts them including delegations from the EU and the respected Carter Center. On the 2004 recall election, the Carter Center found

On Aug. 27, Venezuelan electoral authorities confirmed President Hugo Chavez\'s victory in the referendum. Though there were accusations of fraud by the opposition, the final official results totaled 59.25 percent for Chavez, 40.74 percent against. The Carter Center participated in an audit of the votes (see final report above) and concluded the results were accurate.

Land reform is a complex issue, notable and successful examples include the land reforms carried out in Japan and South orea by the US occupation. Merely saying that Chavez is carrying out land reform does not make him Mugabe. You have to look at the detals of the program and the way it is carried out.

You might also like to look at what Chavistas have to say about themselves, for instance at Oil Wars .

I don\'t think there\'s a lot of substance in comparing non-existent observers in Zimbabwe to the EU and the Carter Center. Venezuelan democracy is mixed and uneven, but it is nowhere near the dictatorship and denial of human rights that prevails in Zimbabwe.

# avocadia commented : The Observers:

The election observers in Zimbabwe were from South Africa - I don\'t mention this as a way uf suggesting credentials, merely noting that they do indeed exist. Then again, the Carter Centre refused to sign off on the 2000 elections and it has been noted that the audit process was still not one hundred transparent in 2004.

You may wish to note how I said Chavez is at an earlier stage of the process of moving from Populist to Tyrant. It may well turn out I am wrong and he totters off the stage at some stage, but seeking to make laws - even one law - apply to everyone but himself is not a good sign for such hope.

# adam commented : Pro-Chavez op-ed from the Guardian: By \"Red\" Ken Livingstone . Argues Chavez is a welfare state building social democrat. Full literacy in ten years eh? Hmm.

Ken\'s been a pretty good Mayor of London, which inevitably involved a fair amount of shmoozing with businessmen. I wonder if this sort of outspoken foreign policy commentary (he\'s also taken stands quite critical of Israel) is a way of burnishing his lefty credentials.