The Constitutional Commission or the inescapable politics of constitutional change

PREFACE

In December 1985 the Federal Government established the Constitutional Commission, consisting of 39 prominent Australians, to begin a "fundamental review" of the Australian Constitution.  The Commission's terms of reference require it to inquire into and report on matters as wideranging and controversial as whether Australia should be a monarchy or a republic, the powers of the Governor-General and the Senate, the distribution of power between the Commonwealth and the States, the Constitutional protection of civil, political and economic rights, the power of different levels of government in relation to taxation, price and wage regulation, industrial disputes and interstate trade.  The Federal Attorney-General has also indicated that the question of an Australian Bill of Rights is to be referred to the Constitutional Commission.  The Commission by its terms of reference is required to seek the views of the public and to report by 30 June 1988.

In this paper, we present an alternative view to the proposition that a fundamental review of the Australian Constitution is necessary or desirable.  In particular we challenge the concept of a Constitutional Commission as an appropriate mechanism for review separate from or in someway superior to the normal political process for achieving change in a democratic society.

The work of the Commission and its several advisory committees is now well advanced, with the production of a series of Issues Papers which invite public response.  The content of the papers and the arguments presented would indicate that a virtual rewrite of the Constitution is envisaged with the central aim of clarifying and expanding the powers of the Commonwealth Government.

It is timely therefore to ask whether the journey is really necessary and, most importantly, is such a sweeping review as distinct from the process of evolutionary change likely to result in a product superior to the existing Constitution?

Richard J. Wood
May 1992

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PART I:  THE POLITICS OF THE COMMISSION

If one reflects on the way the Constitution of the Commonwealth of Australia was made in the years, 1880 to 1900, it is scarcely imaginable that a group of respected individuals, representing no one, and responsible to no one but themselves, would have been called on to weld the six colonies together.  It was assumed then, as it is assumed now by everyone who has ever been engaged in the business of making or re-making a constitution, that a workable constitution can only emerge from the arguments and settlements of the dominant contestants in politics.  Whatever the circumstances, however great the political differences a constitution should not be -- as the young James Madison pointed out some two hundred years ago -- the product of that "artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a constitution planned in his closet or in his imagination".  How very puzzling then that after close on a hundred years of constitutional life, the Federal government should choose to abandon the political process by which it feeds and functions day in and day out, to give the task of preparing a "new" constitution for Australia to a group of "private" individuals -- albeit in an "advisory" role -- who are formally and ostensibly, non-practising or non-active members of any political party.

This is certainly not to question the ability of the Constitutional Commission to design the kind of constitution they believe they have been asked to design.  Obviously they will respond to their brief with skill and dedication.  But if this talented group of private individuals can do so, so of course, can another, and another and another.  After all, while political representation is exclusive, learning is not.  Indeed, it is not difficult to imagine the countless ways in which one can move the human chess pieces around -- say exchange Fraser for Whitlam, to produce very different results.  It is certain that the "new constitution" of group "A" will be different from the "new" constitution of group "B", or group "C" or group "D".  And it is equally certain that the language, the phrases, the sentences, the allocation of functions, the design, the principles, the arguments, the rationalisations, and the compromises will be different also.

What all such "non-political" groups will share in common however is their inability to give a political warranty to the public that any of their products, though different, is either superior to the others, or superior to the existing constitution.  Whatever claims may be made for one constitutional design or another, the fact is that their work can only be put to the electorate as the work of a group of private individuals who do not represent anyone or anything, neither any profession, nor the arts, the sciences, industry, labour, agriculture, and certainly not politics.  They are without political identity;  they bear only the respect of their public and private reputation.

Why was it necessary then to by-pass the normal political process?  Justifiable though it may be in countries where constitutional or modern political experience is primitive why the rejection of the political process in Australia?  Is it simply to by-pass the necessity of negotiating with the States?  Or, is it to maximise the chances of getting the kind of constitution the Federal Labor Government wants?  There are many answers.  But if we look for an answer in the mouths of the Commonwealth Attorney General Mr. Bowen, and the Chairman of the Constitutional Commission, Sir Maurice Byers, the former Solicitor-General, we find the following:  First, Mr. Bowen:

"Australia has tried a variety of mechanisms to bring about constitutional change and none can be described as having been successful.  Despite Royal Commissions on the constitution, special Premiers Conferences, joint parliamentary committees and most recently, the Constitutional Convention, the depressing statistic remains that only eight of the thirty-eight referendums since federation have been successful ... It was not a decision of mine which led to the demise of the (Australian Constitution) Convention.  It was twelve years of failure.  The question is now as to what, if anything should replace the Convention.  There must be a means of both publicising and, if possible, depoliticising the whole subject of constitutional reform. ... I stress that ... there ought to be a constitutional commission of experts and well-known figures in order to publicise the whole subject of constitutional reform ... The task of constitutional reform must concern us all and it is a matter too important to be left to politics".

(Extracts from an address to the 23rd Australian
Legal Convention, Melbourne, 8 August, 1985)

And to a question on a radio programme, "But how do you propose bringing up a new constitution?", he answered:

"I think you've got to get people who aren't addicted to political infighting at the present time, which politicians are, to grandstand on the issue that this is going to be perhaps an erosion of State rights, or more aggregation of power to Canberra, or it's not a good thing because it's put forward by the Opposition ... We want a commission, say of about twenty people that would really look at Australia for its future, and what Australian people want;  to get rid of the party political platform situation.  This nation could be doing a lot better if it acted as one nation and not seven little colonies".

As for the Chairman of the Constitutional Commission, Sir Maurice Byers, his distaste for the disturbing influence of politics is even stronger.

"The previous Constitutional Commission was formed from politicians.  From the outset its chances of success were limited.  Political appointees had first and foremost in their minds the priorities of their parties ... There are certainly a number of former politicians in this group and it is true that the labor members outnumber the conservatives ... But if any of them hope to inject politics they won't be able to -- certainly if I've got anything to do with it".

It is easy to sympathise with Mr. Bowen and Sir Maurice Byers.  To know what must be done, and yet be unable to do it because good intentions are spoiled by an excess of party zeal is, to say the least, frustrating.  Mr. Bowen and Sir Maurice Byers certainly have cause to try to avoid politics because politics -- as they must know too well -- can be and often is a witches brew of high and low purpose, of high and low intelligence, of high and low integrity;  indeed of all the attributes that distinguish the humanoid from the Gods.

But true as all this is, the implacable fact is that politics is politics;  and party is party!  That is the condition of political life in all liberal democracies the world over, and we can only escape it by engaging in something worse.  What is surprising therefore is that an Attorney-General steeped in politics, drilled in its ways, and dedicated to the value of party dialectics, should believe that by going outside the political process and selecting politically immunised "experts", he can achieve the impossible -- the politics-free manufacture of a real constitution!

Even more surprising than this however, is the remarkable view of the Chairman of the Commission that "If any of them (referring to the members of the Commission) hope to inject politics in this they won't be able to -- certainly if I've got anything to do with it".  To be sure Sir Maurice Byers may have penetrating eyes, ears and nose for politics.  But the question is, how will he recognise the face of politics when it comes walking down the street?  What disguises will it wear?  By what views of the world or Australian society, by what constitutional theories, what programmes of reform to what segment of the constitution, will politics reveal itself to Sir Maurice's eyes?  Will the advocacy of republicanism, or a proposal to abolish the head of State, or a proposal to make all powers concurrent powers, or a proposal to regionalise the Commonwealth, or will the expression of such sentiments as, "it is virtually impossible for Australian governments, State or Federal, individually or collectively, to eliminate exploitation ... in industry by socialisation" or such beliefs as, "it is regrettable but true that the Labor objective of a unitary and decentralised system in Australia runs up against strong vested interests in the Labor party itself ...", alert Sir Maurice to the presence of politics or not?  And if he is alerted, will he then explain to the offending member what kind of politics is forbidden, and what kind is permissible.  And, if all politics is forbidden, will he further explain to him how he (or she) can avoid giving further offence?

What must be firmly grasped is that every constitution other than a mock or a facade or an imposed constitution, rests on the political agreement of conflicting parties, factions or groups as to how the affairs of a community shall be managed.  Every word, every phrase, every sentence, every figure and every date is the outcome of great or small political argument about what is to be done in matters of public concern.  To think that politics arid constitution can be dissociated is a grave error.  They are inextricably intertwined in every line of the constitution, and they can no more be separated than wetness from water.  Who says "constitution" says "politics"!

This being so, and it is so, then it is impossible for any mind, however judicious, objective or exalted, to make one single decision in the process of making a constitution, whether to move a comma, change a date, or alter a word, without being involved in a political judgement.  However justified the change, those who counsel the change, must never delude or be allowed to delude themselves or anyone else that they are making a non-political judgement in a non-political way.  Indeed, the Attorney-General has not removed politics from, or depoliticised the review of the constitution;  he has simply substituted the somewhat isolated "private" politics of non-representative, "non-political" advisers for the public politics of popularly elected political representatives.  But politics remains -- indestructible and if possible, even more influential than if it were played out in the open.

Again to believe, as both the Attorney-General and Sir Maurice Byers appear to do, that, if one only selects men and women of talent and free of politics, one can hope to achieve a politically disinterested view of constitutional reform is, to say the very least, either angelic or cynical.  Doubtless neither the Attorney-General nor Sir Maurice is entirely one or the other.  Nevertheless, it is the simplest truism -- to paraphrase Aristotle -- that all mankind, whether affiliated to party or not, whether they are aware of it or not, whether they articulate their views or not, or whether they expose them or not, carry their political values as they do their skin.

Since this too is the case, then given the requirement of talent, one can select people for a political task either on a purely random basis, that is, with complete indifference to their views of the world, or according to whether their views are sympathetic or not to the purposes of the Constitutional Commission.  However, since it would be plainly senseless for the government to select people who, though talented and seemingly "free of politics", had no sympathy for constitutional change, or the kind of constitutional changes associated with the sympathies of the Attorney-General, then one must assume that the members of the Commission were selected in the hope that they would advance rather than frustrate the Attorney-General's vision of what a desirable Bicentennial Constitution for Australia should be about.  The question then becomes -- precisely what is the Attorney-General's view of the "right" constitution for Australia?  What changes does he want?

Look first at what he has asked the Constitutional Commission to do.  In the terms of their brief, he has asked the Commission to:  "Inquire into and report on or before 20 June 1988, on the revision of the Australian Constitution to;

1. adequately reflect Australia's status as an independent nation and a Federal Parliamentary democracy;
2. provide the most suitable framework for the economic social and political development of Australia as a federation;
3. recognise an appropriate division of responsibilities between the Commonwealth, the States, self-governing Territories and local government;  and
4. ensure that democratic rights are guaranteed.

To give the Commission a direction so lacking in clarity is to tell them to go virtually where they will, and do as they please.  Nothing on the face of their brief would appear to tell them whether they should augment or diminish federal powers, augment or diminish state powers, or whether they should augment the powers of both, or diminish the powers of both.  Indeed, it would appear that the Commission can ride off in all directions simultaneously, pursuing either contradictory or sympathetic goals.  But while it may appear to be so, it is obvious that a sensitive commission must select, and of course, has selected, a perspective of its work that will enable it to align its 32 constitution-makers in broadly the same direction.  And it is equally obvious that while there are any number of vantage points from which the Commission can map its direction, there are some directions, which this Commission, selected in the way it has been, and in its right mind would not think it useful or political desirable to explore -- for example, to reduce federal powers to a minimum of say, national defence and taxation, and return aborigines, social security, health and education to the States;  conversely, a Commission alive to the political facts of life would not recommend the reduction of the States to the status of kerb and gutter authorities, or elevate local government to displace the States.

What direction will it take therefore?  A Commission that is briefed to compose a "new" constitution, but chooses to ignore what it is reasonable to assume the Attorney-General wants, or if in the knowledge of what the Attorney-General wants, it chooses to go in the opposite direction, is a foolish Commission, and foolish it is not.  What then does the Attorney-General -- and of course the Hawke ministry -- want?  The broad directions of the Attorney-General's desires are not difficult to map.  If one simply looks at his public statements, a fair paraphrase would be something like this:  In five easy steps -

1. A constitution written in the 19th century cannot reflect the needs of the modern world.
2. A fitting constitution for this country should recognise that Australia is a nation of "one people, one economy, one market and one voice in the world", not "six different little colonies".
3. A nation of one people, one economy, one market and one voice in the world, requires one government to lead it, to set standards, and regulate whatever it believes to be in the national interest.
4. The present constitution is a "horse and buggy" constitution, and most efforts to change it have failed.
5. A commission of "prominent citizens", experienced, far-sighted and free of party ties, has the best chance of persuading the public to change the constitution, whereas a commission drawn from parliamentarians will be overcome by party in-fighting.

This, of course, is a close model of Labor Party thought on the Australian constitution from the beginning of the century to the present day.  Historically it represents an anti-federal concept of federalism, or a unitarian vision of the state.  Though it has undergone some revisionism in recent years, and perhaps even abandoned its early "federalism-must-be-destroyed" policy, the Attorney-General's ideas are closer to the Labor men of the 30s and 40s than the moderns.  His ideological emotions and arguments rest on two pedestals;  first, his obvious dislike of power that is divided, and hence power that is limited;  second, his belief that the Commonwealth government is the natural and sole guardian of the "national interest";  hence whatever the issue it alone can say what the "national interest" is, and it alone can promote it.

From this dual position, stem all the well-known and often repeated catechisms of the anti-federalist movement in Australia.  Thus, federalism is a second-best system of government;  federalism inhibits national progress;  federalism is slow;  federalism is costly;  federalism is over-dependence on parochial states;  federalism is over-governed and over-politicised;  federalism confuses political responsibility;  federalism frustrates the will of the majority, etc, etc.  Federalism, in a word, is the obstructive power of the States to disagree with the Federal government, to say "NO" to the guardian of the national interest.

Brought up in such a monistic philosophy of government, it seems unlikely, for instance, that the purpose of the Attorney-General -- and judging by his Boyer lectures, the Prime Minister, Mr. Hawke -- is to free the States from the "chariot wheels" of the federal government.  However presumptuous or State-prone some members of the constitutional commission may be, it is not the declared purpose of the Attorney-General to return the States to the elysian fields of income taxation, nor to the pastures of the excise duties.  It is not the purpose of the Attorney-General, nor his Prime Minister to withdraw from any significant field of action that the federal government has entered, whether with or without invitation, with or without constitutional right or with or without the co-operation of the States.  It is not the purpose of the Attorney-General to re-draw and narrow the new frontiers of the "external affairs" power.  It is not the purpose of the Attorney-General to surrender the priority that sec.109 gives the Commonwealth.  It is not the purpose of the Attorney-General to promote the restoration of the states any more than he is forced to do.

What the Attorney-General wants in a word, is what Mr. Whitlam wanted for thirty years -- almost everything short of the formal obliteration of the states.  Indeed, it would be difficult to compose a list of things he does not want.  He wants what Dr. Evatt wanted in 1944, unlimited power to plan, direct and manage every aspect of the national economy.  He wants what every Labor Prime Minister has wanted since 1910 -- to be able to do whatever the Federal Government believes needs to be done, and to be done as it chooses to do it directly or indirectly, with or without the co-operation of the States.  The Attorney-General's ideal is the unitary ideal which imposes no greater self-restraint on what the Commonwealth can do, or requires no greater homage to the federal principle, than what the Commonwealth chooses to give.

All this is easy to demonstrate.  However it is unlikely that the Commission will give the Attorney-General everything that his heart desires.  Or, if by some mesmeric compulsion, the Attorney-General were given all, rather than some, of what he wants, directly or obliquely, by design or by accident, it is unlikely that the Federal Government, already so rich and potent in power, would accept such an embarrassing gift.  And this for the very simple reason that to receive what appears to be a little of what you want, will go down better with the electorate than a show of open greed.

What, then, is the likely package that may be entrusted to the present Federal government?  Speculative as it may be, it is reasonable to surmise that a moderately sympathetic, politically sensitive commission in which '"Labor members outnumber the Conservatives" (according to its Chairman) will be strongly attracted to all those substantive powers that are still denied to the Commonwealth:  they form the substance of the 1944 "Fourteen Powers" failed referendum, the aborted recommendations of the 1959 Joint Committee on Constitutional Review, and now the ten or so heads of power debated in the ostensibly neutral Bicentennial text, Australia's Constitution:  Time for Change?.

Look first at the "powers" named in Dr. Evatt's "Fourteen Powers" referendum;  look at them side by side with the "powers" named in the Report of the Joint Commission on Constitutional Review, 1959, and then note carefully the similarity between what is asked for in 1944 and 1959.  Thus:

THE 1944 EVATT REFERENDUM	THE 1959 CONSTITUTIONAL REVIEW
The reinstatement and advancement of members of the fighting forces and the advancement of dependents of deceased members.	Navigation and shipping.
Employment and unemployment	Aviation
Organised marketing of commodities	Scientific and industrial research
Uniform company legislation	Nuclear energy
Trust, combines and monopolies	Broadcasting, television and all services involving transmission or reception by electro-magnetic means.
Profiteering and prices	Terms and conditions of industrial employment and power to prevent and settle industrial disputes by conciliation and arbitration;  and power to establish authorities to determine terms and conditions of industrial employment, prevent and settle industrial disputes.
Production and distribution of goods.	Corporations
Control of overseas exchange and investment	Restrictive trade practices
Air transport	Inter-state Commission
Uniformity to rail gauges	Organised marketing of primary products
National works	All economic powers to permit the development of an integrated economic policy.
National Health	Hire-purchases
Family allowances	Interest rates on moneys borrowed on the security of land outside the banking system.
The people of the aboriginal race	Charges on the interstate carriage of goods, and charges on transport.

Now look again at the ten sub-headings of the chapter, entitled "The Division of Legislative Powers" in the book, Australia's Constitution:  Time for a Change?.  They are named:

• Control of the National Economy
• Business regulation
• Industrial relations
• Minerals, energy and national development
• Urban and regional development
• Environment and conservation
• Health, education and welfare
• Family law
• Human rights
• Uniform law reform.

Though the "names" of the subjects in 1944, 1959 and 1985 are not identical (how can they be when there is no "science" in naming clusters of activities for constitutional purposes?) the broad similarity of the matters is notable.

To put it another way, the constant target of the drive for "more-power-for-the-Commonwealth" is always the same -- the right of the Federal Government to function, directly or indirectly, completely or incompletely, in every field of State activity;  in a word, to achieve a total concurrency with all the residual power of the States.  For plainly, such is the generality, the expansiveness, and the interdependency of the activities clustered within each new subject of the proposed federal powers, that it is difficult to see what activities would remain beyond the grasp of the Federal government if it wished to explore its new powers to the full.  It could adopt whatever role it pleased in all things;  it could be a monopolist, sharer, supervisor, overseer;  or it could be all or any combination of these roles in any one or all possible fields, without any significant limits but the limits it sets upon itself.

This being so, it would appear that the quest for "more" and "all" power for the Commonwealth is really one and the same thing;  and in such a case, there are two effects:  First, where all power is concurrent power then it follows that whenever the Commonwealth decides to occupy a field in its entirety, the result is to convert a concurrent Commonwealth and State power to an exclusive Commonwealth power alone -- witness banking, copyright, marriage, divorce, posts and telegraphs, currency, etc, etc.  The second effect is to render the traditional notion of a "division of power" meaningless;  meaningless because a "division of power" which makes the total legislative initiative of one level of government conditional on the will of another is unknown to federal theory.  Even the fiction of an inexhaustible yet "divisible" sovereignty, or the fiction of cornucoepia, or never-ending supply of power from which both the Federal and State governments can each take whatever they will -- at least until the moment there is a clash of wills -- cannot give any meaning to the name of federalism.

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PART II:  THE POLITICS OF CONSTITUTION MAKING

Any group of persons charged with drawing up a constitution must answer certain basic questions.  Two important things must be said about this task.  First, that most of the basic questions raised in the process of constitution-making are of the kind that make it impossible for a constitutional commission of "politics-free" advisers to immunise themselves against politics;  and second, that where there is no agreed body of theory, principles or rules to guide the Commission in the making of a constitution, there is no right of participation except by right of political representation.

The nature of the basic questions which may emerge can be illustrated in three ways:  First, by considering the kind of question that is involved in the issue -- does the Commonwealth have the power to act in a given area?  Second, by considering the kind of question involved in the issue -- who should have the power to act in a given instance, the Commonwealth, the States or both the Commonwealth and the States?  Third, by considering the question, what "cost", if any, is involved in refusing to give the Commonwealth the power it seeks?

A. THE QUESTION OF CONSTITUTIONAL LAW

To begin with, it will be noted that the question, "Does the Commonwealth have the power to act" in a particular matter, is very different from the second and third questions, and it entails a very different mode of argument.  In the first case we are clearly embarked on a question of constitutional law, similar to questions like -- can the Commonwealth bind the States and their servants;  or, can the Commonwealth protect the operation of its agencies from state taxation;  or can the Commonwealth directly prohibit the States from exercising their constitutional functions;  or, does sec.92 of the Constitution bind the Commonwealth;  or, does the Tobacco Act 1972 (Tasmania) and the regulations made under that Act impose duties of excise and hence go beyond the legislative power of the State, etc etc.

In settling this kind of question, the procedure and the required skills are like no other.  There is a way of defining the issues, and a way of bringing these issues to law;  there is a way of arguing these issues, and a way of referring to like issues in the past;  there are defined principles of law, and defined courtesies of procedure;  but most important, there is always the certainty of a "final" judgement or "final" answer to the matters that are contended.  Who is right and who is wrong depends not on popular acclaim, but who is given the power of the last word, that is, the legal master.  It is he who sits on the highest throne of legal mastery who can say whether the Commonwealth has or has not the power to act in the way it has chosen to act.  Legal scholars can dispute the answer;  they can speculate on what the answer should have been or might be if the constellation of facts were changed.  But the answer to all legal issues, wherever stable legal systems exist, is the resultant of a known, and generally consistent procedure.

It is the skills fashioned in the legal process, and no other, that are the only skills suited to the conduct and resolution of the first question.  By contrast, however, these are not the procedures or the skills that are either relevant or necessary for the conduct and resolution of the second or third questions.  Where in the first case one may point to a distinct body of law, and learned opinion in the law, there is no such body of recognised and accepted knowledge, nor is there recognised and accepted guidance on questions that are essentially political.  Who should or should not have the power to act in the way the Commonwealth desires, or what harm will or won't befall the Commonwealth if it is denied the power it seeks, cannot be argued or answered in the way in which the question, "Is there constitutional power to ..." is argued and answered.  There is, of course, a discipline called political science, but there is no political science that can instruct statesmen what to do, how to do it, or what consequences or costs flow from their actions or inaction.

The nature of the political process, the style of political argument, the instability and the inconclusiveness of political argument, the manner of resolving political argument, the notion of political understanding and political learning, rest on very different assumptions from the law.  In politics there is no finality.  There is no set way of beginning nor ending;  no set way of defining the
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deference to precedent.  It is a world where every human desire reveals itself in the manner and the ingredients of the argument.  It is a world where fact and non-fact, logic and non-logic, learning and non-learning, fiction and reality, truth and lies, rationality and irrationality mingle and co-exist in a process that never ends in one answer, and rarely in a truce or adjournment.

It is the Attorney-General's down-grading of the political process, or his indifference to the different qualifications required to perform in each of these two worlds, law and politics, that throws the gravest doubts on his decision to by-pass the politics of constitution-making.  The Constitutional Commission is unquestionably a body of learning and integrity.  What it lacks however is the single qualification that can give credibility and warranty to the political task of constitution-making, viz, political representation, political identity, political standing, and political power to engage in the process of bargaining between contending political interests.  Exchange and bargaining is the very essence of the constitution-making process.  Without it, without replicating the common-day political process, the exercise can have no greater reality than the mock exercises of a moot court, or a post-graduate workshop in constitution-making, whatever the eminence of its "non-political" participants.  Nothing can make this more apparent than by looking at the question that will concern the Commission more than almost any other:  "What is the best way to adjust the present division (allocation, distribution, apportionment, etc) of legislative power (function, competence, responsibilities etc) between the Commonwealth and the States so that it corresponds to the needs of present day governments, and the likely needs of the foreseeable future?"

B. THE POLITICS OF DIVIDING POWER

This question can be identified in many different ways.  But one thing we can be sure of -- that it is not a question of law, anymore than it is a question of physics, chemistry, engineering, or any activity to do with weighing, cutting, adding, subtracting, or multiplying.  Insofar as it can be given an identity, the process of dividing power belongs first and foremost to the process of politics -- that is, argument, bargaining and persuasion about one thing -- who is best suited to exercise what power, how, at what level and on what basis?  This is the great question that occupies both ancient and modern political thought, and it is the same question that fills 30 of the 88 classical Federalist essays.  But as much as the question of power is at the heart of politics, so too are the answers -- with this difference, that while there is always one question, there is, in any free society or federal system committed to political reconciliation, more than one answer.

Think, for example, of the considerations at play in negotiating a division of power.  To begin with, since one of the basic givens of the Commission is that Australia is to remain a "federal parliamentary system", the immediate first question we must address is -- what kind of federal system is the Commission to have in mind?  Tortuous question though it is, it should be plain that our views on this matter must and will determine what responsibility we will place on each level of government, Federal and State.  There are, of course, many theories of federalism, but these need not concern us.  Instead of disputing about a multitude of federal theories, it is far more important to decide -- in the language of modern street-speak -- where our federalism is at and where we would like it to be?

To locate the present position of Australian federalism is relatively simple.  We may lack the precise techniques and instruments of modern navigation, nevertheless, we can trace the path we have travelled since 1901, and the point we have presently arrived at, with a fair degree of accuracy.  Indeed, it is enough to mention a few episodes in Australian political history such as, the Engineer's Case, the Financial Agreement of 1927, the Uniform Tax Case of 1942, or simply to point out the considerable growth and spread of federal activity since 1942, to identify the strong centralised trend in federal-state relations over the past half-century.  The indicators of federal mastery of course, may vary from such unmistakeable evidence as the monopolisation of income taxation to less visible signs of mastery and control.  But if concepts such as "dependence" and "independence" (however we define them) are the necessary ingredients of all "federal" definitions, then it is very obvious that whatever name we give to it, Australian "federalism" is not today what it used to be in 1901!  The chains that bind the States to the "chariot wheels of the Commonwealth" may vary from time to time:  they may be shorter or longer, tighter or looser, but since 1942 they remain chains.

This being the mark of our present system, where do we wish to go next?  Should we reinforce, accelerate, retard or reverse the trend
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possibilities, reinforce some, retard others, unscramble some, integrate others?  Or shall we simply adopt James Bryce's belief that the dynamic interplay of centripetal and centrifugal forces will adjust the ebb and flow of power between governments far better than human hands can?  This, of course, is the question that the Commission wishes to find an answer to.  And for this purpose it Has invited opinion "whether there is a need for an expansion of federal powers in some areas or for a contraction of power, and whether some exclusive federal powers should be shared with the States, and what limitations there might be on federal or state powers. ..."

But clearly, whatever the Commission does, whether to give or take away, add to or subtract from federal or state powers, its decision will critically affect the notional "balance" of federal-state relations.  This is inevitable.  And if this is so, how can this decision be de-politicised?  More precisely, how can we expect questions such as "Who is to exercise power" over say, civil liberties, bank nationalisation, aborigines, government aid to church schools, freedom of inter-state marketing, industrial disputes, communism and communists, environment, nuclear energy, etc etc, to be emptied of political content without destroying the questions themselves?  It is well understood, for instance, that every case for and against a proposed change in the constitution will take a political position.  How then can the Constitutional Commission entertain the impossible fantasy that it can handle political issues of the greatest possible consequence in a non-political way?

It may be asked, of course, if we cannot exclude politics, is there no way of minimising it?  Is there no way of "objectivising", "judicialising" or "arbitrating" the division or revision of power?  Are there no rules, principles, theories or practices that can give precise and constant guidance to the "dividers"?  The answer is -- NONE!  None that can go by the name of rules, principles, theories or practices -- none at all.  In the past, it is true that federal literature has spoken of such self-evident criteria as national/local, common interest/local interest, external/internal, intra-state/inter-state, major matters/minor matters, as possible guides to the kind of activities that might be suitable for the federal or state governments.  And indeed they may have been suitable for very simple societies, and simple governments with simple functions.  But on close inspection, none of these simple dichotomies, when applied to the complex social and political structures of the late twentieth century give anything even remotely resembling adequate and unambiguous criteria.

Mr. Justice Curtis of the United States Supreme Court, for example, formulated a number of "tests" in 1851 to determine whether a matter was appropriate for "national" or "local" regulation.  He distinguished four situations:  (1) situations in which the nature of the thing to be regulated, or the end to be achieved, imperatively demands a single, nation-wide uniform rule;  (2) situations in which a national uniform rule would be desirable, but in which local variations are not intolerable;  (3) situations in which there would be a "superior fitness and propriety" to local rules adapted to the needs of the locality and circumstances;  and (4) situations in which the conditions "imperatively demand" or require as an "absolute necessity" a diversity of rules.

Attractive as this classification may have been in the middle of the 19th century, how can it possibly help "dividers" of power today?  With all that we know of modern government, with its mass of inter-locking functions, what detailed how-to-do-it guide does it offer them?  There are, for example, obvious elements in the nature of say the "defence " or "foreign affairs" activities which "imperatively" demand a single nation-wide uniform rule, but to which of the categories (2), (3) and (4) should we assign such activities as health, education, banking, agriculture, social insurance, industrial disputes, social and economic planning, control of environment, etc?

To answer these questions, we could, of course, assemble such information as the prevailing "consciousness" in the community of "national" and "local" needs, or what the "natural" geo-political areas of these activities are, or what alternative types of organisation are required to administer particular needs, or what the alternative modes of financing are, or what population movements can be expected, or where public taste and political fashion may flow etc, etc.  Then on the basis of such information it may be possible to develop an inventory of indispensable national and local matters.  But this done, we could never be certain that a division on the basis of the Curtis or other criteria would correspond to the political preferences for one level of government rather than another, or that the division would survive for more than a limited political trial.

Of course, the belief that it is possible to transcend -- what many regard as the distracting irrationality of -- political in-fighting, and the desire to discover the rational principles of dividing power, continues to fascinate the rationalist instincts, but this ambition is almost certainly doomed to go little beyond the self-evident generalities of the Curtis tests.  Look, for example, at two recent formulations:

"Ideally ... a function should be allocated to that level of government whose jurisdiction corresponds to the area over which the benefits of that function are exhausted.  In other words, a "perfect correspondence" should exist between the "political jurisdiction" and the "benefit jurisdiction" ⁽¹⁾

and

"Functions which are closely interlinked or which are of overriding importance should be allocated first, usually to a central government, and those functions which are dependent on interlinked or overridingly important functions usually should be allocated to the same sphere of government". ⁽²⁾

What must be grasped is that no constitutional "divider" has ever gone about the business of dividing power according to any settled theory or practice of "how it should be done".  Perhaps the Federalist essays come as close as possible to giving reasons for a particular allocation of functions.  But not even they, and certainly none after them, have attempted to articulate a fully worked out theory of division, or outline a systematic procedure of how to go about dividing the totality of matters that may or may not come within the concern of the state.  Indeed, it is enough to suggest only some of the requirements of such a theory to see the fantasy of it.

For example, a theory of division would need to take account of change in the naming and meaning of state activities.  Further since the speed, direction and the timing of change, are both variable and unpredictable, as men, circumstance, and the meaning of things change, it must provide a clear guide to what change is necessary or desirable for any set of circumstances.  Then it must provide some in-built formula to protect a division of power against unintended change, or prohibit change in certain direction, or leave the direction of change entirely to chance.  Again it must indicate how to reconcile the fiction that all human activities can either be grouped or severed from each other by a different nomenclature, and the reality that all human activity concerns "man" and therefore can be grouped under one name, e.g. the single "department of human welfare".  It must indicate what levels of generality are required in the naming of things, to identify the different clusters of present and potential political activity in such a way that it will throw maximum light on the responsibility of the central and the regional governments and the least strain on interpretation.  And more and more,

The futility of devising such a theory is manifestly plain.  In the nature of the process by which parties come together to hammer out or alter the terms of a federal compact, the division of power is guided by only two things:  first, the purposes of the interested parties, and second, the terms on which their differences are reconciled.  This is where the rationale of the division is to be found, not in anything that can be called "objective theory".  To believe that politics can be excluded or minimised in this process, or that politics can be replaced by something called the "science of allocating functions appropriate to different levels of government" is not to exclude politics, but to substitute one kind of politics for another.  To put it more strongly, the division of power is either a political division, or it is no division at all -- but simply a dictator's edict or an intellectual exercise.  McGregor Dawson's comment on the allocation of power in Canada aptly explains the nature of every division of functions in every federal system since 1787.

"The original allocation of power was not made ... on any a priori basis:  it represented the greatest common measure of agreement that could be formulated among conflicting interests at the time, and the primary test it had to meet was the approval it could command from the federating colonies".

C. THE POLITICAL ACCOUNTANCY OF FEDERALISM

We now come to the third question:  What "cost", if any, is involved in refusing to give the Commonwealth the power it seeks?  Of the many answers, we may first note two of them:  one moderate, the other "extreme".  The "moderate" position is that all divisions of power are costly, but if one chooses to divide power, then there is an objectively right and wrong way of doing so:  the right way is to invest each level of government with only those activities which are best suited to it;  the wrong way is to ignore this principle.  If one divides correctly, it minimises the cost of the division because it reduces the potential friction between the internal governments, and increases the possibilities of co-
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costs of division are increased.  A corollary generally accompanies this position -- namely, if one refuses to grant the Commonwealth a power or powers that correctly belong to it, then again it must result in a loss or cost to the nation.

The "extreme" or "root and branch" position is more familiar.  It too rejects the desirability of a division of power;  but where the "moderates" are prepared to compromise with the undesirable, the "root and branch" followers begin and end with an unqualified rejection of any division of power -- for them it is simply a costly irrationality, to be avoided if possible, or to be rid of as soon as possible.  Their position rests on -- what they believe to be a simple and self-evident premise -- that while all governments impose a cost on society, the more complex the structure, the greater the cost, the less complex, the lower the cost.

What are we to say to this?  To begin with the "moderate" position is untenable;  untenable because it rests on totally false foundations.  As I have already argued, there is no objective way of dividing power.  There is no a priori right way, or wrong way.  The procedure is entirely political.  Any division of power which rests on the political agreement of all the interested parties, is the right division;  any division which does not rest on political agreement is wrong.  And this is so whatever the content of the division, or however "irrational" or "incoherent" it may appear to the outside observer.  Thus, for example, all but one "national" function may go to the States, or all but one "local" function may go to the Federal Government;  and odd though it may look, it is the right division, if there is agreement.  That is the sum total of the matter.

The "extreme" or "root and branch" position stands on no better ground.  It gives no clear idea of what it is that we are to cost;  it gives no single or consistent notion of what kind of cost we are to work with;  the "evidence" of cost is never matched by countervailing evidence of "benefit";  it does not distinguish between the integral or indispensable elements of a federal system (e.g the division of power) and the style of a specific party or its policy choices;  it refers explicitly or subliminally to the presumed virtues of a hypothetical unitary regime where all the "costs of federalism" are dissolved in the image of a "costless" kingdom of unobstructed power;  and its propositions are incapable of verification or falsification because they rest on assertions of high ideological presumption and low probative value.

Look at this more closely.  To begin with, if we are called on to calculate the "cost of federalism" we need to know, first of all, what precisely we have to cost?  For plainly, since all governments generate costs, our concern must be to differentiate those costs which are specific to the federal system from those costs that are general to all governments.  For instance, a favourite example of the anti-federal litany is to refer to the wasteful cost of operating "14 Houses of Parliament for 14 million people".  While the desired number of parliaments is never given, it is presumed to be ONE supreme central parliament with an unknown number of subordinate one-tier "parliaments", "assemblies" or "councils" throughout the land.  The cost of operating such an alternative "parliamentary" system is unknown;  but what is known, or can be known is that for all their elaborate 19th century architectural grandeur, the cost of maintaining the existing parliamentary (predominantly bicameral) system in the States of Australia is relatively negligible -- for example, the cost of operating the Victorian Parliament is approximately three-thousandth of the total budget for the State in 1985/86!  And, if perchance the 14 Houses of Parliament were bisected by removing the Upper Houses, the cost would be much less again.

What must be grasped, however, is that the real animus of anti-federalists is not directed to the "cost" of 14 parliaments, nor even the bicameral component of the 14 parliaments -- after all bicameralism is not an indispensable ingredient of a federal system.  The real rub, is what 14 Houses of Parliament represent, and what they represent is the cost of maintaining 14 different centres of challenge, opposition, conflict, disagreement, or resistance.  No central government can be overly happy with this, any more than any government is overjoyed with obstructive Upper Houses.  But political theory offers no objective answer to this.  What are too many, what are too few parliaments, and what is the correct number of parliaments for what number of people mainly depends on at least four considerations;  first, the momentum of history;  second, the social and territorial configuration of a nation and its interests;  third, its demography;  and fourth, the value its people place on the opportunities of democracy, participation, self-expression, criticism and obstruction.  Only when these considerations have been weighted and synthesised into a single formula can we offer, if possible, a respectable hypothesis!

A further example of the problem of identifying a specifically federal cost:  It is often assumed that the charge of "too many unions" in Australia is a specific cost of its federal system -- hence the undue incidence of inter-union and intra-union wrangles, loss of wages through demarcation disputes, loss of production, unemployment, etc, etc.  Consider the question, however, that if there are "too many unions", is this due to the federal structure, or to the way the industrial power is divided, or to the way the High Court has interpreted the industrial power, or to -- what many regard as -- an entirely inappropriate industrial system that would have little chance of working properly even under a unitary system of government, or could it be attributed to the refusal of the federal government to compel the smaller unions to amalgamate at the federal level by using the simple device of limiting union registration to a membership of any figure above the average size of the smaller group unions, say five to ten thousand members?

Now assuming we can decide what "federal" component we need to cost, the next question is -- how do we cost it?  What, if any measure, can we employ, and what precision, if any, can we expect?  Do we apply the measure of money costs (e.g. as with the weekly groceries), economic costs (e.g. the costs in lost efficiency of maintaining a tariff policy to protect Australian industry), social costs (e.g. industrial pollution, injury to the environment), metaphoric cost (e.g. the cost of political freedom), what cost?  And further, if we have in mind -- as we must -- net costs (e.g. as in cost/benefit analysis), then what can we take to be a "benefit" or "profit" of the political system, and by what measure shall we estimate the value of the "benefit" or "profit" of the system (e.g. is the diffusion of power to be treated as a cost, a benefit or both?)  For example, if the "division of power" is responsible for frustrating a number of federal and state schemes (e.g. bank nationalisation, national marketing schemes, state regulation of inter state -- trade, federal measures which discriminate among the states etc), can one suggest, albeit from a value perspective favouring liberty, that the federal constitution has protected Australia from some of the "grossest excesses" of socialism?  What "cost" or what "benefit" are we to place on this?

It appears obvious that the way we might carry out a cost-benefit analysis of a railway is not the way we might conduct a cost-benefit analysis of such abstract or intangible values as free speech, universal suffrage, art galleries, higher education, etc.  In the case of both a railway and the management of a secret ballot, there are, of course, investments in "plant and stock", salaries, the service of loans, and the like.  But the way we might go about calculating the worth of an investment in a public art gallery or a public library or for that matter an institute for research into "foreign relations", and indeed the language we would use in evaluating their worth in each case would be different from the way we might estimate the worth of such Commonwealth "business" ventures as the Commonwealth Railways, Australian Airlines or Telecom.  It is this difference between what may be termed the "accountant's" money figures and the non-money valuation of persons and things ("a woman of worth is beyond the price of rubies ...") that throws considerable doubt on the enterprise of costing any system where quantitative and non-quantitative elements mingle.  One may cost an army, but the lives it loses or saves cannot be costed.

To put it another way, rationality may be the supreme goal of the rational society, but rationalism in politics is myth;  and to believe that one can cost an entire constitutional or political structure in any but political or value laden terms, is fantasy.  The only way we can speak of the "cost of federalism" is in the same terms that we speak of the "cost of capitalism", the "cost of communism", the "cost of the French Revolution", the "cost of the Roman Empire", or the "cost" of any regime, past or present -- that is, solely in the terms we each use to convey to others our preferred valuation of the world around us -- i.e. by the ordinary words of approval or disapproval, praise or criticism, acceptance or rejection, merit or demerit.  Thus, as the "cost" of revolution is one thing in the mouth of a revolutionary, and another for the dispossessed, so the "cost" of federalism is one thing in the mouth of the former Labor Prime Minister, Mr. Whitlam, and another for those who seek the preservation and revival of the States.  In a word, fair is foul and foul is fair;  what is cost to one is benefit to another.  And it is in this way that we make up two balance sheets and two profit and loss accounts for Australian federalism.  Hardly an accountant's procedure!

A brief illustration of the contrariety:  It is Mr. Whitlam's long held view for example, that three chronic defects afflict the Australian federal body;  unnecessary costs, duplication of resources and pointless frustration.  Precisely what kind of "costs" Mr. Whitlam has in mind, is not clear -- whether the monetary costs of operating non-standard railway gauges, or non-standard fire-fighting equipment, the economic costs of lost efficiency, the "costs" of inefficient administration, the stress "costs" of having to deal with "parochial" State Premiers, or what?  The "accountancy" has never been formulated or tested, but even so, it is quite clear that Mr. Whitlam's "accountancy" is solely concerned with one side of the ledger only -- "the cost of federalism".  Nowhere does he address himself to the "benefit" or "profit" of federalism -- and this is presumably so because he does not believe that there are any "benefits" of federalism to speak of.  All that is clear is that however one interprets and applies the notion of "cost", it appears to be Mr. Whitlam's view that all the chronic costs of the federal system would disappear if only the central government took control, and the independent presumptions of the States were ended.

By contrast, an economist might employ different considerations.  Thus Mr. Whitlam's centralist arguments can be opposed with two economic concepts:  opportunity cost and competitive markets.  The argument might run like this:  In economic analysis, the relevant costs are opportunity costs.  Therefore, if the resources absorbed by the States were released to the private sector, they would probably be used more efficiently -- that is, in the sense of satisfying community needs -- and hence the opportunity cost, would be lower.  On the other hand, if the resources of the States were to be transferred to the Federal bureaucracy -- as Mr. Whitlam would prefer -- then the opportunity costs could well be greater.  However, even if the opportunity cost of the resources in the hands of the Federal government is lower in the hands of State government, it is almost certainly higher than resources in the hands of the private sector.  In other words, it is not at all clear that a federal system involves an "unnecessary" (opportunity) cost.  Indeed -- so the argument continues -- if Mr. Whitlam were deeply concerned about "unnecessary" costs, then what he should advocate is a shift of resources from the government to the private sector rather than a shuffle between levels of government.

As for the "duplication of resources", their argument restates the classical virtues of the competitive market place.  Thus, for example, where several producers, using similar resources, produce an identical (or similar) product, there may be a "duplicating of resources".  But it is not difficult to show that this is a superior situation to a monopolist provider.  Further, not only are there benefits to consumers in competition between providers of identical goods and services, but competition between States may allow for services that will not be provided in the absence of competition.  Australians have different needs, and a variety of governments that can provide different tax expenditure mixes, will give people a wider choice of environments in which to live, than would be possible under a single government.  Indeed, much of the Trade Practices legislation of the Whitlam Government aims to promote the "duplication of resources".  And so on, and on for Mr. Whitlam's aversion to "pointless frustration".

Obviously, there is strong dispute here.  But what must also be recognised, however, is that whenever the issue of federal "cost" or "waste" is raised, all the headwaters of politics rise up, and all the political torrents meet head-on and express their turbulence in all the ways that we experience the daily clash of political values in the community.  How predictable that Mr. Whitlam should "cost" the federal experience one way and Mr. Fraser another.  And how predictable that this difference should manifest itself whenever any significant constitutional issue is brought to the public.

The question is -- HOW ARE SUCH DISPUTES TO BE NEGOTIATED AND SETTLED?  By theory?  It is certain that it cannot be by theory, for there is no definitive theory in law or politics that can do this.  By a Commission of the non-political, the learned, the wise and the past experienced?  Unquestionably, such men and women grace every society.  They are used and can be used by government in countless ways.  But in the basic matter that defines the nature of order in a free and literate society, they have no political title.  Only those with that title -- and that is their prime, and perhaps only, qualification, whether they are wise or foolish, ignorant or learned -- can give political warranty.  There is no place for surrogates in this task.  It is only through the clash and the compromises of political representatives, not the cloistered arguments and compromises of the "learned and the wise" that a constitution can be anchored in reality.  The notion of a non-political "expert" engaged in a non-political exercise to produce a non-political constitution is the very height of absurdity.

This precisely is the fatal disqualification of the Constitutional Commission -- the belief that it is able to deal with political issues in a non-political way.  This is the fallacy of the Attorney-General's authorisation of the Commission -- his belief that if constitutional issues can be non-politicised, so to can political issues.  This is the presumption that artificialises the process of constitution-making, and parodies the entire political process.

In the political culture of a liberal democracy, the building or rebuilding of a constitution must have as its sole objective to bring about the greatest common measure of agreement among the principal political actors and movements in the community.  And
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a community.  They are the leaders of those for whom the Constitution exists.  And it is they who are politically licensed to engage in the process -- best characterised by one word -- bargaining.  It is not learning that can resolve the three great questions of all constitution-makers;  WHO IS TO EXERCISE POWER?  WHAT POWER IS TO BE EXERCISED?  and HOW IS POWER TO BE EXERCISED?  The only ground from which a democratic constitution -- of whatever form -- can draw its legitimacy and its strength is the compromises and the consensus of the politically responsible, NOT the compromise and consensus of the non-political -- whether wise or learned, or whether they sit beside or behind their political masters.  It is impossible for the Constitutional Commission to make itself aware of all these conflicting values and views, and itself to develop the workable and acceptable compromises that must be struck to found a new constitutional order?  This for at least two reasons:  The first is that it is not structured or organised to carry out this task.  The second is that it is only when a concrete proposal is there for a realistic decision, that a rational leader will devote any time to formulating and crystallising views upon it.

To believe -- as the Constitutional Commission appears to believe -- that it can throw light on the great constitutional questions by inviting public submissions -- is either the belief of well-natured men or political gamesmanship that mocks the public and belies the non-political intentions of the Commission.  The Commission has put to itself, and to whoever will reflect and communicate with it, questions that have been put and discussed from the time of the Greeks, two thousand years, is a head of State necessary?  Which is more desirable, a monarchy or a republic?  What should government be empowered to do without legislative authorisation?  Should ministers be members of parliament? etc etc.  Shades of Aristotle, Bentham, Mill, Dicey, Jennings, Finer, MacIntosh, et al;  and shades of all the generations of political science students, both taxed and pleasured by the "Greats".  However, while two thousand years have bred a taste for political philosophy, political philosophy is bereft of a single answer to any question the Commission would like to have an answer to.  Why then should the Commission believe that it is from the "submissions" of the public that they will discover what only political debate can reveal?  Or has the Commission chosen to do this with its tongue in cheek as a gesture to vox populi?

The reply of the Commission might be, that each generation should ask and answer these questions for themselves as if they had not been asked before.  But if this were the Commission's reason for asking the ancient questions of politics, then the Constitutional Commission is NOT the organ to speak for this generation, nor are its procedures, even if it wished, well suited to do so.  Of course, the Commission can draw upon any one or a combination of answers that lie in the catacombs of historical experience, but if so, how can it convince the Australian people that their amalgam is any more than a single political preference dressed in the tongue of the ancient and the modern Greats?  Indeed, how can they convince us -- if political learning belongs to many, while political representation belongs to one -- that another set of learned non-political, non-representative, constitution-makers would not read our needs differently, or indeed better?

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PART III:  PROPAGANDA AS "EDUCATION"
FOR CONSTITUTIONAL CHANGE

Is it not a paradox that where a people might normally be expected to celebrate the life of a constitution that has served them as long as they have been a nation, here in Australia, in the midst of celebrating the 200th anniversary of their country, they are to be invited to abandon their constitution as unworkable and undesirable, and embrace another in its place.  How will the Attorney-General and the Chairman of the Constitutional Commission persuade the Australian voters that what they put before them is better than what they have?  Since the Australian voters have been mostly reluctant to agree to even single constitutional changes, how could they be moved to exchange, not single pieces but the whole of the old constitution for the whole of the new?

Obviously it is a mammoth task, for many reasons;  but not least because many, like the Chairman of the Constitutional Commission, assume that of all the negative things that stand in the way of constitutional amendment, ignorance of the constitution is one of the most formidable obstacles.  Sir Maurice is quoted to say:

"People in this country are basically ill-informed about the Constitution, what it is, what it means and what rights they have under it ..."

And hence his resolve that,

"... it is inevitable that one of our main jobs will be one of public education.  We will have to rectify what has been a great failure in the national education process".

Popular ignorance of the constitution need not surprise anyone, no more indeed that one need be surprised by a general ignorance of the way the mind and body of each individual works, or of the 4th Law of Thermodynamics.  In general, people know what they need to know, and the need to know more or less than this rapidly changes as the perimeters of self-interest expand and contract.  What is surprising however, is the Chairman's assumption that ignorance or knowledge of the constitution has much -- or indeed anything -- to do with the desire to support or oppose constitutional amendment, or even that ignorance and knowledge work in a direct rather than an inverse relationship with the will to change.

At the very least, the assumption is highly dubious and probably wrong.  But the Chairman's hypothesis takes on its full colour when one probes his meaning of "national education".  An "education" in constitutional law and politics certainly has much to commend it.  But what kind of "education" has the chairman in mind?  Educators know, for instance, that a curriculum can be designed in a thousand different ways according to the purposes of the educator.  What is the chairman's purpose -- to educate for any kind of constitutional change, to educate for a particular change, to educate for resistance to any change, or to educate for resistance to a particular change?  More precisely, what understanding of what changes would the Chairman wish the Australian voter to have.  Mr. Whitlam's understanding of what is best done with Australian federalism, Sir Rupert Hamer's, Sir James Killen's or Don Dunstan's understanding or what is best to do?  It is reasonable to assume that whatever kind of "education" is in the Chairman's mind it will not be an education indifferent to change, nor an education opposed to change, nor even an education for any kind of change.  Given the role and the purposes of the Commission, it can only be one kind of education -- and that is a partisan education to support whatever changes are recommended by the Commission -- in a word, propaganda!

Of course, the notion of propaganda as "education" should not cause dismay.  "Politics", it must always be remembered, "is politics".  Indeed, politics being the adversarial thing it is, then it is probable that the only way the bulk of voters can be reached and guided, if at all, is by a simplified and propagandised version of the issues.  Whether the voter will understand what is at stake, depends of course on many many things.  But if his ability to understand what the constitutional issues are about is provenly low then consider the quantum leap he will have to make to understand the sea of issues involved in an entirely new constitution.  Obviously, the pressure to approve, and the countervailing pressure to disapprove, will be deeply influenced by the greater risk of drowning in a sea of argument.

It goes without saying that, the Federal Government and the Commission will leave no stone unturned to "help" the voter to
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leave no stone unturned to press the "necessity" of adopting the new constitution.  One may take it for granted that the means of indoctrination will be equal to the scale of the desired conversion -- that is, by and with the aid of all the electronic media, lectures, seminars, public debates, public meetings, radio "talk-back" sessions, and as the hour of decision approaches "park" theatre and P.R. aids.  But whatever the medium of "education" by indoctrination, the base message will doubtless be as full of dire foreboding as Dr. Evatt's failed prophecy in the 1944 referendum -- "resist the new constitution, and suffer the nation".  For those enthusiastic but anxious proselytisers who believe that the Bicentennary is the last occasion to bury the 1901 constitution, well-meaning exaggeration will not deter them anymore than it deterred Dr. Evatt in 1944!

On past occasions, if a Government referendum was opposed, it has been the practice of the Commonwealth Electoral Office, to publish a brief -- some 2,000 words -- "Case" setting out the arguments for and against the referendum.  In this instance, however, the usual "Yes" and "No" cases cannot match the scale of the Federal Government's investment in time, energy and money.  Question, therefore -- if there is to be opposition and there will surely be -- will the scale of opposition match the Federal investment, or will it be content to rely on whatever invisible forces usually stand in the way of referenda?  Who will the opposition be?  What will they say?  And how will they express themselves?

It is an unfortunate reflection on the Commission that it should cast those who oppose it in the simplistic role of "opponents of constitutional change".  To erect a wall of incomprehension as high as this by a reductionism as clumsy as this, does less than honour to its members.  They at least, should be among the first to understand that -- to oppose the Commission is NOT to oppose the idea of constitutional change!  Change, whether we wish it or not, is inevitable;  it has taken place, is taking place, and will continue to take place, so long as constitutional life is relevant to Australian political life.  Indeed, "only a fool can believe", as Heraclitus may have said, "that it is possible to put his foot twice into the same river".  The issue therefore, is not whether "to change or not to change", but what is the change to be, how much is to be changed, what is the direction of change, in what manner is the change to be made, etc, etc.

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PART IV:  WHAT DOES THE OPPOSITION
TO THE CONSTITUTIONAL COMMISSION MEAN?
THREE QUESTIONS AND THREE ANSWERS

Clearly, the subjects of change, and the nuances of change are numerous enough to found a hundred different constitutions.  But before a political group chooses the ground of its opposition to the Commission, it should reflect on three questions:

1. What can it mean to replace a constitution that has served a nation for some 88 years by a constitution that is wholly new or nearly new?
2. What is it that a constitution can do, and what can't it do?
3. Which way for Australian federalism now -- still more power to the centre and less to the States, or a change of direction, more power to the States, and less to the centre?

These three questions will help to concentrate the mind greatly but three possible answers may help to concentrate the mind even more.  Let us give an answer to each question:

ANSWER TO QUESTION 1:

A CONSTITUTION THAT HAS SERVED A NATION FOR SOME 88 YEARS SHOULD NEVER BE REPLACED BY A NEW CONSTITUTION IN ANY BUT EXTRAORDINARY CIRCUMSTANCES.

A constitution, it is often said, is what the judges say it is.  In its proper context, this is unquestionably true.  But it is equally true that it is more than this.  Like any institution, a constitution is first and foremost its history.  It is the memories and the experience of all those who have ever lived by it, and of all those who continue to live by it.  It is the written commentaries upon it, the judicial pronouncements, the learned discussions, the controversies, the public inquiries, the parliamentary debates and the referenda polemics.  Some fourteen years short of the century, the constitution has achieved a large measure of clarity but never the clarity that puts an end to all dispute.  Like all constitutions it retains a measure of ambiguity, uncertainty, and unpredictability.  Like all constitutions of long years it is written in the concepts and sentences of its founders, not the street idioms of the here and now generation.  Like all constitutions, its life, its practices, and its usages are not fully written in its pages.  Like all federal constitutions it is full of reefs and shoals, but those who must sail its waters in the 1980's, do not have to sail with the uncharted maps of 1901, nor take their bearings from the precedents of American experience.  In a word, our constitution, like all constitutions and all organic matter has become woven in its entirety, both visible and invisible, into the life of the Australian community to form an ecological environment of text, debate, conversation and thought.

What does this imply?  Simply this:  that the introduction of a new constitution will constitute a break with an existing tradition of understanding, discourse and practice.  More:  Insofar as a new constitution seeks to introduce a new set of power relations, or provide a new set of meanings, insofar as it seeks to remove all ambiguity or redesign the arrangement of things, or renovate its language, it will destroy a delicate ecology of relations in the belief that another and a better will eventually evolve in its place.

It is a paradoxical fact, however, that new words, new phrases, and new sentences are both full of meaning and, for a time, empty of meaning.  Why?  Because no constitution can be written in a language totally free from ambiguity.  Or, as some will say, language is ambiguity, and to aspire to remove ambiguity and to achieve perfect clarity is to pursue a mirage.  Only the judicial masters, not the parliamentary draughtsmen, not learned opinion, no-one but they, can say what the ambiguity is, or whether it is removable;  and not even they, the judicial masters, have the power to bind the future -- witness sec.92 of the Constitution, and the two words, "absolutely free".  Indeed, there may even be virtue in tolerating ambiguity.

If this is the case, then in the quest for a new constitution, we are risking the safety of tried and practiced meanings, and casting a whole society adrift on a sea of new ambiguity and new uncertainty.  Indeed, this is the only certainty in adopting a new constitution.  And to do this, in a world more restless, and unpredictable than ever before, is simply folly.  Where Australian society should be able to rely on its ability to improvise and build on known and experienced arrangements, it is to be invited instead to enter the 21st century with a constitution, of uncertain political pedigree and uncertain meaning.

There are those who have suggested that to oppose constitutional change is to "venerate" the existing constitution.  But to oppose the Commission is not to "venerate" the existing constitution, or treat it as the "ark of the covenant, too sacred to be touched", or to ascribe to its 19th century founders, a "wisdom more than human".  What is at risk here is the very idea of constitutionalism itself -- that is, the idea of a community that sets fundamental importance on two things:  first, the necessity of restraint and limitation on political power;  second, a regard for the evolution of day by day practices, continuity, stability, and consensual change.  It is a tradition in which constitutions are "repaired", "mended" or "adjusted" never replaced;  it is a tradition of constitutional bi-partisanship where "repair" is never used as a pretext for a partisan constitutional replacement.  To replace a constitution that has founded a nation and served its needs, at least as well as the constitution of any advanced society, is a confession of political failure without precedent in any mature political system.

ANSWER TO QUESTION 2:

A CONSTITUTION CAN CREATE A SYSTEM OF LAW AND ORDER:  WHAT IT CANNOT DO IS TO CREATE WEALTH, GIVE US WISDOM, OR TELL US WHAT IS BEST TO DO.

When the Bicentennial constitution is first shown to the Australian public, it is unlikely that the accoucheurs will speak of it in muted tongues.  However dignified or restrained their introduction, hyperbole will keep breaking through.  In the orchestrated Bicentennial euphoria, a new constitutional dawning will be proclaimed;  a new beginning with a new constitution, written in the plain and understandable language of the people, speaking of the realities not the fictions of power, free of the oddities of the old, free of the "irrational" limitations that imprison the Federal
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due, and free of the fears that a people without assured rights and liberties must suffer.

What the Australian public is unlikely to be told however, is that all constitutions must be limited by the limits of power and the limits of its legislators.  They will not be told for example, that in a world of rapidly increasing interdependence, fewer and fewer governments -- and particularly Australia -- can use their constitutional power to escape, or even reduce the consequences of what other governments choose to do.  They will not be told that no constitution, however perfectly composed, can tell us what things we should do with our lives, or when we should do them.  No constitution can make us sensible about whether to go to war, or how to prepare our defences, or who to give foreign aid to, or who to deny.  No constitution can tell us what to do with our exports and imports, what to do with the unemployment, how to educate our children, how to cure the sick, or how to address ourselves to the endless daily problems wherever they arise, at the federal, state or local level of government.  We will not be told that all these things are left to our intelligence or our stupidity, to our courage or our timidity, to the resourcefulness or poverty of our imagination.  In a word, those who make constitutions cannot tell us how to behave ourselves or how to conduct our public affairs.  All that they can do is to set up a fundamental framework of government, a system of law and order which can give us reasonable stability, reasonable public debate, and reasonable public leadership.  In a Liberal democracy, a constitution can, and should do no more

It is important to draw attention to these limits because it is often assumed that a constitution is a much more potent instrument than it is;  that in a federal system for example, the denial of power to either the federal or state governments can cripple the welfare and prosperity of the nation;  that a shift of power, this way or that way, but mostly the federal way, will confer benefits on a nation that cannot and will not come in any other way.  There are great difficulties with this view.  For example, the great nettle that constitution-makers must grasp is -- to what extent and how is the economic state of a nation related to the constitutional ability of the central government to direct every particle of the economy?

Obviously, the constitution has a direct and immediate bearing on the capacity of government to maintain the first condition of all political economy -- to create and maintain a firmament of law and order, for without it there is no civilised economy of any kind.  But this given, what else?  What conceivable economic power does the Federal government lack at present, that if supplied would enable it to neutralise the influence of the international market on the value of Australian primary products?  Export dependent as the Australian economy is, what power or combination of powers could the Commonwealth exercise to improve the value of the Australian currency, or turn the balance of payments to its advantage, forever and a day?  Indeed, is it possible to point to any economic crisis in the past half century or more that could have been prevented or alleviated if only the Commonwealth had had limitless power to make economic policy?

The demonstrable fact is that there is no traceable correlation whatever between the economic -- or for that matter, the health or welfare -- success rates of any traditional Western-Liberal-type political system and the form of its constitutional structure.  Indeed, with very few exceptions the way power is divided in Australia makes little or no difference to the economic strength or weakness of the country.  There are other effects, to be sure, but these effects must be sought in other places.  And this fact may even be more notable in the Australian case where the steady growth and centralisation of federal economic power, over the past half century or so, has been accompanied by an equally steady decline -- comparatively -- in the Australian GNP!  Thus, while one may continue to argue for unlimited federal economic power in a world where the individual maneuverability of States is contracting rapidly, paradoxically, the effects of greater federal power upon the internal disposition of power and influence in Australia is of the profoundest consequence.

Answer to Question 3:

ANY EXPANSION OF FEDERAL POWER BEYOND WHAT IT IS AT PRESENT WILL WEAKEN THE INFLUENCE OF FEDERALISM IN AUSTRALIA EVEN FURTHER BELOW ITS PRESENT LEVEL:  BUT A SIGNIFICANT RE-ALIGNMENT OF FEDERAL POWER, IF IT IS NOT ALREADY TOO LATE, MAY RESUSCITATE THE STATES, AND RELEASE ENTIRELY NEW SOURCES OF CIVIC ENERGY.

It is a belief, firmly expressed by the Prime Minister, Mr. Hawke, Mr. Bowen and Mr. Whitlam, a former Labor Prime Minister and present member of the Constitutional Commission, that Australia
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lines that mark the borders of the six States, they say, are artificial;  they do not demarcate a different people.  We are all Australians, we are one people, one economy, one market and one voice in the world.  We are not as the Swiss, or the Americans, or the Canadians, or the Indians where different tongues and different histories generate different behaviour.  From Cairns to Carnarvon, we are one, and must cease behaving as if we were still six little colonies.  To perpetuate a federal system of government therefore is an aberration, for the logic of one people and one tongue is one state and one government.  Thus Mr. Hawke, in the first of his Boyer lectures;

"If our society is to have any chance of dealing with the problems of growing unemployment, high inflation, depressed levels of economic activity, dramatic changes in technology and the pressures of developing countries for greater access to our markets -- the elements of crisis -- then we must have one Government with unquestioned powers to match the dimension of these elements. ... I believe the logical implication is that Australians would be better served by the elimination of the second tier of government -- i.e. the States -- which no longer serve their original purpose and act as a positive impediment to achieving good government".

It was Cato the Elder who, in the time of the Punic Wars that stretched for a little over a hundred years, concluded every speech to the Roman Senate with the words, "Carthago delenda est", -- Carthage must be destroyed.  So too from the beginning of Federation to the present day, there are voices in Australia who evoke the sentiments of "one people ..." to urge the extinction of the States.  What the notion of "one people ..." means, or what it suggests about the kind of government that is appropriate to "one people" is not at all clear.  A favourite description of the Australian people until the mid-forties, for example, was a "homogeneous" people -- meaning simply that the people were of the same kind, the same racial origins -- Anglo Celtic Christians, speaking the same language, educated in the same curricula in the same kind of schools, and ruled by the same political institutions.  The evocation of "one people ..." in this period conveyed more than a simple primordial appeal to patriotic, nationalistic or ideological sentiments.  The claim corresponded with fact as much as emotion.

However this early picture of the Australian people has not only changed vastly, but a moment's reflection should make it further plain that the concept of "one people" tells us nothing whatever about the form of government that may be appropriate to that people.  The rhetorical unity that may be seen in linguistic or ethnic similarity is no more real or significant an element in designing a form of government than are the differences of social, institutional, and regional history, or the existence of local communities.  Except to Hitler, the linguistic unity of the Germans and Austrians did not carry with it the unambiguous message that there should be one unitary government for all German-speakers, any more than did the linguistic diversity of the Belgians or the Swiss suggest that they should not exist as nations.  Linguistic differences as indicators of historical and cultural diversity have certainly suggested the appropriateness of federalism, but so have historical traditions and democratic convictions which have nothing to do with language or ethnicity:  witness the Canadian, United States or German federal systems.  Indeed, as the ethnic diversity of the Australian population has increased in recent decades -- and almost certainly will continue to increase in the near future -- the shallow support for centralism to be found in the concept of "one people" must have become even shallower.  However we look upon the notion of "multiculturalism", the diversity of the 105 ethnic groups and 85 different linguistic backgrounds, illustrates the immense diversity and variety which Australia now contains.  In this variety there is great potential for creativity and cultural richness.  Will one centralist government best express this?

The problem, of course, is well known to the Prime Minister, to Mr. Bowen and to Mr. Whitlam -- after all, they share the responsibility with many others for changing the mosaic of the Australian people.  But if so, then aside from a deep seated yearning for unitary rule, what theory do they call on to justify the virtues of one government, and the irrelevance of the States?  Indeed, how do they resolve the paradox that when in 1901 Australia was populated with something very close to the idea of "one people", the people of Australia took to federalism, but almost a hundred years later, when they are no longer one, but a very diverse people, two Labor Prime Ministers, Mr Hawke and Mr. Whitlam, exhort them to abandon the States and adopt ONE supreme government for all things?

Mr. Hawke's answer for the people's choice in 1901 is simply -- historical necessity;  other anti-federalists answer -- historical error;  and others -- historical desire.  But the fact is that there is no connection at all between either the homogeneity or the diversity of a people with the system of government it may choose, nor indeed is there any objective relation between the two.  Or to put it another way:  the fact of being "one people" does not predicate one government or one political system any more than many people predicate many systems of government.  History knows no such logic, and as Tolstoy would say, it knows no reason.  We are what we chose to be in 1901, we have evolved into what we are, and there is no logic or reason other than life or death -- not transitory political programmes -- why we should cease to be what we have become.  As for the "irrational" or "unreal" boundaries of the Australian states -- whatever the jests -- the truth is that all boundaries are arbitrary and artificial, only some boundaries are more arbitrary and artificial than others.  The planet alone is real.

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PART V:  TOWARDS A MEANINGFUL FEDERALISM

The large question now is -- do we continue to feed out the possibilities of greater diversity in the unity of States, or do we give our energy to greater uniformity in a greater monopoly of federal power?  The choice, of course is not exclusive:  one can travel -- as indeed we have -- in both or many different directions simultaneously.  But the pronounced bias towards the voices of "one-ness, one people, one government. ..." has been the tendency in Australia for some four score years.  May it not be that it is this tendency rather than the counteracting influence of the States, that now threatens to become one of the most serious inhibiting factors in the further progress of Australia?

The fact that must be remembered is that we have created diversity, and woven it into our life.  We can neither stop it nor can we return to the simple unity of "one people".  We can either move with the step by step multiplication of evolutionary change, or we can waste our time, energy and resources by trying to contain the growing multiplicity of life in Australia within some irrelevant imaginary unitary formula.  Indeed, if we wish to encourage further experiment with diversity, if we seek to tap new energies and new initiatives, if we wish to explore the richness of the ethnic melting pot, if we wish to extend the scope of political responsibility as widely as possible, then would not the most productive realignment be a substantial return of power from the centre to the States, and a re-definition of the Commonwealth role?

On this reading of "What should be done", the goal for Australia ought to be a resuscitation of the States, and the restoration of a meaningful federalism.  "Meaningful federalism" meaning not the emasculated, confused and ambivalent federal system we have become, but a system in which the Federal and State governments are free to work together, or disagree with each other, but no state can be victimised for saying "no" to the Federal Government.  To add power to the federal armoury will not restore federalism in Australia;  on the contrary, it will only further damage the roots of
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demonstrably greater or less than the defects of all popularly exploited and exploitable democratic systems -- federalism offers the only base from which we can enrich the increasingly diverse human resources of our society.  To continue to rail at the evils of federalism is an outworn, outmoded plaint.  To argue moreover as the Prime Minister, Mr. Bowen and Mr. Whitlam do that the prosperity of Australia is, in some way, dependent on the reduction and submission of the States, is to suggest that the Australian people would have fared better if they had chosen a system of ONE government with unlimited power to do what all 20th century governments need to do.  But this is an impossible argument -- a historical pluperfect, incapable of proof, and little more than empty historical speculation.  Indeed, if we were to reverse the proposition, and suggest instead that all our troubles in Australia are due to "asphyxia at the centre, and paralysis at the periphery", it would have no less plausibility.

We are some fourteen years short of a century after the federation of the six former colonies of Australia.  In this time the nation has grown strong, the Federal Government has expanded its authority far beyond its original bounds, and it has asserted an increasingly vigorous leadership in both the internal and external affairs of the nation.  The states by contrast, have grown in budget and manpower, but diminished in prestige, influence, and manoeuvrability, and become dependent for their moneys on the Commonwealth.  The Commonwealth is confident, and aggressive, the States are tentative and uncertain.  The existence of the Commonwealth is unquestioned, the existence of the States is questioned.

It is surely this relationship that must be re-balanced if Australia is to cultivate and expand every pocket of imagination, initiative, and energy in the land.  It is beyond the capacity of Canberra to do this on its own, whether it has power or not.  Indeed, the Commonwealth misconceives its role of national leadership if it believes that it alone can bring equal salvation to every woman and man, in every corner of Australia at the same hour, on the same day;  it is mistaken to think that it must have its finger in every State pie, that it must cover every inch of the State waterfront, that without it nothing will be started, nothing will be coordinated, and nothing will be made uniform -- when uniformity is imperative!

Australian federalism has become what it has within the Constitution of 1901.  It is more fitting therefore, that we enter the second century of our life as a nation, NOT by a new constitution, but by celebrating the federation of 1901, and the constitution that enshrined federation.  The Attorney-General is gravely mistaken to think that a new constitution is needed to "adequately reflect Australia's status as an independent nation and a Federal parliamentary democracy".  The living constitution we have, two World Wars, two minor wars, representation in the councils of the world, and the social, economic and cultural achievements of Australia have done more than any new constitution could possibly do to define Australia's status in the world.

The real challenge which Australia now faces is a re-direction of existing power.  That is the real priority for our governments.  For the Commonwealth it requires a re-allocation of its activities, a re-definition of its role as national leader, a re-distribution of its resources, and a reduction of its administrative obesity.  For the States, a reorganisation of their practices, a revitalisation of their administration, a reintroduction of talent, a resumption of responsibility, and a renewal of their status and prestige.  It is not an easy formula -- obviously.  It is so much easier to rationalise the growth of the ONE in the centre than the many at the periphery, especially when this is also a rationalisation of the status quo.  It is so much easier to vilify the turning of the clock when it can be made to appear to be turned backwards rather than forward.  But while the problems of re-alignment are very great, it is the only way that Australia can make a dramatic and progressive change in its future.

In sum:  All genuine constitutions impose limits on the exercise of power.  And all genuine constitutional life is a continual search for ways and means to live with, and within the restraints that are imposed.  Irksome though restraints and limitations may be at times to those who wield power, nevertheless where there is imagination, wisdom and patience, the possibilities of democratic solutions are infinite.  It is within this tradition that the Australian constitution has proved a remarkably flexible and adaptable document.  Under it, we have preserved our liberties;  we have achieved a life style that is respected by the world;  we have cultivated the arts, sciences and the culture of 20th century society;  and under it, we have developed and continue to develop a vast continent.  Neither the present constitution, nor any other constitution can protect us against unwise government.  No constitution can provide us with better political leaders than we have so far been able to find.  No constitution can assure us of a good economy or insulate us from a bad economy.  Indeed, after almost a century of trial, to replace a known constitution that has served us well, with an unknown, in the belief that the new will be better than the old, is to gamble with the future of a nation in the name of a disintegrating philosophy of centralised power that has been found wanting everywhere in the world.

The case for a NEW constitution, then, does not stand up.  In addition, the concept of the Constitutional Commission is badly flawed.  Its origins are suspect, its purposes are suspect, its a-political role is suspect.  More importantly, the exclusion of the principal political actors in Australia from its work undermines its value and destroys its political credibility.

But above all else, the fact that stands out is that Australia is one of the very few nations in this or any century which has successfully operated constitutional government.  It is therefore ironical that in 1988 when this nation should be celebrating the endurance and achievements of its constitution, the Constitutional Commission will be a voice proclaiming its failures.  What a cynical exercise to join the cause of constitutional reform with a Bicentennial celebration.  And what a grave misjudgment to choose an unrepresentative process of change that bears no resemblance to the way we have practiced constitutional politics for almost a hundred years.  The Constitutional Commission must be brought to an end.