OPINION: It was good enough for the framers of Australia’s Constitution to leave the details vague and flexible because they determined this was the “keystone arch” of the Constitution. And by the way, also of our democratic system.
Our constitutional founders believed this was fundamental to political accountability – a principle that we need to still cling to today. It’s what the proponents of the Voice call for.
This year Australian voters have been promised a referendum on enshrining an Indigenous Voice to Parliament. Since those who cannot remember the past are doomed to repeat it, I began wondering what lessons we could learn from the people who created our Commonwealth Constitution as we head into this process. The answer is “quite a few”! I’ll restrain myself here to focus on perhaps the most fundamental one: we should not sacrifice the good for the perfect.
The men (yes – they were all men back then) who attended the Constitutional Convention Debates of the 1890s had the task of representing the interests of the different Australian Colonies who had sent them. Each of those colonies had their own interests to pursue at those conventions, interests that their delegates were only too well aware of.
While delegates spent much time advocating and debating the details of many issues the leading men of civics that turned up understood that there would never be agreement on most of the detail about how the new Commonwealth Parliament would operate.
Their ultimate wisdom however was to leave the details of the operation of one of the most fundamental legal and political doctrines of that Constitution, the doctrine of responsible government with no textual definition in the written document, and only the vaguest hint at all of its existence.
This doctrine is so fundamental in fact that the High Court has described it as the “keystone in the arch” of our Constitution.
The fact that this fundamental doctrine was a very new and emerging doctrine at the time the framers chose to embed it in our Constitution also did not stop them from adopting it. It’s still very new and evolving now, having only been established in Australia in the 1850s and in the United Kingdom for only slightly longer than that. In constitutional terms, that is a very short time indeed.
So, why did those leading men of law and politics of their era choose to only provide us with the vaguest of hints that this fundamental constitutional doctrine should be incorporated in the Constitution? Because they believed wholeheartedly in the operation of the system of political accountability it represented.
We would do well therefore to remember that the men who created our Constitution and engaged in the act of bringing a new Commonwealth made a deliberate decision to only provide the most basic outline to us of how that constitution should operate.
They made the decision not to restrict future electors in how we want our parliament, our collective political voice, to operate. Most of the detail (and by that I mean probably about 90 per cent of the detail) of the actual operation of our Commonwealth parliament, was left by the framers to be determined by each new parliament.
“Effective political accountability through the doctrine of responsible government requires building in flexibility on the details”
The framers thus ensured that our political system could be determined by us on an ongoing basis through our vote. That was after all a reflection of their understanding of how any good democracy should operate: effective political accountability through the doctrine of responsible government requires building in flexibility on the details of how the system should operate. This requirement for easy amendment is part of constantly improving the political accountability of officials in the system to the persons to whom they are ultimately responsible: voters.
So, remember when you hear voices raised in opposition to the proposed Indigenous Voice to Parliament because it “lacks detail” as to its precise day to day operations, exactly the same objection could have been raised by the founders of our Constitution.
If those voices had been allowed to carry the day back then on one of the most fundamental doctrines that determines the operation of our Constitution to this day, we would never have come into existence as the Commonwealth of Australia in the first place.
We wouldn’t even have the privilege of considering whether or not we wish to amend that Constitution (something the framers also left to us to decide). The framers learned this lesson from their own lived experience: it can be a grave error to define the details of any system of political accountability too precisely. The best systems of accountability should be left flexible (that is, vague) enough to enable continual improvement. This is what advocates of the Voice are arguing for too.
It is not quite clear yet why we should expect more from them than we did of the people who brought our Commonwealth into existence.
The question for all Australians to ask themselves this year, including everyone in a key industry like the property industry, will be whether we believe in providing Indigenous Australians with an opportunity to participate in a model of governance that will allow for a form of debate and compromise, both within Indigenous communities and then with the rest of Australia, just as the doctrine of responsible government has done for us.
The Voice also has the further advantage of not changing the operation of some of the fundamental aspects of the doctrine of responsible government our founders left us with.
Understanding the benefits of not being overly prescriptive in all of the details of the proposed Voice is a key lesson we stand to learn from the experienced political leaders who framed our Constitution.
The challenge now for us is whether we can live up to the wisdom of our forebears. Or will we get so bogged down in demanding a level of detail that our constitutional system does not itself possess, yet has served us very well for over a century?
