The International Association of Law Libraries hosts annual courses in different locations around the world each year. I was lucky enough to attend the 38th Annual Course, Law Down Under: Australia’s Legal Landscape, held October 27-30, 2019 in Sydney, Australia. The course [The 38th Annual Course of the International Association of Law Libraries in Sydney, Australia] included fascinating presentations from Australian lawyers, scholars, judges, and more. Among them were George Williams AO, Dean of the Law School, Anthony Mason Professor, and Scientia Professor at the University of New South Wales. An expert on Australian constitutional law, Williams engaged the audience with an eye-opening presentation titled Australia’s Constitutional Quirks.
Williams opened with some alarming statistics about misunderstandings of the Australian Constitution. On a survey a number of years ago, 47% of respondents said Australia does not have a constitution. This is incorrect. In another survey, 61% believed Australia has a national Bill of Rights. This is also incorrect. According to Williams, Australia is the only democracy without a Bill of Rights in its federal constitution.
When working on Victoria’s Charter of Human Rights and Responsibilities, Williams frequently came across people who believed they could “plead the 5th” in court, a concept they likely learned from U.S. television that does not exist in the Australian Constitution. These conversations furthered Williams’ concern about the apparent lack of understanding of the Australian Constitution by many Australians.
One major issue with the Australian Constitution is its treatment of Aboriginal people. Current and former articles of the Constitution illustrate the discrimination ingrained in this document, created without the input of Aboriginal people.
Shockingly, Article 25 allows people to be disqualified from voting based on their race. While not currently in use, the fact that this article is still in the Constitution is deeply concerning. Williams does not know of another country with a similar constitutional rule. Aboriginal people only gained the universal right to vote at the federal level in 1962, less than 60 years ago.
In addition, former Article 127, repealed in 1967, excluded Aboriginal people from the population count. This former exclusion is emblematic of the view that Aboriginal people were not part of the country.
An active debate at the federal government right now focuses on Aboriginal people, responding to the 2017 Uluru Statement from the Heart requesting voice, treaty, and truth. But only time will tell if Aboriginal people will be appropriately incorporated into the Constitution, among other proposed reforms.
Challenges for Reform
Constitutional change is slow and difficult. The federal Parliament must initiate constitutional changes and Williams has seen a frequent disparity between the will of the people and Parliament’s actions. Further, constitutional amendments require referendum and only eight constitutional referendums have passed, most recently in the 1970s. Many more have not passed and the most recent attempt at a referendum was two decades ago.
Compulsory voting requirements mean that uninformed voters may vote against a referendum even if they agree with the idea proposed due to lack of understanding. Williams writes a regular newspaper column in The Australian with the hope of increasing awareness of the government and the Australian Constitution among the public, but he wonders how effective this is as he is not sure how many people are still reading the newspaper.
Encouragingly, many state constitutions throughout Australia have undergone changes to include a Bill of Rights and acknowledge Aboriginal people, among other reforms. But it’s a completely different story at the federal level.
Ultimately, Williams’ presentation showed the Australian Constitution has a disturbing history and substantial changes may still be quite a ways off. Remedy Australia collects United Nations cases finding Australia in violation of human rights. The data shows Australia has failed to remedy the vast majority of these violations. This falls in line with Williams’ understanding of Australia’s constitutional history and the resistance to change at the federal level.