The Federal Constitution can’t change, so how do we get the one we need?

Australia needs a new Federal Compact to supplement a Constitution now empty of meaning. Flickr/Moments for Zen, CC BY

In under three months, a crucial meeting of federal and state leaders will start to determine whether anything major is achieved from the present White Paper process on Reform of the Australian Federation.

Unique, and hopefully historic, the Council of Australian Governments (COAG) Retreat is perhaps the first meeting of its kind, focused on the hard politics of renegotiating the federation, since the 1899 ‘secret’ premiers conference which cleared the final path to union itself.

But the most crucial question they face is not how to make Western Australia happy with the fairness of GST distribution. Nor even whether the three Labor premiers – now balanced with the three Coalition ones – can convince the federal ALP that Tony Abbott’s process is actually one that should be strongly supported.

The vital question is how leaders plan to make any reforms “stick”. It is fundamental because it determines what kind of reform we set our sights on.

Are leaders really thinking about reforms that will make a long-term difference? Or are they already resigning themselves to the familiar idea that no substantial change to the Federation is possible, therefore all that can be done is tinkering around the edges.

Fundamentally, most if not all our major problems are rooted in the 1901 Constitution itself. The out-of-date distribution of federal responsibilities. The silence on state responsibilities, and on local government altogether. The difficulties of making more states, in order to have better regional government. The lack of guaranteed state finances.

No brake on the types of conditions the Commonwealth can impose on state grants, no matter how draconian or onerous. No constitutional principles in favour of collaboration or “comity”. No state government say in appointments to the High Court. No mention, let alone guarantee, of COAG itself or the machinery for making the federation work.

In fact, there is almost nothing in the Constitution that helps us make the system function, as against a mass of gaps and silences that are the sources of our problems.

We also know we can’t change it – or not very much.

Changing the Constitution requires a referendum supported by a majority of voters in a majority of states (currently, four out of six). But voters will shy away from proposed changes supported by anything less than overwhelming political and social consensus… as perhaps they should.

Indeed, that’s why NSW pushed to strengthen the referendum requirements back in 1899, in the last negotiations on the Constitution – not to make change democratic, but to make it hard, if not impossible.

Yet unless we can entrench the reforms, the problem is they don’t “stick”. The long-term processes of a healthy federation need legal durability, if they are to survive the whittling away by shorter-term imperatives that necessarily drive the policies and behaviour of governments.

Is there a solution? Another way of lifting our sights on reform that is achievable, by making those reforms both more durable and more politically symbolic? If we can find an answer, the “art of the possible” returns to the “art of the significant” as opposed to the art of fiddling around the edges.

Fortunately, there are some good, and perhaps new legal options for finding durable solutions.

The key elements are that we need to pull together the main reforms into a new, legally enforceable package, negotiated between the states and the Commonwealth, supported by both sides of politics, adopted by law at both levels and endorsed by the people, which fills the silences of the Constitution and gives us our operating philosophy and key institutions of federalism.

Its contents are readily imagined – ranging from clear agreed principles to guide the making of agreements and conduct of relations between governments, through to the improved financial arrangements and institutions needed to make it all happen.

I would call it the Australian Federal Compact.

This name would make sense for the simple reason that for a long time, both politics and constitutional law have been telling us that our largely empty Constitution no longer really contains one. So if we effectively have no current federal compact, or no shared idea what that means, it’s time to fill the void and create it.

Without such a package, prospects for real and lasting improvement are going to be difficult if not impossible to achieve. But with it, history might be made.

The challenge falls on all good constitutional lawyers to help devise how it can be done, rather than explaining why it can’t. And on leaders to think how they are going to express, enforce and explain a set of reforms, powerfully and with a coherent vision, that delivers on public expectations for improvements of lasting importance.

This article is an edited extract of A J Brown’s paper, _The Australian Federal Compact: A Proposal for the Supplementary Constitution You Have When You Can’t Have Constitutional Alteration, to the Australian Attorney-General’s Department Constitutional Law Symposium, Canberra, 1 May, 2015._