Australia’s Constitution and Its Reformers

The story of Australia’s constitution, and indeed nationhood, is not particularly heroic. Unlike many other nations, Australia’s federation and constitution were not the products of a radical, democratic movement. Rather, the roots of Australian federation lay in a desire for unimpeded trade between Britain’s Australian colonies. This is reflected in a legalistic constitution whose main purpose is to facilitate freedom of trade and protect the states from an overzealous federal government.

As a result, the Australian constitution is not a democratic document. For example, it grants the British monarch the power to disallow any law within a year of its enactment. While it grants near dictatorial powers to the governor-general, the Queen’s representative in Australia, the constitution makes no mention of how the prime minister is elected or of how government is formed.

In short, the constitution is out of sync with the way Australia’s modern, liberal democratic government functions. Nevertheless, if we focus on the archaic (and largely ignored) sections of the constitution, we risk overlooking how it can be used — and has been used — to curtail social reforms.

The constitution strictly delineates the powers of the central Commonwealth government. Section 51 grants the Commonwealth government authority to maintain itself as well as markets and national security. Section 92 restricts the Commonwealth’s economic power, stating that trade among the states must be kept “absolutely free.” Although there are conflicting interpretations about the meaning of Section 92, it nonetheless presents an obstacle to progressive governments seeking to regulate or transform the economy.

Thanks to this restricted constitutional role, the Commonwealth government lacks authority to effectively guarantee, extend, and enforce basic social rights. However, the Commonwealth is less restrained in its ability to take rights away. Section 51 includes the infamous “race powers” clauses that allow the Commonwealth to make laws for specific races. Section 25 explicitly allows for discrimination of voting eligibility based on race, a power which was used to deny most First Nations people the right to vote until 1962.

Today, the conservative constitution of 1901 remains remarkably unchanged. This is partly by design. The constitution stipulates that referenda must be approved by a majority of electors in the majority of states, making reform very difficult. On several occasions, a national majority has voted in favor of constitutional changes that nevertheless lost because enough smaller states rejected them. Indeed, of the forty-four nationwide referenda in Australia’s history, only eight have succeeded.

Labor and the Constitution

In 1941, the collapse of Robert Menzies’s conservative government saw Labor leader John Curtin become prime minister. Under Curtin, a former revolutionary socialist turned Labor moderate, the Australian Labor Party (ALP) won a larger majority in 1943, encouraging his ambitious reform agenda.

With the end of the war in sight, Labor turned its attention to postwar social reconstruction. Curtin hoped the wartime powers granted to the Commonwealth government could be extended to create a society of “economic security and social justice.” To facilitate this, in 1944, Curtin’s government held a referendum to greatly expand Commonwealth powers for five years following the war. These reforms, known colloquially as the “Fourteen Points,” would give the Commonwealth expanded power over health, employment, welfare, infrastructure, corporations, monopolies, and indigenous rights. If the referendum had passed, the Labor government may have constructed a postwar welfare state similar to that of Clement Attlee’s Labour government in the United Kingdom.

The referendum failed, however. The Curtin government was preoccupied with the war, leaving its reform agenda vulnerable to a conservative scare campaign led by opposition leaders Robert Menzies and Arthur Fadden. They argued these new powers would lead to tyrannical government overreach. Ultimately, 54 percent of Australians voted against Curtin’s proposals. Only South Australia and Western Australia voted in favor, with slim majorities.

John Curtin died in July 1945. His successor, Ben Chifley — a former train driver and union leader — pressed on with the project of postwar reconstruction and constitutional reform. The Chifley government pursued three separate referenda to grant the Commonwealth powers to legislate for social services and to reform the market and conditions of industrial employment. These proposals all won support from a national majority. However, only Chifley’s 1946 referendum on social services satisfied the “double majority” requirement and succeeded.

Even this was contingent on compromises Chifley made to secure the support of Robert Menzies’s conservative opposition. These included adding a provision to the final proposal prohibiting the Commonwealth from establishing a national health care service. For this reason, it took Australia another quarter century to introduce universal health care.

The constitution also blocked Chifley’s other postwar ambitions. In 1947, the Labor government attempted to nationalize private banks. Following a virulent conservative scare campaign, the High Court ruled this legislation unconstitutional, arguing that nationalization would infringe on the constitutional right to “absolutely free” trade. It was a fatal loss for Chifley. In 1949, Labor finally lost power to Robert Menzies’s newly formed Liberal Party.

Chifley’s attempt to nationalize the banks was the high-water mark of Australian parliamentary socialism. Dealt a deathblow by the constitution, such ambitious reform has not been seen since.

Where Did Constitutional Reform Go?

In 1967, Gough Whitlam, a middle-class lawyer from Labor’s right, rose to the leadership of the ALP, then entering its eighteenth year in opposition. Under Whitlam, the ALP began to move away from constitutional reform.

Whitlam, however, was far from a constitutional conservative. His political career began during his time in the air force during World War II, when he campaigned for Curtin’s Fourteen Points. As Whitlam later reflected, “I was determined to do all that I could to modernize the Australian constitution.”

During the 1960s, however, Whitlam became convinced that a more pragmatic approach to reform was possible. He argued that Labor should propose social reforms that fit within the limits imposed by the constitution, avoiding the need for referenda. For example, while the constitution forbade nationalizing enterprises, Whitlam pointed out that it did not bar the Commonwealth government from creating new, publicly owned ones. Whitlam won most of the party around to this perspective, and whatever opposition that remained dissolved after Labor’s historic 1972 victory.

Nevertheless, Whitlam’s constitutionally adherent social reform agenda was a bridge too far for the Australian political establishment. In 1975, Governor-General John Kerr dismissed the Whitlam Labor government and appointed minority leader Malcolm Fraser as prime minister pending a new election. Though Kerr cited Section 64 of the constitution to justify his actions, Whitlam accused him of acting unconstitutionally.

Constitutional or not, when Kerr dismissed Whitlam, it amounted to a coup against a democratically elected government, which had just won reelection the previous year and still commanded a parliamentary majority. Later revelations have confirmed that Kerr was in close communication with US intelligence services.

Gough Whitlam took two key lessons about the constitution from his experience in government. First, he concluded that the constitution had surprisingly not been an impediment to implementing Labor’s agenda. The Whitlam government had implemented an ambitious social democratic reform agenda, and no aspect of it had been ruled unconstitutional. According to Whitlam, his government showed that Labor and the constitution could coexist.

Second, Whitlam concluded that the constitution had not sufficiently safeguarded Australia’s democratic institutions. In addition to providing legal barriers to substantial democratic socialist policy, it was now clear that the constitution could not defend parliamentary government in the face of the entrenched elite opposition. While Whitlam had accounted for legal challenges to Labor legislation, he did not account for the possibility that his government would be dismissed under the constitution.

Ultimately, the ALP took Whitlam’s first lesson but ignored his second. In 1982, when Labor again formed government, Bob Hawke did not attempt the kind of major constitutional reform that would be needed to prevent a repeat of the Whitlam dismissal. It’s possible that Hawke’s close relationship with the CIA informed this retreat from Labor’s democratic ambitions.

The Hawke government did hold constitutional referenda in 1984 and 1988; however, they only proposed minor tweaks to parliamentary governance. They sought to mandate concurrent upper- and lower-house elections, to extend parliamentary term limits to four years, and to recognize local government constitutionally. None aimed to enable the passage of an otherwise unconstitutional social reform agenda. Ironically, but unsurprisingly, these referenda still failed.

A New Commonwealth?

In contrast with Chile, sweeping constitutional reform is not on Australia’s political agenda. The last referendum was in 1999. It proposed a model of republic with a president appointed by Parliament and a questionable constitutional preamble. Australians voted this referendum down.

However, after more than two decades during which Labor deprioritized constitutional reform, Anthony Albanese’s recently elected government is returning to the question in two key ways.

First, Albanese’s government has committed to fully implementing the recommendations of the Uluru Statement from the Heart. In addition to calling for a treaty between Australia and its First Nations and a truth-telling process about the consequences of colonization, the Uluru Statement calls for an indigenous voice to Parliament. This requires constitutional change, and Labor has pledged to hold a referendum within Albanese’s first term, likely in 2023. It promises to be the first referendum in twenty-four years and if successful, the first change to Australia’s constitution since 1977.

Second, by appointing an assistant minister for the republic, should Labor be reelected for a second term, the Albanese government has signaled its intention to push toward an Australian republic with an Australian head of state.

Albanese has, however, repeatedly stressed that a republic is a lower priority than creating an indigenous voice to Parliament and eventually establishing a treaty with Australia’s First Nations peoples. Indeed, Labor has treated these issues as disconnected. This is a mistake. It won’t be possible to deliver justice to indigenous people without overcoming Australia’s colonial foundation, and that means breaking ties with the English monarchy. This is an argument being made by prominent First Nations leaders, including Victorian Greens senator Lidia Thorpe and Megan Davis, a Cobble Cobble woman and constitutional lawyer who helped to draft the Uluru Statement.

This is also why the example of Chile is so important. Chile’s constitutional reform process is about more than a few amendments — it is part of the struggle for much deeper social, economic, and political change. If successful, this new constitution would refound Chile as a democratic and plurinational society grounded in ecology and social welfare.

By contrast, the constitutional changes proposed under Bob Hawke and John Howard were minimal and technocratic, and failed to connect with broader aspirations for change. If Albanese’s proposed constitutional changes are similarly tokenistic, they risk failing to inspire enough people to win a double majority. And more importantly, pushing toward a republic that delivers justice to Aboriginal and Torres Strait Islander peoples can open a space for broader political, social, and economic reform.

The Australian left should take up this republican mantle and fight for a much broader and more radical reconsideration of Australia’s constitutional and political order. The old dreams of Australian socialists, reformers, and republicans could finally be realized in a new commonwealth that delivers sovereignty to First Nations, enshrines social welfare, and constitutionally protects the environment. As Chile remakes its republic, we might finally begin to build ours.