20021031 thompson

							                                      Democracy and the Constitution
                                                     Elaine Thompson



Taking a written constitution out of its political context in order to assess its democratic elements is probably an absurd

exercise. There have been glorious constitutions made a mockery of by the systems in which they have operated. On the

other hand, countries like Australia have constitutions which only give hints of the highly successful democracy in which

they work. The subject of this reflection is Australia’s federal Constitution.



• The Australian Constitution has a number of liberal democratic elements



The Constitution embeds the rule of law in two ways: firstly through the processes by which bills become laws, which

demand the passage of identical legislation through both houses of the elected parliament and, secondly, through the

protection of citizens by judicial review by an independent judiciary. Section 72 ensures the independence of the

judiciary by specifying that judges can only be removed on proven grounds of misbehaviour or incapacity. They are

further protected by a clause specifying that their pay cannot be reduced during their time in office.



The existence of the written Constitution in and of itself embeds the core liberal democratic commitment to limited

government, in that, for example, the lower house’s maximum term is limited constitutionally to three years.



These various provisions relating to limited government and to an independent judiciary make despotism and the

autocratic exercise of power much more difficult—a fundamental limit on those in power. Yet the Australian

Constitution does not embed the core liberal notion of individual freedom. There is no comprehensive statement of

individuals' rights and freedoms. The Constitution only prevents the central government making laws restricting freedom

of religion.



   The Constitution also embeds anti-democratic elements
The Head of State is the monarch or an appointed Governor-General with vast (though usually unused) reserve powers,

including powers to dismiss the House of Representatives at will (Section 5) or to disallow legislation passed by

parliament (Sections 58–60).



The Constitution also gives a less representative upper house substantial veto powers over legislation (Sections 53-57),

including the power to refuse Supply.



Nowhere is there a guarantee of one vote one value or even a guarantee of the right to vote, except where that right exists

at State level. There is no statement that power resides in, and emanates from the people.



Nowhere in the Constitution are the words prime minister or cabinet used. There are no Constitutional provisions

requiring the prime minister and his or her cabinet to be appointed from the party commanding a majority in the House of

Representatives.



• The Constitution in context



When the Constitution was created, Australia was seen as the democratic laboratory of the world. The federal

Constitution incorporated most of the democratic and representative ideas developed in the colonies. Further, the

Constitution is what the High Court declares it to be—and in two cases in 1992 (Australian Capital Television v

Commonwealth and Nationwide News v Wills) the High Court argued that representative democracy is implied in the

Constitution. It is within that context that the Australian Constitution ought to be read.



There are strong elements of majoritarian democracy in the Constitution, in that voting by the people is a central theme:



Parliament: Both Houses are directly elected by the people, a feature unique to Australia at the time of federation. The

Constitution attempts to ensure that the lower house reflects the popular will by requiring that no State should have fewer

than five members and that each State should have the number of representatives proportionate to its population. (This is

the closest the Constitution comes to guaranteeing equality of the vote.)
Deadlocks between the two Houses of Parliament are resolved by the dissolution of both (the double dissolution)

followed by an election for the whole of both houses of parliament. Section 57 was meant to ‘serve the useful and

democratic purpose of preventing the Senate from obstructing the House of Representatives indefinitely by providing that

in case of irreconcilable conflict the two chambers may sit jointly and settle the question by a combined vote’.



Ministers: All ministers must first be elected to one of the Houses of Parliament, by the people. The Prime Minister must

come from the House of Representatives, elected like any other member. There are no ministers appointed directly, as

there are in other Westminster style democracies (e.g. Israel).



Amendments: The system for amending the Constitution, Section 128, borrowed its formula for popular referendum from

Switzerland where it had worked easily and frequently, giving that nation a ready means for keeping its Constitution in

line with changing needs. An amendment passes if it receives a nation-wide majority in support and majorities in a

majority (four out of six) of the States.



When Bryce, whose book on America greatly influenced the Founding Fathers of the Australian Constitution, visited

Australia in 1912 he commented that Australia had ‘travelled farthest and fastest along the road which leads to the

unlimited rule of the multitude’ and that the ‘voters may indulge their uncontrolled will for any and every purpose that

may for the moment command itself to them’ (J. Bryce, Modern Democracies, vol. II, p. 181). He believed that the

Australian system of representative government had enabled the masses swiftly and completely to exert their sovereignty.

That view of the Australian Constitution more accurately reflects its democratic character than any narrow reading of its

clauses.