John Howard and the Constitution

That what we have we prize not to the worth
Whiles we enjoy it, but being lack’d and lost,
Why, then we rack the value, then we find
The virtue that possession would not show us
Whiles it was ours.
—Shakespeare, Much Ado about Nothing

To one who had lived and worked in Canada, the United Kingdom, Hong Kong, the United States and New Zealand before moving with my family to Australia in 2005, the then Prime Minister Howard and his government appeared as a breath of unexpected fresh air. Any native-born Canadian such as I will tell you that it is easier for a camel to pass through the eye of a needle than it is to imagine a Canadian prime minister voicing public scepticism about the United Nations and its effectiveness. Likewise, one suspects the search would be in vain to find even a small handful of present or recent New Zealand residents who could pretend—with a straight face—that their prime minister could ever bluntly state that if would-be immigrants did not like the liberal, tolerant ways of their would-be new country, they need not (indeed should not) come.

Put more bluntly, Prime Minister Howard and his government were astoundingly free of the cant and humbug and genuflecting political correctness that serves to take important social policy issues out of the realm of acceptable public discussion in the United Kingdom, New Zealand and Canada (not to mention the preponderance of university campuses in the United States). And I refer here to such things as hard-nosed, cost-benefit discussions of limiting immigration (including by those who claim to be refugees), of issuing apologies to indigenous groups, of the legitimacy of unelected judges having last-word moral (not legal, but moral) input that changes the elected government’s policies, and of how to respond to the threat posed by Muslim extremists.

In American terms John Howard struck me as a Rockefeller Republican, a seemingly dying breed back in its homeland. He was a free-trader. He aimed to (and did) pay off government debt. Although nowhere near being a libertarian or small-government purist, he certainly doubted that government often delivered value for money or could out-perform the private sector. His social conservatism was not overly proselytising, eschewing recourse to the law to ram through, say, new restrictions on abortion or homosexuality or sex outside marriage. In many matters he was simply pragmatic.

Yet despite, or because of, all that he was a remarkably successful prime minister. He left Australia better off—I would say much better off—than he found it, which is high praise indeed.

The remainder of this article will focus on the Howard legacy as regards Australia’s Constitution. And here, former Prime Minister Howard was in all but one respect a true conservative or traditionalist or, to use the older term, Tory. I want to be clear that I mean that term to be taken in a Humean sense. Let me elaborate.

Samuel Johnson’s biographer, James Boswell, attributed the following comment to Johnson: “He would not allow Mr David Hume any credit for his political principles, though similar to his own; saying of him, ‘Sir, he was a Tory by chance’.” That is the Englishman Samuel Johnson, the great eighteenth-century wit and writer and compiler of the first proper English dictionary, commenting on his contemporary, the Scotsman Hume, one of the handful of the greatest philosophers of all time, and also a noted historian.

What the committed high Anglican and Tory Johnson disliked about Hume’s politics was not their content. It was the reasons Hume had for holding the views he did. Johnson thought Hume’s politics were not founded on principle. Johnson was wrong. Hume’s defence of what today we might call traditionalism or conservatism was different, and a bit roundabout, but it was every bit as based on principle as Johnson’s more direct outlook. And in today’s rather secular, modern world, Hume’s is the more attractive defence of conservatism. Indeed I find myself very much of Hume’s mind. And I think John Howard’s conservatism—at least as regards the Constitution—can be best understood in these Humean terms.

Hume gets to his politics after his philosophy. Hume was the great sceptic. Having noted that there is no deductive or demonstrative proof that will ever be available to prove causation or the existence of an external, causal world outside the mind, Hume ends up appealing to psychology. For instance, we all believe gravity is real, not some social construct of the sort beloved by certain humanities professors, and anyone who pretends to doubt it should be invited to jump from an eighth-floor window. He won’t. He, too, believes in a mind-independent world dictating outcomes independently of how the rich might have oppressed the poor, or men might have mistreated women.

So Hume ended up as a great empiricist. Other “ways of knowing” or “alternative worldviews” are just so much balderdash. They do not produce real knowledge (or, for that matter, jet aeroplanes, antibiotics, computers, a doubling of life expectancy in the last century, and so much else that has been the product of the scientific outlook). I am pretty sure that were Hume alive today, and despite his renowned good humour and conviviality, he would have little more than contempt for the alternative-medicine crowd and most of the tenets of the Greens.

So why would an arch-empiricist, and one very, very smart man, come out in defence of a Tory-like traditionalism and sticking with what you have till you are pretty darn sure the alternative will be better? In a nutshell it is because nothing can be demonstrably defended on the basis of raw reason. Tear away the traditions and institutions that have served society thus far and no one knows what will result. Piecemeal reform, if done slowly and carefully, can lead to better things. Revolution in the name of utopian ideals and fuzzy moral abstractions almost always—perhaps always—leaves people worse off than they were before. Likewise, trendy social engineering and the politically correct fostering of feelings of victimhood are far more likely to have bad long-term consequences than good.

That is the Humean “Tory by Chance” message. We throw away or undermine our amazing heritage—not just Shakespeare and the King James Bible and Austen and the scientific worldview that grew out of the Enlightenment, but much else besides—at our peril. What replaces it is likely to be less tolerant, less attractive (especially to the many groups today vying to see themselves as hard done by), and less productive of innovation and technological advance.

When it comes to Australia’s Constitution, a similar sort of “Tory by Chance” approach or outlook can be adopted. Indeed, it was just this approach or outlook (with one notable exception) that John Howard did take as regards the Constitution.

Of course the attractions of such a conservative or Tory outlook depend to some extent on the underlying worth of what one has inherited and wishes to conserve (or, for that matter, to alter or update or jettison). And here, in comparative terms, there happens to be a great deal to be said for Australia’s century-old constitutional arrangements.

Consider a few examples. Start with voting and electoral matters, the sort of things that underpin any democratic claims to legitimacy and to having contentious social policy issues decided, ultimately, by an elected, representative and accountable legislature.

There is a variety of voting systems in effect in Australia at the state and Commonwealth levels. As regards the latter, the House of Representatives—which is the more important of the two houses of parliament in so far as it alone initiates money bills, is the home of the prime minister, has about the same number of electors per seat, and as nearly as is practicable has twice the number of representatives as does the Senate—has, since 1918, had its MPs elected using a preferential voting system operating in single-member constituencies. To win, one must obtain more than 50 per cent of the votes cast (though often no one will win a majority of first preferences). But the point, for our purposes, is that every elected representative to the lower house will have received the support of an absolute majority of voters in his or her constituency.

In my opinion this preferential voting system compares favourably to first-past-the-post systems used in Canada, the United States and the United Kingdom and it looks even better when measured against proportional systems, especially those using lists created by the political parties to “top up” who gets into parliament, as is the case with the MMP voting system now used in New Zealand (it being a copy of the system used in Germany, imposed on that country by the Americans after the war). On the one hand, Australia’s preferential system avoids not only those party-controlled closed lists but also the undue influence of small parties, the making of much policy post-election during coalition negotiations, Karl Popper’s concern about the inability of voters in proportional systems clearly to be able to reject parties and policies they dislike, and other weaknesses of proportional systems. On the other hand, preferential voting compares favourably to first-past-the-post systems in avoiding wasted votes, allowing a few independents to win occasionally and taking some account of whom voters dislike and do not want to win, while still delivering majority governments (and their easy removal). Better still, this comes without the claims of unfairness one often hears in first-past-the-post systems when winners receive, say, only 35 or 40 per cent of votes cast.

When this is combined with something different, the single transferable vote (STV) voting system—a proportional representation system with an element of preferential voting that makes it very tough for the government to obtain a majority here—to elect Senators, there is an even stronger case for saying Australia has the best set of voting arrangements of all countries with which we would tend to (or want to) compare ourselves. Throw in the fact that we are overwhelmingly free of the sort of gerrymandering concerns (where elected legislators themselves draw the constituency boundaries to favour incumbents) that so mar elections to the United States House of Representatives and our stock goes up again. Even our campaign finance rules (in essence, a system of public funding of election campaigns joined to an enforced system of disclosure, but without regulation of expenditure) stand out.

Relatedly, on any such criteria as “preventing the exclusion of some group from the political process” Australia’s voting systems score very highly. Indeed, if equality of input is one’s most cherished goal, then Australia’s compulsory voting regime further enhances that score.

So far, then, the status quo has much to be said for it.

The same is true when it comes to bicameralism. Australia’s Commonwealth Parliament has a genuine upper house of review. We have real bicameralism here, in the sense of an elected Senate that can even block money bills. Canada, meanwhile, has only an unelected, illegitimate upper house filled with appointed placemen and party hacks. The UK, too, lacks a genuine, elected upper house (to say nothing of the democratic deficiencies some—including me—would claim flow from membership in the European Union). Tiny New Zealand has no upper house at all, elected or otherwise. Only the United States has a genuine upper house of review, though one could argue that the worth or weight of voters in small states (say, Wyoming or Rhode Island) is just too much greater than in big states (such as California most obviously) to make the more-or-less equal status of the upper house as democratically justifiable there as it is here.

Leaving voting matters and bicameralism, what about the method laid down for amending the Australian Constitution? Section 128 requires proposed constitutional amendments first to pass through the Commonwealth Parliament and then to win approval in a referendum. The approval needed in this referendum is both (1) a majority of all electors and (2) a majority of electors in a majority of states.

Comparable English-speaking jurisdictions, such as Canada and the USA, do not make constitutional change subject to the direct say of the people voting in a referendum. Quite simply, in Australia—unlike most other comparable jurisdictions and unlike the European Union—the elected representatives cannot bring about constitutional change on their own and over the heads of the people (though, in an indirect way by changing what they say the meaning of the Constitution’s words are, the unelected Australian judges can do so).

These three examples provide at least some support for the more sweeping sort of claim I would be inclined to make, namely that Australia’s existing constitutional arrangements, taken as a whole, are amongst the best in the world. When weighed against those of countries with which Australia has an affinity and to which it is usually compared, I would go so far as to say ours are the best such arrangements going. Anyway, the crucial point is simply this. The merits of Australia’s inherited constitutional arrangements are, on any account, very great indeed. And that matters when it comes to assessing the attractiveness of adopting a traditionalist, cautious, attached-to-what-we-have, “Tory by Chance” attitude towards those arrangements.

It was just such a conservative attitude or approach (with one notable exception) that former Prime Minister Howard did adopt as regards the Constitution. In essence, he knew to leave well enough alone. That is his legacy.

I turn now to defend that Howard constitutional legacy, at least all of it bar that one conspicuous and anomalous area where he cast aside his “Tory by Chance” clothes in favour of those of the reformist visionary. There, his legacy is anything but positive, though I suppose the blame can at least be said to lie more with the Justices of the High Court than with him.

This defence will involve four stopping points. First, and most obviously, we will look at John Howard’s support for the constitutional monarchy, including in the 1999 referendum. Second, we will consider his opposition to a bill of rights (the flip side of which is a strong belief that the elected and accountable branches of government ought to decide society’s contentious and debatable social policy issues, rather than having these moral and political disputes turned into legal ones and handed over to the judges). Third, we will briefly consider the question of how judges ought to be appointed. And last, we will turn to that aforementioned exception to the Howard “Tory by Chance” rule, namely federalism. Here, and here alone, his legacy is malign.

John Howard was (and is) an avowed monarchist. He campaigned against the failed 1999 referendum to move to a republic, though in a comparatively low-key, live-and-let-live way that included organising a constitutional convention in Canberra where the republicans could put their case. In the bluntest of terms, he was a committed advocate of the status quo. This was just as true in the years leading up to the referendum—when opinion polls suggested that a majority of the electorate favoured republicanism—as it was after the referendum was comfortably defeated, with roughly 55 per cent of Australians voting No and every state being opposed..

Both sides of this 1999 referendum can be split into two basic camps. On the one hand, there were (and are) those who opposed (or favoured) change on emotive, sentimentalist grounds more or less immune to cost-benefit analyses and calculations of likely outcomes. On the other hand, there were (and are) the rather more hard-hearted brigade whose referendum vote was (and would be) determined not by their Irish or English antecedents, their wartime service or lifetime’s commitment to decolonisation struggles, or any other factor that essentially left how they voted predicated on some visceral liking or disliking of the House of Windsor, England, Anglicanism, or what have you.

Those in the emotively-driven former camp—whether they be for or against the status quo—were (and are) extremely unlikely to be swayed in how they would vote regardless of the strength of any consequentialist arguments put to them. Those in the latter camp, however, were (and are) swayed by precisely such consequentialist arguments, and decisively so.

And it is precisely here that Hume’s “Tory by Chance” outlook is so powerful (though certainly not conclusive). What we have—the set of constitutional monarchical arrangements governing our head of state and his or her powers—is likely to deliver better consequences than any alternative that has so far been put forward. On this basis we support the status quo. On this basis former Prime Minister Howard supported the status quo.

What then are those consequentialist arguments in favour of the existing constitutional monarchy? First, and least importantly, the existing constitutional monarchy is cheap. The vast preponderance of costs is borne by the United Kingdom. Whatever the sort of republican model under comparison, be it to elect a president directly or indirectly, a governor-general is almost certain to be less expensive than a president.

Second, any move to a republic will not be without legal repercussions. Perhaps the most glaring concerns what would happen to the prerogative powers—executive powers that do not require the authority of statute. Can they persist once their historical support has been wrenched from under them? No doubt they could be codified in a statute, but that raises the question of whether replacing the flexible with the inflexible (which in general terms is what codification will do) is uniformly desirable. The point is not that this is an insuperable problem; it patently is not. The point is that how it will play out in fact is to some extent unknowable.

Third, and assuming for the moment that the prerogative powers are easily enough codified or carried over, there is the issue of the conventions surrounding the governor-general’s exercise of his reserve powers. In terms of importance or relevance these relate to the appointing and dismissing of a government. This power derives from the prerogative, but how that power is used (that is, the rules that have nowhere been laid down but rather have grown up over time relating to when the governor-general will or should call an election or appoint a prime minister) is governed by convention. Yet here is the rub. Specifying in advance, by written rules, when and how the power to appoint and dismiss governments is to be used is extremely difficult. Eliminating all discretion would be impracticable, if not impossible, without a concomitant move to elections at fixed, unchangeable intervals—an option itself with problems as it leads to seemingly endless campaigning and the occasional period of enforced minority or coalition government that is unstable and forced to struggle on somehow for the set period even when there is political deadlock, impending war, budgetary crisis, or any other exigency.

If one opts to eschew this rigid inflexibility and the costs it involves, and prefers to keep the flexibility of the present system, then the reserve power currently vested in the governor-general must, on moving to a republic, be transferred to someone else.

And here is one of the great unseen strengths of the status quo. The present highly flexible arrangement is only possible—or at the very least it works best—where the head of state is seen to be above party politics. What you want, to put it in the most basic of ways, is someone making the call who has no democratic legitimacy at all. The existing arrangements surrounding the reserve powers for appointing and dismissing governments, in other words, have built-in constraints that may fail when it comes to a politicised head of state, such as an elected president.

In fact, I would venture to say that the constraining force of these existing constitutional conventions comes largely (or at minimum significantly) from the awareness of not being elected and so of any partisan use of the power being illegitimate. It is plausible to suppose that a president with a direct, popular mandate or even with an indirect, legislative one enjoys more room to do what she thinks right, to push out the parameters of her powers. An appointed governor-general, by contrast, has no such room to manoeuvre. More tellingly still, on those rare occasions when such a head of state does act, he will be open to a broader spectrum of criticism (for the simple reason of not being elected). This makes the use of such powers rarer and more toxic. On balance, in a well-functioning democracy such as Australia, that seems a good thing.

A fourth (and related) consequentialist advantage of the status quo is that Westminster-style parliamentary democracies have evolved to give much real power to a prime minister and cabinet. The safest route for those proposing change then, barring some wholesale move to a full-blooded American or French-style presidency where the president is arguably the locus of more power than anywhere else, is to fiddle with the basics of this Westminster system as little as possible. And that means the least politicised presidency possible. If not an overwhelmingly ceremonial post, as close to that as can be achieved—that is the goal.

Obviously there are models to imitate. Ireland and India both spring to mind, countries whose presidents are hardly overtly politicised. However, one suspects the Irish president has more scope and freedom to comment on, say, such things as legalising divorce and abortion or the state of the country’s health system than would an appointed governor-general or hereditary monarch.

The basic point of this is that though one can point to possible problem areas, no one really knows for sure what the costs of switching to a more politicised head of state would be. We do know, though, that the existing arrangements work well. The “Tory by Chance” outlook is to ask whether any preferred alternative is likely to be worse—and by that I mean an alternative that is at least largely spelt out, not some fuzzy, amorphous slogan or abstraction.

The outcome of the 1999 referendum indicates that at least a goodly number of people made this sort of calculation. It is an example of “Tory by Chance” thinking par excellence. It is part of the Howard constitutional legacy, one thus far still in place. And there is much to be said for that legacy as we see here, and at our next two stops. Each can be seen as representing a triumph of cautious, aiming-for-likely-best-consequences thinking given the institutions we happen to have inherited over the pull of reforms that rely, one way or another, on emotively-laden appeals up in the Olympian heights of fuzzy abstractions rather than detailed calculations down in the quagmire of detail.

Next we turn to former Prime Minister Howard’s opposition to a bill of rights. Many, if not most, of those pushing for one of these instruments like to point to the fact that Australia is one of the very few democracies—depending on how you look at the Basic Laws in Israel and the judiciary’s unwillingness to make much of what they have in Japan and a few other non-common-law countries, perhaps the only one—without a national bill of rights. On its own, of course, such a “we differ from everyone else” type of argument tells us nothing. After all, Australia is one of only two democracies with preferential voting; only a handful more have compulsory voting; few have a form of bicameralism with a comparable elected, genuine house-of-review upper house; and many lack federalism. Ought we to change any of these on the sole ground that we stand out from the pack? Of course not.

The real question is not whether we should emulate others but whether a bill of rights is a good idea in its own right. Would having one deliver better outcomes than we achieve without one?

John Howard was emphatically of the view that the answer to that question is a resounding No. This view was (and is) the correct one.

Here is why. To start, notice that any sort of bill of rights enumerates a list of vague, amorphous—but emotively appealing—moral entitlements in the language of rights. It operates at a sufficiently high level of abstraction or indeterminacy that it is able to finesse most disagreement. Ask who is in favour of “freedom of expression” or “freedom of religion” or a “right to life” and virtually everyone puts up his or her hand. And of course this is where bills of rights are sold, up in the Olympian heights of disagreement-disguising moral abstractions and generalities.

Nevertheless, that is not where these instruments have real effect. People do not spend hundreds of thousands of dollars going to court to oppose “freedom of speech” in the abstract. Bills of rights have real, actual effect down in the quagmire of social-policy decision-making where there is no consensus or agreement across society at all. Rather, there are smart, reasonable, well-informed, even nice people who simply disagree about where to draw the line when it comes to campaign finance rules or hate-speech provisions or defamation regimes or whether Muslim girls can or cannot wear veils to school or whether to sanction gay marriage and so much more. One could sit around in groups, holding hands, singing “Kumbaya”, and chanting “right to free speech” or “right to freedom of religion” for as long as one wanted and it would help not at all in drawing these contentious, debatable lines.

What a bill of rights does is to take contentious political issues—and I will deliberately say this again, issues over which there is reasonable disagreement between reasonable people—and turn them into pseudo-legal issues which have to be treated as though there were eternal, timeless right answers. Even where the top judges break 5–4 or 4–3 on these issues, the judges’ majority view is treated as the view that is in accord with fundamental human rights.

The effect, as can easily be observed from glancing at the United States, Canada and now New Zealand and the United Kingdom, is to diminish politics and (over time) to politicise the judiciary. Meanwhile, the irony of the fact that judges resolve their disagreements in these cases by voting is generally missed. The decision-making rule in all top courts is simply that five votes beat four, regardless of the moral depth or reasoning of the dissenting judgments, or that they made more frequent reference to J.S. Mill or Milton or the International Covenant on Civil and Political Rights.

None of this deters bill-of-rights proponents from talking repeatedly about how such an instrument “protects fundamental human rights”, as though these things were mysteriously or magically self-defining and self-enforcing. They are not. They simply transfer the power to define what counts as, say, a reasonable limit on free speech over to committees of ex-lawyers (who have no greater access to God on these moral and political issues than anyone else, but who are immune from being removed by the voters for the decisions they reach).

Of course in the Australian context proponents who formerly championed some sort of American or Canadian-style constitutionalised bill of rights that would allow judges to strike down legislation now tell us (after repeated failures to get Australian electors to agree) that they favour only statutory bills of rights. And they make much of how these statutory versions leave the last word with elected politicians.

By no means is this the sort of Damascene conversion some proponents pretend. Quite simply, these statutory versions are virtually as potent as their constitutionalised cousins. They too shift much power to the unelected judiciary, however much some proponents may indicate otherwise.

The proof, of course, is in the eating. And the evidence from New Zealand and the United Kingdom (both jurisdictions having statutory bills of rights, indeed ones that were the models copied by the state of Victoria’s charter of rights) is clear and unambiguous. The top judges there have become more powerful since the arrival of the respective bills of rights.

How? One of the main (and little publicised) devices is a provision in these statutory versions that is known as a “reading-down provision”. These end up being a licence to rewrite (as opposed to strike down) legislation. What they do is direct the judges, so far as it is possible to do so, to read all other statutes as consistent with the enumerated rights. Of course what is and is not consistent with such rights is wholly up to the judges, as is the question of what is and is not possible.

The danger with these sort of reading-down provisions—these directions to give the words of other statutes a meaning that you, the judge, happen to think is more moral and more in keeping with your own sense of the demands of fundamental human rights—is that just about any statutory language (however clear in wording and intent) might possibly be given some other meaning or reading.

Put differently, reading-down provisions such as these throw open the possibility of Alice in Wonderland judicial interpretations; they confer an “interpretation on steroids” power on the unelected judges. So although there is no power to invalidate or strike down legislation, the judges can potentially accomplish just as much by re-writing it, by saying that seen through the prism (that is, their own prism) of human rights, “near black” means “near white”. They can make bill-of-rights sceptics half long for the honesty of judges (under constitutionalised bills of rights) who strike down legislation rather than gut it of the meaning everyone knows it was intended to have (rule of law values notwithstanding).

Now that can sound alarmist. So the question arises, has anything remotely like that occurred under the UK and New Zealand reading-down provisions? As it happens, the answer is a definite Yes.

Here I will simply quote from the leading House of Lords decision from four years ago. Read what Lord Nicholls (supported, more or less, by all the other Lordships) was prepared openly and explicitly to say:

“It is now generally accepted that the application of s 3 [the reading-down provision] does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, s 3 may none the less require the legislation to be given a different meaning … Section 3 may require the court to … depart from the intention of the Parliament which enacted the legislation … It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it convention-compliant [meaning bill-of-rights compliant].”

So under a statutory bill of rights the judges tell us they can now give other statutes—statutes they concede would otherwise be clear and unambiguous—the exact opposite meaning as that intended by the elected parliament. They can read words in, read words out, and opt for clearly unwanted outcomes. As I said, that is Alice in Wonderland stuff. It certainly appears to amount to a power to redraft or rewrite disfavoured statutes.

And it is precisely that which bill-of-rights advocates have shifted to promoting in Australia. And that, together with the older constitutionalised model, is what former Prime Minister Howard opposed. Given the fact that so many other countries had, in the preceding two or three decades, fallen for the bill of rights siren song, it is a signal achievement of the Howard government that it resisted this seduction.

All those who prefer democratic decision-making, in the sense of letting the numbers count, over dollops of juristocracy or kritarchy, owe some gratitude to Mr Howard. And here again we can see his “Tory by Chance” thinking at work.

The third stop, judicial appointments, can be an altogether briefer one. And briefly it is this. Mr Howard resisted the calls for some sort of Judicial Appointments Board—this being a catch-all name for various indirect methods of appointing judges where politicians either choose from a short list drawn up by such a Board, or the Board approves or disapproves of submitted names, or recourse is had to any such indirect nominating or screening process that gives substantial say to a committee of experts or insiders.

Mr Howard resisted such calls, though the United Kingdom and Canada succumbed. He opted to continue with the traditional Westminster appointments method, under which the elected government appoints whomever it wishes, subject to very minimal thresholds being surmounted such as the person having been a qualified lawyer for a set period of time. Of course informal soundings are taken under this approach, most obviously of the existing judges and of the various lawyers’ bodies. But the choice is ultimately made by the elected government, generally the attorney-general though no doubt the cabinet is sometimes consulted and for the most senior vacancies the prime minister has the last word.

The danger of this traditional approach to appointing judges is that it becomes too political. Yet the corresponding or competing danger of a Judicial Appoint-ments Board process is more than simply the threat of mediocrity posed by appointing judges via a committee of insiders and those with vested interests. A much greater danger is of a lack of heterogeneity among those ultimately chosen as judges; that it will produce an insulated, self-selecting lawyerly caste—mediocre or otherwise—whose views on euthanasia, immigration, appropriate criminal procedures, gay marriage, abortion and other contentious issues are noticeably at odds with the general voting public’s (if not of the majority of lawyers). In more home-grown terms, we won’t see any Callinans or Murphys were a Judicial Appointments Board-type regime put in place.

Yet again, I think Howard’s decision to resist the entreaties to move in this direction was the correct one. This is the more so given the fact that since the end of the Second World War there has been a marked increase in the power of the judiciary vis-à-vis the legislature and executive throughout the democratic common-law world. This greater power makes the need for some sort of democratic input at the appointments stage all the more compelling.

In fact, I would say that if a bill of rights were enacted here at the Commonwealth level—and by no means do I think that inevitable—then a strong case could be made for moving to the more openly political American process for appointing top judges with its raw, probing and sometimes personal questions, in public. Once you go down the route of handing unelected judges that much say over essentially political (not legal, but political and moral) matters, the case for open, transparent political vetting at the appointments stage is a strong one. And unlike Canada, the UK and New Zealand, we have the genuine, elected upper house—one that will not always be in the control of the governing party—that the American-style Senate hearing judicial vetting process requires.

As between the status quo and some “great and the good” staffed Judicial Appointments Board process, though, the former is again to be favoured on “Tory by Chance” grounds.

Certainly had any such Board been in place in 1996 it would not have done what the Howard government did on taking office when it inherited an activist (think “implied rights” cases) High Court. What the Howard government did, to generalise, was to use the opportunity of retirements to appoint far less activist, more black-letter lawyer-style replacements to the High Court, namely Justices Hayne, Callinan, Gleeson (Chief Justice), Heydon, Crennan and Kiefel.

Once more the Howard constitutional legacy is a good one.

That cannot be said, however, at our final stop, federalism. Here, and here alone, the Howard legacy is malign.

To start, it must be conceded that the incoming 1996 Howard government inherited a damaged version of federalism. To a large extent that was, and as it turned out continued to be, the fault of the High Court. Indeed, the execrable Tasmanian Dam case, so inflating of potential Commonwealth powers, had by then been in place for more than a dozen years.

Yet that reality does not change the fact that former Prime Minister Howard was not at heart a federalist. To paraphrase Lloyd Bentsen, “I know federalists, and John Howard was no federalist.”

The debate or disagreement between federalists and centralisers boils down to three things. First, there is one’s attitude to the competence of government. Does government overwhelmingly get it right when it comes to education policy, taxing and spending, welfare provision, infrastructure, everything? If you are inclined to answer Yes, then the duplication inherent in federal systems such as ours or Canada’s or America’s or Germany’s or Switzerland’s will seem simply downright inefficient and wasteful to you. Better to have a unitary system such as New Zealand or the United Kingdom (sort of, still, but it is changing there) or France and let the central government get on with it.

However, the more you see government as lucky to get things right even half the time, say, the more a federal system—where power is split between a central government and governments in states or provinces or lander, with neither being able to usurp the other in some areas—will look attractive. Yours is a sort of “let them compete to find something that might work” outlook. Think of capitalism’s creative destruction with firms regularly going under and translate that into more than one level of government with at least some variations, failures and successes. On this way of thinking what looked like unnecessary waste and inefficiency and duplication actually produces more efficiency in the long term. (Here one might go on and ask centralists to compare the records of the UK and the USA—in terms of the overall efficiency of government—from the end of the Second World War.)

A second approach to the issue of federalism’s desirability, or otherwise, is to ask whether a unitary or federal state delivers more of what people want, given a world of widespread disagreement and differing preferences. On this criterion, listen to US Supreme Court Justice Antonin Scalia’s defence of federalism:

“Now there are many reasons for having a federal system, but surely the most important is that it produces more citizens content with the laws under which they live. If, for example, the question of permitting so-called ‘sexually oriented businesses’—porn shops—were put to a nationwide referendum, the outcome might well be 51 percent to 49 percent, one way or the other. If that result were imposed nationwide, nearly half of the population would be living under a regime it disapproved. But a huge proportion of the pro-sex-shop vote would be in states such as New York, California, and Nevada; and a huge proportion of the anti-sex-shop vote would be in the south, and in such western states as Utah and New Mexico. If the question of permitting sexually oriented businesses were left to the states—which is surely where the First Amendment originally left it—perhaps as much as 80 percent of the population would be living under a regime that it approved. Running a federal system is a lot of trouble; a large proportion of the time of my Court is spent sorting out federal–state relations. It is quite absurd to throw away the principal benefit of that system by constitutionalizing, and hence federalizing, all sorts of dispositions never addressed by the text of the Constitution.”

Third, there are those who prefer federalism on checks-and-balances grounds. This is related to the first ground above, namely how competent government may or may not be, but it is not quite the same. Even were one to imagine a remarkably competent government with a string of policy successes, there would still be grounds for some to wish to set up a structure that checked and balanced its powers.

For any one, or combination, of these three grounds one might prefer a federal system of government. If so, Australia’s version is an enervated one (largely due to our High Court’s jurisprudence as I indicated above) compared to Canada’s or even the USA’s. Yet the fact remains that John Howard and his government furthered the weakening of federalism here, most obviously by putting forward the WorkChoices legislation and fighting for its constitutionality at the High Court. In effect, this Commonwealth industrial relations legislation was aimed at significantly widening the ambit of Common-wealth control in this area. It was enacted, and then its constitutionality was defended, on the basis of the section 51(xx) “corporations” head of power. Arguments (a) that the explicit laying down of a more limited Commonwealth industrial disputes power in section 51(xxxv) served to restrict the ambit or reach that could be attributed to section 51(xx); (b) that such a construction of section 51(xx) would alter what was left of the federal balance; (c) that appeals to the Convention Debates and the original intentions of the framers and to the drafting history of section 51(xx) and (xxxv) all pointed to a more limited reach for the former; and (d) that it was relevant that three attempts by Common-wealth governments to broaden the scope of its powers in this industrial relations area had all been defeated in referenda in 1910, 1912 and 1926 were all ignored by the Howard government and, truth be told, wholly rejected by the High Court.

My view is that this was a mistake. The centralising inroads made by one side of the political spectrum will be available to the other. For those who take a cautious, “Tory by Chance” approach to tinkering with our constitutional arrangements, this should at least be a worry. It did not appear to worry Mr Howard, however.

The overall Howard constitutional legacy was a markedly positive one. He left office being able to say Australia’s constitutional arrangements, taken as a whole, were second to none, anywhere. And they remained that way because of proposed reforms he had opposed, political battles he had fought, and siren songs he had resisted. His record in “Tory by Chance” terms was not perfect. Yet it may well have been better than even the most wide-eyed optimist could have hoped for.

This is the second in a series of articles that will critically appraise the eleven and a half years of the government of John Howard. The intention of the series is both to look back on the Howard era and assess its place in history, and to look forward to see what can be learnt for the future from his government’s successes and failures.
James Allan is Garrick Professor of Law at the University of Queensland. He wishes to thank Nicholas Aroney, Peter Saunders and the editor for their helpful comments on an earlier draft of this paper. A footnoted version is available from the Quadrant office.