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Harvey, Matt --- "Australia and the European Union: Some Similar Constitutional Dilemmas" [2001] DeakinLawRw 16; (2001) 6(2) Deakin Law Review 312


Australia And The European Union: Some Similar Constitutional Dilemmas

MATT HARVEY[*]

I INTRODUCTION

At first glance, Australia and the European Union (EU) have some things in common and some significant differences. Both are federations, both occupy continents, both are ‘western’, advanced industrialised economies, predominantly Judeo-Christian-secular liberal democratic societies. On the other hand, Australia has only 18 million people, the EU over 300 million and rising. Australia seems unlikely to expand. Political ties even with New Zealand seem unlikely, as does membership of any putative Asian or South-East Asian Union. In contrast, the EU has a huge queue of countries seeking admission. While Australia has many community languages, English is the only official language. The EU presently has eleven official languages with more to come. While Australia often portrays itself as a multicultural society, and indeed has migrants from many countries, it has a predominant Anglo-Celtic culture. Despite being de fact a multicultural society, the EU tends to portray itself as a union of distinct cultures. Perhaps most importantly, Australia is a federated state whereas the EU is a federation of states.

II OVERVIEW OF SIMILARITIES BETWEEN AUSTRALIA AND THE EU

The main parallel I seek to draw is that both entities have constitutions in a state of development, with some critical choices to be made. In Australia, the centenary of federation is a reminder of this hard won initial achievement of constitutional development, but should also remind us how far we have come since 1901: from self-governing dominion within the British Empire to independent state. Australia is still grappling with its place in a globalised world: should it continue to stand alone or should it join a bloc? The EU started out as a Coal and Steel Community of six states but is now well on the way to being a superstate. It is presently a new kind of supranational entity still being created.

Australia is now considering transformation to a republic. There has already been one failed referendum on the subject and yet public opinion still appears to favour a republic. We must question a system where majority support cannot generate constitutional reform. We can certainly question the model which was put to the people, but we should also question the whole state of constitutional awareness. The EU is about to enter yet another round of both enlargement and constitutional reform, this time explicitly to draft a constitution to consolidate the one presently embodied in a set of treaties. It too needs citizens who are more aware of their constitution. They will face tangible evidence of their new state with the arrival of the euro single currency notes and coins on 1 January, 2002.

There are even some similarities in the reasons why the entities were formed. Both fostered political unity through free trade and were seen as strengthening lands under threat from foreign powers. Australia, being established as a state,[1] had more powerful institutions of federal government. The EU (and its predecessors/ components) has always had a governance structure which looks like that of state but is actually much less powerful. Nevertheless, if you give an institution a name and a function, it is likely to make the most of it, as can be seen in the work of the European Commission, Parliament and Court of Justice, and in the Commonwealth Parliament and the High Court of Australia.

Ironically, Australia has been somewhere near where the EU may be going. The British Empire in the first half of the twentieth century was a supranational organisation straddling the globe. The member dominions had self-government but were also subject to paramount rule from London, while the Empire was also responsible for defence. I do not believe that “Brussels” will ever attain the power of the British Imperial Parliament, but it is interesting to reflect on the proposals for imperial federation, the imperial conferences, and the gradual democratisation of a global empire. Is it too fanciful to think that the EU might one day have similar reach?

III CONSTITUTIONAL DILEMMAS: AN ANALYSIS

The constitutional dilemmas I propose to explore are constitutional development itself, statal form, finance and human rights.

A Constitutional Development

Constitutional development takes several forms: there is textual development, institutional practice, and judicial decision. The difficulties of changing the text of the Australian Constitution are well known. The requirement of both a majority of voters overall and a majority in four out of six states has proved almost insurmountable. The most recent attempts, like thirty-four of the forty-two before them, failed. There must be better education and public discussion to give constitutional reform a better chance, since we do not know how many of the ‘Noes’ are ‘I understand and I don’t like it’, how many are ‘I don’t understand and I don’t like it’ and how many are ‘I don’t care but I’d better say no’. This is not to say that all the reform proposals have been good, but it is hard to believe that people are as attached to the original constitution as the referendums would suggest.

By contrast, in half the period since Australian federation, the treaties constituting the EU have undergone massive change: the two treaties of Rome, the Merger Treaty, the Single European Act, the Treaty on European Union (Maastricht), the Treaty of Amsterdam and, most recently, the Treaty of Nice. One of the reasons that this has been possible is that the changes have not always required approval by referendum. The British referendum on continued membership in 1974 was successful. The British people have not been asked again. They will probably be given the opportunity to vote on joining the single currency and they will probably say ‘No’. Denmark, Britain and Ireland all joined in 1973. Denmark and Ireland have constitutional amendment by referendum. Danish voters rejected the Maastricht treaty in 1992, but accepted it in 1993 after it had been ‘repackaged’. The Danes also rejected joining the single currency in 2000. Ireland has been a generally enthusiastic participant until now, but recently rejected the Treaty of Nice in a referendum. In France, the referendum is used more sparingly. France nearly rejected Maastricht in 1992 and has not had to vote on Amsterdam or Nice. Norway has twice voted by referendum not to join the EC/EU after the government has negotiated admission. Switzerland, where referenda are frequent, voted even against joining the satellite entity- the European Economic Area. All this would suggest that if the citizens of the EU had had the opportunity to vote on many EU reforms, they would have rejected them. Textual reform in the EU has faced a different constraint: the need for unanimity among the Member States. This has led to texts full of exceptions, compromises and fudges.

In both the EU and Australia, supreme courts have stepped in to flesh out the constitution and effect constitutional change where it has not been possible by other means. In Australia, the opportunity for the Commonwealth government to appoint the judges of a court where it is a frequent litigant has caused it to attempt to shape the composition of the bench from time to time. Life tenure (or now until 70[2]) has assured judicial independence. For many years, conservative appointments were made to appear normal while the occasional appointment of a left-winger was widely denounced as a ‘political appointment’.[3] Ironically, just as a Labor government under Hawke had made some conservative appointments, members of the Liberal/National government have recently called for the appointment of ‘Capital C Conservatives,’ and recent appointments can be seen in that light. By contrast, judges of the European Court of Justice (ECJ) are effectively nominated by Member State governments for six-year renewable terms but their work on the bench is largely anonymous as the court only delivers a single judgment in each case, to which all judges subscribe whether they agreed with it or not. Some guidance can be gained from extra-judicial utterances. An Australian lawyer sometimes longs for a single opinion. A European Union lawyer might sometimes prefer trying to assemble a ratio from multiple judgments rather than deciphering the Delphic judgments of the ECJ.

Whereas the High Court has undergone many changes of heart, the ECJ has until recently been steadfastly pro-integration. It has ‘constitutionalised’ the founding treaties and also elaborated an unwritten bill of rights much more extensively than the High Court, though we must acknowledge Mabo[4]and Australian Capital Television.[5] When considering reform, it is intriguing to ponder a High Court comprising judges appointed one from each state and the Commonwealth. The ECJ is becoming increasingly unwieldy as each new member insists on having a judge. The position of Advocate-General, somewhere between amicus curiae and judge, is something else Australia might consider as a partial reform of the adversarial system.

Institutional practice has also extensively developed both constitutions. In Australia, we have had the assumption that parliamentary responsible government would be the model even though not spelt out in the constitution. This has been the case even though there is an unresolved tension between federalism and responsible government. The Senate has not acted as a States’ house as originally intended, though the adoption of proportional representation has given it a new role. Elements of the EU were based on the French system but that system changed shortly after the Treaty of Rome in 1957. Other elements were novel. The ECJ has seized the opportunity to act as a supreme court, the Assembly renamed itself the Parliament and has insisted that it be treated as such, with some success, and the Commission has acted like a government, which it is rather ill-equipped to be. Australians are probably grateful that the Council of Australian Governments does not have as much power as the European Council and Council of Ministers.

B Statal Form

Turning to statal form, the main issues I wish to explore are monarchy/republic and federalism/centralism, but the first issue is statehood itself. European political leaders seem adamant that the EU is not a state and ‘does not want to become a superstate’. This causes us to question the nature of statehood. The EU has legislative power, a defined territory, and it conducts foreign relations. Why is it not a state? The main reason seems to be that its members guard their statehood/sovereignty even as it is eroded/transformed by EU membership.

Since we do not know what a ‘superstate’ is, it is easy to dismiss, yet it is also possible to argue that that is exactly what the EU is now. It is, after all, an entity above its Member States. It is not necessary that a superstate be more powerful than a state: the EU has no army, yet its economic power is enormous. The EU has progressed from a set of ‘Communities’ to a ‘Union’, both entities of uncertain status. This uncertainty clouds its legitimacy.

Australia too has struggled to attain statehood with no one being exactly sure when the status was attained.[6] If an entity has all the attributes of a state, it should be recognised as such.

1 Monarchy/Republic

It was regarded by some as a point of difficulty that Australia could become a federal republic but with monarchical states. Professor Winterton considered this to be acceptable but that the states would come into line.[7] As it turned out of course, the proposal was defeated. One reason may have been the overlooking of the states in the proposal in line with Winterton’s thinking. The EU provides the example of an organisation with seven monarchs (three kings, three queens and a Grand Duke) and eight Presidents. Norway is the only significant monarchy in Europe not in the EU. All the present applicants are republics, though some are former monarchies where former monarchs are making something of a political comeback (eg Bulgaria). What sort of organisation can comprise monarchies and republics? One which has not addressed its symbolic sovereignty! This has its advantages but has also contributed to the facelessness and complexity of the EU. I would tentatively suggest that the EU is a republic but, if so, its democracy leaves a lot to be desired. I have suggested that the EU should consider becoming a ‘Commonwealth’ like Australia, a term which can encompass monarchies and republics and has the key element of a shared heritage and destiny.

As a republican, I am unlikely to advocate a European monarchy, but it is intriguing to consider the precedents. Europe’s monarchs were perhaps the first Europeans, bravely crossing borders to take up new kingdoms like Belgium and Greece, or marry into old ones. These days, Australia is one of the few countries with a ‘foreign’ monarch. This places us quite well to comment on what it is like. It does not seem to do us much harm. In this new era of globalisation combined with the intimacy of television, perhaps an international monarch is worth revisiting? Many Australians are seeking to exchange an international monarch for a local president.

One European precedent is the Holy Roman Empire and it is striking the extent to which the original European Community corresponded to the Empire. A President elected by the Member States would hark back to the Empire. A President elected by all the citizens would usher in an entirely new dimension of supranational democracy. It is intriguing that the (British) Commonwealth of Nations has chosen to retain the Queen of Great Britain as its head. It reminds us of the value of a monarch as a source of unity in diversity, for example in Belgium, Spain and the ‘United Kingdom’.

Christianity has been a problematic but unifying force within the Community. In Australia, religious diversity has led to the dominance of secularism, but the appointment of an archbishop as Governor-General seems to reflect a changing relationship between church and state. The churches are taking an increased role in government-funded welfare provision. There seem to be some breaches in the walls of secularism. In Europe, the battle lines vary. Christian democracy has been a force in many countries while others have a strictly enforced church/state separation. The EU is a secular entity but is inseparable from its Christian democratic roots. The admission of Turkey challenges the EU to go beyond these roots.

2 Federalism/Centralism

In Australia, we perhaps take our federalism too much for granted. From time to time, voices are raised against it but there seems widespread recognition that such a large country cannot be governed from one city. We then have the paradox that while Commonwealth power has increased through the power of the purse and decisions of the High Court, the people have refused to sanction formal increases in its legislative power.

Living in Victoria, and being married to a South Australian, I am something of a born-again federalist. Watching the drift of institutions to Sydney and the gradual desolation of Adelaide has increased my sense of Australia’s diversity and the importance of states’ different needs. The increasing importance of water politics emphasises the need for co-operation, something also recognised with the Rhine in Europe. It remains to be seen whether bringing more of the Danube into the EU will assist its health.

The European (but especially English) phobia about the ‘F’ word (federalism) is something of a puzzle to Australians. So many former British colonies have embraced federalism that one could expect the English to be better informed. The bizarre discourse in which ‘federalism’ is made in the English popular press to stand for centralism from Brussels makes rational debate very difficult. It is notable that even the recent devolutions of power to Scotland and Wales have not been described as federal. Turning to the rest of the EU, there is strikingly little federalism. Germany is the leading example, Austria and Belgium are also federal,[8] and Spain has a high degree of regional autonomy, but beyond that, the Member States are predominantly unitary.[9] The EU is now a de facto federation but a failure to embrace and constitutionalise this fact is impeding understanding and development.

An intriguing further possibility has emerged in the EU: regionalism. Even in the absence of federalism, there are many regions with strong local identities. Some of these have forged direct links with the central institutions of the EU. There is now official representation for regions at EU level through the Committee of the Regions but this lacks power. From time to time there are suggestions for regional government in Australia: the states are physically bigger than many countries and there are some strong regional identities, but perhaps it is already perceived that Australia is ‘overgoverned’ and another layer of government would only make matters worse. But centralism does seem to be a problem at state level. State capitals hold such a large proportion of the population in most states that the regions often feel neglected. The amalgamation of some local governments on either side of the Murray suggests that creative solutions to regional government in Australia are being sought, but there is more work to do.

An easing of the introduction of federalism in the EU was sought through the concept of ‘subsidiarity’- the word that saved Maastricht. This concept, derived from a papal encyclical of 1931, thus demonstrating the continuing Christian heritage of the EU, suggests that decisions should be made at the lowest possible level. This begs the question of what is the lowest possible and manages to justify action at any level. By being something that no one could sensibly oppose, it fostered agreement but it did not really provide a basis for the division of powers. Perhaps it demonstrated that a strict vertical separation of powers is undesirable and co-operation is vital. The call for subsidiarity has been picked up in Australia, especially by state and local government, but it does not seem to have captured the public imagination. It can help us think about multi-level governance but little more.

C Finance

It is impossible to separate finance from the preceding discussion of federalism. Successful federalism depends on adequate funding for each level of government. In Australia, lines of accountability have become blurred by vertical fiscal imbalance- the huge superiority in Commonwealth taxing power. In the EU, the imbalance is the other way: the EU’s budget is a fraction of those of the Member States and much of it is spent by the Member States anyway. Whereas the EU is partly funded by VAT, it is the states in Australia which are the recipients of the (federal) GST. While the EU might be even more unpopular if it levied its own taxes, this would provide greater scope for activity, visibility and accountability. The Australian states at last have a growth tax, the GST, but it seems a particularly unpopular tax. Any reduction in vertical fiscal imbalance is to be welcomed.

The EU faces a major challenge in the admission of new members from the east and south. Most are impoverished by EU standards and it is hard to see who will pay to improve their living standards. Many Australians hope that this will entail scaling back the Common Agricultural Policy (CAP). This would certainly free up some money as well as improving Australian export opportunities. The CAP is not, of course, constitutionally required in its present form. It was a pillar of the original settlement creating the European Economic Community, but has outlived its purpose. It would be impossible to apply it to the new Member States, but different treatment of old and new members would cause much resentment. Australia still manages some cross-subsidy of states. It is a necessary part of a fair federation but it seems to be confronting the EU in a very acute form.

D Rights

Finally, I wish to contrast the positions of the two entities with respect to human rights. The EU member states are all adherents to the European Convention on Human Rights (ECHR) with its court in Strasbourg.[10] These rights have also permeated EU law through the jurisprudence of the ECJ. Despite this, there have seemed to be some gaps in human rights protection, especially from the actions of the institutions themselves. It has now been sough to remedy this through the adoption of a Charter of Rights but curiously, it is not legally binding.

Australia does not have the advantage of a supranational regime of rights protection. It is a signatory to the UN conventions, but these do not have the force of domestic law in many cases. Attempts to introduce a bill of rights seem fraught with difficulty. Adherence to an existing supranational regime like the ECHR would appear easier. The treatment of asylum seekers in Australia illustrates the drawbacks of a lack of supranational human rights surveillance. By contrast the EU member states, dealing with much larger volumes of asylum seekers, seem for the most part to do so more humanely, and I suggest that the ECHR plays a role in this. Australia would benefit from adherence to a supranational human rights regime.

IV CONCLUSION

I have sought to show that the EU and Australia face some similar dilemmas in the areas of constitutional reform, statal form, finance and human rights. They have addressed these issues in very different ways, but in each they seem to have lessons for the other.


[*] Research Assistant to the Dean, Faculty of Law, Monash University. I would like to thank the participants in a seminar held at the School of Law, Deakin University- Melbourne Campus on 16 August, 2001 for their helpful comments.

[1] It is perhaps more accurate to say that Australia was established with the institutions of a state: it was established as a self-governing dominion, something less than a full state.
[2] A retirement age for federal judges is one of the few reforms to have been approved by referendum (in 1977).
[3] The most famous of these was Senator Lionel Murphy, Attorney-General in the Whitlam Labor government, effectively appointing himself to the High Court of Australia in 1975, but one could also point to the appointments of Evatt and McTiernan in 1930 and the abortive appointment of Piddington in 1913.
[4] Mabo v Queensland (No2) [1992] HCA 23; (1992) 175 CLR 1.
[5] Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[6] According to the High Court’s decision in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462. The transition from dominion to full sovereignty took place some time between the Statute of Westminster in 1931 and the Australia Acts in 1986.
[7] George Winterton, Monarchy to Republic (1986).
[8] In Belgium, the move to federalism looks like a way station en route to partition.
[9] Almost all have some regional government, but only those mentioned could be described as federal.
[10] Confusingly, the ECHR is a creature of the Council of Europe, a body predating the EU and with a much larger membership.


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