This referendum folly is as mad an idea as I have heard in years. Dutton must rule it out

Reports that Peter Dutton is considering committing a Coalition government to hold a referendum to give ministers the constitutional power to deport criminal dual nationals come as a surprise. After the emphatic defeat of the Voice in 2023, one would have thought the last thing Australians want from the next parliament is the distraction of yet another ideologically inspired constitutional referendum.

At the time of writing, neither Dutton nor any of his frontbench had confirmed any details of the story, published exclusively in this masthead. If the idea is under discussion, it is a very bad one. Dutton should rule it out, and fast.

Peter Dutton has reportedly proposed a referendum which, if carried, would give ministers the constitutional power to deport criminal dual nationals.Credit: Alex Ellinghausen

The idea behind any such referendum would be to overturn the 2022 decision of the High Court in Alexander v Minister for Home Affairs, when the court ruled that amendments to the Australian Citizenship Act, enabling the minister to revoke the Australian citizenship of dual nationals, was invalid.

I have a close interest here because three of the judges who decided the case were appointed on my recommendation. When deciding on the name to take to cabinet for an appointment to the High Court, my simple criterion was to choose the most legally eminent person. I did not apply any ideological test. However, as a constitutional conservative, I only considered people whom I expected to be strong upholders of the independence of the judiciary against over-reach by the executive government.

That principle should be an article of faith for any conservative, yet there are still many on the political right who demand an ideological test for appointees. As the sorry recent history of the US Supreme Court shows, great damage is done to constitutional government when public confidence in the independence of the highest court dissolves in partisan frenzy.

As is obvious from the decision in “Alexander”, and a number of later citizenship cases, those judges did evince a willingness to constrain executive power (not that I had any doubt that they would). When “Alexander” was delivered, I was glad about the result. I also felt quietly vindicated in the legal advice I had given cabinet at the time about the constitutional risk the amendments to the Citizenship Act presented.

A referendum to overturn the High Court’s decision has no chance of success.Credit: Alex Ellinghausen

A referendum to overturn the High Court’s decision has no chance of success. Labor has already said it would oppose it. As we saw in 2023, a referendum proposal without bipartisan support never succeeds. Opposition would not just come from Labor. Just as many prominent Liberals took a different position from the federal opposition on the Voice (including almost every state leader), so would many Liberals campaign against it, in defence of the conservative constitutional principle of the independence of the judiciary. Many would see it as an attack on the autonomy of the High Court.

Among the long litany of failed constitutional referendums (all but eight of 45), there is one in particular which should give the opposition pause: the Menzies government’s defeat at the 1951 referendum to ban the Communist Party. Unlike all the others, it is the only constitutional referendum to have been mounted by a government for the specific purpose of overcoming a decision of the High Court.

The Coalition went to the 1949 election promising to ban the Communist Party; the legislation to do so was the first item of business when the new parliament met. The Communist Party Dissolution Act (which passed the Senate with the support of the ALP) was successfully challenged in the High Court, which struck it down by a 6-1 majority. Menzies decided to call a referendum to give parliament the constitutional power the court had held that it lacked.

The referendum was the great political event of 1951. It divided both sides of politics. Labor split between those who followed the Labor leader Doc Evatt in opposing the referendum, and the conservative Catholic MPs (who would later formally split the party and form the DLP) who supported it. Many prominent Liberals also campaigned against it. Many Liberal-voting families were divided, including the Howard family. John Howard told me once that while his father supported the proposal, his mother was strongly opposed.

Although the referendum was widely expected to pass easily – a result predicted by opinion polls, then in their infancy – it was, to the shock of the government, narrowly defeated. (The national vote was 50.6 per cent to 49.4 per cent against; it achieved a majority in only three states.)

The result was not, of course, a vindication of the Communist Party; it was a vindication of political freedom. It was also an expression of the public’s respect for the High Court, and misgivings about politicians thought to be subverting its decisions.

The 1951 referendum is commonly regarded as the great stain on Menzies’ liberal escutcheon. It undoubtedly damaged his reputation. What is overlooked by historians is that until the 1949 election, Menzies had always opposed the banning of the Communist Party, on orthodox freedom of speech principles, in the face of pressure from the right wing of his own party and, more stridently, from the Country Party. When his party room adopted the policy at a meeting in April 1948, the Daily Telegraph reported that Menzies had spoken in opposition.

There is no reason to believe that the Daily Telegraph had any greater commitment to accuracy in 1948 than it does today. However, on this occasion it was right. Later that year, at a private lunch at 10 Downing Street, Menzies confided to the British prime minister, Clement Attlee, that he did not privately agree with his party’s new, more illiberal position.

Nevertheless, as party leader, he led the fight and, thank goodness, he lost it. It was probably his worst mistake. It was also instructive. In later years, after the Labor split strengthened Menzies’ political position and the Petrov defection elevated yet further public concern about communist treason, he resolutely resisted attempts, led by the voluble anti-communist W.C. Wentworth, to have another referendum.

Menzies had learnt from his mistake. Dutton should learn from Menzies’ mistake, too.

An unwanted referendum, without bipartisan support, to overturn the High Court? It is as mad an idea as I have heard in a long time. If it is indeed under consideration, that consideration should stop right now.

George Brandis is a former Liberal senator and federal attorney-general and also served as Australia’s high commissioner to the United Kingdom. He is now a professor at ANU.