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Delegates at the 1890 Australasian Federation Constitutional Convention. (Image via aph.gov.au)

Australia's Constitution is stuck in quicksand and needs to be revamped to be able deal with our modern challenges as well as provide true democracy, writes Dr Matthew Mitchell.

Distinguished Constitutional law expert, Professor George Williams, describes Australia as the “Frozen Continent” — as in frozen in time; stuck in quicksand. A continent and people stuck with a Constitution that has hardly changed in over one hundred years. 

Professor Williams sums up our situation as follows:

'Australia was regarded as a leading innovator and moderniser in 1901, but the tag has long since slipped. We lag behind many other countries and are now seen as having one of the most static systems of government in the world.'

And he explains why this has happened:

'The cause of our predicament is not a series of false steps, but inaction. We have failed to sufficiently update and improve the good system of government we gained more than a century ago. It is as if, having built Australia on the foundation of a new constitution in 1901, the task finished and there was no need for renovation. Without coups, revolutions or other social and political upheaval, we have been happy to leave things be and focus on other priorities.'

Part of the trouble is that, whilst our constitution and political system has remained frozen in time, everything else in the world has moved on. 

Media ownership is much more concentrated now than it was 100 years ago, large multi-national companies manipulate governments and policies globally seeking the best deals for themselves, and our political framework has not protected us from a massive loss in manufacturing ability and some of the highest house prices in the world.

In terms of human and citizens’ rights we might also be going backwards.

Justice Professor Cheryl Saunders describes these rights as follows:

Civil and political rights provide a framework within which people can participate as equals in a democratic community, subject to the rule of law.

They include, for example, the right to vote, freedom of speech and protest, personal liberty, the right to property and various guarantees of fair treatment, both generally and under the criminal law. Many of these rights require restraint on the part of governments in exercising the authority of the state.

A second category of rights comprises economic, social and cultural rights: to housing, to education, to health care, to employment, to live in accordance with your own customs and traditions. Many of these rights require positive action on the part of governments in managing the resources of the state.

A third category of rights, which are likely to become increasingly important, concern the environment. These require positive action on the part of the state as well.

Then Justice Saunders suggests more needs to be done to protect these rights:

The Australian record is far from perfect, however. On this ground alone, the Australian approach to rights protection deserves critical scrutiny.

Nor can Australia afford to be complacent about maintaining even present standards of rights protection.

The Australian approach relies heavily on a political culture that respects rights. Political culture changes over time and Australia does relatively little to reinforce the understanding of the significance of rights and the willingness to give them priority that such a culture requires.

Justice Saunders then points to ways in which constitutional change may help:

Famously, the South African Constitution has experimented with a way of effectively protecting social and economic rights, with promising results.

And in 2005, the Constitution of France was amended to include a Charter for the Environment, which commits the state to public policies that protect sustainable development.

Certainly the challenges facing our Constitution have not passed unnoticed.

Attempts to cope to some degree with the changes taking place have led to the tweaking of our State and Federal constitutions in a variety of ways, some of which seem dubiously undemocratic – such as the recognition of local governments, despite failed referendums on these issues – and others ridiculous — such as the creation of a Queen of Australia.  

Attempts to seriously fix the problems – such as the recent proposed referendum on local government – fail partly due to political reasons, partly due to mistrust by electors and perhaps partly because,  in the end, they are at best a patch up job.

There is of course, one other major issue that needs to be addressed. That is the issue of Indigenous recognition and rights.

The High Court’s Mabo decision, which recognised that Australia was not terra nullius when discovered, but asserted the right of British rule anyway (and the subsequent Native Title Act) suggests that this is not an issue that can be dealt with honestly within our existing Constitution and its legal framework.

Currently, there is a push to change the constitution to recognise Indigenous Australians, but perhaps recognition does not really go far enough. Perhaps we need to recognise and entrench Indigenous rights, including the right to self-determination, in the constitution. 

Self determination would give Indigenous communities final say over the resources in areas populated mainly by Indigenous people. That is not to say that those Indigenous communities should be abandoned by Australians more broadly. Of course if they need help they should receive it, just as anyone should help a neighbour in need. But I am suggesting that we not just recognise past Indigenous sovereignty, but actually reinstate it in appropriate parts of Australia.

So it seems the issue of Australian Constitutional change in relation to Indigenous recognition, a republic, heads of state, and protection of rights – both human and economic – all need to be addressed. Thus the need for fundamental constitutional reform.  

However, to be accepted at referendum, it seems essential that any constitutional proposals are seen as legitimately representing the People’s interests, not the interests of politicians or corporations. Thus the creation of an accepted process for constitutional change is critical for success.

In relation to the changes themselves, perhaps we should consider Swiss-style direct democracy, which has allows the Swiss people to vote on issues such as immigration, urban sprawl and family policy

In fact, only a few days ago (February 9) a referendum was held in Switzerland in which over 50% of people voted for new immigration restrictions.

The Guardian explains the referendum and its outcomes as follows: 

'The vote, organised by the arch-conservative and Eurosceptic Swiss People's party, raises the prospect of Switzerland having to quit the Schengen system, which it joined in 2002, and its citizens forfeiting passport-free travel across most of Europe. Brussels may also demand the renegotiation of several bilateral agreements with the Swiss regulating the neutral country's access to Europe's single market.'

But such is the messiness of democracy, it seems. Particularly when it operates in contradiction to other political agendas. Of course, the alternative these days seems to tend towards nicely managed autocratic or corporate states (given the global absence of well-meaning and wise statespersons).

In relation to Australia, other suggestions I have heard include a Grand Jury as the final arbiter and interpreter of the Constitution (rather than the current High Court, see the Eureka Rebellion) and perhaps, instead of a single person as head of state, a committee of people who oversee the operation of parliament and are charged with maintaining the independence of our systems of law and government.

With these and other changes, Australia may once again lead the world in democratic governance.  And who, knows, then Australians might be able to address many of the other critical problems we face as a society, include those highlighted by 60 independent experts in the UN report with the telling title: 'Wake Up Before It’s Too Late'.

Read also managing editor David Donovan's Project Republic and the bee-sting clause.

Creative Commons Licence
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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