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Australia’s locked Constitution

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Australia's Constitution is locked in the 19th Century — almost impossible to change and totally out of step with the needs of a modern Australia, says Dr Klaas Woldring.

Australia Reconstructed (Part Five)


1899 Anti-federation cartoon in The Daily Telegraph: resistance to Federation then can be seen as being in much the same vein, and from roughly the same quarters, as objections to updating the Constitution now.

The Constitution – why not rewrite it?


[Read Part One: The Australian party system and proportional representation]

[Read Part Two: Australia’s woeful Westminster System]

[Read Part Three: Improving on Federalism]

[Read Part Four: Towards workplace democracy]

Very few Australians know much about their Constitution.

If they know something it is mostly how it works approximately ― not what is wrong with it, even less how that could possibly be fixed. It is no doubt important to find out why this is so, which is a complex set of factors to be sure, but not the focus of this short article.

Although the existing Constitution was an achievement in 1901, it now presents a set of ground rules that are antiquated and mostly dysfunctional. To the extent they are useful, they could easily be incorporated in a new Constitution.

To try to amend and update the 1901 Constitution has proved to be almost impossible. Since World War II, the major parties have avoided essential amendments, or have ingeniously circumvented the Constitution or used “creative” High Court decisions to provide workaround solutions. But, as Professor Cheryl Saunders has remarked, there is a limit to how much today’s judges can creatively imply what the “founding fathers” in the late 1890s may have meant with clauses relevant to those times.

Of course, it is important that the Constitution reflects the values, ways and ambitions of contemporary society? What society would allow itself to be governed from the grave ― especially one that has changed as much as Australian society in the last 112 years? This Constitution is not a set of historic fundamental laws, such as those that govern the UK ― which has no written constitution otherwise, a highly exceptional case. This is an independent country, a federation with a written constitution dividing powers and functions between constituent units that have changed dramatically in its 112 years of existence.

The ineffectual piecemeal tinkering is no solution; quite the contrary. If the major parties are too uninterested to drive change, the people themselves will need to get organised. Some community groups and individuals have, in fact, emerged in the recent decade with proposals to reconstruct Australia constitutionally, but the media have largely avoided giving them oxygen.


What is wrong with the current constitution specifically?

1. The Constitution describes Australia’s status as that of a British dependency ― a situation that, for all practical purposes, ended in 1945 after WWII. The position of the Governor-General is that of Her Majesty's powerful servant. It is essentially a colonial relationship.

2. The Constitution made provision for a federation, a structure of state, which made good sense in 1900, but that now a costly hindrance to effective government for a mere 23 million people. Local Government is not even mentioned in this Constitution. It has no formal relationship to the national government.

3. The Constitution makes no mention of political parties ― the reality of the political system. As a result of the single-district electoral system, which exists separate from the Constitution, an inefficient two-party system has developed.

4. Parliamentary democracy, often praised in Australia as a positive Constitutional feature, is in fact NOT protected by the Constitution.

5. The Constitution has no Bill of Rights ― making Australia the only Commonwealth country that has no such statutory protection for the rights of the Australian citizens.

6. The Constitution makes no provision for the reconciliation with, nor the representation of, the Indigenous Peoples.

7. The Constitution makes no provision for the protection of the environment; a new value that, most would agree, needs to be expressed and safeguarded.

8. The position of women and the issues of equality between the sexes and of gender in Australian society are not addressed anywhere in the Constitution.

9. The Constitution makes no provision for the election of a diversity of representatives to the two Houses of Parliament, either nationally or in the States —hardly reflecting a multicultural society.

10. The Constitution makes no provision for the appointment of Cabinet Ministers from outside the legislature, as is allowed in most European countries and in the United States. As a result, Governments are frequently lacking in quality and expertise ― an obvious cost to the nation.

11. Very few people are familiar with the Constitution. Most who study it find it a seriously flawed, archaic, document and don't understand why we still have it. The people have no sense of ownership of it whatsoever. Young people very often don't even know that it exists.

12. It is practically impossible to amend the Constitution.

13. Many leaders in the corporate sector of Australia are rightly very disenchanted with this Constitution. The Corporation Power in Section 51 concentrates on foreign corporations. The power to use this clause  for "trading or financial corporations formed within the limits of the Commonwealth" has been controversial and only sparingly used.

The states regulate corporate affairs, with major differences between them ― a costly and frustrating situation.

14. The Constitution does NOT state that the Government derives its authority from the people's sovereignty, which is the very essence of a democracy ― and that of a Republic.

15. The Constitution does not elaborate on the nature of popular and national sovereignty and does not provide guidance as to how, for instance, economic sovereignty is to be safeguarded and promoted in a globalised world. For a medium-sized state with riches that are eyed by many foreign transnational corporations, a Constitution should spell out what the role of government is in this area. It should protect economic sovereignty.

16. The Constitution is embedded in several constitutional conventions (usages), which are open to a variety of interpretations. Conventions should ALL be codified for them to be widely accepted.

17. “Neither the Constitution nor the Commonwealth Electoral Act, 1918 nor the electoral Act of 1924 provide for democratic elections – a century of delusion”.This is the title of an article by Dr. Anthony Gray, S.L. in Law, USC. As written, “the Constitution provides no express guarantee of a universal franchise,” he claims; this was left to the federal parliament. Gray is quite right in arguing that the two main Federal electoral acts of 1918 (preferential voting) and 1924 (compulsory voting) have favoured the Coalition and the ALP ever since; as such, they demonstrably prevent democratic elections. “Delusion” is the correct word to describe this situation.


Why is it so difficult to amend the constitution? 

There are basically three reasons:

Section 128, prescribing the constitutional amendment procedure, requires a triple majority for a referendum to be carried. This has proved to be a formidable barrier for updating a Constitution that was aimed to be “democratic” and “flexible” in the late 1890s. Unless the major parties agree passage of a referendum is virtually impossible.

Secondly, the right of initiative to generate a constitutional amendment lies exclusively with the politicians in Australia — another serious handicap. The failed four constitutional referendum proposals in 1988 demonstrated that again abundantly.

Thirdly, probably the most important but least mentioned: the adversarial two-party system itself. The culture of opposing the Government suggests that major party agreement can only be achieved on very rare occasions.

Despite these challenges, the Constitution should be rewritten to reflect the nation we are today. Limping on with the current locked document is becoming less and less a viable option as our nation – and the world – changes rapidly around us.

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