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Bushfires and COVID-19 crises reveal need for constitutional overhaul

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Updating and improving the Constitution is a must to deal more effectively with crises, such as the one we're currently engulfed in (image via pxhere).

The bushfires and the COVID-19 pandemic have produced grievances about our government, which is a good reason to review the Australian Constitution, writes David Muir.

THE COVID-19 PANDEMIC shows it is vital that our federal system of Westminster-style government works.

Prime Minister Scott Morrison has reportedly expressed his desire to formalise the ad hoc “National Cabinet” process established to manage the current coronavirus crisis. But deeper constitutional changes are well justified.

In pandemics — as in bushfires, floods or cyclones — lives literally depend on how well our different levels of government carry out their individual and shared responsibilities.

That is why the otherwise dry subject of constitutional reform needs to be placed on the national agenda when the current crisis is resolved, if not before.

The Real Republic Australia advocates for an Australian republic, with a head of state elected directly by voters, as well as updating our Constitution in other respects.

We have proposed that these changes should be discussed and shaped through a long-term work plan overseen by the Federal government to give Australians a chance to be involved before any proposed changes are put to them at referendums. The need for such a plan and process is now more urgent.

The current pandemic underlines the need to ensure all governments have clearly defined roles and responsibilities in emergencies.

The Australian Constitution — written in the “horse and buggy” era —has long needed “workarounds” to travel the roads of our modern world.

Commonwealth powers are limited largely to the powers outlined in Section 51 and Section 52. Section 51 lists 39 “heads of power” on which the Federal government may legislate. But states may also pass laws on many of the same subjects, with Section 109 providing that federal law overrides that of any states if they conflict.

Section 52 outlines powers exercised exclusively by the Federal government — largely those granted to the new national government by the former colonies at the time of Federation.

These sections make it clear that the Federal government is in charge of defence, foreign affairs, currency, immigration, quarantine, and even lighthouses and weather observations.

But they are silent on federal involvement in education and science, the environment, roads, and aviation — all of which have required workarounds that depend on the goodwill of the states.

Local councils and the grassroots services they deliver can be critical in times of a national crisis, yet they are not recognised in the Constitution. That means there can be barriers to the direct federal direct funding for essential services and projects, again requiring workarounds.

The use of the words 'until the Parliament otherwise provides' in several sections of our Constitution has also provided neat workarounds.

For example, the original quorum for the House of Representatives was one-third, as required by Section 39 'until the Parliament otherwise provides'Legislation in 1989 changed the quorum figure to one-fifth to make it more workable.

Section 39 requires the “presence” of those MPs, and when it was drafted more than 100 years ago, that meant having MPs physically in the House of Representatives chamber in Canberra — showing how far the nation's founding document has fallen behind the internet age.

Section 117 forbids discrimination against a resident of one state against a resident of another state. So when we consider the border closures in the current crisis, could a case be made for discrimination against travel based on one’s state of residency?

And recently, Federal Treasurer Josh Frydenberg dodged a Section 44 bullet about his eligibility to be an MP.  

Imagine the turmoil of having him stand down in the middle of the coronavirus crisis, with the need for the massive financial response measures we have seen delivered already.

The inclusion of the words wording 'until the Parliament otherwise provides' in some sections of our Constitution shows its drafters were comfortable for MPs alone to amend it in some respects.

Traditionalists, who cling to black-letter interpretations of the Constitution to resist any changes in the belief that its drafters possessed unparalleled wisdom and vision, would do well to consider those five words. Clearly, those who wrote the Constitution never meant it to be set in stone.

Parliamentary amendments are easier to make compared with the “double majority” needed for a referendum to succeed — a majority of votes in a majority of states.

The need for change and for considering change never disappears and applies to our Constitution. We should not tear it up and start with a blank page. But, equally, we should be open to discussing possible changes to ensure our Constitution reflects modern Australia.

At a bare minimum, the relevant responsibilities of our various levels of government must be clear — especially in times of widespread natural disasters and biological threats.

The current crisis should not be an excuse to postpone consideration of constitutional changes, but a reason to start that very process including the consideration of an Australian republic.  

On that note, a directly elected head of state outside of the political playing field would provide a unifying presence in a national crisis such as the ones we have endured in recent months.

We should view the bushfires and coronavirus as wake-up calls. If we establish a clear constitutional reform process that involves Australians in debating and making necessary changes, then ultimately it can deliver a more coherent, effective and responsive system of government.

That process will logically be a long-term one, perhaps running over several terms of our Federal Parliament.

But the end result will be a Constitution that reflects modern Australia while ensuring as much as possible that its citizens are protected in times of national and international peril.

David Muir is chair of the Real Republic Australia which advocates for an Australian republic with a directly elected head of state.

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