Politics Opinion

Australia's vicious constitutional cycle needs to be broken

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Australia's Constitution was drafted in a different time before Australia became the inclusive nation it is now (Image by Dan Jensen)

The results of the Voice Referendum serve as a reminder that Australia's Constitution is archaic and in need of reform for us to move forward, writes Dr Klaas Woldring.

THE PARTICIPATION of the Indigenous people in the colonial Australian Constitution of 1901 has been blocked by the “No” vote.

Surely, this is an additional reason why Australians urgently need a new constitution. The idea of a treaty can be incorporated into that. It would also be entirely desirable if Australia is to become a republic. It has been almost impossible to change anything in this colonial Constitution for over 123 years. The vicious cycle needs to be broken. In the meantime, measures aimed to improve the situation for the Indigenous people should be legislated as soon as possible.

Australia as a colony is one of the few modern countries where the colonisers were not forced to go home after WWII. The British, the French, the Dutch, the Belgians, the Portuguese, the Spaniards and the Italians had to leave their colonies; these became independent countries. Australia is an exception because it had a much larger British population than the smaller Indigenous local population and was settled somewhat like the United States and Canada.

Strong European migration after WWII further strengthened the permanency of the settlers. Increasingly, the country also became more multicultural as a result of more recent Asian, African and Pacific immigration. The uniqueness of this development demands an altogether new approach that incorporates the Indigenous population.

In practice, the First Nation and their historic connection to local land areas is already widely recognised. However, constitutionally, this is not the case at all. The failure of the Voice Referendum has continued this lack of constitutional recognition. The Albanese Government can make a mark of renewal.

The recent campaign for the Referendum has undoubtedly also provided realities that need to be addressed. The knowledge of the problems and history of Indigenous people in the wider society is seriously inadequate and superficial.

Furthermore, the teaching of governance systems generally and the Australian Constitution has had low priority. Objective and comparative political education in Australia at high schools and universities has often been perfunctory. Rapid improvements in this situation are essential. It is not just how it works, but also, even more so, what is wrong with it and how it can be improved.

The existing Australian Constitution has become archaic. Modernising proved virtually impossible. The Constitution was written in the late 1890s for White colonial settlers from Britain; it deliberately avoided Indigenous people altogether. It is completely inadequate for this now-culturally very diverse modern society. Many constitutional lawyers are well aware of that but have been unable to convince major parties and governments to address these many constitutional issues. The Government should appoint a specialist committee to rewrite the entire Constitution and abandon further piecemeal tinkering.

The single-member district (SMD) electoral system is responsible for an oppositionist, polarised governance culture that produces two opposing parties in lower houses. The result is that the opposition party's principal task appears to be to find arguments against government initiatives.

Most Australians do not realise how utterly negative this aspect is. In countries that have proportional representation-party list (PR-PL) systems (85 of them), the parliamentary cultures tend towards cooperation with a larger number of parties forming majority government. The result is a more democratic and fairer system than what we have now in Australia's multicultural society. The Indigenous minority of 3.8 per cent clearly has no hope at all of representation via the existing principal electoral system.

The ignorance of some voters has affected the Referendum negatively. They were advised to vote “No”. Even after the loss of the 1999 Republic Referendum, it was found by a major Senate Inquiry in 2003 that lack of knowledge of the issues was a major cause of the loss of the Republic Referendum. Regrettably, this did not result in greater emphasis on political education.

Racism was, of course, another reason, also based on ignorance. A first step to improve objective political education could be taken by the ABC via TV and radio. What is needed are impartial explanations of how the governance systems work. Discussion of existing alternative systems is even more important. There is a good deal of ignorance about this in Australia. This has blocked reform for far too long.

Some people argue that the introduction of PR-PL, to replace SMD, could be regarded as unconstitutional and/or would require a referendum to effect such a change. That is highly unlikely. The Government may decide to introduce it after a positive referendum, as happened in New Zealand in 1992. However, this is not a requirement.

The drafters of the 1901 Australian Constitution were content for the Parliament to make most of the decisions as to how it should be elected. In several clauses where the electoral system is mentioned, the Constitution states that the Parliament is to legislate to organise elections. This can be seen in the sections regarding the Senate — 7, 9, 10, 13 and 15 (amended in 1977 following abuse of “conventions" about replacing retiring senators). And for the House of Reps — 24-27, 29, 30, 31, 33 and 34.

It is frequently stated there, ‘until the Parliament otherwise provides’. Remember also that political parties were not even mentioned at all until 1977 after the constitutional drama in 1975.

Dr Klaas Woldring is a former associate professor at Southern Cross University and former convenor of ABC Friends (Central Coast).

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