Breaking from the past: A new Australian Constitution?

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In his new book, Where to, AustraliaGraham Paterson advocates for a new Constitution that recognises Australia's modern political and cultural character.

PATERSON'S BOOK, Where to, Australia, is a contribution to resolving the issue of the lack of constitutional change in Australia. He introduces the need for an entirely new Constitution, an essential strategy for success. Paterson frequently describes the existing Constitution as 'Section 9 of a British Imperial Act'.

Section 9 of this Commonwealth of Australia Act stated that after 1 January 1901, the colonies of New South Wales, Victoria, South Australia, Queensland and Tasmania would be united and known as the Commonwealth of Australia. Western Australia agreed to federate in a referendum held on 31 July 1900, two weeks after the Act was passed.

After Federation in 1901, Australia still had constitutional ties with Britain, particularly in matters of foreign policy and defence. Since then, the British and Australian Parliaments have passed a number of statutes which have progressively given the Commonwealth greater constitutional independence. In 1942, the Federal Parliament passed the Statute of Westminster Adoption Act which meant Australian laws could no longer be over-ruled by an act of British Parliament. In 1968 and 1975, the Federal Parliament passed acts that limited and then ended appeals from the High Court to the Privy Council.

The Australia Act, in 1986, removed all remaining legal links between the Australian and British governments.

However, it has been almost impossible to amend this Constitution. Moreover, the author argues that this is not a peoples' Constitution at all.

The book starts with extensive 'Background Notes for developing the Draft Constitution', followed by the 'Discussion of Contents and a Preamble'. There is a lot of criticism of the adversarial Westminster system and of the fact that the real power lies with the politicians and lawyers, rather than with the people.

In part one, 'Discussion and Debate', there are 25 chapters in all. In Part two, another nine chapters of the actual draft Constitution follow. In part one, chapter seven, the novel concept of an Australian Council is discussed. It is described as 'a small workable group of eminent people' (p. 65).

This group is something like COAG, formerly the Premier's conference, but with a greater advisory capacity. This Australian Council would take the place of the current Governor-General representing the British Monarchy. Some of its suggested functions are currently exercised by the High Court. Also proposed is a federal executive which looks much like the federal cabinet.

There are other interesting reforms. For example, the idea that referendums should be initiated by the people and that there should be two classes of referendum: constitutional referendums and other referendums. The latter would only require an ordinary majority. However, strangely the constitutional referendums would still require a national and states' majority. This has been a major cause of failure. A great innovation, though, proposed is the five-yearly review of the new Constitution. Also interesting is the elimination of career politicians, by limiting their number of terms of office.

While there is much discussion about political problems, the causes are only partly identified. There is no mention of Australia's electoral systems, especially the single-member district system, as a cause of the toxic adversarial nature of Australia's two-party system. Furthermore, the many problems flowing from Australia's federal system are not analysed. Although briefly discussed in part one, Federation is regarded as too difficult to change. In fact, additional states are suggested instead of abolishing Federation.

Paterson doesn't seem to understand the essence of a federation: divided sovereignty between the federal and state governments. There are not three levels of government, as he claims. Local government is the second level of state government and is not a function of the federal government. He wants to boost local government (pp. 60 and 61) by making it part of the national government. This would require abolishing federation.

There no discussion about the special position of Indigenous people an issue that came up recently following the Uluru recommendations. There is no mention either of the importance of the growing multicultural society — how a new Constitution should recognise, protect and reflect this diverse society. The role of women and human rights in the political process generally need to be recognised and protected. If change was to lead to a Republic, which is hardly mentioned in this text, why continue with a two-party system that is proving increasingly problematic? Why continue with a federation that adds to division and costly delays in national decision-making?

The advocacy of parliaments adopting legislation only on the basis of a 2/3 majority is highly contentious. The essence of democracy is ordinary majority rule because we are all equals in decision-making. A finely balanced Parliament in the Westminster mode would soon be stuck. Similarly, he recommends for a proposed new High Court that its decisions should always be unanimous.

The Westminster practice of selecting government ministers from elected MPs only, meaning that many Ministers are functional amateurs, is not mentioned in this text. Actually, in spite of serious misgivings about the Westminster system, the Constitutional draft presented in the final section of the book (beginning on p. 193) is in fact still a Westminster-style government but no longer initiated and delegated by the British Imperial Government.

Nevertheless, Paterson's book suggests a total rewrite of the Constitution. This is very important as the piecemeal tinkering has resulted in almost persistent failures. Only a minority of constitutional lawyers have made serious attempts to recommend governance changes. Fewer still combine it with the need for a new electoral system, for example, proportional representation and party list (used in 90 countries); and the replacement of federation with a much more suitable, decentralised system of unitary government. If Australia is to have a new Republican Constitution, we have to make sure that such reforms are part and parcel of it.

This short review could not do justice to Chapter 4 of the proposed new Constitution concerning finance, trade and commerce as it required more space and expertise.

Graham Paterson, Where to, Australia?, Strategic Book Publishing Rights Agency, 2018. 

Dr Klaas Woldring is a former Associate Professor at Southern Cross University. He is a committee member of ABC Friends, Central Coast.

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