Government by seven High Court judges and the black letter of the Constitution

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High Court in session (image via

The enormous confidence that the Turnbull Government is placing in the capacity of the High Court to decide whether MPs have violated Section 44 is questionable.

The "black letter" approach that the conservative Court has adopted looks like a most unwise decision. Several of the MPs now removed could hardly be seen as in any way active citizens of another country. While they may not have checked this situation properly, any danger to Australia of having this dual nationality is completely fanciful. It may have been more sensible and fruitful to insist on having the second nationality cancelled forthwith.

Section 44 of the Australia Constitution Act has taken on a very different meaning than was intended in 1901. At the time, all citizens of the British Empire living in Australia were formal citizens of the new colonial Federation and all other residents were foreigners.

That the Australian Constitution has been in the news recently over the dual citizenship of a number of politicians, is in itself a very good thing. One major question that this raises is: Does the effective power on critical issues such as this rest with the High Court or the Parliament? Interpreting a Constitution that is clearly an archaic document has its severe limits for proper governance. It is high time that Australians begin to understand this and question why this is so — and then to realise that remedies need to be generated urgently.

The Constitution is in need of a complete overhaul rather than any further piecemeal tinkering with occasional amendments. Section 128 of the Constitution has turned out to be a very restrictive amendment procedure — even quite contrary to the intentions of the founding fathers in the 1890s. In addition, the adversarial two-party system produced by the single-member-district election system meant that referendum proposals need to be supported by both major parties to be accepted. This is frequently impossible.

The four referendums that failed in 1988 made it perfectly clear how difficult that is and has been on many occasions. Governments shy away from Constitutional referendums constantly. The recent Indigenous conferences and proposed resolutions knocked back by the hapless Turnbull Government, are the most recent example.

The Constitution needs to be rewritten entirely — and not by the self-interested parties. The list of shortcomings is very long. The special situation here that the Constitutional court is required to also keep the Federation in place – a feature of any federation – adds to its power to just about govern the nation. However, maintaining the Federal system is in itself of very questionable benefit, as it has proved to be costly and productive of serious delays in infrastructure development. Contrary to what defenders claim, it has not resulted in effective decentralisation either. Many unitary states in the world are more effectively decentralised.

Here are some examples of shortcomings in the Australian Constitution Act:

  • The Constitution describes a status of dependency on Britain — a situation that for all practical purposes ended after WWII, in 1945.
  • The formal position of the governor-general is that of the monarch's powerful principal servant — essentially a colonial relationship.
  • The position of prime minister is not even mentioned.
  • There is provision for a Federation – a structure of state – which made good sense in 1900 but is now a costly hindrance to effective government for a mere 24 million people.
  • Local government is not even mentioned in this Constitution.
  • It hardly mentions the existence of political parties — the reality of the political system.
  • There is no bill of rights — the only Commonwealth country that has no such statutory protection of the rights of the Australian citizens.
  • It makes no provision for the reconciliation with and representation of the Indigenous Peoples.
  • It makes no provision for the protection of the environment — a most important new value.
  • It makes no provision for the election of a diversity of representatives to the two houses of parliament. This hardly reflects a multicultural society.
  • The position of women and the issues of equality between the sexes and of gender in Australian society is not addressed anywhere in the Constitution.
  • It makes no provision for the appointment of cabinet ministers from outside the legislature, as is the case in most European countries and in the United States.
  • It does not state that the government derives its authority from the people's sovereignty.
  • It 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.
  • It is embedded in several constitutional conventions (usages), which are open to a variety of interpretations.
  • Parliamentary democracy is in fact not protected in the Australian Constitution.

Dr Klaas Woldring is a former Associate Professor at Southern Cross University. He taught at the School of Political Science (UNSW) with Donald Horne from 1973–1975.

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