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Stop tinkering and rewrite the Constitution

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Piecemeal tinkering with the Australian Constitution is no longer an option, says Dr Klaas Woldring — it must be fully rewritten.



There is much to be praised about Australia today, but a society, organization, physical body, or machine, is only as strong as its weakest link.  Tinkering with the governance systems of the past is no longer a sound solution—in fact, quite the contrary. Thinking of the Australian Constitution updating is hardly possible—the latest update was way back in 1977 when political parties were finally recognized, although the party system was already a reality in 1910.

There are several reasons for that, which has to be seen in their totality to comprehend that another century of piecemeal tinkering would be foolish. At present, two constitutional changes are before the federal Parliament:

(a) removing clauses to remove discriminatory elements against Indigenous people (long overdue); and

(b) recognition of local government in the Constitution (which was first unsuccessfully attempted by the Whitlam Government in 1974).

The latter has only qualified support from the Coalition. Clearly, this brings into play the essence of the federation and federal-state relations—another huge unresolved issue. Neither major party has an answer for that. There is a very strong case for replacing the federation altogether, but the current political establishment is firmly wedded to the past and refuses to bite the bullet. Frankly, a new national identity in governance attitudes is called for.

Section 128, prescribing the constitutional amendment procedure, requires a double majority for a referendum to be carried. This has proved to be a formidable barrier for updating a Constitution that was aimed at being “democratic” and “flexible” when written, in the late 1890s.

Furthermore, the right to initiate a constitutional amendment lies exclusively with the politicians in Australia—a serious handicap. Most importantly, the Westminster system is based on two adversarial parties as if there are only two sides of politics. Concurrence between these parties on anything is hard to achieve. The failed four constitutional referendum proposals in 1988 demonstrated that abundantly.



However, frequently not mentioned as a barrier is the single-member electoral district system, that grossly favours the major parties in that it makes it virtually impossible for smaller parties and Independents to get a foothold in the House of Representatives. The Commonwealth electoral acts of 1918 and 1924 cemented this system in place. The essence of this problem is hardly understood by the people, and rarely given attention by scholars and the media. Unless the major parties agree on a constitutional amendment it will be futile to put it to the people. Agreement is so rare that only 8 out of 44 proposals have been accepted. Many other sensible proposals never made it to the referendum stage.

The key to unlocking that potential for a new national identity, therefore, is a major change to the electoral system. However, this would not just create a political climate that would favour constitutional change, but also, ideally, a preparedness to completely re-write the constitution. There are several other reasons why a new electoral regime is required: but one of the main ones is that the current political establishment should be replaced by one with a much greater diversity of political interests, and indeed herald a new political culture that would renew the trust and inspire the voters.

Much has changed in Australian society in the last 110 years but the political system has not. Contrary to what some theorists argue – that a paradigm shift requires a complete breakdown of the old order – there are several national examples where major constitutional change has been initiated and achieved in circumstances of relative calm and reflection. Examples of these are Canada, Sweden and Finland. Australia can do this as well. It would seem that the right time and the opportunity is now.

Republic Now! has made a submission to the Panel of Experts who are again considering mounting a referendum to include Local Government in the Australian Constitution. If you are interested, this is the link to our submission, which can also be found on their website. The recently report by the Panel of Experts and their recommendations can be found here:

http://www.localgovrecognition.gov.au/

 
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