Australia's Constitution is archaic, irrelevant and in dire need of a more modern update, writes Dr Klaas Woldring.
THE RECENT DECISION by the High Court to declare five more MPs illegal on account of dual citizenship is most deplorable. As with the previous cases, it is a black letter approach — legalistic, costly and essentially unnecessary.
The intent of the Constitution makers in 1901, when all citizens were British subjects and Australian citizenship did not exist, was to protect the Empire from potentially conflicting foreign loyalties. None of those now found to have dual citizenship have endangered the Australian nation they represent, knowingly or unknowingly.
The High Court should have urged the government to start a completely independent inquiry into renewal of the Constitution rather than refer the matter to the Parliamentary Joint Standing Committee on Electoral Matters.
This is actually a Committee dominated by the major parties and charged with a different function. The Australian Constitution can hardly be amended. Of the 44 attempts to amend this Constitution, 36 have failed. Several other attempts were contemplated but came to naught. Since the four abject failures in 1988, governments have shied away from any further attempts.
The 1901 Constitution is an archaic document that does not serve Australia’s modern society well. Information and education about this important document has also been very inadequate.
The reasons for the amendment failures are essentially three. First of all, Section 128 requires a national majority as well as a majority in a majority of states — three majorities! However, the equality of the states, insisted on in 1900, has been adversely affected by the much more rapid growth of population in the eastern states. This is now also a questionable justification for the continuation of federation now.
Secondly, the adversarial, often toxic two-party system mitigates against change. Unless the two major parties are in agreement, an amendment has no prospect of passing.
Thirdly, the initiative for an amendment can only originate from the parliament, not from the people themselves. In practice, that means the government itself.
The drama over Section 44 inspired me to write a book about the need for a new Constitution to replace current colonial Federation created by an Act of the British Parliament. Even a cursory reading of the document soon convinces any fair minded reader that it has very little has to do with modern Australia.
The title of this short book, Yes, we can… rewrite the Australian Constitution, speaks to the fact that a sovereign people can decide to rewrite their nation’s Constitution when its amendment is all but impossible.
The pressing need for this increases as public confidence in Australia’s system of governance is at an all-time low. It is not just the two-party in-fighting and petty blame game so common in our parliaments and press interviews. In actual elections, voters are clearly shifting away from the major party blocs.
The interconnections between the problems we face are not always obvious and, as the book explains, the Westminster practice of appointing ministers from a small pool of professional politicians is not delivering the competence required to tackle them. Far from it. The pool for recruitment of top talent is extremely small and must be widened if we are to combat the challenges we face.
The country is caught in a vicious circle in terms of its governance and piecemeal tinkering has reached the end of the road. However, vicious circles can be broken when the problems they cause become obvious to everyone.
While growing public dissatisfaction is a prerequisite for reform, new ideas also need to emerge, be voiced and acted upon. These could come from a wider pool of “middle ground” minor parties and independents, drawn from the Senate in the first instance.
The current Constitution does provide scope for new initiatives coming from the senate in Section 53. Minor parties and independents could also campaign for the introduction of proportional representation in the form of a party list in the House of Representatives.
The party list is used in 90 countries around the world, including New Zealand. Our major parties don’t talk about it because they share a stranglehold on power under the current regime. However, politics exists to benefit the people of tomorrow, not the politicians of today.
The adoption of the party list system would also greatly enhance the representation of women and ethnic minorities in parliament, where they remain grossly under-represented today.
There is much more that is lacking in our 1901 Constitution, which is sorely required today. Think of the protection of the environment, for example. Not even the democratic system itself is protected properly.
Indigenous people did not count at all in 1901 and should now have a seat at the table. The Uluru decisions will not be accepted in our current frozen and archaic Constitution, but could be incorporated in a new document.
Rather than applying irrelevant, dated legislation to no good purpose, the High Court could have disassociated itself from this issue. Similar cases have come up at least five times since 1981, generating highly controversial parliamentary discussions and demands for amendment by politicians. The High Court could have refused to deal with the current imbroglio and make it clear to the government that the time for Constitutional overhaul is long overdue.
Why did it not do so? In our British-based legal system, there are circumstances when judges can make law or strongly recommend the renewal of law. Reasonableness is required from candidates in an election, so could the people not expect reasonableness from the highest judges in the land? Did any of the MPs forced from office actually endanger the security of the country?
Australia faces a more fundamental threat. Its old fashioned Constitution is no longer fit for purpose. A bold, young and forward-thinking country needs a constitution to match.
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. This article was originally published here and has been republished with permission.
The Australian Constitution poorly serves our modern, advanced democracy. Are we really too timid to attempt change? https://t.co/ewtSphPLFe— The Mandarin (@TheMandarinAU) November 18, 2017
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