Rewriting the Constitution

| October 17, 2017

The Australian Constitution has suddenly been in the news recently on account of dual citizenship of a number of politicians. But Section 44 is not a major problem other than for the Turnbull Government’s longevity. A real recurring issue is that it can hardly be amended. This is largely due to the restrictive Section 128, requiring amendments to have a national majority and a majority in a majority of states, which all have equal powers.

Secondly, and this is not strictly a constitutional limitation, the two-party-system, in practice, is a massive hindrance to achieve majorities in referendums. The four referendums that failed in 1988 made that perfectly clear. If either major party disagrees it is impossible to get a referendum passed.

However, the entire Constitution is an archaic colonial document now that should no longer be subjected to piecemeal tinkering. It should be rewritten entirely, and not by the self-interested parties. Here is a list of shortcomings. 

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 Her Majesty’s powerful principal servant – essentially a colonial relationship. The position of Prime Minister is not even mentioned.

Secondly, it made 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. 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 fact NOT protected in the written Constitution.

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. The Constitution provides no express guarantee of a universal franchise.

Rewriting the Constitution sounds like a major task. How could that be achieved?

Conceivably, this is where the Governor-General could play a significant role. Although in practice this person performs largely symbolic tasks – again, by Convention – constitutionally the Governor-General could adopt the role of impasse breaker, even in conjunction with the Queen of Australia.

General Cosgrove could appoint a progressive committee of experts, not politicians, to draft a new Constitution for Australia, even a Republican Constitution! And this could be presented to the voters in terms of a Section 128 amendment of the existing Constitution. The idea that major constitutional change can only be initiated by the Parliament is challenged. Section 2 suggests that the Governor-General could be asked to do that by the Queen of Australia.