Time to breathe life into an archaic constitution
Friday, November 19, 2010 at 5:02 PM This article by Klaas Woldring was first published by the National Times, digital web magazine of the Sydney Morning Herald, on 17th November 2010 - there were 40 comments by readers on 17/11 and 18/11.
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Avoiding meaningful action on constitutional change seems to have become the stock in trade of major party politicians. The republic has been removed from the public policy agenda, replacing federation has again been obviated by means of "co-operative federalism" and now indigenous recognition in the Constitution has been referred to a committee.
While support for such recognition of indigenous Australians can be gauged immediately and proven overwhelmingly in a plebiscite, a more pressing issue is how can Australia renew its antiquated governance framework altogether? The Constitution is demonstrably archaic and no longer a living document. If the Gillard government approached that much broader issue with a panel of citizens, including a few progressive constitutional lawyers, her government's place in history would be assured. If the political will was there, such a panel could tackle the Republican issue at the same time and present a strategic plan and process within six months.
Do Australians wish to endure another 110 years of ineffectual piecemeal tinkering with this costly, undemocratic and inflexible document? The last minor adjustment was in 1977, two years after two state premiers ignored convention and appointed senators opposed to the Whitlam government to Senate positions vacated by ALP members, effectively giving the Fraser-led Coalition the numbers to block supply. The Whitlam government was then sacked by the governor-general, John Kerr.
A sovereign people can rewrite its Constitution at any time. That is the essence of its sovereignty. The people's representatives should live up to that need when required. That is their role and long overdue task.
There are plenty of understandable reasons, however, why politicians shy away from major and even minor constitutional change. One is, of course, that the record is dismal, just eight of 44 proposals passed, and let's not mention all the proposals over the years that failed to get bi-partisan support. Governments want to avoid another failure but surely this procrastination is not getting the nation anywhere.
Another impediment to change is that the people themselves have no power to initiate amendments and the process of successful amendment is, therefore, dependent on agreement between the major parties – which is rare in the Westminster adversarial context. In reality, the Constitution is frozen in time and is only amended very occasionally, often of necessity, by at times dubious interpretations of High Court judges. They have to decide, "creatively", what the founding fathers may have meant with certain clauses meaningful around 1900 but not now.
Very few commentators seem to realise that the two party tyranny, which voters are beginning to reject at last, is itself a major factor that has prevented the updating of the Constitution since 1910. This situation was cemented with the Commonwealth electoral acts of 1918 (preferential voting) and 1924 (compulsory voting). After that, minor parties and independents rarely achieved representation in the House of Representatives.
The amendment clause, Section 128, not only reserves the initiation power to politicians but also immeasurably strengthens the federal compact as for amendments to pass, it requires majorities in a majority of states (in addition to a national majority). Many proposals failed on this requirement. Attempts to change this, for example by the Whitlam government, from at least four our of six to three out of six, failed.
The nature of federalism has changed dramatically since 1900, and even more since WWII, with many well-informed voices arguing that Australia needs a new government structure. This was even anticipated by prime minister Alfred Deakin in 1902 and more fully explained in 1942 by Law Professor Gordon Greenwood. Donald Horne in 1977, again, made a well-argued plea, after the constitutional debacle of 1975, that Australia had to rewrite its entire Constitution.
The federal government now receives some 82 per cent of consolidated revenue and has major responsibilities in many crucial public policy areas. A new structure should increase effective decentralisation rather than concentrate more power in Canberra. Many community groups and local government associations have already discussed this. It requires a sensible transitional process to dismantle the six states and strengthen local government and regional auxiliary structures. Different models are available but require much more articulation by scholars and the media and, of course, political action by major parties. Neither of them have a strategic plan of action or plan for a popular decision process by means of intermediate plebiscites and subsequent referendums.
After a strategic process of appropriate consultation the existing Constitution can be replaced with one new package, even via the existing Section 128. Instead of continuing to waste time on adversarial point scoring over minor issues our representatives should embark on long overdue action.
Avoidance, escapism and procrastination need to be replaced by political will and action. Australians need a living document, a Constitution that is meaningful to the citizens of today, and owned by them. Yes, we can and yes, we should, and yes, we must!
Reader Comments (3)
How refreshing to read Klaas Wolring's article on updating our constitution.
We have one of the most dysfunctional and centralised systems of governance in the democratic world.
Not only does this involve Canberra-centric policies, but then a second layer of centralised control at WA State level that is woefully inadequate for the regions of this massive landmass.
The poor services of the Pilbarra are an example.The constitution gives the States statutory responsibility for running the country but the Federal Government has most of the money: in this mismatch of responsibilities and resourcing lies billions of dollars annually of wasted funding, duplication, blurred accountability and inefficiency.
Surveys show that the Australian people are more interested in deep changes to our governance, thoroughly canvassed across the nation, than minimalist amendments that further centralise our system.
Our constitution has frozen us at a moment in our colonial past.
Let's begin an urgent national conversation about refederating Australia into system of regional governance that is meaningful for today.
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Thanks, I'm going to have nightmares tonight.