Unsurprisingly, very few Australians have any interest in their Constitution. It was designed in the closing stages of the 19th century by mostly older white men (no women were involved) for a “horse and buggy” era. It is an awfully dull document, originally an Act of the British parliament, intended to persuade a gaggle of recalcitrant colonies to come together into a federal compact. In contemporary Australia there is no serious educating of citizens about the extent of federal powers, the complexities of federal-state relations, whether the Constitution is truly protective of human rights, and just how adaptive it is to the challenges of the contemporary world.
The original intention of the Constitution was to entrench the pre-eminence of the states while maintaining a subordinate central government as a coordinating mechanism within the federation. However the Constitution has been turned on its head by factors like: High Court interpretations over time favouring Canberra over the states; the need for the Commonwealth to assume income tax powers during war-time (since maintained); sweeping global changes that have bestowed on the federal government’s “enumerated powers” far greater salience than ever anticipated by the founding fathers; and a growing majority of citizens who identify as Australians rather than as members of any particular state. Today the states are subordinated to Canberra – and will ever be so.
The notorious Section 44 (i) of the Constitution stipulates that anyone who is “under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power” cannot sit in the federal parliament. In contemporary multicultural Australia that wording is offensively irrelevant; its removal is an urgent necessity.
But this is not the only element in the Constitution that is corrosive of democracy. Section 51 (xxvi) is arguably the most egregious part of the Constitution because it empowers the federal parliament to enact legislation that discriminates against peoples on racist grounds. In that direction lies fascism. The Section should be expunged from the Constitution forthwith.
There are other major flaws in the Australian Constitution that are undermining democracy in this country, alarmingly.
The 2017 Uluru Statement From the Heart made an excellent case for a First Peoples’ Advisory Council protected from the whims of politicians by placing it in the Constitution. This will give Indigenous Australians the constitutional recognition they need to advance in a country that has long imprisoned them at its socio-cultural, economic and political margins. Turnbull’s swift dismissal of this most important proposal was a total surrender to notorious prejudices staining this country’s collective conscience.
“Then of course, the Constitution is largely silent on human rights. This means that the defence of human rights is largely left to the Human Rights Commission. The Commission does a very good job. However, as we have seen over the past couple of years, it remains vulnerable to attacks from viciously ideological politicians with particularly blunt axes to grind. It’s time for an Australian Human Rights Act whose relationship to the Constitution needs to be debated.
And then there is that great ramshackle mess that we call Australian federalism. State governments are the boils on the backside of the Australian body politic. They are the costliest, most incompetent, most inefficient, most corrupt, most pettifogging, and certainly most unnecessary jurisdictions in the country. State and territory boundaries are arbitrary lines on the map, bearing no rational relationship to regional communities, geographies and economies. The crazy proliferation of state and federal laws and regulations exacerbates the red tape maze that people have to wade through to get anything done.
Many over-paid state politicians come from contemporary equivalents of Britain’s eighteenth-century rotten boroughs; they thrive on parochialism and populism. (This is especially the case of MPs in the states’ upper chambers.) What leadership talent there is at state level should be at the service of the nation as a whole. Meanwhile some of the smaller states (e.g., Tasmania) are disproportionately represented in the Senate in a manner that is democratically dysfunctional. If we are able to abolish state governments the country’s democratic credentials would be greatly improved and our budgeting woes will be over.
Finally there is that very important constitutional challenge: the republic. Without its own head of state, Australia is a democracy-manqué – an infantile state pretending to be a grown-up democracy. The pretence is now so flimsy it is laughable.
It is difficult to identify any statesmen or women among the current crop of federal MPs who could spearhead a constitutional reform movement across the country. But there are citizens of good will and high intelligence outside the parliament who could be brought together in a citizens’ constitutional convention, to review and renovate the Constitution. We should keep this convention MP-free.
The first task of the convention must be to engage with all Australians, providing us all with first-class, accessible and interesting civics education programs to nurture our understandings of the constitutional arrangements within which we live, and how those arrangements could be improved to benefit us all.
It’s time for comprehensive constitutional change in Australia.
Dr Allan Patience is a fellow in political science in the University of Melbourne.