The Australian Republic Movement has been silent on the need for major constitution renewal.
The reason for that no doubt is that it is considered to be too difficult given the many failed constitutional amendments. This article proceeds from the position that the many failures could well be a major cause to block the Republic proposal. Who wants a Republic with a dated essentially colonial and barely amendable Constitution? Australia has moved on 25 years and its system of governance is increasingly being questioned by the voters, especially the polarised two-party system.
The existing 1901 Constitution is practically almost unamendable. It is also not well known. The failed Voice Referendum provided a telling demonstration of that. Forty-four proposals have resulted in just 8 successful changes. This is partly due to Section 128. Attempts to change this section have also failed. Therefore, updating, piecemeal tinkering with the existing set of rules, is not the way to go. In particular, a Republic with this Constitution makes no sense. What Australia needs is a real Republic.
A new draft needs to be approved by an ordinary majority of citizens. Conservatives may argue that it should also be approved by a majority of states (Section 128) which has been a major stumbling block in the past. Of course, today’s citizens reflect the values and interests of today’s society, but the federal structure has remained. Possibly, many would wish to maintain the federal structure, at least for the time being. Therefore, voters should be given the opportunity to vote for an entirely new Constitution while agreeing that the special conditions of Section 128 should be disregarded. A separate vote on this particular issue, at the same occasion, would facilitate a perfectly democratic outcome.
Regrettably, very few people are familiar with the Constitution. Today’s citizens are vastly different from those of the late 1890s. Australia is an independent diverse country comprising a huge number of migrants and their offspring, from countries other than Britain. And those who are of British origin are also very different from the citizens of the six colonies in 1901. The British empire is history, but the Constitution does not reflect that. There is separate legislation that established Australia as an independent state (1986) but desire for a Republic surely requires a new modern Constitution. There are several governance issues now that didn’t exist in 1901, which developed in the 20th century. They won’t be fixed by establishing a Republic based on the existing Constitution.
The result of the failed Voice Referendum particularly demonstrated the polarised nature of the Australian Parliament, essentially the result of the Single Member District electoral system. We should remember that the 1967 Constitutional amendment to include Indigenous people as Australian citizens in the Constitution was NOT opposed by the Opposition party. On the AIATSIS website one reads:
“On 27 May 1967, Australians voted to change the Constitution so that like all other Australians, Aboriginal and Torres Strait Islander peoples would be counted as part of the population and the Commonwealth would be able to make laws for them. A resounding 90.77 per cent said ‘Yes’ and every single state and territory had a majority result for the ‘Yes’ vote. It was one of the most successful national campaigns in Australia’s history. Thousands of people worked on the campaign and achieving the ‘yes’ was a huge victory, signalling a change in the mindset of Australia’s majority. It opened the door to First Nations Australian agency, bringing to light many strong leaders and organisations, and the expectation that things could be different. Change was possible, and they were willing to fight for it.”
A serious attempt to review the Constitution was made by a Government appointed Commission in 1988. Its members were: Sir Maurice Byers QC, Professor Enid Campbell, Hon. Sir Rupert Hamer, Hon. Justice John Toohey, Hon. E. G. Whitlam, QC and Professor Leslie Zines. The Commission was assisted by a number of expert advisory committees. It deliberated for two years.
This was an extensive examination and the need for it was not in doubt whatever. Economic management, distribution of powers and human rights were given much attention and quite detailed recommendations followed. In the end, the question of what could be put to the people in a Referendum as another serious attempt to “update” the Constitution, with some hope of success, was a vexed question. Considerable debate occurred as to the legal capacity to change the Constitution altogether, outside Section 128, as the Constitution was still “encased” in British constitutional law and practices.
The role of the (British) Australia Act (s) of 1986 gave rise to much discussion among constitutional lawyers but it was inconclusive. The following four questions were finally put to the voters in 1988.
1. Constitution Alteration (Parliamentary Terms) 1988 proposed to alter the Australian constitution such that Senate terms be reduced from six to four years, and House of Representative terms be increased from three years to four years. It also proposed for the fourth time that Senate and House elections occur simultaneously.
2. Constitution Alteration (Fair Elections) 1988 proposed to enshrine in the constitution a guarantee that all Commonwealth, State and Territory elections would be conducted democratically.
3. Constitution Alteration (Local Government) 1988 proposed to alter the constitution so as to recognise local government (actually contrary to federal theory and practice).
4. The Constitution Alteration (Rights and Freedoms) 1988 proposed legislation that sought to enshrine in the Australian constitution various civil rights, including freedom of religion, rights in relation to trials, and rights regarding the compulsory acquisition of property. Initially, three of the proposals, put by the Hawke Government, had tentative bi-party support for these proposals, but this was withdrawn altogether during the campaign. In the end, the Coalition parties opposed all four proposals.
The highest national vote was 37.6 % for the “Fair Elections” question. Once again it was the polarised Opposition, a result of the Single Member District electoral system, that stopped significant reform.
However, following this failure a number of academics and a few political journalists started making various cases for rewriting the Constitution altogether.
Journalist David Solomon, as well as academics George Williams and Helen Irving attempted to move away from piecemeal tinkering.
The shortcomings of the Constitution are many and require a bold and comprehensive approach to change. Eminent people are available to immediately start on this task. A responsible Government would gain much credit for doing so. Reporting on their progress would generate enormous media interest with the people also learning a great deal more about the Constitution, the electoral system and the specific issues at stake. Currently, the Constitution is seriously out of touch with reality. The text of the Constitution it is premised upon an understanding of the Westminster system of government operating in the U. K. in 1901. It also doesn’t serve the economy well. Women are not protected by it. The Indigenous people played no part in making it – they were assumed to disappear somehow. It doesn’t deal with climate change. Political parties and elections are hardly dealt with. As constitutional Professor George Williams explained: ” The symbols provided by this Constitution are those of a Monarchy of another country of which Australia is a sub-ordinate overseas dominion”.
Klaas Woldring is a retired A/Prof of Southern Cross University and was active in the ALP in the 1980s, when he twice stood for the federal seat of Richmond, based on Lismore.
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