ALLAN PATIENCE. It’s time for a constitutional reform commission

Jan 11, 2019

Acting on references from attorneys-general, the independent Australian Law Reform Commission and its state government equivalents review and recommend reforms to existing laws, and/or identify where new laws are necessary. When it comes to the Australian Constitution, the highest level of law in the country, the case for an independent constitutional reform commission along similar lines to law reform commissions has never been stronger.

In a recent article (“Our federal system is broken,” The Age, 3 January 2019), Professor John Hewson noted that Australian federalism is “still dominated […] by structures set in place against the background of the issues and choices of the 1880s.” He listed a number of anomalies that are inhibiting good governance in this country, including:

– health and education (two of the most important areas of social wellbeing) that remain the responsibility of state bureaucracies, but which are shadowed by a federal department which essentially funds them, resulting in ridiculous duplications and time-delays

– the Great Barrier Reef, a national and international treasure, is in the dubious domain of the Queensland government

– people charged with crimes committed in one state who have fled interstate have to be extradited across state borders – at considerable cost to tax payers and to justice

– there are problematic disparities in the criminal codes of the states, in industrial relations laws, and in workers compensation and insurance arrangements

– the GST carve-up is an unholy mess: the revenues it raises should never have been given to the states to squander

– there are parochially-focused payroll and land tax competitions among the states which undermine the national interest

– the shift in the role of the Senate (“the last refuge of the scoundrel”) from a “states’ House” to “a complex mix of state, regional, party and ideological interests”

Meanwhile former deputy Prime Minister Tim Fisher and others have drawn attention to the fiscal and governance disaster that is the Northern Territory. While a few brave souls in the NT still think statehood is the way to go for that region, with its long history of racist, red-neck and rogue populism, Fisher et al. have proposed its incorporation into the state of South Australia (“Centralia” anyone?). That is a possibility, but such a move should be a temporary measure as the country reviews its entire federal make-up.

These factors and more add up to a pressing need to establish a permanent, independent constitutional commission made up of appointed legal experts, political scientists and elected community representatives. Someone of the calibre of Professor AJ Brown at Griffith University, a leading expert on the federal system, should lead the commission.

The commission’s role should be four-fold:

(i) Democracy/Civics education

There is an urgent need to develop sound civics education curricula for schools across Australia (at primary and secondary levels, and for citizen-voters) to richly inform people, young and old, about the virtues and advantages of democracy and to encourage informed democratic participation in public policy making. Most existing civics programs are either neglected or are ponderous and dull. They have the alarming tendency to turn people off the understanding that a healthy democracy is vital for their interests and the interests of the country as a whole. Past attempts to reform civics curricula have ended up as fodder for the maddeningly quixotic warriors in the culture wars. A fresh approach is now needed.

(ii) Political fact checking

The commission should routinely monitor claims by all state and federal politicians, and by parliamentary committees, about matters of fact and interpretation, providing an authoritative on-line public benefit that reports on the truthfulness, accuracy and honesty of politicians’ and committees’ statements, reports, use of evidence and recommendations.

(iii) Federal reform

As John Hewson and others before him have shown, the existing Australian federal system is outdated and shambolic. It can be counterproductive for national security, the economy and society as a whole. Its most serious – potentially fatal – flaw is that in all sorts of ways it is fundamentally anti-democratic.

The commission would need to initiate a series of nation-wide conversations about incrementally reforming the federal system. The aim would be to produce an Australian democracy that is more effective and inclusive than the existing antiquated federal-state arrangements. This must include a legislated charter of human rights and freedoms. Incremental reforms could begin with the states ceding crucial powers to the commonwealth – initially, health and education, eliminating those bureaucracies at state level (the cost-savings alone would be vast).

The incremental process should work towards the replacement of the states by regional (or local) councils based on real community interests and solid geographical and economic grounds. The chairs of those councils could provide the membership of a new senate in the reformed commonwealth government. Tim Fisher’s proposal to merge the Northern Territory and South Australia could be another step along the incremental road. Along the way, Tasmania and Victoria should also be merged.

In the meantime, in order to get the federal politicians out of the so-called “Canberra bubble”, the two Houses of the commonwealth parliament should spend at least half of their sitting times meeting in different capital cities, taking the opportunity to meet with local leaders and community organisations and to learn first-hand about the challenges those leaders and organisations face. At times the federal cabinet has operated in this way, paving the way for the federal parliament to do likewise.

(iv) The republic

The fourth function of the constitutional commission must be to initiate and sustain a national conversation about the Australian republic. Once a firm advocate of the republic, as prime minister Malcolm Turnbull said it would be inappropriate to debate the issue while the present Queen is on the throne. This simply added to the confusion about the the republic among Australian voters. It’s time for clarity. It is inevitable that Australia will one day become a republic – hopefully sooner than later and hopefully for good reasons rather than historical necessity.

Rather than leaving it to the vagueness of a monarch’s longevity or the celebritisation (to coin a word) of pampered junior royals, the national conversation that Australians need to have about an Australian head of state needs intelligent and well-resourced leadership – a role that a constitutional reform commission could play very successfully. John Menadue has made a timely call for a national summit to promote democratic renewal in Australia (P&I, 9 January 2019). A constitutional reform commission should be high on the agenda of that summit.

Allan Patience is a Melbourne-based political scientist.

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