Lateral thinking on constitutional reform

Australia has a backlog of issues that will need to be resolved by constitutional referendum sooner or later:

  • Indigenous recognition (especially the Voice to Parliament);
  • resolving the problems caused by archaic and unworkable parliamentary disqualification rules in section 44 of the Australian Constitution (especially dual citizenship);
  • moving to an Australian Republic (especially when the current Queen dies or abdicates and is replaced by the egregious Prince Charles).

One of the few things about which there currently seems to be bipartisan consensus (or at least shared conventional wisdom) is that constitutional referenda will almost never succeed and therefore are not worth even trying. It is certainly true that only seven eight out of forty-four referenda have succeeded since Federation (although it’s actually nine out of forty-eight if we count plebiscites and the same-sex marriage plebisurvey).  Moreover, if we focus on the last 40 years from 1977 the combined success rate for referenda, plebiscites and plebisurvey is five out of fourteen or approximately 34%.

And conservative governments have been significantly more successful in getting referenda past than have Labor governments – 36% success over the 116 years since Federation.  That appears to be partly because conservative governments tend to be less ambitious in their constitutional reform objectives and partly because Labor Oppositions tend to support even lily-livered reform efforts by the conservatives, whereas the Tories seem to be more inclined to oppose even perfectly sensible referendum proposals, often solely for immediate electoral advantage (some of the 1988 referendum proposals are classic examples).

Maybe it’s time to revisit this conventional wisdom. A success rate of 34-36% is entirely respectable. It merely suggests that governments should avoid overreach when seeking constitutional reform, and should seek compromise solutions that opposition and minor parties are willing to support or at least not oppose.

At this particular moment in Australian political history the latter is a tall order, because current political conventional wisdom also includes a belief that mindless opposition for its own sake, or more accurately to create cynically manufactured “battle-lines” that might enhance brand differentiation, is smart political tactics. But the heartening result of the SSM plebisurvey gives reason for cautious hope that the mindless oppositionism tactic may be wearing a bit thin.

Indigenous Voice to Parliament

The position of Australia’s Indigenous peoples will remain a fundamental blot on Australia’s body politic and our international reputation until it is constructively and meaningfully addressed. The last section of Noel Pearson’s recent cri de coeur in the wake of Turnbull’s rejection of the Uluru Statement from the Heart evocatively sums up the current depressing reality:

[Journalist Paul] Kelly said something startling. He understood the voice proposal was not a third chamber, and Turnbull was wrong to describe it as such. The startling thing he said was that the voice, even though only having an advisory function, would operate virtually as a veto on parliament. A body without the legal power to direct parliament would hold some sort of non-legal veto over the parliament. Really? This late in our history and here is a great old white man conjuring a great old white fear about Indigenous voices. A stalwart defender of free speech, now saying he opposes the mere expression of an Indigenous opinion, for fear it might influence Indigenous policy. Discuss.

He told me he supported recognition. I responded by saying that if not a non-discrimination provision or an institutional voice, then what is the recognition he has in mind? He said with some chagrin, I think, “I don’t know.”

Turnbull’s assertion that the Voice assembly would amount to a de facto third chamber of Parliament should have been publicly demolished and exposed as arrant, simplistic nonsense. Neither Australia nor any other advanced western nation can sensibly be described in functional (as opposed to purely formal) terms as an elected representative democracy where all have equal access to power. Turnbull asserts that the Voice would be an abrogation of this supposed democratic equality principle. However,  Australia’s sociopolitical structure is best characterised as corporatist, where major interest groups representing business, farming and pastoral industries, mining, labour unions and so forth lobby and interact with the elected government and public sector continuously and intensively. They exercise much more power and influence than ordinary citizens, pensioner groups and the like. Moreover senior politicians and public servants swap jobs frequently between public and major private sector corporations and their representative bodies. The Voice simply aims to create and entrench a body for First Nations Australians which could exert at least some of the influence (voice) that the Big End of Town already exercises with government on a daily basis through its crony connections and financial clout.

The Indigenous Voice to Parliament eventually needs to be constitutionally entrenched otherwise it could (and no doubt would) ultimately meet the fate of its predecessor ATSIC which was abolished by the Howard government in 2004. But it need not happen immediately. Although it may in some sense be a second-best option, the Voice could be created initially by ordinary legislation. Noel Pearson has apparently already canvased that option with the Turnbull government but was rejected, so presumably it is yet another important stalled reform that an incoming Labor government will need to achieve. After a couple of years of operation it would be apparent to most Australians that it was neither a third House of Parliament nor exercised a veto over political decisions. Given that opinion polls indicate that the Voice already commands 61% public support (only slight less than the SSM legislation scored in the plebisurvey), a referendum at that point would more than likely succeed even in the face of opposition from a rump of Liberal or National reactionaries.

Disqualification and Constitution s44

The slow motion debacle whereby federal MPs of all parties have been progressively unmasked as dual citizens (or entitled to the rights thereof) will continue once Parliament and the High Court resume for 2018.  Moreover, simply asserting that MPs and political aspirants will just have to be more careful is absurd, as anyone knows who has actually made a serious effort at understanding the complexities of the issues involved (potentially requiring exploration not only of candidates’ family backgrounds going back several generations, but also the esoteric legal minutiae of potentially two or three separate countries as well as Australia including relevant legal changes stretching back many decades).

Nevertheless, it is sadly clear from a dispassionate reading of both mainstream and social media that a referendum designed to remove this pointless burden on politicians would probably fail. Most other nations do not disqualify their citizens from eligibility for political office if they hold dual citizenship, nor do Australian states. But for whatever reason a very substantial proportion of the Australian public appears to think that Australia’s federal politicians should be required to jump through this legal hoop as a prerequisite to elective office.

Accepting that reality, maybe the parties could consider what is again a second best option but one that would be quite workable in my view. There should be a referendum involving a minimalist amendment to Constitution s44 which would remove the words “of being chosen or” so that the section would read:

Any person who [list of disqualification grounds including dual citizenship/allegiance, treason, bankruptcy, office of profit under the Crown etc] shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives. …

The effect would be that only a successful candidate would need to worry about dual citizenship issues, resigning from public sector employment or divesting contracts with the Commonwealth. The section would go on to provide that the successful candidate would have 3 months from the date of declaration of the polls to comply with any relevant prohibitions before disqualification took effect. During that time they would have available appropriate advice and assistance from the Australian Government Solicitor to sort any such matters out. If they failed to do so the candidate with the next highest Senate vote would be declared elected, and a by-election would be needed for any disqualified MHR. Hopefully the majority of even Australians who have a perverse taste for putting prospective MPs through a Trial by Ordeal would think that was fair enough, and hopefully all parties could bring themselves to support it given that it is very likely that all will in the near future have suffered tangibly by the operation of the section as it currently reads.

The Republic

I think a somewhat similar tangential approach to a Republic referendum could also work, but that is a topic for another article.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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13 Responses to Lateral thinking on constitutional reform

  1. Alan says:

    I agree completely with your position on the prospects for referendum success (and I’d add that the effect of the double majority is grossly overstated only a small minority for teated referendums have been lost because they did not win a majority of states) I disagree profoundly that easy minimalist solutions are likely to pass.

    Minimalism had its test in 1999 and did not fare well. Not only is minimalism not electorally advantageous, your proposal does not address one of the serious points raised by George Williams before the current parliamentary inquiry.

    Any nation that changes its citizenship laws is capable of disenfranchising our parliamentarians. That’s hardly satisfactory and hardly consistent with our sovereignty and it means, in terms of the administrative arrangements, it’s not just a once-and-for-all task at election time; this must be monitored on an ongoing basis because disqualification can arise at any point during parliament.

    Let us have some serious lateral thinking. Let us emulate the Irish and Canadians and refer Section 44 to a citizens assembly selected by random draw and ask the assembly to give us a proposal.

  2. Kien says:

    The “Voice of Parliament” seems worth supporting, but I suggest “trialling” it. Speicifically, give it a 20 to 5o year period, at the end of which it would automatically expire unless renewed by referendum. The Aboroginal community ought to have greater voice, and it would be interesting to see how they exercise that Voice of Parliament.

    I have a theory that the discovery and occupation of the New World by peoples from the Old World enabled (initially European societies) escape the Malthusian trap. New World wealth that poured into Europe via Spain helped foster the Enlightenment, widespread literacy, and eventually greater democracy. People from the Old World owe the people of the New World a great debt. If there had not been any New World, human history might look quite different: a cycle of wars and peace with no change to living standards.

  3. Moz of Yarramulla says:

    If we had a reasonable parliament made up of people trying to do the right thing, the s44 reform would be easy and obvious. But parliament can’t even agree on what a reform should look like, so blaming the population for not supporting a non-existent solution is very parliamentary.

    There’s always something stupid going on in federal parliament, so there’s never going to be a time when everyone agrees that the representatives in Canberra should be given a break. Look at the Centrelink robodebt debacle and tell me the people responsible for that deserve to have their lives made easier. I feel sorry for some of the ones caught, but as the global conservative id keeps telling us “most of them are bad people”.

    I’m not the right person to speak to the Voice proposal because I was unprintably offended by the response. They asked for input, they got a much better response than they deserved, and then they spat in the faces of the people they’d gone to and asked for help. After that any whining from MPs about discrimination and difficulty is just not acceptable.

    This Canadian report has some interesting points, not least its comments on Australia :) https://lop.parl.ca/content/lop/researchpublications/bp359-e.htm

  4. Klaas Woldring says:

    Hi all,

    Isn’t it high time that we stop with considering minimalist solutions in relation to Australia archaic colonial Constitution, and the piecemeal tinkering with federation which has been totally ineffectual for 117 year, and look at underlying causes of a lack of constitutional reform.
    So start talking about Rewriting the Constitution. Surely a sovereign people can and, at times, should assert its sovereignty rather than be ruled from the grave by a 1901 document that was put together to unite six British colonies. That time is now. The nonsense about Section 44 demonstrates it again.

  5. Re citizenship ‘definitions-tests ‘some of these problems can’t be unique to us,how do other democracies deal with it?

    • Alan says:

      While most Commonwealth countries have equivalents of Section 44, every other version of Section 44 requires some voluntary act on the part of the dual citizen. India is typical:

      101(1)(d)if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

      • Thanks – that seems a quite reasonable provision.

        • Alan says:

          One of the stranger things about this debate, where some but by no means all people are moved by pure nativism, is that the Australian constitution does not require Australian citizenship for members of the Australian parliament.

          I’ve argued above for an inclusive process that addresses all the problems of Section 44. Among those I’d suggest guaranteeing the right to vote and requiring Australian citizenship to stand for the parliament.

          It is also surprisingly common for countries to give the vote and parliamentary eligibility to non-citizens. British and Irish citizens can vote and be elected to each other’s parliaments. France and Germany celebrated the signing of the Élysée treaty by granting mutual citizenship. A large number of Commonwealth countries, including Britain, grant all Commonwealth citizens the right to vote and be elected.

          • “the Australian constitution does not require Australian citizenship for members of the Australian parliament.” Can you explain?

            BTW Is it true that back around 1901 we were all automatically British Citizens?

            • Alan says:

              34. QUALIFICATIONS OF MEMBERS

              Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:
              i.he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;
              ii.he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

              The qualifications for parliament are now in the electoral act. Almost all democratic constitutions at least guarantee the right to vote and be elected.

              • Bizarre.
                Curious- what would be the situation if a MP’s actual birth parents suddenly appeared in his office and they turned out to be Lebanese ‘citizens’?

              • Alan,

                Not sure if your objection is that the current rules are legislative and not constitutional, but you do have to be a citizen to stand. From the Electoral Act 1918:

                163 Qualifications for nomination

                (1) A person who:

                (a) has reached the age of 18 years;

                (b) is an Australian citizen; and

                (c) is either:

                (i) an elector entitled to vote at a House of Representatives election; or

                (ii) a person qualified to become such an elector;

                is qualified to be elected as a Senator or a member of the House of Representatives.

                (2) A person is not entitled to be nominated for election as a Senator or a member of the House of Representatives unless the person is qualified under subsection (1).

  6. BTW
    Re “a very substantial proportion of the Australian public appears to think that Australia’s federal politicians should be required to jump through this legal hoop as a prerequisite to elective office.”
    That was probably true back in mid 2017, but are we sure that is still the case?

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