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:

¹ 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 ² 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.

1. Journalist Paul[↩]
2. list of disqualification grounds including dual citizenship/allegiance, treason, bankruptcy, office of profit under the Crown etc[↩]