Not fit for purpose – re-imagining the Australian Constitution

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Those of us who have worked in the public sector know that our political system is seriously flawed.

Rarely though is the Australian Constitution cited as a source of dysfunction.

But we should not be scared of acknowledging inconvenient truths. It is.

Our Constitution poorly serves our modern, advanced democracy.

It impedes effective government.

The governmental arrangements it enforces are costly and inefficient.

It entrenches tired, partisan, oppositional politics that prevent sound policy responses to contemporary challenges, undermining public faith in our system of government.

Under the Constitution, from the time of federation, the Australian government’s powers were intentionally curtailed and set in a constant state of enervating tension with the far wider powers available to state governments.

This was not based on a compelling theory of government or a reflective judgement of what governmental arrangements would best serve the future nation. It was an artefact of 19th century British history impelled by the entrenched self-interest of the Australian colonies.

Since then, there have been regular contests over Commonwealth-state responsibilities. The multitudinous crossovers that have evolved – such as in health, education, mining, energy supply and infrastructure – are extraordinarily costly, economically sapping and retard societal advancement. The uncertainty, complexity and conflict created drains both public and private sector energy and resources.

A 2002 econometric analysis by Drummond estimated that Australia’s ‘duplicated centralism’ cost more than $20 billion per annum.¹

In a 2006 report, Access Economics estimated that, for 2004-05, ‘based upon conservative assumptions, … the higher than necessary costs of government compared with an efficient (‘ideal’) federation could be almost $9 billion …’ with the ‘broader “private” costs of inefficient federalism … perhaps substantially higher.’²

Even on what might be thought the reliable ground of providing guidance for the institutions of Australian government, the Constitution is found wanting. It makes fleeting mention of government, but nowhere adequately defines it. It contains no reference to a Head of State, Cabinet, a Prime Minister, political parties or an Opposition. These entities have been summoned into being extra-constitutionally. Even responsible government gets no mention (though the High Court has said that it is impliedly present). In anachronistic contrast, the functions of the Queen and her representative, the Governor-General, are in total mentioned more than 100 times.

Had it been literally applied our Constitution would have rendered Australia a colonial backwater and its system of government a mockery among modern democracies.

Instead, our governmental system has been able to work to support a modern state through the adoption of conventions that override significant aspects of the Constitution as well as through progressive, expansive interpretations of its provisions by the High Court.

The Constitution must constantly be prodded and nudged to cope with today’s world. The 2017 political crisis concerning the eligibility under section 44 of certain members to sit in parliament is but the most recent illustration of the point.

Unfitness for contemporary purpose should come as no surprise.

In the late 1890s when it was drafted, our Constitution could not have been framed to cope with modern exigencies. Australia’s population was then around 3.5 million and life expectancy was about 48 years. There were no cars on our roads, planes in the air, electricity to our homes, refrigerators, radios or TVs, computers or internet, women in earned positions of power, space travel, antibiotics, contraceptive pills, quantum physics, genetic engineering, pesticides, major wars across continents, nuclear or other weapons of mass destruction, plastics, cinema, surfing, international tourism, the United Nations, ASEAN, G20, EU or World Bank, feminism, robotics, satellites and global positioning, transnational terrorist organisations, microsurgery, organ transplants, decolonisation, gay rights, credit cards, Asian economic ascendency, smart phones or mass migration. Anthropogenic global warming would have been considered fanciful by all (not just some).

But beyond concerns about its contemporary functionality, our Constitution has other major flaws that ought not be ignored.

• Its power and authority is dubiously derived, unjustly ignoring the original inhabitants’ title to this land and relying on British sovereignty falsely claimed under the notion of ‘terra nullius’.
• It attaches pre-eminence to colonial British institutions, with Australian nationhood formalized as but a gift of the United Kingdom.
• Deferring to that foreign country, it fails to source power and authority (as most other nations have done) from its people.
• Racist provisions scar it.
• It omits to do what other advanced nations do through their constitutions or otherwise through legislation: set limits to government powers in order to protect its citizens; making Australia the only democratic nation not to have a national framework for human rights protection.³

Given its gross deficiencies the Australian Constitution should be recast. It is beyond patching via ad hoc referenda. Wholesale change is required.

There is, however, a tacit view that our Constitution is essentially inviolate.

Yet, in light of the recent upending of political precepts around the world, can we really be so sure about the limits of what the Australian electorate will support? Are we truly too timid to even pose the question when the benefits of wholesale reform of our Constitution are so manifest and immense?

Scott Lambert was a section manager in the schools area of the Australian government’s education portfolio.

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1. Drummond, ML 2002, ‘Costing Constitutional Change; Estimating the Costs of Five Variations on Australia’s Federal System’, Symposium on the Future of Regionalism, Australian Journal of Public Administration 61 (4): 43-56, December, p 53, viewed 18 October 2017. ↩

2. Access Economics 2006, ‘The costs of federalism’, Appendix II of Reshaping Australia’s Federation – A New Contract for Federal-State Relations (Business Council of Australia, 2006), p50, viewed 17 October 2017. ↩

3. Williams, George 2013, ‘Race and the Australian Constitution’, Australasian Parliamentary Review Autumn 2013, Vol. 28, No. 1, viewed 1 May 2017. And Williams, George 2009, ‘A Charter of Rights for Australia‘, Evatt Journal, Vol. 9, No. 3, June, viewed 7 June 2017. ↩