Constitution 2.0: a proposal for a new version of Australia's founding law

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Changing the Australian Constitution is notoriously difficult. Of the handful of changes made since 1901, none has amounted to a major revision.

Perhaps, though, a bold, inspiring proposal for the adoption of a new Constitution can succeed where proposals for modest amendments floundered.

A radical course would be to contend that, since our present Constitution lacks sufficiently legitimate foundations, its ground rules for change should not be followed and a different process for gaining public approval for a new Constitution should be employed.

Reflecting on that radical alternative, it bears noting that 241 years ago (12 years before the British occupation of Australia), thirteen British colonies broke their colonial chains and went it alone. Those colonies, through their act of insurrection — their declaration of independence from Britain — became the United States of America and rose to be the most celebrated democracy on Earth, widely regarded (at least until recently) as the leader of the free world.

Let’s assume, though, that revolutionary sentiment in Australia is not at fever pitch and that efforts to replace our Constitution must be pursued under the ground rules it prescribes.

There is no formal impediment to a referendum proposing the complete replacement of our present Constitution with a wholly new Constitution. The first and arguably highest hurdle would be convincing our representatives of the need for such action. (Set yourselves a challenge, senior executives in the Attorney-General’s Department. Senior executives in education, health, infrastructure, energy, environment and other portfolios, don’t miss an opportunity to bend your minister’s ear about how national policy outcomes could be so much easier, cheaper and better under new constitutional arrangements!)

The case for a new Constitution is compelling. The promotion of the idea requires no outlandish claims or hyperbole. Honestly and earnestly presented and argued over a period of some years, its time can come.

The key to achieving support for a new Constitution will be powerful, persuasive, sustained advocacy by a respected group of Australians. They must be perceived to be acting with goodwill and without political motive, exhibiting a commitment to public and national interest. In this context, public sector leaders can be key — both in floating the idea with their ministers and in raising related issues in public fora.

Out of that must unfold an open, public consultative process to consider in detail the content and requirements of a new Constitution; preferably with a target date for change set.

I have drafted a possible new, alternative Constitution to stimulate public discussion about our present Constitution and desirable directions for constitutional refurbishment.

Unlike our current Constitution, the alternative is cast as much as a philosophical statement as a legal framework.

Implicit in the alternative Constitution’s presentation are the conclusions that our existing Constitution is neither appropriate nor adequate, that constitutional change is now best attempted holistically and coherently rather than incrementally and piecemeal, and that Australians are sufficiently politically sophisticated to contemplate wholesale change to our nation’s foundational document.

The proposed alternative Constitution is half the length of the existing Constitution and expressed in plainer language. It seeks to cover the important matters and proven approaches addressed in the original, while introducing crucial additional provisions vital to the operation of effective, contemporary government.

There is much to excite debate in this alternative Constitution. Hopefully, productive discussion will ensue over a period of years; preferably with widespread agreement emerging that:

• While the system and practices of government in Australia may not have failed, they can surely be improved substantially under a new Constitution.
• The Australian people must become the source of the authority and power to be exercised under a new Constitution.
• A descriptive and inspiring statement (preamble) about our nation and its people merits a place in a new Constitution.
• A new Constitution provides a powerful and meaningful vehicle for ascribing due status to the ancient occupation of the land by the first Australians, and for recognising their rights and advancing their just wishes.
• The rights of the people are fundamental and warrant protection under the Constitution.
• Governmental and legislative authority ought to cascade down from the Australian Government to a subordinate level of government that is not endowed with separate, differently derived authority that stands in the way of nationally coherent effort.
• For the future, regular constitutional review and an enhanced ease of and disposition to constitutional change when a clear need is identified should be embraced.

Such a move would be an important act of nation building and a strong statement to the world of our progressive, mature and advanced society.

Notes on Scott Lambert’s proposed alternate Constitution:

The proposed Constitution is presented as the middle column in a three-column table. It is approximately 5,800 words long.

In the column to its left are brief annotations explaining or commenting on specific provisions of the new Constitution. Those annotations are not intended to form part of the proposed Constitution.

In the right-hand column is the entirety of Australia’s present Constitution, albeit in re-arranged form. It is approximately 11,300 words long. Comparable provisions in the present Constitution have been placed side by side with those in the proposed Constitution to enable a direct comparison of the respective treatment of particular matters.