The Australian Constitution is Broken and Out of Date – We Should Abolish It and Start Again!
The debacle over Section 44 of the constitution, which has already seen two MPs leave the Parliament and threatens to bring down the Government, shows the document has outlived its use-by date.
Even the Prime Minister said this week the constitution was not meant to be read literally.
Like some latter day Christian reformer, Malcolm Turnbull is trying to squeeze living relevance out of a document that has had its day.
It’s a sad reflection on Australian society that it wasn’t until the constitution threatened the very comfortable livelihoods and privileges of MPs that the chattering classes started to say the constitution — well, that bit at least — was a bit of a joke. Really?
Sections 25 and 51 allow for government to make laws explicitly on the basis of race — and no one in power seems to have given that much more than a shrug.
The original inhabitants of the continent, who have never ceded sovereignty, don’t even rate a mention.
And the country is carved up by (mostly) straight lines dreamed up by 19th century British imperialists.
Backlog of constitutional problems
On Wednesday night, former prime minister Bob Hawke weighed in with the old festival favourite he brings out every year at Woodford in Queensland.
“I’m going to be true to myself and mention what I have on many occasions — that if we’re going to optimise the chance for democracy to be effective in this country, we’ve got to get rid of the constitution we’ve got,” he said in conversation with Annabel Crabb.
There is now a huge backlog of serious constitutional issues that need dealing with — Section 44 is the least important.
The general public will see it as nothing but venal self-interest if the only tinkering done with an outdated document is to sandbag the careers of well-paid MPs.
Of qualitatively higher order priority is a treaty with Aborigines and Torres Strait Islanders; a voice in parliament for Indigenous Australians; the establishment of a democratic republic; abolition of the states; recognition of local and regional government; and a bill of rights to secure citizens’ freedoms against bureaucracy, big business, and fickle government administration.
We need a commission
Constitutional scholar Professor George Williams told me it was vital there was a clear process to get constitutional change.
“At present there is no consistency or strategic planning — just decisions based on ad hoc policy,” he said.
“As a result, there has been no change in the constitution since 1977 — and no government has taken a proposal to referendum for 18 years.”
Professor Williams said just like Australia had a Law Reform Commission, we needed a Constitutional Commission to “listen, educate and put proposals to the electorate”.
“Such proposals should be put to a constitutional convention every 10 years. It should become a regular feature of public life,” he said.
The problem is that in the business of fabricating national identity everyone is expected to pretend that constitutions are quasi-religious documents handed down from mountain tops by “founding fathers”, rather than what they really are — a mutually agreed political balance of power to guide the nation.
The French way
The French have little such truck with religiosity when it comes to their constitution.
They know it was written by human hand and can be reworked when needed.
France is now governed under the fifth iteration of a constitution since its republican revolution and in this year’s presidential election the left-wing candidate, Jean-Luc Melechon, claimed nearly 20 per cent of the first-round vote with a promise to abolish the fifth and establish a sixth republic.
Australia needs to face up to the fact that the constitution is broken and can’t be changed by tinkering at the margins.
The only way forward would be new territory for us but is common in many other countries — the election of a constituent assembly that has full power to draft a new constitution to take to the people for endorsement.
Marcus Strom is a Sydney journalist and media advisor.