Not fit for purpose – re-imagining the Australian Constitution

By Scott Lambert

Thursday November 16, 2017

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.


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.

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Klaas Woldring
Klaas Woldring
3 years ago

Brilliant Scott Lambert!. We are the on same page my friend.

The SBS has recently interviewed me on a number of aspects of the governance system in Australia. There are four short interviews below which come in the form of podcasts to start a public debate on these important issues:

1. The Republic, in response to recent statements by Bill Shorten, a very minimalist proposition. In contrast, I ask the question What kind of Republic do Australians really want? The next podcasts raise issues related to that.

2. The archaic Australian Constitution that can hardly be amended and is now in the news again on account of Section 44. I suggest that rather than trying to continue with more ineffectual piecemeal tinkering let’s rewrite the entire Constitution so that we end up with a document that is owned by the Australian people, is clear, readily understood and flexible.

3. The dysfunctional federation, also subject of several unsuccessful inquiries and reform attempts. We need a form of state which effectively decentralises Australia and is based on national and strengthened local and city government. If we want regions, by all means, but let them be functional and decided by clusters of local governments in need of joint functional cooperation instead of regional governments, parliaments and civil services. A mezzanine regional concept is suggested.

4. The Australian electoral system for most lower house legislatures is based on the single-member-electoral-districts, a variant of the British heritage. It has resulted in a very adversarial parliamentary system in which much time and energy is spent on blaming the other party. It often means that in reality the country is governed by the major faction of one of the two major parties representing perhaps 30% of the electorate. We can do much better than that and adopt Proportional Representation – Party List system as used in no less than 86 countries in the world including New Zealand since 1996. This results in coalitions representing majorities of the middle ground.

If you like what you hear in these podcasts, please spread the word. Australia needs to start debating alternative systems. We are not talking about ideologies or personalities here. That requires an open mind approach that differs from the usual current affairs discourse within the existing systems.

Klaas Woldring, Ph. D.
A/Prof SCU (ret)

http://www.sbs.com.au/yourlanguage/dutch/en/wp-content/australian-democracy-part-1-republic-yes-or-no?language=en

http://www.sbs.com.au/yourlanguage/dutch/en/wp-content/australian-democracy-part-2-new-constitution?language=en

http://www.sbs.com.au/yourlanguage/dutch/en/wp-content/australian-democracy-part-3-federation

http://www.sbs.com.au/yourlanguage/dutch/en/wp-content/australian-democracy-part-4-adversarial-voting-system

Recent Publications:

Australia Reconstructed, eBook Amazon, 2013
Beyond Federation – Option to Renew Australia’s 1901 Constitution, Amazon,Dec. 2014
How about our republic? Amazon, 2006
Australia: Republic our US Colony? Amazon, 2005

Klaas Woldring
Klaas Woldring
3 years ago

There are still people who are arguing that the Federation can or should be reformed. The Beyond Federation group disagrees with that view. The 2014 Inquiry failed, again. Start thinking about a non-federal Constitution, read our book Beyond Federation to get the essence of our arguments.

Alan Blackshaw
Alan Blackshaw
3 years ago

Well said, Scott.
There is so much missing from the constitution and so much that was based in a colonial mindset.
There is no mention of local government – leaving it to the whims of state government legislation and regulation. We have no Bill or Declaration of Rights, leaving the whole issue of rights open to debate, usually from those who mistakenly think that the rights are codified somewhere.
If iti wasn’t for the High Court giving balanced consideration to the problems presented by the document things would simply not work.

Mick Sage
Mick Sage
3 years ago

When the drafters of our Constitution in the 1890’s actively set about cementing State rights in the document, it may have been in recognition of past demonic injustices to the peoples’ freedom as expressed throughout United Kingdom and Europe for centuries. Why else did the Magna Carta come to fruition. Monarchial and religious power being centralised in a handful of related families and power bases only serviced the rare few in their favour. The birthing of a new nation of Chartists and free thinkers from all over the world in Australia challenged the English Imperialist at Ballarat goldfields 1853. The drafters of our Constitution never wanted centralised power in the hands of a few again. Beware, all of us, of European centalised power bases like the EU in Brussels and keep check on both our present political parties. What some now view as a Corporation pretending to be a parliament seems to have become a market place or auction clearing houses of our assets.

David Thorp
David Thorp
3 years ago

Australia’s constitution/governance needs drastic reform: davidthorp.net/australia

ATLANTIS
ATLANTIS
3 years ago

Thought provoking. One of many questions that arises is that as the High Court has ruled that “Terra Nullus” is void, could they rule that the Constitution is void?

State powers would have been a compromise to convince the states to actually federate in the first place

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