116 years of hindsight: principles for a new Australian Constitution

By Scott Lambert

Tuesday November 28, 2017

In a previous article I made the case for the wholesale recasting of the Australian Constitution. Given a fresh opportunity, what kind of Constitution should we fashion?

Our existing Constitution is turgid and legalistic. A new Constitution should be written in fresher, plainer language, allowing it to be embraced in a direct way by all Australians, as well as learnt and appreciated in schools.

A new Constitution should expunge references to and roles for the former British overlord. It should expressly derive its authority from Indigenous and non-indigenous Australians together. That would secure constitutional legitimacy and achieve meaningful reconciliation between settler and original Australians.

A new Constitution should state who we are as a people, the things we value and the vision we have for our country; positioning us as a society, proclaiming to the world what we stand for and providing guidance for our future development.

‘Australian values’ are often cited by those who have not embraced the rigour of defining what they are.

Surely our nation-defining document should put flesh on the bones and declare our valuing of Australian society’s freedom, diversity, openness, harmony, heritage (notably Indigenous), fairness, egalitarianism, democracy and peacefulness.

Restructured for accountability

A new Constitution should state that the overarching purpose of government is to serve the people; to promote their wellbeing and betterment and to enable them to lead fulfilling lives. It follows then that the purpose of our Constitution should be to promote good governance to that great end.

On the basis of historical happenstance Australia has six states whose interests were intended to be represented in the national parliament’s ‘upper house’.

For the ‘lower house’, single member electorates and preferential voting perpetuate the dominance of the Labor and Coalition parties – despite nearly a third of electors in 2016 giving their first vote to a candidate not representing those two major players.1

Usually, the composition and disposition of the two chambers of parliament differ markedly, with the upper house frequently frustrating the will of the lower house.

Democratic fidelity would be achieved were both chambers to be composed of representatives whose views truly and proportionately reflected those of the electorate. The voting pattern of one chamber would then reflect the other, rendering one superfluous and logically leading to a unicameral parliament.

Across innumerable areas of government, neither the Australian parliament nor its state equivalents have unequivocal and final authority. Jurisdiction is frequently contested politically, fiscally and legally. No organisation could operate that way, but our nation is obliged to. Logically, the national government ought to have final authority over the governments of the nation’s component parts.

A new Constitution ought to promote a higher standard of political debate, more honesty and authenticity in the utterances of our political leaders, more responsiveness to the community’s wishes, less rancour, more collaboration among our representatives, and less reactive and more effective public policy making.

Contemplate the possibility that, in a new national, unicameral parliament, all elected members are deemed to be members of the Australian government and are not permitted merely to toe a party line but are instead obliged independently to judge issues on their merits and to vote accordingly – somewhat akin to the obligations placed on company directors. Constructive contribution to the business of government would grow. Habitual spoilers or oppositionists would lose electoral appeal.

A provision requiring members of each new Australian government to vote secretly in the election of ministers and a prime minister would raise the possibility of particularly able candidates from minority groupings attracting support for leadership positions based on perceived personal capacity rather than party background.

Regional government subordinate to national need

Instead of states and territories, the creation of regional governments throughout Australia would provide government able to respond to local needs and preferences. Of roughly equal size, each of the 30 regions would currently serve approximately 820,000 citizens – of about the right order to be sufficiently local and efficient.

Each regional government could be comprised of a total of 25 local members across five multi-member electorates.

A neat and vibrant nexus of regional and national government would be achieved if those regions were also to constitute the electoral units from which members of the national parliament were to be drawn. Each region could constitute a multi-member national electorate from which six members of the Australian government were elected according to a proportional voting system, yielding 180 members.

The Australian government would have unequivocal, final authority over the regional governments, ensuring a nationally consistent and coherent approach as required.

The three-year (maximum, mostly less) terms of our current federal parliament militate against sustained action to address long-term, major challenges like climate change.

Under a new Constitution, both the Australian government and regional governments would be given fixed five-year terms, with elections synchronised across the two levels.

Consistent with calls by Aboriginal and Torres Strait Islander leaders, a First Nations voice would be established to advise government.

Local councils would continue to function, but not as ‘governments’ with powers to enact statutes or raise revenue, but rather to represent, advocate for and act on behalf of communities and to provide input into governmental processes above them.

Election and other donations to parties and individual candidates would be constitutionally prohibited, preventing the skewing of elections and members’ decision making. The reasonable costs of election campaigning would be met entirely from public revenue.

Members would not be allowed to derive income from sources over which they currently exercised control.

Government with non-trivial limits

While keeping intact ministerial lines of accountability, better public administration would be achieved by having public service agencies function at arm’s length from government and responsible ministers. Ministers, cabinet and government would be charged with setting the vision, plans, objectives, priorities, budgetary and policy parameters. Consistent with those, agencies would shape and manage subordinate operations and programs to serve the public interest in a coherent, apolitical and sustained way.

Effective public sector operation would be further promoted by requiring the composition of all arms of government as nearly as possible to be representative of the makeup of Australian society – on dimensions such as sex, age and ethnicity.

Given the gravity and ramifications of war, at least the broad preconditions for Australian involvement in military conflict should be stated in a new Constitution.

A new Constitution should unify police services nationally while guaranteeing their operational independence.

The framing of a constitution is a nation’s chance to enshrine both the powers and limits to power that apply to its governments – necessary since, no matter how strong the societal conventions and robust the democracy, governments from time to time encroach, or are tempted to encroach, on civil liberties. Finessed and adapted to address the circumstances of contemporary Australian society, the rights enshrined in the Universal Declaration on Human Rights provide a fitting and uncontroversial foundation of rights that ought to be an integral feature of a new Australian Constitution.

A new Constitution should require its own thorough review at least every 20 years to determine whether its provisions continue to meet the needs of Australian society.

A far fuller discussion of the above and related matters can be found in this paper. In a forthcoming article I will describe and present a possible new Constitution for Australia, on which I will invite feedback and further development.

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

[1] Australian Electoral Commission 2016, First preferences by party.

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3 years ago

As the basis of our legal system, the Constitution should be legalistic

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