The issues |
The Australian people have not agreed to proposed changes to the Constitution in more than three decades. Only eight of the 44 referendum proposals have been successful since 1901. The most recent referendum – a Voice to Parliament, October 2023 – was politicised, divisive and strongly opposed by the Opposition.
It is now clear that referenda put forward by the government of the day are unlikely to be won and so why bother?
The facts are that the Australian Constitution is outdated. It is silent on democratic rights, on basic human rights, and those of First Nations peoples. The Constitution holds race powers and lacks jurisdictional clarity on matters such as heads of power and taxation. The Constitution does not refer to a head of state, cabinet, prime minister, political parties, oppositions or local government. Nor does it mention universal suffrage, compulsory voting, or citizenship rights.
The many crossovers in Commonwealth/State responsibilities such as health, education, mining, energy supply, and infrastructure are costly and inefficient. Many sections in the Constitution are redundant, transitional or flawed.
Despite many inquiries and reports, Government attempts at constitutional reform have been ad hoc and lacking in strategy, consistency and engagement with the people.
Our plan |
Establish a Constitutional reform body to guide and rewrite the Australian Constitution so it is fit for purpose and includes:
The evidence |
After a series of conventions held during the 1890s, a federal system of government was hammered out and the Commonwealth came into being. The six colonies became the six states of Australia then the Constitution was taken to the people for endorsement.
Australia, as well as being a federation of states, is still a constitutional monarchy and our head of state is King Charles. The King may annul any law for a year after Governor-General’s assent. The 1975 Dismissal of the Prime Minister, Gough Whitlam demonstrated that the monarchy and its appointed governor-general could dissolve the parliament and appoint a caretaker government.
The Governor-General’s reserve powers are generally agreed to include:
- The power to appoint a Prime Minister if an election has not resulted in a clear outcome.
- The power to dismiss a Prime Minister if they have lost the support of the majority of members of the House of Representatives.
- The power to refuse a request for a double dissolution.
- The power to dismiss a Prime Minister or minister if he or she breaks the law.
- The power to refuse a request from a Prime Minister to call an election.
The Commonwealth of Australia Constitution Act begins with:
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Government under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And Whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows, etc.
In many other countries, constitutions are reviewed and amended as necessary but Australia’s Constitution is stuck, both in language and in meeting the needs of a modern nation.
Report of its Inquiry into Constitutional Reform and Referendums, December 2021
Section 44 is directed to eligibility for election to the Parliament. It sets out a list of five disqualifications for being a member of the Commonwealth Parliament.
The part of Section 44 that is the primary issue is Section 44(i), which recently dealt with allegiance and includes a disqualification for those who are dual citizens.
Section 44(i) says: Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
See here for the Parliamentary inquiry into reform options for Section 44 of the Constitution,
The notion that persons have an allegiance to another country because of their descent or the happenstance of their birth, even when they had no knowledge of possessing such citizenship, is clearly implausible.
It is also inconsistent with the principle that parliament ought to be representative of the people it governs. With nearly half of Australians being born overseas or having a parent who was born overseas, the strict requirements in Section 44(i) seem out of touch with modern Australia.
Graham Reily, Melbourne University
References:
See here for the Constitution and amendments made to date.
See submission 11 to the Nationhood, National Identity and Democracy Inquiry July 2019/20 on the flaws of the Constitution.
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