A TIED result of 75 seats to each side has been averted. At least for now. A by-election or defection could change things. The narrowness of the election shows some of the defects in our Constitution. It is plainly a defect that the Constitution permits an even number of members in the House of Representatives.
The Constitution has a formula for working out the number at roughly double the number of senators. The detail is in Section 24 and I won’t trouble you with it now, suffice it to say it can result in a House of anything between 147 and 152 members.
There is no stipulation that it must be an uneven number. That would be sensible.
It is in the ACT’s equivalent of a Constitution – the Self-Government Act, for example.
Some other defects have become more apparent. What is the role of the Governor-General in the event of split parliament or a successful no-confidence motion? Should the Governor-General accept prime ministerial advice to hold a new election, or should she take her own counsel and call on the Leader of the Opposition to form a government?
Some better crafted constitutions have fixed-term elections and rule no-confidence motions out of order unless they name the new Prime Minister.
This election has highlighted another defect. Aside from the territory senators, 36 senators were elected who will not take their seats until 1 July next year. So there is a 10-month mismatch between the composition of the Senate and the will of the people.
These mechanical things should be fixable.
During the election, all parties gave a commitment to amending the Constitution to recognise the position of Indigenous people in Australia, again indicating some deficiency with the existing document.
The drafters of the Constitution did a pretty good job, but by no means a perfect job. It has defects and they should be fixed.
The trouble is changing the Constitution has proven quite difficult because it requires a referendum with majorities in a majority of states as well as an overall majority.
Therefore a referendum on Indigenous recognition is hugely dangerous.
Rejecting the republic made Australia look silly, immature and lacking in self-confidence. Well, you can get over that. But if the country rejected Indigenous recognition it would be seen to be racist. It would be an indelible stain at home and internationally for a long, long time.
As it happens, by coincidence, help is at hand. Constitutional lawyers George Williams and David Hume have just published “People Power: the History and Future of the Referendum in Australia” (UNSW Press).
It should be compulsory bedtime reading for all our political leaders before they embark on this potentially treacherous path.
The book is quite optimistic. It does not look only at the failed 36 of 44 referendums and despair. Rather it isolates the characteristics of the eight successful referendums and suggests how some worthwhile changes could be made.
The authors say you need the consensus of both sides of politics federally and in the states and a consensus among the people. You cannot have a threat to the staus quo, rather the referendum should merely ratify an existing agreement or state of affairs. The referendum becomes almost a formality to ratify fixes to an identified defect, rather than a contest. Proposals that can be said to be deceptive, dangerous or unnecessary or in one or other party’s interests are out.
In short you only need a pocket of opposition and the referendum is doomed. This is why the authors say the referendum process should be changed so you can get popular ownership of proposals, rather than proposals being seen to come from elites. They suggest a Constitutional Review Committee with broad membership and Constitutional Convention every decade, again with broad membership, and a Referendum committee – with a budget — to help educate people about proposals. Present law prevents the Commonwealth spending money on explaining referendums.
This would replace the existing system of the politicians coming up with the proposals and a contest between Yes and No cases.
The authors have several other very clever ideas: sunrise clauses, indicative non-binding plebiscites and a cunning away to allow binding multiple-choice referendums.
Some of this stuff would have helped a change to a republic. And could help with Indigenous recognition; requiring an odd number of Members of the House; fixed-term elections and simultaneous House and Senate elections, for example.
If Prime Minister Julia Gillard announced the next election date now, it would in a way start fixing the terms of Parliament. If the Parliament passed a law saying the Prime Minister could not name a new Governor-General without approval of two-thirds of the Parliament it would start to fix the problem of how do you select a Head of State in a Republic. If you started calling the Governor-General the “President”, because she is also President of the Executive Council that would again make the later referendum a mere ratification of existing practice. The horses would not be scared.
The authors’ suggestion of a sunrise clause, could mean the republic would not come into force until the death of the Queen but would be approved before then.
The binding multiple-choice referendum works in Switzerland where each option is pitted against the status quo. If more than one option gets more than a majority, the one with the biggest majority becomes law and the others lapse.
Who knows, a direct-elect model might have got across the line in 1999.
The most important intelligence in the book is the analysis of what went right eight times and what went wrong 36 times and the conclusion that you need to engage and educate the public.
Though there is an alternative. The first two referendums in Australia, in 1906 and 1910, were carried in six and five states respectively and by healthy majorities nationally. They were the only ones conducted under voluntary voting.
I think that voting in referendums should be voluntary because all those who don’t know or don’t care vote No and it is folly to put the fate of constitutional reform in the hands of the ignorant and apathetic.
So you either try to make them less ignorant and apathetic (good luck) or you tell them there is no need to take part. The events of the past few weeks show that giving up of constitutional reform is asking for trouble.
CRISPIN HULL
This article first appeared in The Canberra Times on 11 September 2010
Hi Crispin,
Yes ,many good points there. There is of course a lot more wrong with the archaic, dysfunctional and stagnant constitution. I responded to the extract of the Williams/ Hume book in a dfraft lett to the SMH – which was not published. I will display it here.
REWRITE THE CONSTITUTION!
Most constitutional referendums are distrusted. Not only do the people need a say in initiating referendums they need a new constitution! (“Convincing a nation of naysayers”, SMH 11/9). If the mood for reform persists in the ALP – Green agreement the leadership would do well to re-read the 1977 Penguin pocket Chance the Rules in which the late Donald Horne made a strong plea for a new democratic constitution and Elaine Thompson for a new electoral system. However, for 33 years nothing has changed. Horne compared the constitutional situation here with that in Sweden. “The Swedes do have a new constitution (1974) whereas most Australians seem to imagine that it is beyond their power even to change their present constitution significantly, let alone get a new one”. In Australia the piecemeal tinkering of the last 110 years to update the constitution has been unsuccessful. Apart from the problems with section 128 a major barrier is that Australia has a dominant two-party adversarial system. The initiative for constitutional amendment lies solely with the major party politicians. Both parties have to agree, a very rare occurrence, as otherwise a referendum won’t get up. The primary remedy is electoral reform, to defuse the two-party tyranny, followed by a new flexible constitutional package.
Klaas Woldring,
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Ph. 4341 5170