The 2020 Summit is a chance to switch the focus of public debate from complaints about our system of government to ideas on how to improve it. Here are 10 suggestions to throw into that debate.
1. Hold a constitutional convention on federalism. The federal system cannot be overhauled in one weekend. There needs to be a mechanism to address the allocation of powers and responsibilities and the operation federal-state financial arrangements. It should involve experts, through a preparatory commission, and the wider community through a convention.
2. Establish a Federalism Commission. We should transform the defunct Inter-State Commission into a “Federalism Commission” that is independent of both the Commonwealth and the States. It could monitor the implementation of inter-governmental agreements and adjudicate upon disputes under them. It could determine the distribution of grants and incentive payments to the states and territories and identify areas that require harmonisation and co-operation.
3. Provide constitutional support for co-operation between governments. The Constitution caters for the competitive side of federalism, but hinders the co-operative side. It needs to be amended to allow the co-operative sharing and delegation of powers in the judicial, legislative and executive fields.
This would mean that the appropriate court could hear all aspects of a dispute, without arid disputes about which aspects fall within state and federal jurisdiction, and co-operative legislative schemes could be administered and enforced by the one set of officials.
4. Ban donations to fund political parties and instead provide fair, transparent and limited public funding. This would have an economic cost, but it would have greater public benefits through reducing the reality and perception of corruption and undue influence, restoring faith in the political system, attracting better political candidates and greater public participation in governmental affairs.
5. Protect the right to vote. Voting for Parliament and to amend the Constitution are both fundamental to the Constitution’s operation. However, the Constitution not only fails to establish a right to vote, but also contains provisions that contemplate disenfranchisement on the grounds of race or sex. The High Court has resorted to strained interpretations and implications to protect the universal franchise. This needs to be done expressly in the Constitution.
6. Impose the responsibility to vote. The counterpart to a constitutional right to vote is a responsibility to vote. Compulsory voting should be included in the Constitution, but should also be accompanied by a right not to vote for candidates to whom the voter objects. Commonwealth elections would then use an optional preferential system, so voters could vote for as many candidates as desired, but choose to exhaust their vote rather than have it used to elect a candidate of whom they disapprove.
This would give voters back control over their votes and mean that those elected were genuinely chosen, rather than being the accidental results of preference deals and party voting tickets.
7. Improve access to government documents. Both laws and bureaucratic practices need to be overhauled to allow reasonable access to government documents. Some existing exemptions should be confined to shorter periods and decisions based on the “public interest” should be reviewed by an independent officer.
8. Establish an independent judicial appointments commission for the High Court. As the High Court is the adjudicator in the federal system on the respective powers of the Commonwealth and the States then its appointment needs to be independent of all governments. Public trust in the court would benefit from a truly independent appointment system.
9. Allow the High Court to give advisory opinions and prospectively overrule. The disruption and instability created by the High Court striking down the validity of laws that have been operating for a long time could be minimised by permitting the Court to give advisory opinions on doubtful laws before they come into effect and allowing it to limit its findings of invalidity to the future application of a law, avoiding disputes about actions long past. British courts have recently been given such powers with respect to Scottish devolution.
Anne Twomey is an Associate Professor of Law at the University of Sydney and a participant in the Governance group of the 2020 Summit. The Social Science Research Network page presenting papers by Anne Twomey can be found here.