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Rewrite the entire Constitution

By Klaas Woldring - posted Monday, 6 November 2017

There is a view that the reconciliation process with the Indigenous people is "unfinished business", constitutionally. The Australian Constitution was enacted in 1901 by the British Parliament and converted the six colonies into a colonial federation by a bare majority, based on a voluntary vote. Many women and Indigenous people did not participate. Since then hardly anything changed. The recent disgraceful refusal by the Turnbull Government to accept the Uluru resolutions confirms that.

The Constitution has also been in the news recently especially in relation to Section 44 and about dual nationality citizenship of some MPs. The recent essentially "black letter" verdict of the High Court removed five of the seven "dual citizens" MPs from the Federal Parliament. If we were to accept the "black letter" approach to Australia's written Constitution the country probably would very soon be ungovernable; however, it could also be put to good use! It is now also believed that there are many other MPs suspect in this regard with great potential for further instability.

Why has it been so very difficult, almost impossible to update this colonial Constitution?


This is largely due to the restrictive Section 128, requiring amendments to have a national majority and a majority in a majority of states. This is because the states in the federal structure have equal standing, constitutionally, in spite of large differences in population. Secondly, and this is not strictly a constitutional limitation, the two-party-system, in practice, is a massive hindrance to achieve majorities in referendums. The four referendums that failed in 1988 made that abundantly clear. If either major party disagrees it is impossible to get a referendum passed. The adversarial character of the political system, essentially a result of the single-member electoral system, ensures opposition at every junction. As a result, the entire Constitution is an archaic colonial document now that should no longer be subjected to piecemeal tinkering. It should be rewritten entirely, and not by the self-interested parties.

What is the reality? The Australian Constitution:

1. Describes a status of dependency on Britain a situation that for all practical purposes ended after WWII in 1945. The FORMAL (black letter!) position of the Governor-General is that of Her Majesty's powerful principal servant - essentially a colonial relationship. The position of Prime Minister is not even mentioned. Amazingly, decisions on committing the country to a war are left to this unmentioned Prime Minister. There is no requirement for parliamentary approval or even discussion, or any participation by the people in the form of a plebiscite or referendum. Think of our involvement in the Iraq invasion, and the consequences! Horrendous!

2. Made provision for a federation, a structure of state, which made good sense in 1900 but is now a costly hindrance to effective government for a mere 24 million people. Local Government is not even mentioned in this Constitution. It has no formal relationship to the national government.

3. Hardly mentions the existence of political parties - the reality of the political system. As a result of the single-district electoral system, which exists separate from the Constitution, an inefficient two-party system has developed, alongside a Senate

with a different electoral system, since 1949, a redeeming reality.


4. Has no Bill of Rights, the only Commonwealth country that has no such statutory protection of the rights of the Australian citizens.

5. Makes no provision for the reconciliation with and representation of the Indigenous Peoples. Recent moves to address this situation have, again, come to nothing thus far.

6. Makes no provision for the protection of the environment a most important new value, which needs to be expressed and safeguarded.

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About the Author

Dr Klaas Woldring is a former Associate Professor of Southern Cross University.

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