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Bill Shorten is too keen to dabble with the constitution

By David Alexander - posted Friday, 15 March 2019


Most policymakers approach the issue of constitutional change with a high degree of caution. Bill Shorten is different. Even with the handicap of minuscule advisory resources in federal opposition, the Labor leader has been unusually bold in advocating and entertaining significant constitutional change.

The first area of constitutional change advocated by the Opposition Leader is for an Indigenous "Voice to Parliament", to be decided by referendum in the first term of a Labor government. On the face of it this can sound appealing, but it is a policy proposal fraught with risk.

Creating a constitutionally embedded racially exclusive body for the express purpose of impacting on legislative outcomes would be a significant departure from our current democratic system. Establishing such formal privilege would obviously be contentious, but remarkably there is no indication of what the powers, eligibility and selection processes might be.

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When committing to the Voice, Shorten admitted it was a proposal that had arrived abruptly and without the usual process of examination. "I acknowledge it was not the proposal for change I expected, it was not an idea that had been canvassed by various parliamentary committees or the public service," he said. Notwithstanding his surprise, the Opposition Leader leapt to announce the Labor Party's full support. "Who are we to suddenly say this idea is simply too big or too bold?"

The second area where the Labor leader is pressing for constitutional change is for a republic. Shorten proposes a three-step process – first, a plebiscite in the first term of a Labor government that asks citizens whether they agree with the principle, followed by, if positive, a selection process to choose a model, and then a referendum on that model in the second term.

There are obvious risks in such a process, but Shorten appears to be playing with constitutional fire by suggesting he sees a popularly elected president as the way forward.

Car with two drivers

Moving to a direct election model has been rejected by past leaders such as Bob Hawke and Paul Keating because of the "car with two drivers" danger – two leaders, president and prime minister, both claiming popular mandates while clashing on governance. The problem with Shorten's breezy constitutional spitballing is he risks stimulating a public appetite for a powerful presidency that ends up undermining our democracy.

Shorten's third area of constitutional intrepidity is his support for possibly changing Section 44 to remove the ban on citizens of other countries serving as members of the Australian Parliament. The Labor leader has described the current s.44 rule as "a real problem in the constitution", and if you were doing it from scratch "you probably wouldn't have this particular restriction". Mr Shorten (again on Q&A) has said he would like to help "resolve" the matter, possibly with a constitutional referendum.

Shorten again seems to have leapt in without proper consideration for the endless conflicts of interest that would open up if our national legislature were opened up to dual citizens. Dual citizen ministers or MPs would naturally be sympathetic to pressing the interests of their other "home" country, a bias that would be understandable but at variance with an unalloyed focus on Australia's national interest.

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The final area of constitutional change supported by the Labor leader is to lengthen parliamentary terms from three to four years for the House of Representatives. There is nothing unorthodox about four-year terms per se – many countries, and states of Australia have them – but such a change would require concomitant changes to the Senate, and these potentially hazardous steps require far more consideration than the thought-bubble floating that has occurred so far.

Clearly, a Shorten government would see a very lively period of constitutional activity over the coming years. If the Labor leader were to fail in his ambitions he might console himself that it would sit consistently within the Labor historical record – Labor has initiated only one successful referendum in 25 attempts since Federation. (The Coalition's record, by way of comparison, is seven successes out of 19 attempts). Labor's extremely low record of success might give pause for thought – perhaps the impatient enthusiasm for change needs to be tempered with calm reflection.

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This article was first published by the Australian Financial Review.



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About the Author

David Alexander is managing director of Barton Deakin Government Relations.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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