Australia's Constitution: the referenda we need to have

Innate reluctance to change the Constitution remains the biggest problem.

Section 44(i) of the Constitution has been in the news recently. It disqualifies a person "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" from sitting in the Australian Parliament.

The recent debacle, whereby the High Court disqualified Barnaby Joyce, Fiona Nash, Larissa Waters, Scott Ludlam and Malcolm Roberts from Parliament, has (sensibly) resulted in calls that this section is in serious need of an update. Essentially, with 49 per cent of Australians either being overseas born or having one or both parents born overseas, about half our population has potential issues with this section. The case for abolition or a drastic softening is therefore compelling.

In regard to the term of Parliament, both sides of politics at various times have supported changes to Section 28. Effectively there seems to be consensus that the current three year maximum term for the House of Representatives should be increased, with four years being a popular preference. (Australia is very unusual in having a term as short as three years.) Some also favour terms of fixed length with no prime ministerial discretion about election dates.

The stumbling block has always been that neither side of politics wants the other side to be the first to benefit from an extra year in office. The solution might be to make the date of effect of a change to four year terms far enough in the future, that the side likely to benefit is uncertain.

Finally there is the issue of the Australian Senate, which is generally considered to be one of the most powerful upper legislative chambers in the world. The problem is that we have two Houses with almost similar powers, which are elected in different ways (and half the Senate commonly has been in office since an earlier election). All this is a clear recipe for legislative stalemate.

The problem of an obstructionist Senate is currently a huge issue for the Coalition, but during the term of the Whitlam Government it was just as big an issue for Labor. Given that about a third of voters now no longer support the big parties, Labor or Liberal, the Senate in recent years arguably has become even less friendly to the Government of the day. What legislation gets through, either gets heavily amended or requires (expensive) favours to cross-benchers for (often undeserving) pet causes.

The solution advocated by many is to either abolish the Senate or to reduce its powers, especially regarding budgetary matters. While I don't necessarily disagree, realism suggests that this will be difficult to sell in any referendum, because it will likely be opposed by Labor, the Greens, and the minor parties.

An alternative solution is to change the method of election of electing the Senate, which can be done without a referendum, because it is set by legislation and not by the constitution.

The system for electing senators has changed several times since Federation. The original first-past-the-post block voting was replaced in 1919 by preferential block voting. Such block voting tended to produce landslide majorities. In 1948 Labor brought in single-transferable-vote proportional representation, when it anticipated losing power to Menzies. This had the effect of limiting the incoming government's ability to control the upper chamber, and has helped the rise of Australian minor parties.

A change away from proportional representation election of Senators could help make the Senate more friendly towards the government of the day but would be seen as less democratic. Such legislation is unlikely to be passed in the foreseeable future. The Commonwealth Senate (until its composition greatly changes) would never pass it.

For the time being, the chances of reforming the Senate are therefore between none and Buckley's.