Rewrite the entire Constitution

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.

7. Makes no provision for the election of a diversity of representatives to the two Houses of Parliament, nationally and in the states. It hardly reflects a multicultural society.

8. Makes no provision for the appointment of Cabinet Ministers from outside the legislature, as is the case in most European countries and in the United States. As a result, Governments are frequently lacking in quality and expertise.

9. Does NOT state that the Government derives its authority from the people's sovereignty - the very essence of democracy - and that of a Republic.

10. Does not elaborate on the nature of popular and national sovereignty and does not provide guidance as to how, for instance, economic sovereignty is to be safeguarded and promoted in a globalised world.

11. Is embedded in several constitutional conventions (usages), which are open to a variety of interpretations. Conventions should ALL be codified for them to be widely accepted.

12. Parliamentary democracy, often praised in Australia as a positive constitutional feature, is in fact NOT protected in the Constitution.

13. The position of women and the issues of equality between the sexes and of gender in Australian society is not addressed anywhere in the Constitution.

14. Very few people are familiar with the Constitution. Most who study it find it a seriously flawed, archaic document and don't understand why we still have it. Most people have no sense of ownership of it.

15. It is practically impossible to amend the Constitution, due to the provisions of Section 128, the two-party system and the fact that only politicians can initiate constitutional amendments.

16. Many leaders in the corporate sector of Australia are rightly very disenchanted with this Constitution. The Corporation Power in Section 51 is, in practice, used mainly in respect of foreign corporations (with a few exceptions). The states regulate corporate affairs, with sometimes major differences between them, a costly and frustrating situation.

17. Neither the Constitution nor the Commonwealth Electoral Act, 1918 nor the Electoral Act of 1924 in reality provide for democratic elections.

18. The Constitution provides no express guarantee of a universal franchise.

THEREFORE, the time has come to give the often largely ineffectual piecemeal tinkering away. Rewriting the Constitution sounds like a major task, it is often said to be "impossible". Even if many would agree that this would be desirable how could that possibly be achieved?

First of all, the public debate has to be started. The media could play a major role here but have done very, very little about that to date. But there is more.

I think this is where the Governor-General could play a significant role. Although in practice this person performs largely symbolic tasks – by Convention – constitutionally the Governor-General could adopt the role of impasse breaker even in conjunction with the Queen of Australia. A black letter reading of the Constitution suggests that the powerful General Cosgrove could appoint a progressive committee of experts, excluding serving politicians, to draft a new Constitution for Australia, even a Republican Constitution! And this could be presented to the voters in term of a Section 128 amendment of the existing Constitution.