Australia’s constitution is constrained by people power

The joint sitting procedure would divert the power of constitutional change from the people to their elected representatives in parliament, but would not succumb to the forces of partisan politics (given that it is only on rare occasions that a political party will have a sufficient majority at a joint sitting to force through their desired constitutional amendments). At the same time, constitutional change will be in the hands of people who actually care about the issues involved, and have the resources and experience to come to an informed decision that is truly in the nation’s interest.

Thomas Jefferson, who wrote the US Declaration of Independence and later went on to become that country’s president, once said: “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, more truths discovered, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

Australia’s constitution has not kept pace with the times because the public has been given too much power. For the constitution to go “hand in hand with the progress of the human mind”, it is time to tame its human element.

If parliament is given the power to change our constitution, some significant progress can be made. First, the constitution can be cleaned up, with redundant provisions abolished. For example, we no longer need Section 26, which outlines the number of members of the House of Representatives to be chosen in each state at the first election after federation. Sections 101 to 103, providing for a non-existent inter-state commission to deal with trade and finance disputes, can also probably go.

Second, the constitution can be modernised. The Commonwealth’s power to make laws with respect to “postal, telegraphic, telephonic, and other like services” in section 51(v) might be expressly extended to cover such new-fangled devices as radio and television. Further, there might no longer be the need to talk about railways so much when we’ve now come across things like the automobile. The Commonwealth could also be provided with express law-making power in relation to current national concerns such as water and environmental protection more generally.

Third, we can fix up the federal system, which has become a shambles with each level of government continually scratching their respective heads to work out what they can and cannot do. High Court justices have earned their wages pouring over constitutional provisions to figure out whether a Commonwealth or state law is constitutional or not.

One simple way to do this is to simplify the language in Section 51, the section which gives the Federal Parliament most of its law-making powers. For example, we could tidy up Section 51(xx) - the corporations power - so that the Federal Parliament can make any law affecting a corporation. At present, the parliament can only make laws in relation to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”, hence the WorkChoices challenge presently before the High Court.

Over time, we should also think about making the law-making powers in Section 51 exclusive to the Commonwealth, rather than being shared with the states as they are currently are - at least on paper. The constitution, under Section 109, already provides that when a Commonwealth law and state law under Section 51 are inconsistent, the Commonwealth law prevails. Section 109 has been the subject of a large number of High Court cases since federation, due to the vague power-sharing arrangement provided for under the constitution.

The states are already “financially bound to the chariot wheels of the central government”, as Alfred Deakin once famously envisaged, due to the Commonwealth’s dominance over raising individual and business taxes, so why not confirm the Commonwealth’s dominance in the text of the constitution? Co-operative federalism between the Commonwealth and states has not worked effectively, and with power naturally leading towards the Commonwealth anyway, let’s just speed up the process.

Prominent constitutional law Professor George Williams recently wrote: “Reform of our dysfunctional system is long overdue. Rather than promoting good governance and enabling change, it is often a blockage to getting things done.”

Our dysfunctional federalism can be fixed by replacing our dysfunctional constitution, and in particular getting rid of the dysfunctional referendum process that gives too much power to the Australian public who aren’t equipped to exercise it effectively.