Constitutional deficiency, and reform: a way forward

• Many of the reasons for public disillusionment with politics and government derive from shortcomings in the Constitution
• The Constitution fails to protect fundamental human rights
• Australia’s federal system is the consequence of colonial boundaries and is wasteful, and the electoral system is unfair to voters
• There is a need to adopt a new approach to debate on constitutional reform, based on principle rather than pragmatism

A Charles Sturt University (Charles Sturt) constitutional expert argues that shortcomings in the Australian Constitution have led to Australians’ increasing disillusionment with the way politics is conducted and a lack of confidence in the system of government.

Senior lecturer in the Charles Sturt School of Accounting and Finance Dr Bede Harris (pictured left) presented his argument in a public lecture delivered in Canberra on Wednesday 11 September as part of Social Sciences Week (9-15 September 2019).

“As indicated by public opinion surveys, many Australians are increasingly disillusioned with the way politics is conducted, and this has led to lack of confidence in the system of government itself,” Dr Harris said.

“Many of the reasons for this disillusionment ultimately derive from shortcomings in the Constitution.”

Dr Harris said our electoral system is vastly unfair to voters, because the effect of a vote depends entirely on which electorate the vote is cast in.

“This is an inevitable consequence of having a system based on single-member electorates,” he said.

“Other consequences of this system are that it enables governments to win power with far less than a majority of first-preference votes, and that it leads to political domination by two major blocs, to the extent that we now live in a duopoly rather than a democracy.

“What we need is an electoral system that incorporates an element of proportionality, so that the composition of Parliament accurately represents nationwide voter sentiment.”

Dr Harris argues that the Constitution is also deficient in that it fails to protect fundamental human rights against legislative and executive encroachment.

“Although Australia’s then-Foreign Minister, HV Evatt, was instrumental in the drafting and adoption of the Universal Declaration on Human Rights of 1948, the rights it protects - and other international human rights treaties to which Australia is a signatory - were not incorporated into the Constitution.

“Such rights as the Constitution does protect are limited both in number and in scope.

“We need to incorporate a full Bill of Rights into the Constitution, along the lines of the Canadian Charter of Rights and Freedoms, and the Bill of Rights contained in the South African Constitution.”

Dr Harris said that while in theory our Constitution is based on the doctrine of parliamentary government, under which the executive is responsible and answerable to the legislature, in reality Parliament has very little control over the government.

“The root cause of this lies in the weakness of the committee system,” he said.

“Ministers regularly refuse to answer questions put to them by parliamentary committees and instruct public servants to do the same.

“Committees do not have the power to sanction non-cooperative members of the executive, only the houses of Parliament may do that.

“The major parties have used their majorities to ensure that no Minister – even Ministers from opposing parties – have ever faced sanction for failing to provide information to a parliamentary committee.

“This illustrates the harmful effect of the Labor-Coalition duopoly on Australian politics.

“The remedy for this is to give individual members of committees the standing to apply to the courts for an order compelling recalcitrant members of the executive to answer questions, subject only to the executive being able to prove to the courts of the existence of a genuine countervailing claim to public interest immunity.”

Furthermore, Dr Harris asserts that Australia’s federal system is wasteful.

“In 2002 political economist Mark Drummond estimated that, at an absolute minimum, the existence of the federal system drained the Australian economy of $40 billion per year, which was then the equivalent of 23 per cent of the Commonwealth budget,” Dr Harris said.

“Adjusted for inflation, that would amount to $58 billion today.

“The existence of nine sets of national and state agencies and nine legal systems adds an enormous burden to individuals moving interstate, and to businesses operating across state boundaries.”

Dr Harris explained that the federal system is not the consequence of design but of the accident of colonial boundaries.

“It serves no identifiable purpose, and makes government inefficient because the inflexibility of the Constitution means that the distribution of legislative power over topics cannot be amended in the light of experience,” he said.

“It would be far preferable if we had a unitary system, with a single legal system for the entire country, and with Parliament being able to delegate legislative authority to rationally-designed regional and local authorities.” 

Dr Harris said debate on the constitutional position of Indigenous people reflects many of the problems that afflict debate on constitutional matters in general.

“First there is the failure to respect the fundamental value of human dignity, as evidenced by the opposition by constitutional conservatives to the inclusion of a right not to be discriminated against on grounds of race in the Constitution,” he said.

“Then there is the tendency to misinform the public and make them apprehensive about the effect of constitutional change, as evidenced by the manifestly false statement that the proposal of a Voice to Parliament, contained in the Uluru Statement from the Heart, would amount to the creation of a third chamber of Parliament.

“Both those measures are necessary to ensure that the special status of Indigenous people is acknowledged in the Constitution.

“But even these would not be sufficient.

“There should also be a constitutional right to preserve and develop culture, and the government should commit itself to negotiating a Treaty or Treaties with Indigenous peoples with a view to establishing mechanisms for Indigenous self-determination.”

Dr Harris said a constitution is only useful in so far as it is enforceable by remedies given by the courts.

“Rules of standing confer the ability to initiate court proceedings only on litigants who can demonstrate that unlawful conduct has caused them direct personal harm,” he said.

“While this rule is reasonable in the context of private law areas such as contract and property where legal rights and obligations depend on personal relationships, it is ill-suited to constitutional law, because surely every citizen has an interest in ensuring that the Constitution is complied with, and ought therefore to have the right to bring legal actions to enforce the Constitution.

“Access to constitutional justice would be broadened if our legal system was to recognise a general right to bring actions in the public interest, as is common in jurisdictions based on Roman law, which recognised such a right of action more than 2,000 years ago.

Concluding, Dr Harris urged the need for Australia to adopt a new approach to debate on constitutional reform.

“Such debate must be based on principle rather than pragmatism, and replace fear of change – and fear of the difficulty of achieving change − with one based on optimism and a willingness to confront those who either believe that our Constitution does not need change or who believe that constitutional change is unachievable,” Dr Harris said.