Mechanism for constitutional change ‘broken’, RSA webinar told

Si Gladman / 29 October 2023

The mechanism for changing Australia’s “frozen” Constitution is broken and needs to be fixed, the latest RSA Webinar has heard.

At Wednesday’s webinar, guest speaker Dr Benjamin T. Jones said Australia had reached the “nadir” in its constitutional history, with reform now almost impossible, due to the double majority required by Section 128 of the Constitution and a number of entrenched problems.

Dr Jones, a Senior Lecturer in Australian political history at Central Queensland University, presented solutions for making constitutional change more possible in the future, including moving to an option voting system for referendums and the introduction of triggers from outside the parliament.

“Choose whatever metaphor you like – frozen in time, stuck in a straightjacket – but if we have reached the stage where constitution change is virtually impossible, then it is broken and it’s time to fix it,” he said.

Dr Jones said even the country’s eight successful attempts of 45 disguised the extreme difficulty in achieving change, with many of these referendums coming at moments of bipartisan and during extraordinary moments in history.

A pattern of hyper-partisanship emerged at the 1984 referendum and has “contaminated” referendum results ever since.

“It set this template that remains in place: if the government proposes a referendum, the job of the opposition is to oppose it,” said Dr Jones, a member of the Australian Republic Movement’s National Committee.

“But, again, the problem with this approach, when applied to constitutional reform, is not only does it make it virtually impossible for Labor governments to pass a referendum – and note that only one of the successful referendums came from Labor – but it also makes the coalition unlikely to even bother trying.”

Dr Jones said the campaign for the failed Voice referendum provided a “painful demonstration” of the lack of constitutional knowledge in the general public and showed again how the constitutional framers had been overly optimistic that citizens would be able to engage in intelligent debate on constitutional change.

Breaking the cycle of hyper-partisanship could be achieved if the parliament surrendered its rights to call a referendum and legislated to place the trigger mechanism in the hands of either experts or citizens.

He said the expert trigger could take the form of a constitutional commission made up of non-partisan legal experts such as judges and academics, and even include former politicians from both major parties.

“The key would be to create a body that has high levels of public trust…” he said.

“The legislation might dictate once a decade, or once every 15 years, the commission puts forward a number of proposals, and these automatically go to a referendum, removing the perception that this is a government initiative, removing the impulse on the opposition that they have to necessarily oppose it, and giving more of a chance that the proposal could be judge on its merit.”

A popular trigger could involve citizens initiating a referendum through collection of signatures from a certain number of citizens for a proposal to the Australian Electoral Commission. The commission could then, for example, hold votes on referendum questions in a ‘referendum year’ every four years.

“The appeal of this trigger is that the referendum doesn’t come from government and doesn’t have to be opposed by an opposition,” he said.

“The other thing about that is it would also make referendums an regular part of Australian political life again – not a rarity that we see every quarter of a century.”

Whilst being a strong advocate for civic participation and Australia’s compulsory voting system, he said he now supported an optional vote for referendums.

“Indeed, I’d even go one further and support a requirement of passing a short free online knowledge test on basic facts about the Constitution, with unlimited attempts, before someone can vote,” he said.

“At the very least, dropping this requirement that people who don’t know and don’t care must cast a vote, and dropping this Victorian fantasy that our society will eventually evolve into a new Athens where every citizen attended the polis and has an active interest in politics of the day, would, I think, be a step in the right direction.”

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Si Gladman is Campaigns & Communications Coordinator for the Rationalist Society of Australia. He also hosts ‘The Secular Agenda’ podcast.

All the more reason.