reasons for constitutional reform

Question 1

introduction to reasons for constitutional reform

Answer 1

• The Australian Constitution was drafted in the late 1800s.
• It came into force on 1 January 1901.
• Australia is a stable democracy with a strong legal framework based on the Constitution.
• The Constitution is widely recognized as not perfect and may require updates.
• Changes may be necessary to meet the evolving needs of the Australian people.
• The Constitution includes a process for amending its wording and phrases.
• Between 1901 and early 2023, 44 proposals were made to change the Constitution.
• The first proposal to change the wording was made in 1906.

Question 2

The reasons for constitutional reform include the following:

Answer 2

• to recognise Australia’s First Nations people
• to increase the protection of rights
• to change the Commonwealth’s law-making powers
• to reform Australia’s political system.
  Some of these would result in significant changes (such as changing the Australian Constitution so
  that Australia becomes a republic), while others (such as changing the timing of federal elections) are
  smaller in scale and impact.

Question 3

define republic

Answer 3

A form of governance in which the power is held by the people and their representatives, and in which there is an elected head of state rather than a monarch

Question 4

Recognise First Nations people

Answer 4

• The Australian Constitution has historically debated the recognition of First Nations people.
• There is no mention of First Nations people in the Constitution.
• First Nations people have lived on the continent for at least 65,000 years, predating European colonization in the late 1700s.
• Before 1967, the Constitution explicitly did not recognize First Nations people as part of the Australian population.
• The Constitution delegated policies and law-making for Aboriginal and Torres Strait Islander people to the states, not the Commonwealth.
• This delegation resulted in inconsistencies in laws across individual states.

Question 5

Over the years, there have been calls for the Australian Constitution to be amended to recognise First
Nations Australians. Two of the changes proposed have been:

Answer 5

• There have been calls to amend the Australian Constitution to recognize First Nations Australians.
• Two proposed changes include:
  
  • Establishing a First Nations Voice to Parliament.
    
    • This body would be enshrined in the Constitution.
    • It would allow First Nations people to advise the Commonwealth Parliament on policies or laws affecting them.
    • The body would be chosen by First Nations people and represent their communities.
    • It would work alongside existing organizations and structures.
  • Honoring and recognizing First Nations people in the Constitution.
    
    • In the 1999 referendum, a proposed change sought to insert a preamble to the Constitution.
    • The preamble aimed to honor “Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.”
    • The 1999 referendum was not successful.

Question 6

define First Nations Voice

Answer 6

an independent advisory
body for First Nations
people to advise
the Commonwealth
Parliament and
Government on the
views of First Nations
people on matters that
affect them

Question 7

define referendum

Answer 7

the method used for changing the wording of the
Australian Constitution. A referendum requires a proposal to be approved by the Australia people in a public vote by a double majority

Question 8

define preamble

Answer 8

the introductory part of a statute that outlines its purpose and aims

Question 9

define express rights

Answer 9

rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by
referendum

Question 10

Increase protection of rights

Answer 10

• The Australian Constitution contains five express rights that limit the Commonwealth Parliament’s law-making powers.
• Section 116 prohibits the Commonwealth from imposing restrictions on religious practice, protecting freedom of religion.
• These express rights are seen more as restrictions on law-making rather than positive rights or freedoms.
• The Constitution is recognized as having a limited number of rights, often narrow in scope.
• Most rights in Australia are protected by statute law or common law rather than the Constitution.
• Rights protected by other means include freedom of thought, speech, assembly, and movement.
• There have been calls to amend the Constitution to protect basic democratic freedoms or to clarify/broaden existing express rights.
• Suggestions include incorporating a bill of rights into the Constitution, akin to the United States Bill of Rights.
• One of the most intense debates in Australia concerns the right to freedom of speech.

Question 11

Freedom of speech - case example

Answer 11

• Freedom of speech is not protected by the Australian Constitution but primarily by statute law.
• The right to freedom of speech and its limitations are frequent topics of commentary and news.
• Companies often have codes of conduct that govern employees’ speech in private and public.
• Employees may face disciplinary action or termination for comments inconsistent with company policy.
• Some laws restrict freedom of speech, leading to concerns that they infringe on this right.
• Example: In 2015, Scott McIntyre, a former SBS sports reporter, posted offensive tweets on Anzac Day.
  
  • His tweets included comments about Australian nationalism and received backlash.
  • He was terminated for not deleting the tweets, sparking a debate about freedom of speech in Australia.
• Prior to this case, a national debate occurred regarding section 18C of the Racial Discrimination Act 1975 (Cth).
  
  • Section 18C makes it unlawful to offend, insult, humiliate, or intimidate someone based on race, color, or ethnic origin.
  • The federal government raised concerns that this provision overly restricted freedom of speech.
  • Legislation to amend the Act was proposed but did not pass.
• Professor George Williams argued in 2014 for constitutional protection of freedom of speech.
  
  • He stated it would provide the strongest protection and enable the High Court to invalidate laws infringing on this freedom.
  • He emphasized that serious protection of freedom of speech deserves constitutional status.

Question 12

Change the Commonwealth’s law-making powers

Answer 12

• Law-making powers are divided between the Commonwealth and state parliaments, which can limit their ability to create laws.
• The Commonwealth Parliament has:
  
  • Exclusive powers.
  • Concurrent powers.
• State parliaments have:
  
  • Concurrent powers.
  • Residual powers.
• The Commonwealth Parliament has previously attempted to amend the Constitution to gain more powers.
• Some attempts were responses to High Court decisions indicating the Commonwealth lacked specific power to legislate on certain matters.

Question 13

examples of past referendums where the Commonwealth sought to increase its powers:

Answer 13

• In 1911, the Commonwealth proposed a constitutional amendment to extend its powers over companies, labor, and employment (including wages and conditions).
  
  • The Commonwealth argued these were national issues requiring federal regulation.
  • The proposal did not pass.
• An almost identical proposal was made in 1913, but it also failed to pass.
• In 1919, the Commonwealth sought to amend the Constitution to extend its powers related to air navigation and aircraft.
  
  • Commercial air navigation and aircraft did not exist when the Constitution was drafted.
  • The High Court ruled that the Parliament lacked general power over aviation, leading to a proposal that did not pass.
• In 1946, a successful proposal was made to change the Constitution to give the Commonwealth power to legislate on various social services.
  
  • This included unemployment benefits, medical and dental services, benefits for families and students, and parental leave allowances.
  • The change was prompted by a High Court case that found the Commonwealth had no power to legislate in these areas, despite having done so.

Question 14

Expanding and Limiting Commonwealth Law-Making Powers

Answer 14

• The Commonwealth has sought to increase its law-making powers in various instances.
• There have also been suggestions to amend the Australian Constitution to decrease the Commonwealth’s law-making powers.
• One such suggestion is to repeal section 51(xxvi) of the Constitution, known as the race power.
  
  • This section grants the Commonwealth the power to make laws for any race deemed necessary for special laws.
  • The race power has been criticized for potentially allowing laws that negatively discriminate against certain races.
• Removing the race power would reduce the Commonwealth’s law-making authority.

Question 15

Reform Australia’s political system

Answer 15

• A final reason for changing the Australian Constitution is to reform the political system.
• Suggestions for reform include:
  
  • Changing the timing of federal elections.
  • Allowing more people to become members of the Commonwealth Parliament.
  • Substantially altering the political system to transition to a republic.

Question 16

Timing of federal elections

Answer 16

• The House of Representatives has a maximum term of three years, but it can be dissolved sooner by the Governor-General.
• The Constitution allows for maximum terms, and the Prime Minister can call elections before that term ends.
• Only about 10% of parliaments globally have three-year terms; many other parliaments have longer terms.
• Members of the Senate are elected for a fixed term of six years.
• A referendum in 1988 attempted to change the Constitution to extend the House of Representatives’ term to four years and reduce the Senate’s term to four years, but it failed.
• In 2004, a parliamentary committee recommended extending the House of Representatives’ term to four years.
• Proponents argue that a four-year term would:
  
  • Encourage long-term policy decisions.
  • Enhance business confidence.
  • Save resources spent on frequent federal elections.
  • Prevent elections from being held at politically convenient times for the government.

Question 17

define parliamentary
committee

Answer 17

a small group of members of parliament who consider and report on a single subject in one or both houses. Committee members can come from any party

Question 18

Allow more people to be eligible to sit in parliament

Answer 18

• Australia is one of the world’s most multicultural and multifaith societies.
• There have been criticisms that parliamentary representatives do not reflect the broader composition of society.
• Section 44(i) of the Constitution restricts membership in the Commonwealth Parliament.
  
  • It states that a person cannot sit as a member if they are under acknowledgment of allegiance to a foreign power or are a subject or citizen of a foreign power.
• This provision prevents dual citizens or dual nationals (those with citizenship in Australia and another country) from being members of Parliament.
• Whether someone is a dual national depends on the laws of the relevant foreign country.
• In 2017, the High Court determined if some members of Parliament were invalidly elected due to section 44(i).
  
  • Some members were unaware that they were ineligible to serve.
• Calls have been made to change the Constitution by deleting or amending section 44(i).
  
  • Proposals include clarifying that candidates must be Australian citizens but allowing Parliament to legislate disqualifications related to foreign allegiance due to ancestry.
  • This change could potentially expand eligibility for membership in Parliament.

Question 19

Becoming a republic

Answer 19

• There have been calls to change Australia’s political system to establish a republic.
  
  • This would involve selecting an Australian as the head of state instead of the British monarch.
• In 1999, a proposal to make Australia a republic was put forth but failed to gain majority support in any state.
• Despite the 1999 failure, many Australians believe that a modern Australia should formally sever ties with the monarchy.
• As of 2023, the federal government was exploring a proposed referendum on the republic.

Question 20

Section 44 of the Constitution - case example

Answer 20

• Section 44(i) of the Australian Constitution aimed to prevent foreign influence in the Commonwealth Parliament and ensure national sovereignty.
• At the time of its drafting, there was no understanding of dual nationality, which allows individuals to hold citizenship in more than one country.
• In 2017, the High Court examined whether Barnaby Joyce MP was validly elected to the House of Representatives in 2016.
  
  • Joyce was born in New South Wales, but his father was born in New Zealand and became an Australian citizen in 1978, renouncing his New Zealand heritage.
  • At the time of Joyce’s birth, his father was still a New Zealand citizen, making Joyce a New Zealand citizen by descent.
  • Joyce had never applied for New Zealand citizenship and received no benefits as such, yet was still considered a citizen by the New Zealand government.
• In court, Joyce argued he was unaware that section 44(i) applied to him.
• The High Court ruled that section 44(i) does not only apply to those who are aware of their foreign citizenship.
  
  • The ordinary interpretation of the text indicated that dual citizens, regardless of their knowledge of that status, are ineligible to serve in Parliament.