Our Constitution Is Past Its ‘Best By’ Date

By Tim Hollo November 17, 2017

This article was first published in the Canberra Times, Nov 17, 2017

All of a sudden, it seems terribly obvious that Australia’s 120 year old Constitution is past its ‘best by’ date. From the exclusion of First Nations people to 19th century dual citizenship rules to the mess of federation, our Constitution needs reconstituting.

Isn’t it time we started rebuilding from the ground up? We’re facing serious democratic crisis, joining the economic and ecological crises. Surely now is the moment to start a series of Constitutional Conventions, led by Indigenous people, in suburbs and cities and towns, to redesign – together – our democracy.

The ludicrous citizenship saga has brought to the surface what an old, out-dated document we are governed by. Section 44, like the vast bulk of our Constitution, was written in the age of Empires. Even then it was a matter of dispute. But it is understandable, in an era far closer to the Napoleonic wars than to the present day, that potential allegiance to a foreign power would be a matter of concern to those seeking to build an Australian Commonwealth.

But in the 21st century, it’s not foreign allegiance we need to be wary of. Multinational corporations, these days, have more power than most nation states, and exercise a far more corrupting influence on our politics. Yet nothing in our Constitution prohibits close relationships between parliamentarians and corporations. It would have been fanciful, in the 1890s, that a clause such as that would have been necessary. But, in 2017, Matt Canavan’s statement that he had enjoyed “representing the mining sector” as Minister for Resources is far more troubling than his familial connection to Italy.

This situation emphasises the clear message that most people are getting that government is “not for you”. From Adani to media ownership to tax cuts for corporations, a deep seated, systemic corruption oozes from our politics. No wonder people are turning away in disgust.

At the same time, COAG’s inability to deal properly with vital issues such as the energy market exposes that our federation is failing. On a matter as critical as the intersection between energy supply and climate change, our state, territory and Commonwealth governments cannot make policy other than at a lowest common denominator level. It’s federalism by exhaustion rather than cooperation.

On equal marriage, we’re asked to give our opinions through a ridiculously outmoded mechanism and told that the government reserves its right to ignore our opinion anyway. People have every reason to throw up their hands and ask what mockery of a democratic system we’re living in.

Sitting at the centre of it all, of course, is the heartbreaking injustice of the Prime Minister’s rejection of the Uluru Statement from the Heart as “not desirable”. This is just the most recent demonstration of our political system’s refusal to grapple with its black history. Australia as a nation is born of genocide, and our Constitution enshrines it by refusing to acknowledge First Nations sovereignty in any way.

Perhaps the answer is to stop trying to tinker with a founding document that was written long before anyone alive today was born, in a world in many ways utterly alien from our own. Jefferson and other American constitutionalists believed that such documents should be updated regularly. Perhaps now is the time to move beyond minimalist republicanism and the occasional doomed referendum towards a root and branch review of everything from reconfiguring local, state and commonwealth relations to donations and lobbyist rules, from a bill of rights to rights for nature to treaties with Indigenous peoples.

The opportunity here, to involve all Australians in a participatory, deliberative process over several years, to work out our common path together, is tremendously exciting. The process itself would be a vital corrective to the current more or less complete alienation of the bulk of people from politics and democracy. The relationship between citizen and government has become one of customer and service provider in which we, the citizens, have no capacity to play any active role. We can see our deep democratic deficit in the access corporations have to parliaments and MPs while the right to protest is increasingly circumscribed and outlawed. We can see it investor-state dispute resolution in international trade law, where companies can sue governments to overturn their decisions, often when citizens have no such power themselves.

We have to reverse that democratic deficit if we’re to have any chance of responding to the huge challenges we face, from climate change to inequality, from the rise of the machines to the rise of fascism. And the only way to do that is through participation – through the people coming together to determine our own way forward.

We don’t have to wait for anyone to make that happen – it’s up to us to do it. In our own communities; reaching out to others; through unions and community groups and workplaces; and humbly asking Aboriginal and Torres Strait Islander people to lead the way.

Who’s in?

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