Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I rise to speak in relation to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Reforming our Constitution: a roundtable discussion. I want to first pay tribute to and thank the member for Isaacs for his bipartisan nature and the way in which he chaired the meetings. Members of the committee approached his chairmanship with confidence. I thank him very much for the leadership he showed in the committee. The constitutional change that we have experienced in this country over such a long time has gone not just at a Darwinian evolutionary pace but a glacial pace. We have not seen any constitutional change by virtue of referenda since the mid to late 1970s. We have seen some change caused by judicial interpretation, if not activism, and some change in relation to intergovernmental negotiation and referral of powers. But change by way of referendum with the majority of votes being cast by Australians in a majority of states has been a cautious and a reluctant experience for the Australian community.

In the lead-up to the 2020 Summit, I conducted a number of fora—2020 summits in schools—in my electorate of Blair in south-east Queensland. Of all the topics that were looked at by the grade 12 students in the various schools, both urban and rural, the one that caused them the most angst and vexation was the future of Australian governance. What struck me was that, whilst the grade 12s were across agricultural issues, multiculturalism and economic pressures on their families, the future of Australian governance was not really to the fore. Very few of the children in the classroom understood very much about constitutional arrangements in the federal system of government, which we have experienced since the turn of the 20th century.

I note that there were five big ideas arising out of the 2020 Summit—an Australian republic; collaborative governance, through revolutionising the way government and communities interact; a modern Australian federation, through reinvigorating the federation; a bill or charter of rights for all Australians, including Indigenous Australians; and open and accountable government. These are values and aspirations which I share. The idea of a preamble in the Constitution to recognise the first people’s custodianship is also a worthy goal.

Coming from a background as a practising lawyer, the roundtable summit was perhaps the most fascinating and interesting experience that I have had since I was elected to this House. The roundtable was very interesting for me because I have read articles, essays and books from the eminent scholars who on 1 May 2008 came to this place here in Canberra. I thank them all for their participation. I was somewhat in awe of their intelligence and breadth of experience in constitutional and legal matters. I also thank all the members of the committee who participated.

There are three main ways that we change the Constitution in this country. The first is by referendum. That is the highest benchmark and probably the one that we should aspire to the most. As I said, the Australian public has shown caution and reluctance to make changes through referenda. Perhaps when it comes to this issue I am, for one of the few times in my life, to the left of the member for Moreton. I do not think we always get it right when it comes to constitutional change. I think 1946 was the last time this side of the House proposed a successful referendum to the Australian people without the support of those opposite. They have had more success. We have only had eight successful referenda out of 44, and that is very sad, in my view. We have then gone about other ways and means to effect change, perhaps of a less consultative nature, and that has not been a good thing. I have very democratic sentiments, as do most if not all of the people in this House, and I believe it is important that the Australian public be involved in this process.

The idea that somehow we can rely upon judicial interpretation and activism is not a good thing. That activism and interpretation has waxed and waned over the years. We have seen it evoke criticism from both sides of the House. When there have been liberal interpretations of the Constitution, those on the other side of the House have criticised it. But when the High Court has taken a lacklustre, legalistic, conservative approach, those on this side of the House have been critical. Resorting to the idiosyncrasies and peculiar eccentricities of legal interpretation to effect constitutional change is to me a second-best option. Relying upon intergovernmental negotiation and referral of powers without any real parliamentary oversight is not really the best way to go about constitutional change. The proliferation of many agreements without any automatic referral to a parliamentary committee is also not a good thing. I applaud the recommendation of the committee which said:

The Committee recommends that the Australian Government introduce the requirement for intergovernmental agreements to be automatically referred to a parliamentary committee for scrutiny and report to the Parliament.

I think that is a very good recommendation and I ask the government to take it up.

Section 44(i) of the Constitution lacks certainty and clarity with respect to the disqualification of people from becoming members of parliament. In this era of multiculturalism, with many people holding dual citizenship, it is really quite extraordinary that people who come to live in our country and show a degree of commitment to it cannot be elected by the people to this parliament without having to renounce their citizenship elsewhere. I think we should have a look at this again. Disqualifying many people from becoming members of parliament and causing them financial disadvantage by saying that they are exercising offices of profit under the Crown is really quite an antiquated notion. People change jobs and retrain; we have a great deal of social and vocational mobility in this country. I think section 44 needs attention. Even though I am a proud Queenslander, I have some criticism of my own state of Queensland. Queensland really ought to move to four-year parliamentary terms. The other states have moved to that, and the Commonwealth, like Queensland, also needs to play catch-up.

I have some concern about how the Australian public would consider the notion of electing senators for eight years, and that idea of a nexus. I think that we should be looking at changing the duration of time that senators serve on behalf of the people. I also think we should have a good look at the idea of four-year fixed terms as well. The timing of the Senate is really quite strange. The idea that someone like, say, Senator elect Mark Furner from Queensland could be elected on 24 November 2007 and have to wait until 1 July 2008 to take up office is quite strange and quite extraordinary. I am sure that the average person in the street would think that was an odd thing indeed. I think the climate is ready for a change in that regard. If people generally knew that that is the provision in our Constitution they would think better of us for seeking to change it.

There are very few rights in our Constitution. The founding fathers—and they were all founding fathers; not founding mothers and fathers—were nonconformist when it came to issues of religion. So we have section 116 as one of the few rights in our Constitution:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

It would really surprise a lot of people that we do not have rights as the Americans would consider them. The Americans adopted a Bill of Rights in 1791. I would like to see a bill of rights constitutionally included, although I am not confident that the Australian people would accept that. The notion of Professor George Williams, who has been an advocate for a human rights charter, is a good one. It has been adopted in Victoria—the Charter of Human Rights and Responsibilities. The UK in 1998 adopted a law of this kind. I think it could serve an educative role in our community. It is important that it is about not just rights but also responsibilities. It is important that one of those responsibilities is that we obey the law and respect the rights of others. That is crucial to the notion of a fair go for all. Victoria has done this, the ACT has done this, New Zealand has done this and the UK has done this as well. I think this would bring human rights issues to the fore when any law was passed through this parliament. It would not fetter the sovereignty of the parliament. It would not involve judges interpreting and applying laws, but I think it would bring to the attention of the Australian people where a law was being passed that was contrary to the charter of rights and responsibilities. It is a good way, as Professor Williams says, of weeding out bad laws while leaving the decision of how to fix the problem with elected representatives.

I would like to see the Constitution changed insofar as the preamble is concerned. I think it would be a wonderful idea if we recognised the special position of our Indigenous people as our first Australians and recognised their traditional custodianship of the land as well. The recognition of their identity and belonging is also important. It is important that our preamble states who we are, where we come from and what we believe. But I am also concerned about how it would look. The wording of the Australian Constitution and the preamble that we have operated under for so many years is quite archaic, turgid and Victorian in nature. It uses words which we do not often use these days. I am sure if you went out into the street and discussed with the average person things in relation to the preamble using words like ‘Lords Spiritual and Temporal’ they would find it very hard to accept. They would find that very strange indeed. It is time that we looked at the preamble, but I am concerned about how it would look juxtaposed with a constitution that uses such antiquated language. I am concerned about the beauty and the eloquence of such a preamble and how it would sit alongside the Constitution as it is constructed and operating.

It is important that we look at the principles of the Constitution and constitutionalism. I would like to see the preamble looked at in the context of looking at the Constitution as a whole. It is important in 2008 and beyond that we have a Constitution that is modern and that would reflect where we are going, where we are presently and what we believe as a people. It is time we looked at federal-state relations again. There is no way we are ever going to get rid of our state governments. I think the states serve a useful purpose and I am proud to say I come from Queensland. It is time our young people were better educated and our people more engaged in civic and public constitutional issues. I look forward to the day when we have on a regular basis constitutional conventions so that the Australian people can be involved in the process of constitutional change, and their democratic beliefs and their aspirations for the future can be reflected in a document that does not use terminology which is better suited to the 1890s.

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