Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the House of Representatives Standing Committee on Legal and Constitutional Affairs, I present the committee’s report, incorporating an additional comment, entitled Reforming our Constitution: a roundtable discussion together with the minutes of proceedings and evidence received by the committee.

Ordered that the report be made a parliamentary paper.

Reforming the Constitution: a roundtable discussion is the first report of the committee for this parliament. Despite dramatic change and growth in Australia as a nation over the last 100 years, Australia’s Constitution remains very much as it was originally drafted. Over that time there have been 44 referenda to amend the Australian Constitution, of which only eight have been successful. It is now over 30 years since there was a successful referendum to amend the Constitution. This is the longest period since Federation without even minor reform to the Constitution. In addition, the present decade may be the first since Federation during which there is no referendum held.

To progress debate on constitutional reform, the committee conducted a roundtable discussion on 1 May 2008 with 14 eminent and expert participants: Professor Larissa Behrendt, Mr Peter Black, Professor Tony Blackshield, Professor Hilary Charlesworth, Professor Greg Craven, Professor David Flint, Professor Michael Lavarch, Dr Lowitja O’Donoghue, Professor Kim Rubinstein, Professor Cheryl Saunders, Ms Khatija Thomas, Ms Anne Twomey, Professor George Williams and Professor Leslie Zines. The roundtable took place shortly after the 2020 Summit and consequently was able to apply some of the ideas raised in the governance stream of that forum to the context of constitutional reform. This report brings together those discussions and puts to the parliament and the public of Australia some key questions about what we want from our Constitution. The report considers various means of changing the operation of the Constitution. It is telling that formally amending the Constitution, the most transparent and publicly accountable means of change, has become the least often used.

Another much criticised area of the Constitution is the disqualification provisions for members of parliament, particularly those relating to foreign allegiance and office-of-profit under the Crown. Before the last election, I was involved in giving advice to a number of people on these disqualification provisions and had direct experience of the lack of certainty in their interpretation.

The roundtable considered the appropriateness of the three-year election cycle for the House of Representatives. All states, with the exception of Queensland, have now moved to four-year election cycles. Consideration of fixed four-year election terms should be on the Commonwealth agenda.

Federal-state responsibilities and negotiating more cooperative federal-state approaches are other areas of constitutional contention. We need to consider reforms that will bring the Constitution more in line with current practice and enable cooperative federalism to operate effectively. One consequence of our Constitution’s separation of federal and state responsibilities is the proliferation of intergovernmental agreements. Of most concern is the lack of transparency and oversight applied to agreements of this nature. For this reason, the committee has recommended scrutiny of intergovernmental agreements by a parliamentary committee, as currently happens with international treaties.

There have been calls for our Constitution to recognise the special position of Indigenous people as the first Australians and traditional custodians of the land. The roundtable considered proposals for this recognition to be included in the body of the Constitution or in a new preamble to the Constitution, which could encompass a broader statement of identity, aspiration and belonging for all Australian people.

The government has committed to engaging in a process of public consultation around a charter of rights for Australia. While the roundtable and the committee did not make any recommendation regarding a bill of rights, this is another key issue in debate on constitutional reform. I am hoping Australians will engage more with our Constitution, recognise its importance as the founding document of our nation and debate how it might be reformed to be the document that shapes our nation into the next century. Public involvement in these issues is critical. I hope that this report challenges and assists in changing the current freeze on constitutional reform.

I extend my thanks to all members of the secretariat team who assisted with the various tasks for this inquiry: Clare James and Jane Hearn, for their work with the roundtable; members of other committee secretariats who assisted in the drafting process—Dr Mark Rodrigues, John Carter and Mr Kevin Bodel; and especially the committee secretary, Dr. Anna Dacre. I thank the participants in the roundtable who engaged in robust and constructive debate to help bring these complex issues into a form that is meaningful and relevant to all Australians. Finally I thank all members of the committee for demonstrating their commitment to progressing constitutional reform in Australia. (Time expired)

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

Let me join with the Chairman of the House of Representatives Standing Committee on Legal and Constitutional Affairs in supporting the tabling of this important report on reforming our Constitution. On constitutional issues, I suspect that the chairman and I might well be very many kilometres apart. I am a constitutional monarchist and I strongly support the essential principles of our Constitution, as no doubt does the honourable member for Isaacs, but on certain issues we might have a different approach. When I first heard about this proposed roundtable discussion I had a modicum of concern that it might be a slow boat to republicanism by stealth. I want to place on record my admiration for the chairman and the way in which he conducted the roundtable discussion. We were able to attract participants of an extraordinarily high calibre. The discussions were particularly interesting and focused on what was attainable rather than on what was necessarily desirable. When we looked at the mechanisms for changing our Constitution, particularly the double majority requirement whereby a majority of citizens in a majority of states must sign up to a constitutional change for it to actually occur, the participants in the forum did not state what they would like but looked at what was possible. There seemed to be general acceptance that removing the requirement that there be a majority of people in a majority of states would be seen as an attempt by politicians to subvert the constitutional process and that any proposed amendment of the Constitution to take away that safeguard would undoubtedly be rejected by the Australian people.

In the discussion it became very clear to me—and it came up in much of the comment made by the participants—that if there is to be constitutional change then the Australian people ought to have an ownership of the process of constitutional change. At the present time we have had constitutional conventions, we have had a debate on whether Australia should become a republic and we have had motions put forward through the federal parliament by way of bills to change the Constitution. I suppose one of the benefits we have as Australians is that, as a nation, we are sceptics. When people are pushing a change, our first reaction is to ask: ‘Why on earth are these people pushing this particular change?’ What became very clear to me personally and what came though loudly and clearly in the committee discussions was that if there is to be any sensible consideration of changes to the Constitution then the community must enjoy a sense of ownership of the process.

There is no doubt in 2008, well over 100 years from when the Australian colonies federated to form the Commonwealth of Australia in 1901, that if you look at the Constitution today you can see that it is not operating in the way that the founding fathers intended it to. And there is no way that the founding fathers, even with the greatest foresight in the world, could have predicted the needs of Australia in 2008 compared with the needs of Australia in 1901, which then became the Commonwealth of Australia. There has been, by a series of different processes, a concentration of power at the centre. Whether or not you think that is healthy or unhealthy is a matter for individuals to decide, but the reality is that, largely through constitutional interpretation, a referral of powers from the states to the Commonwealth, cooperative schemes and the power of the purse, the Australian government does in fact have a greater say than it did.

Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

Does the member for Isaacs wish to move a motion in connection with the report to enable it to be debated on a future occasion?

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

In accordance with standing order 39(c), the debate is adjourned. The resumption of the debate will be made an order of the day for the next sitting.