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It's time to fix our sputtering constitutional mechanics

Opinion

The citizenship fiasco shows it is time for the Parliament to get serious about constitutional change, writes Mark Brindal.

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How would you feel if you were presented with a new Mercedes fitted with a Model T gearbox? Australia is a nation content to muddle along with an obsolete gearbox.

The citizenship fiasco is a sad indictment, not so much of our Constitution, but of the arrogance, apathy and neglect of those who hold themselves up as this nation’s political leaders.

If we could draft flawless laws, Parliaments would have become obsolete. Everything is in a constant state of change; laws become irrelevant and need amendment or repeal. Circumstances change and require new law.

To suggest that the Constitution can embody timeless foresight and wisdom is foolish. It is unrealistic to expect that any document drafted in a different century, by people with different experience and a different world vision will remain incisive and relevant.

The High Court’s recent decision on the citizenship question only examined one provision in one part of our Constitution. Professor Dean Jaensch has recently commented on many other seriously flawed provisions in the same document.

Successive governments can be considered guilty of culpable neglect since have they have either been too lazy or have lacked the backbone to institute change. They have had numerous warnings. Decades ago Prime Minister Bob Menzies compared the referendum process to the labour of Hercules. Professor Geoffrey Sawer described Australia, constitutionally, as “the frozen continent”. The Constitutional Commission in 1988 spent 30 pages recommending change. The Australian Constitutional Convention has expressed the same assessment.

The current Parliament has become a victim of the neglect of previous regimes.

Prime Minister Malcolm Turnbull called the High Court judgement wrongly, yet his reasoning was neither flawed nor original. Justice Deane argued that a person is “not disqualified by reason of s. 44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power”.

Neville Wran once observed: “If you want real social change, let me appoint the judges.” Judges of that ilk handed down the Mabo decision. Deane was a part of that court and he was followed by innovative jurists such as Michael Kirby.

However, Governments with a view that the law-making power is Parliament’s alone set about appointing conservative judges who believe that the rule of law requires strict interpretation.

John Howard appointed four; subsequent Labor governments have appointed the other three.

The High Court’s recent ruling was proof of “be careful what you wish for, you might just get it”. Until it can be changed, we are trapped. Anyone, knowing it or not, who is entitled to  “the rights or privileges of a subject or a citizen of a foreign power” is not eligible to run for Parliament.

In a bizarre twist, this advantages Australians with recent or clear overseas ties: if you know you have them, then you can renounce them. Nick Xenophon was born in Adelaide but he has formally renounced all claims to Cypriot and Greek citizenship. Senators Penny Wong, Sam Dastyari and many others, have ensured that they comply. Those caught up in the saga have more obscure entitlements.

Consider the “Act of Settlement”. It is a UK Act, which conferred on the Electress of Hanover and her descendants British citizenship in perpetuity. Though the Act is now repealed, a third or fourth generation Australian descended from her would have been ineligible to be elected to the Parliament even if their forbears had renounced UK citizenship. Who knows whether Japan, Ethiopia, Tonga or Thailand currently has some equally obscure law?

No action taken in Australia suffices. A citizenship oath renouncing all other allegiances and the oath taken when entering the Parliament count for nothing. According to the High Court, you must either conform to the law of the foreign country in renouncing citizenship or have taken reasonable steps to do so. I would have thought that it is reasonable, if you know nothing, to do nothing. However, their Honours feel that admitting the possibility of ignorance, as a defence, will undermine the stability of our whole system.

Australia believes in the rule of law. The High Court has ruled. The question now is what’s to be done?

Action is needed on a number of fronts. So long as the provision remains in the Constitution, there can be no confidence in the Parliamentary institution unless it is seen to be policed. Emotive rhetoric is counterproductive. Entry requirements have been determined and must be adhered to. Government has responsibility for that.

Before this qualification requirement received recent attention, a tick in a box on the election nomination form sufficed. Recent events have shown that that’s inadequate but that the only real losers are Australian taxpayers.

If you apply for a position of trust, you are asked to certify that you comply with certain criteria. Nevertheless, lesser people than politicians are often required to provide documentary supporting evidence. Additionally employers may seek independent information (e.g. checking that you are not on a sex offenders’ register).

Turnbull’s reluctant agreement to an audit (of sorts) of Parliamentarians is triage. It is the Electoral Commission’s failing if an unqualified person is added to the ballot paper. Until the Constitution can be changed, a vetting process needs to be mandated so that Australians can be confident that only those qualified can seek election.

If the Constitution is beyond the wit of this Parliament to change, then we must change the Parliament. Australians are capable of supporting sensible change, even if the Parliament is not.

Millions of dollars have been spent designing reform proposals and staging referendums, but comparatively little has been spent on articulating a strategy for that objective. Referenda often fail not because of what is required but because of the way the question is asked, the timing and/or dishonest advertising.

The time for excuses is past. It’s time to reform the tools so we can fix the gearbox.

It’s getting worse. In the period prior to 1973 only five of the 26 proposals were accepted, but a further 11 were approved by at least 49% of the electors and by majorities in three states.  During that period the great majority of proposals in fact stood a strong chance of passage.

What’s needed is not necessarily to increase the ‘Yes’ vote, but to make referendum voting a more considered and deliberate activity.

Referenda do not have to be conducted with elections. If separated, there will be less inclination towards arguments couched to support party partisan advantage.

Referenda do not have to entail compulsory voting. In fact, most of the 13 proposals, which were considered before the introduction of compulsory voting in 1924, almost succeeded.

While politicians are unlikely to ever again vote for truth in advertising in respect to their own election, mechanisms could be set up to ensure truth in advertising and that opinion and facts are clearly differentiated when it comes to referenda. After all, isn’t the aim an informed vote?

The time for excuses is past. It’s time to reform the tools so we can fix the gearbox.

Paul Keating once said that it’s easy to get bums on seats in Parliament – the difficult part is to get people with ideas and the drive to make them happen.

The High Court has put this Parliament to the test. If they cannot meet the challenge, maybe the next election will provide an opportunity to export arses and import brains. We need them.

Mark Brindal was a Member of the SA Parliament from 1989 to 2006, and a Minister during the Olsen and Kerin governments. He is now involved in academic writing and is a public policy consultant.

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