The Australian Constitution came into force in 1901 with the federation of the separate state colonies into the Commonwealth of Australia. With its introduction, the Constitution was heralded as "the most magnificent Constitution into which the chosen representatives of a free and enlightened people have ever breathed the life of popular sentiment and national hope", by Charles Kingston (Irving 2001). The Australian Constitution has remained relatively untouched since it came into effect, from 44 referendum questions put to the Australian people to change various parts of the Constitution, only eight have been approved (Singleton et al. 2003:52).
There is a striking lack of knowledge amongst the Australian people regarding the nature and role of the Constitution in today’s society (Stone 2000:194). This fact leads us to question the appropriateness of the Australian Constitution in the Twenty First Century. As this points to the possibility that there is some inadequacies within the written Constitution that could account for the lack of knowledge and understanding of the document in this county.
There are many different factors within the Constitution that could be examined to determine whether it is still adequate in the Twenty First Century, this essay will focus on the three main issues. Firstly, the provisions of the Constitution that are now obsolete are examined to determine whether they are inappropriate to still be included within the written document. Secondly, the use of conventions within the political system is reviewed to find whether the written Constitution lives up to the purpose constitutions are supposed to serve within a democracy. Finally, as the Constitution is seen as inappropriate by some critics because it lacks a Bill of Rights, the arguments for and against an Australian Bill of Rights will be weighed to determine whether it is appropriate or not.
It has been suggested that the Constitution should be reformed so that it properly details the way in which the Australian political system works (Thompson 1993:76). Some sections of the constitution are now obsolete or misleading, therefore the Constitution in parts is not an adequate description of how the political system functions.
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Throughout the Constitution there are transitional provisions regarding the early years of the Constitution that are now obsolete (Brennan 2001:14). For example section 26 details the number of representatives to be chosen from each state at the first election, since then the number of representatives for the House of Representatives has doubled (Singleton et al. 2003:382). Section 93 which outlines the conditions of the first five years after the introduction of uniform duties of customs is another example of a transitional provision that now obsolete (Singleton et al. 2003:395). These transitional provisions that are now obsolete affect the readability of the Constitution, making it more difficult to understand the more important Constitutional concepts (Brennan 2001:14). Removing the transitional provisions would not have any real affect on the way the Constitution operates, these provisions can be safely removed without any adverse affects on the Constitution (Brennan 2001:14).
The argument that transitional sections should be kept because of their historical value is not strong (Irving 2001). As if it was most important to protect the history of the Constitution then section 127 regarding the exclusion of the Aboriginal people from being counted as citizens of the Commonwealth should have been kept (Irving 2001). The transitional sections used to establish the Constitution will always have a place in Australian political history, if they no longer have a place within the Constitution itself.
The most prominent example of misleading provisions within the Constitution are the references to the Queen, which in just about all cases are misleading (Irving 2001). For instance sections 58, 59 and 60 claim that the Queen may review laws specially set aside by the Governor-General and has the power to reject a law even if it has been passed by the Governor-General (Brennan 2001:15). The Queen in fact does not hold the power to change Australian laws; the only power exercised by the Queen presently is the appointing of the Governor-General, which is mostly decided on by the advice of the Prime Minister (Brennan 2001:15). Since the ratification of the Statute of Westminster in 1942 and the Australia Act in 1986, Australia has been independent from British laws and Australian courts can no longer appeal to the Queen via the Privy Council (National Archives of Australia 2000). Yet these provisions that are now obsolete still remain within the Constitution giving readers the impression that they are still in effect.
It has been argued that if the provisions relating to the powers of the Queen were removed it would be seen as adopting a more republican government (Brennan 2001:15). This is not the case, as removing obsolete provisions regarding the Queen is merely correcting the Constitution so it is a more appropriate representation of the true distribution of power within the Australian political system (Brennan 2001:15).
While the Australian Constitution describes some parts of the political system well, for example Chapter 3 is an adequate account of the Judicature, however it lacks adequacy in the representation of other key factors (Irving 2001). Within the Constitution there is no mention of the roles of Prime Minister or the Cabinet and it also neglects to mention other key rules and procedures that are vital in the operation of the political system (Parkin & Summers 2002:8). For instance it is not stated that the government must resign if its budget is not accepted by the Parliament, and there are many more key facts such as this one relevant to the operation of the political institutions that are not detailed within the Constitution (Parkin & Summers 2002:8).
The Australian political system heavily relies on the use of convention, to establish the meaning of some sections of the Constitution (Steward & Ward 1996:37). The purpose of conventions is to fill in the gaps and inconsistencies that may occur throughout the life of the written Constitution, it is said that a formal constitution can only be put into practice if it is supported by the use of conventions (James 1982:15).
The use of conventions allows some flexibility in the operation of the government and has enabled the evolution to an independent system of Australian government (Brennan 2001:7). It is said that for the smooth functioning of the government conventions are very necessary, as they allow political practices to informally change over time (Steward & Ward 1996:39). It is also argued that some conventions could not be easily converted into writing and may in some cases may also be risky, for example it would be challenging to put the Governor-General’s "reserve powers" into words to be included within the Constitution (Irving 2001).
On the other hand, the use of conventions is criticized as the system of conventions can be used to change the way in which government operates for the political gain of the political parties in power (Steward & Ward 1996:40). The meaning of some sections of the Constitution can be difficult to identify, as the unwritten conventions used to establish their meanings are not included within the document (Steward & Ward 1996:37). For the average person who is not aware of the British system of conventions, reading the Constitution would be quite confusing as in some cases political practices do not correspond to what is written in the Constitution and many practices are not even mentioned in the written document (Irving 2001).
The written Constitution does not adequately fulfill the purpose of a constitution to "establishes the fundamental institutions of the political system"(Singleton et al. 2003:23) As if the Constitution is to properly establish the institutions of the political system it should include appropriate descriptions of such things as the role of the Prime Minister and the Cabinet, and how government is formed, as they are fundamental in the running of the political system (Irving 2001).
The Australian Constitution is seen by some critics as inadequate and morally deficient because it does not include a Bill of Rights. Many other liberal democracies around the world, most notably the United States have included a Bill of Rights into their written constitutions. The purpose of including a Bill of Rights into a constitution is in theory to protect the rights and freedoms of individuals, for example allowing citizens the right to vote, freedom of speech and assembly (Steward & Ward 1996:41).
During the federation conventions in the 1890s, proposals to include a Bill of Rights in the Australian Constitution were rejected by the majority of delegates, as it was believed that individual rights would be adequately protected by Common Law, the Parliament, convention and the political culture of Australia (McKenna 1997).
Critics argue that not including a Bill of Rights within the Constitution leaves the rights of individuals improperly protected, and an ambivalent attitude towards civil liberties has developed within the Australian political culture (McKenna 1997). The adoption of legislation and common law decisions relating to the protection of certain individual rights is dependent on the current political and social ideologies (McKenna 1997). Therefore minorities may be disadvantaged in regards to their fundamental rights, and may have limited avenues for seeking justice in cases where there is an abuse of rights (Stott Despoja 2000). An example of this is evident in the case of Kruger & Ors v. The Commonwealth of Australia, where is was found that legislation that enabled members of the Stolen Generation to be removed from their families was not unconstitutional, thus leaving them with limited avenues for recourse (Stott Despoja 2000).
On the other hand, it could be to their own credit that they did not include their own ideas of rights and values in the Constitution, as some of the rights that could have been accepted as part of a Bill of Rights may be questionable in today’s society (Irving 2001). If a Bill of Rights was to be entrenched within the Constitution now, it is possible that people of the future generations may be more enlightened and find the rights included within a Bill of Rights inadequate (Irving 2001).
The values of society are constantly changing, therefore it can be argued that it is better that Parliament be able to make and change laws in line with society’s values at any given time (Lightfoot 2000). In countries where there is an entrenched Bill of Rights it is difficult to change, therefore evolution or advancement of those rights is limited, for example the United States Bill of Rights has remained mostly untouched since it was created in 1789 (Lightfoot 2000). There are many conventions, institutions and instruments such as anti-discrimination legislation and many common law decisions to safeguard the rights of individuals (Lightfoot 2000).
Therefore it can be argued that it is more appropriate to not have an entrenched Bill of Rights included in the Australian Constitution, and keep the ability for Parliament and the Judicial System to make legislation and decisions regarding the rights and freedoms of individuals, to ensure the rights of Australian people move with the times.
There are parts of the Constitution that are still appropriate in the Twenty First Century, as in was concluded that the Australian Constitution is adequate without a Bill of Rights protecting the rights of individuals. As the rights of individuals are already adequately protected in Australia, and it is more appropriate to keep the ability to make and change provisions regarding the freedoms and rights of individuals within the Parliament and Common Law decisions and not have them set in stone within the Constitution. Because this allows the provisions to be changed so they are in line with the current ideas and values of society.
On the other hand there are parts of the Australian Constitution that are inappropriate and inadequate in today’s society. It was concluded that it was inappropriate to retain the transitional provisions and obsolete sections of the Constitution, as they are misleading and makes the written Constitution hard for ordinary citizens to read it and actually understand it. It would be more appropriate to remove these provisions, as they no longer serve a purpose within the Constitution. The Constitution is also inappropriate as the system of using conventions to fill gaps throughout the Constitution is relied on too heavily. Some of the key concepts essential to the operation of the political system are not mentioned within the Constitution, therefore the Constitution is not an adequate guide to how the political system actually functions. In conclusion, although the Australian Constitution does have some strong points, overall the Constitution is not totally appropriate for the Twenty First Century. Reforms are needed to bring the Australian Constitution in line with how the political system actually operates in the Twenty First Century.
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