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By and large, our Constitution works surpassingly well. As a mix of convention and rigid constitutional law, we seem to have gotten the balance just right. It has protected the rights of Australians through political constraints far more effectively than the Bill of Rights has protected Americans’ rights. It has nurtured a Government which is flexible enough to adapt to changing circumstances, but whose power is restrained by political imperatives and the threat of reserve powers. On the other hand, it is not so directly responsible to the people that difficult decisions cannot be made.

But nothing in this world is perfect. How would I amend the Constitution?

Let’s begin with the symbolic changes. Let’s transition to a minimalist Republic. Whilst this is a conceptually simple task, the legal technicalities of that transition are enormously complex and I shan’t go into that here. Australia’s Constitution derives its legally binding nature from its original source as a schedule to the Commonwealth of Australia Constitution Act 1900 (UK). Let’s re-enact it as an Australian law of Australian Parliament, with its source in the people (or at least, in the people defined as a majority of Australian electors in a majority of States). Let’s rewrite our preamble (although it would prove a near impossible task to reach consensus on the wording). Let’s remove anachronistic transitional provisions, such as the ones halving the votes of any State with women’s suffrage.

My major concern with our federation is that States’ rights are slowly being eroded.

Let’s give the States a formal role in appointing High Court justices to slow the gradual expansion of Commonwealth power over time.

Let’s entrench certain exclusive areas of State legislative control and exclusive State taxes.

Let’s permit an alternative method of amending the Constitutions where the States are capable of putting referenda to the people (or at least proposing such a Bill to the Cth Parliament).

Let’s change how federal grants to the States work, so that tied grants are discouraged.

I don’t have many other thoughts as yet, but here’s a few on other areas:

Let’s allow a transition period for new Governments after an election just like an incoming Presidential administration has.

Let’s reform the external affairs power. Currently, the executive branch may ratify a treaty (exposing us to obligations at international ‘law’) without committing to passing legislation to enact such laws. I believe many of these issues have been solved by the Joint Standing Committee on Treaties, but it would be good to formalise this process by requiring the Commonwealth to discuss the ambit of permissible treaties before they enter international negotiations.

Let’s extend separation of powers to the States.

Let’s fix the deadlock provisions between the House and Senate. A 3 month time lag is far too long.

That’s all for now. Any thoughts?


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