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Getting Rid of the Junk
What a mess!
The Australian Constitution is unreadable. This is an indisputable fact. I have carried out surveys of my friends to see who read the annotated copy they were sent before the last referendum and almost no-one managed to read it, and even fewer said they understood what was in it.
One of the reasons for this unreadability is that our Constitution is a document written for 1901. When it was enacted by the British Parliament and received the Royal Assent, it was designed to manage the transition from six (or five since six wasn't assured at the time) partly self-governing colonies to a partly self-governing Federation. Necessarily, a lot of the Constitution is taken up with the concerns of 1901, and a large number of clauses in it are designed to deal with this transition.
Of course the Constitution is written in legal language that is sometimes difficult to understand. It runs to over 11000 words. Anything we can do to reduce the complexity and shorten it, without of course losing any essential matters, is worth considering.
In our Plan, at the next Federal election in 2001, we take the first steps to tidy up the mess by deleting all the transitional clauses which no longer have any effect, modifying those transitional clauses which were drafted so that simple deletion is not appropriate, and set in place a provision to ensure that we never have to waste time on this again. None of this ought to be controversial, and all political parties ought to be able to support this First Reform Referendum. The only reason I can think of for opposition is from mean-spirited people who do not want to see any change to the Constitution just in case something slips through some time in the future.
Let me take a brief wander through a few of the aspects of the Constitution that could go without any loss. I will pass over any of the Sections that deal with obsolete powers of the Queen or the Governor-General, since I believe we should leave those for the Second Reform Referendum. The first paragraph I come to is the last one of Section 5 which reads:
  First session
The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.”
They actually met, way back on * May 1901 in Melbourne. So why do we need to keep the reminder in our Constitution? Note that in Constitution-speak, a Section is a numbered clause. Reading on, we get to Section 7 whose first two paragraphs read:
7    The Senate
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.”
The second paragraph is clearly superfluous. Queensland is an Original State. The Parliament of the Commonwealth has provided otherwise. Moving on, Sections 9 and 10 then state:
  9    Method of election of senators
The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for Th.  at State.
Times and places
The Parliament of a State may make laws for determining the times and places of elections of senators for the State.”
  10    Application of State laws
Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.”
Again, we now have a Commonwealth method of choosing senators, and the references to State Parliaments are ineffective. Section 10 is wholly redundant since the Parliament has provided otherwise.
We haven't got very far if we find have found four sections in the first 10 that contain transitional baggage. The pattern is repeated through the entire 128 current sections though not quite as frequently. No wonder the Constitution is unreadable if there is so much you have to keep reminding yourself is no longer operative.
Criteria for getting rid of the junk
Don't worry, I am not going to go through the Constitution in this detail. It would be mind-bogglingly boring. Let me however highlight the principal reasons for deleting or modifying clauses in this First Reform Referendum. Since the referendum is designed to clean up the Constitution, I propose that only absolutely clear cases of obsolescence are dealt with, and further that if either the Queen or the Governor-General is implicated in a section in any way that the matter be held over to the second referendum in 2004. We don't want anyone to be able to make even a weak case that this reform is unsafe.  I make only two exceptions, described below. Remembering this exclusion, the guidelines I put forward for this first reform to select a Section for revision are:
   The Constitution made provision for the transition of government from the six Colonies to the Commonwealth and the States, and gave the Parliament of Australia the power to over-ride the transitional provisions in the future. The Parliament has made many such provisions in the intervening 100 years, and the text has served its purpose and can be deleted.
   The Constitution was passed by the British Parliament at a time when the composition of the Commonwealth had not been finally determined, since not all State referendums had been held. For example, Section 7 has a paragraph only activated if Queensland is an Original State (it is), and there are references that apply only if Western Australia is an Original State (it is). These sections may be modified, or deleted as in the case of Section 95 relating to Western Australian customs duties over the transitional period 1901-1905.
   The Constitution also contains some transitional provisions inserted by the 1977 Referendum (Section 15) that have also passed their use-by date.
   Racist sections should be deleted. They are in any case no longer operative and in the spirit of Reconciliation should go immediately. You would no doubt be surprised to learn that if a State enacted a racist law excluding persons of a particular race from voting for its Parliament, then those persons would not be counted in the Commonwealth statistics that determine the number of senators (Section 25).
   Sexist provisions should be deleted. They are in any case no longer operative. The Constitution contains this quaint paragraph in Section 128, which is code for `as long as women don't have the vote everywhere, then in the States where they do each vote shall count as one-half of a vote':
   “When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.”
   Without going overboard, sexist language can be modified, to remove the `he' and `his' terminology.
   Two Sections state that there “shall be payable to the Queen” sums for the salary of the Governor-General (Section 3) and Ministers of State (Section 66). They also specify 1901 levels set in pounds (£10 000 and £12 000 per year respectively). Pounds are no longer legal tender in Australia. I think it is inappropriate to have salary determinations in the Constitution, apart from the last sentence of Section 3 that states that “The salary of a Governor-General shall not be altered during his continuance in office”, thereby ensuring the Governor-General has no financial interest in parliamentary decisions.
   Finally, checking for any other instances of obsolete currency threw up Section 46. It provides for a fine for anyone who sits in Parliament while disqualified, at £100 per day for every person who sues them! Of course until Parliament provides otherwise. This too can go; if Parliament has not provided for this circumstance, it should.
To illustrate the state of the Constitution concisely, the following diagram shows for each section whether it should be totally deleted (grey), requires revision for serious reasons (red) or contains only some sexist language (yellow). Some of the clauses otherwise marked in grey or red also have sexist language that will be dealt with routinely in their deletion or revision. So do many sections relating to the Queen and Governor-General, but I suggest that these are strictly left alone at this stage. The sections are numbered across the first row 1-9, the second row 10-19, and so on. There are no Sections 00 or 129; Section 127 was deleted by the 1967 referendum; and there are two Sections 105 and 105A..
Even with these tight restrictions, 16 of the 128 sections of the Constitution (12%) are redundant because they deal entirely with transitions in the distant past, another 22 require reconstruction because they include mention of such transitions (sometimes extensively), and eight deserve editing only because they include sexist language. In total 46 sections (36%) in our Constitution deserve amendment for reasons on which we should all agree.
Preventing future waste of time
There is another matter that we should deal with in this First Reform Referendum. It should be strikingly obvious. That the people of Australia have to waste their time and a great deal of public money to delete constitutional transitional provisions that are long past their use-by dates is scandalous. We should make sure that we need never do this again, because when we become a Republic there are bound to be new transitional provisions inserted into the Constitution.
My solution is quite simple. At the First Reform Referendum in 2001, we also amend Section 128 that deals with how the Constitution may be amended, by adding something like the following words (Constitutional lawyers are welcome to refine this).
“Provided that the Constitution may be amended in one of the following two ways which may be specified when a section is inserted or amended.
“(i)    If a section shall commence with the sentence 'This section shall apply until [insert date]' then it shall be deleted from the Constitution on that date.
“(ii)    If a section shall commence with the sentence 'This section shall apply until [insert condition]' then it shall be deleted from the Constitution when the High Court certifies that the condition is satisfied.”
A different approach was taken in the 1999 Referendum, where all the clauses dealing with the transition to a proposed Republic were collected in a new Schedule (Schedule 2). The disadvantage of this is that while they were more clearly identified than any previous transitions, they stay in the Constitution until explicitly removed. I can see no reason why we cannot decide on a use-by date or condition when we approve such transitions. If the lawyers have no precedent, they can start one. It is a practical Australian solution to a problem.
The question
Finally, let us take charge of a bit more of the referendum process. You will recall much political argument prior to the 1999 Referendum about what question was to be put to us, the electors, on the ballot-paper. Whether the Queen and/or the Governor-General would be mentioned, or the method of appointing a President, and so on. It was an exercise in classical politics. Few of us have much patience with such antics.
So let us frame the question that we want to be asked, and fix it in concrete. The politicians and lawyers can work on getting a Bill together that encapsulates what we want in this first reform agenda and putting it into legal language. However, we can choose the question we want to be asked, to be simple and containing our intent. And I suggest that this is it:
Do you approve the amendment of the Constitution to remove transitional and obsolete provisions, and make provision for automatic deletion of transitional provisions in the future?
In the next Part of this series, I move on to the Second Reform Referendum, which tackles the obsolete baggage in the sections that deal with the Governor-General and the Queen, but stops short of all republican issues.
What will we have achieved?
A question that needs an answer, given that even a referendum question put at a normal Federal election costs money. Even the alterations do not change anything in the practical application of the Constitution, they are still worthwhile. If the Referendum passes, we will have achieved the following objectives.
   removed sections and text in our Constitution which are no longer relevant;
   shortened the Constitution by about 20% in words and 12% in sections;
   removed racist and sexist text from our Constitution;
   made the Constitution more accessible to ourselves and our children, even if only by a single small step;
   demonstrated that the Australian people and their politicians are capable of making sensible Constitutional amendments;
   made progress towards updating the Constitution for its second century; and
   begun to make provision for deciding whether we want to become an Australian Republic or not.
We have spent more money on far less worthy projects.
© Copyright  2000  AHJ Sale
Page last modified on 2001 July 5