What is wrong with the Constitution?

Policy Aus Constitution Reform
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Australian parliamentary democracy has its good aspects and bad aspects compared to the rest of the democratic world, but it has been in operation for over 100 years and it could do with some significant changes.

This idea was floated in the lead up to the Congress a few months ago. This post contains a lot more info on the need for having a rough idea what we would like to do to rewrite the Constitution if we got the opportunity.

The way I thought we could address this is to start two separate threads of debate. The first is focused on what exactly is wrong with the way Australian democracy functions. The second is what aspects we would like to see encapsulated in the democratic process if we could re-write the Constitution to our own specifications.

So, what exactly is wrong with the way Australian democracy functions? Below is what stands out to me. It is a conversation starter and by no means complete.

Representative democracy

The House of Representatives(HoR) has members for 150 local areas who each elect one parliamentarian to ‘represent’ them in parliament. They do not represent the local electorate, they represent the Party they
campaigned under. This leaves vast swathes of the population ‘represented’ by someone who doesn’t actually represent them.

In the 2013 federal election, the ALP got 33.38% of the vote in the HoR and 55 Seats, whilst the Coalition got 45.55% and 90 Seats. The Coalition got control of the House of Reps with under half of the votes.

If the Seats were divided proportionally rather than by geography, to be elected you would only need 0.66% of the vote to earn a Seat in parliament. This would be more representative of the views of the Australian population.

Another way to look at it is to pose the question, how would you make the local representatives actually represent the electorate? This could be done through local meetings, plebiscites etc. IE the active participation of the local community in decisions. This would make the local representatives play the role of delegates rather than representatives. This has its own problems in that most people don’t want to be involved in politics, so those participating would skew the outcome towards their own preferences, but it addresses the underlying problem with how parliamentary democracy currently functions.

States Vs Nation

There is constant tension between the State governments and the Federal government. The State government is in a lot of ways more distant than the Federal government. There is less focus on state politics in the media. In NSW at least, the state government governs about 7.5 million people, which makes it bigger than New Zealand. This makes it pretty distant in terms of both the population governed and voters understanding of the how the government functions.

Bill of Rights

Our rights as citizens are defined by whatever the parliament decides to make laws about. The constitution has an implied right to religious freedom and the requirement that the members of parliament be decided through a democratic process, but that is about it.

We can be put under intrusive mass surveillance, our right to free speech can be curtailed and we can be jailed arbitrarily without any protection from the state. We need our civil liberties enshrined in the Constitution to protect us from parliament.

The Monarchy

‘Listen, strange women lyin’ in ponds distributin’ swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.’ -Monty Python, The Holy Grail.

The same can be said of hereditary rule. Having the head of state be determined by birthright is lunacy. Not only does it imply that there is a genetic quality to governing, which history shows is not true, it also leads to inbreeding, which makes hereditary rule more likely to turn up mad rulers etc. There is no place for Nobility in modern society.

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I believe the point about Representative Democracy is worthy of a revisit of Yes, Prime Minister, season 2 episode 5 “Power to the People”. There is not a chance such a change will ever happen. It’s a catch-22; you want more representative MPs, but if you abandon the party structure, it will become almost impossible to get legislation through parliament as everything would have to be negotiated between 150 individuals. How would ministries work? Who would have control over what policy areas?

Honestly I think we are far better off trying to make changes to our current system rather than totally overhaul it. The primaries system Labor use for their MPs is a good example of greater local inclusion in how candidates are chosen, for instance.

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My thoughts in point form:

  • Add a bill of rights
  • Give the High Court or separate constitutional council explicit power to enforce the Constitution.
  • Grant domestic courts power to invalidate laws that breach international obligations.
  • Institute proportional representation for the lower house (one national electorate).
  • Transform into a unitary state (with devolution).
  • Transform into a parliamentary democracy (including actually stating the composition of the executive).
  • Retain the Governor-General, but remove all powers: make it purely ceremonial.
  • Remove all prerogative powers of the executive (eg, war powers).
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It’s a very interesting question. I’m a fan of the idea of scrapping the states and limiting the Federal tier to health, basic income provision, defence, courts, some environmental things, and a limited part of education (oversight of a national curriculum, additional resources for poorly performing schools). Under it will be a powerful local government tier overseeing all other services including police & emergency, most education, job guarantee programs, urban planning, and infrastructure.

I’d like a mixed member proportional (MMP) single house parliament with about 150 members. MMP binds some MPs (but not all) to traditional seats. These seats should have the same borders for both levels of government - which is to say each area returns both a local council and a federal MP. That way if you aren’t represented by your MP you will at least have a backup chance to be represented on council, and I’d expect the federal MP to work with or maybe even have a position (‘Federal representative’) on the local council so that levels of government are obliged to talk to each other.

I’d like to add a bill of rights and powers for courts to overturn laws where they fail to meet international obligations. I’d strip the executive of war powers and scrap all the ceremonial and monarchist fluff entirely.

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I would think no longer being able to twist the odd arm and push through unpopular legislation would be a good thing in a democracy.
Think of any good legislation that is unpopular…
even in a smaller division of locality the party machine finds a way to survive just its internal discipline weakens which is usually a good thing for the quality of a democracy.

There are other problems with locality divided democratic systems and that is seen with the drawing of electorate borders and the common practice of Gerrymandering


It is unfortunately common that smaller parties can be left unrepresented even if they may command enough aggregate votes nationally to deserve a seat.
Division by locality is an archaic process that works on flawed assumptions about how our society and its political process functions.

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I ranted about this on Twitter recently: https://storify.com/piecritic/a-twitter-rant-about-reforming-australia-as-a-unit

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You would need an independent body to set district boundaries, to be sure. But MMP does a good job of allowing small parties in, which is the critical ingredient for renewal.

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I agree, we do need to re-look at the framework of the Constitution of the Commonwealth of Australia for the 21st century and maybe beyond.

I do like the idea of local seats, so I do believe that Mixed-member proportional representation is a better system, I do like to change it up a little with the electorate vote to continue to use a preferential system.

I also agree that the representatives should go back to the people and get their opinions. (maybe via merging the electorates with the state/local government regions.)
Getting to change the federal system however…

A constitutional-level charter of rights, freedoms and responsibilities is a must. (responsibilities would include attending a polling booth at elections, attending jury duty, and any other actions deemed necessary to protect these rights and freedoms. (responsibilities are at a should compulsory level))

About the Queen… well we don’t pay any tax money for her maintenance (I think…) and she does make the UK more money(Both the proceeds of crown land and Tourism) than the British government pays for her and her family. Not to mention all the juicy gossip from all the News Corp (and other) Journalists/Paparazzo. So all I will say on this topic is that I don’t care either way.

I do feel that a House of review is a good idea but it should be appointed for limited terms by sortition (drawn from the electoral roll at random, like Jury Duty candidates)

We do have a division of the AEC and similar state authorities that redraws electorates after each election it is known that Australia does not have Gerrymandering.
We do have 2 famous cases of Electoral Malapportionment however, the Playmander which advantaged Sir Thomas Playford. The Playmander consisted of 13 Adelaide and 26 Rural single member electorates (eg: in the 1968 state election the electorate of Frome had 4,500 formal votes vs the electorate of Enfield with 42,000 formal votes) while not set up by Sir Thomas Playford, it locked the ALP out of power for 27 years; and the Bjelkemander advantaging Sir Joh Bjelke-Petersen while the Bjelkemander fixed a previous malapportionment originally advantaging the ALP he did create a electorates that also screwed his coalition mates (the Liberals) in favour of his party (the Nationals)
We need a set of guidelines on fair and appropriate drawing of electorates (maybe make each electorate both geographically relevant and as close to a swing electorate as possible?)

Trying to break the power of the whips… wait… What is our policy to members of PPAU who cross the floor in a vote? (I guess ask for an explanation on why, and follow up according to the results.)

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I think there are good points for reform here, but bringing the Queen and/or the GG into it make it something worth fighting over if people are serious.

Would be more constructive to leave them for a separate debate IMO.

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I agree because ultimately the issue of HM the /monarch/ of Australia is really window dressing compared to the real issues with our political framework…

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Not being able to push through unpopular legislation a good thing? I doubt we’d have our world-standard gun laws if that were the case, for starters. Tax reform would probably be difficult, nigh on impossible. How would you get major infrastructure projects off the ground? I dunno I just think that we need to fix the current system, as I honestly think that it’s the media who are to blame for the current state of affairs; politicians have merely responded to it. Minor electorial reform and major media reforms would be better, I think. Implementing mandatory balance checks on all media like what the ABC has would be ideal.

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I will work through this in reverse order.

I thought gun control Laws were pretty popular. They can do tax reform now? People want infrastructure, they just have to be sensible proposals. At the moment we can’t stop the government doing stuff like signing the TPP which would make our platform impossible to implement without withdrawing from the agreement first. They have been able to pass data retention, website blocking etc. without any of these being good for the country or necessarily what the population desires. With a more representative parliament, these things would be much more difficult, which would be a good thing.

I think regulating the media to mandate ‘balance’ checking is an impingement on free speech. I don’t like News Ltd one bit, but I just avoid paying attention to it. Telling journalists what to write is creating propaganda, even if you believe you are objectively correct and forcing them to publish the truth. The right wing media have lost, and will continue to lose viewers/ readers/ listeners as alternatives grow on the Internet and criticism of their bullshit is shared on social media.

On the Republic issue, if we are seriously modifying the Constitution, getting rid of irrational stuff like the Monarchy seems to be minor and obvious IMO. That said, it is somewhat tangential and ‘window dressing’ compared to how the political system actually functions. It is complicated by the fact a lot of power is Constitutionally invested in the Governor General, it is just not common practice for them to wield any. When they do, such as the Whitlam dismissal, there is outrage and a Constitutional crisis.

If anyone wants to raise it in a separate thread arguing for or against a Republic, go for it.

We have a Constitutional requirement that all candidates have to sign the following statement (Part 3 7.6a):

I hereby pledge to advance and adhere to the platform and ideals of Pirate Party Australia, both during the election campaign and upon election to Parliament.

If they cross the floor on something in our platform they are likely kicked out of the Party. We expect candidates to support our platform, otherwise they shouldn’t be candidates. Outside of our platform wouldn’t be an issue, I shouldn’t think. If you want a separate debate on this, I suggest starting another thread. :wink:

I like Brendan’s Twitter rant, will mash comments in with MarkG’s comments below.

I like this generally. I can see the use of some sort of regional government layer. This could even just be a structure for local government co-operation, there are issues in land-use etc that affect nearby communities. A really obvious example is the Murray River. There would also need to be infrastructure sharing and co-operation. Transportation needs co-operation to ensure people can get where they want to, without having to change trains (using the NSW-Victoria train-lines having used different gauge tracks until the 90’s as an example of why co-operation is needed).

Mixed member proportional representation looks okay, I haven’t looked into it too deeply, but it seems like a good idea. I definitely like the idea of the Federal representative sitting on regional and local government bodies.

Only issue here is the exact method we use to determine the make-up of the parliament. This could probably the basis of another thread. If someone wants to start it, go for it.

Yes, Prime Minister is a caricature of politics, not a documentary. It was written by one of Thatcher’s advisors and had a specific ideological agenda (the headline overblows it a bit, but the point still stands). I always interpreted that episode to be about how Socialists claim to want democracy but they actually want a set of policies enacted, which the voters probably wouldn’t support if they had a direct say, which was why the woman pushing for it stopped after her chat with Humphrey.

That said, changing politics to have delegates rather than representatives is a huge change which should probably be left out of this debate and re-visited should we ever get our own participatory democracy system running successfully. I don’t think any work has been done on it for some time.

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I would hardly call the ABC’s standards policies “censorship”. The way they handle political and news content is very well balanced and equally critical to all sides of politics without bias towards any one of them, All I meant was that media organisations should have such policies in place as a legal obligation, just like the ABC and SBS.

With regards to the first two points I raised, I was referring to the climate in which they did and would, respectively, occur(red). The gun laws, at the time, had strong opposition from particular groups and if we had a parliament of 150 individuals, it may have been harder to get them through than it actually was (though there’s no way to prove this, that’s just my gut feeling). In terms of taxation, yes there is strong demand in the community for taxation reform, but the biggest items that need reforming probably won’t be touched because of the vested interests of the supporters of the current government. Now if it was all individual MPs, that particular item might be more successful in passing, but there would likely be other that would have trouble due to the complexity of both tax law and having to deal with an individualised parliament.

These are just my rambling thoughts and may very well be on shaky factual ground, but it’s just what I see would be problems with non-party representation models.

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I’d see regional as encompassing local government and its functions too, if that wasn’t clear. If you asked me 10 years ago whether the feds needed an environmental role I might have said no, but the Murray Darling system clearly shows they do. Ecosystems don’t stop at seat boundaries, clearly.

MMP is good because it solves the problem of members neglecting their constituencies (which happens under straight-out proportional systems). Most of the parliament under MPP will be substantial parties who have won lower-house seats in the traditional way, so you don’t get total disorder with 150 disconnected agendas. Think New Zealand without the 5% vote quota. It’d work OK.

Edited to say: I would agree with Frew re. compulsory ‘balance’. It’s the right model for the ABC, but it’s not perfect enough to warrant coercing all other media. Who really believes every interview with a climate scientist should be ‘balanced’ with airtime for climate change deniers, everything about vaccinations balanced by anti-vaxxers, & so on. You might just find media vacating news journalism altogether if it’s made so onerous.

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Doesn’t matter if regional issues are delegated to a regional parliament. Separate legislative powers clearly and this is almost a non-issue for a national parliament.

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Not a good idea in practice, unless you want to redistribute local councils every half-decade or so along with federal electorates. People on border areas have enough problems being shifted between electorates, never mind local councils which are directly responsible for service provision!

Since this thread seems to have devolved into a discussion on MMP, I’ll post more on that now.

As for parliamentary size, I recently became aware of some work (Taagepera) which says that mathematically, the optimum parliament size for a country is the cube root of its population. For Australia at 24 million, that would imply a parliament of about 288 MPs. Going by eligible voters (15M) rather than citizens puts us at 247 MPs.

Currently at a federal level we have 226 MPs, so we’re a little under the target. Getting rid of the states frees up the 76 Senator slots. For MMP to function, we of course need additional seats for proportionality.

Unfortunately, in a highly-fragmented multiparty system, there’s no theoretical cap on how many additional seats are required. Imagine that every district election went like Prahran in Victoria in 2014: Greens (24.8% primary) overtook Labor (25.6% primary) on minnow preferences and then beat the Liberals (44.8% primary) on Labor preferences. We’d need a 4x expansion of parliament for proportionality if every election went like that. However, I believe that in practice the number of proportionality seats required is usually equal to or less than the number of district seats.

So in my preferred MMP system, we’d have about 150 districts, same as now, with up to districts - 1 additional seats for proportionality. Peg the number of districts at half the cube root of the population once we hit 27 million.

Single preferential ballot for both district and overall, for simplicity and to prevent decoy lists. There would still be a quota, but a low one: 1/districts nationwide; groups getting less than the quota would have their ballots redistributed to the next available preference (Independents count as a 1-person group). Yes, this means that parties have to stand lots of candidates.

The size of parliament would be variable: the smallest possible such that for every group achieving a quota nationwide, floor(group vote share * proposed parliament size) >= group district seats won. If that isn’t possible, groups would receive min(0, (floor(group vote share * (2 * districts - 1)) - group district seats won)) additional seats. Group vote share is after receiving any preferences from under-quota groups. In 2016, the most over-represented group was the LNPQ (they run as a single entity in Queensland), and we would’ve needed about 100 additional MPs. I call this “scaling up the pond to fit the fish”. Coincidentally, that’s almost exactly the number of MPs expected from the cube root of the number of eligible voters.

The seat allocation in the massively-over-represented case has a vulnerability to manipulation via deliberate vote splitting within party coalitions. I’m not really sure if it’s fixable without introducing bigger problems, but by the same token to take advantage of it you have to run a campaign for a second party in all your winnable seats and you run the risk of preference splitting. It would probably see the Liberals and Nationals campaigning in each others’ seats more often, but Labor and the Greens already run everywhere, so it probably cancels out.

Candidates elected via group proportionality would be selected from the unsuccessful candidates, ordered by best result after preferences (i.e. at point of elimination). This creates some interesting incentives, but I think it’s better than the parties setting the order.