Time for a democratic Constitution

Greens Senators Scott Ludlum (WA) and Larissa Waters (Qld)

The shock resignations from parliament of Greens Senators Scott Ludlam and Larissa Waters highlights one of many undemocratic features in the Australian Constitution.

Both senators were — unbeknown to them — dual citizens. They were both born overseas and came to Australia as very young children, unaware that they retained dual citizenship. This technicality meant they were ineligible to be elected to parliament.

Many progressive people are lamenting the loss of these two Greens senators who have spoken out consistently on environmental and social justice issues. They should both be replaced by new Greens Senators so the overall balance in the parliament will not change.

However, the question should be raised: why are voters not allowed to be represented in parliament by their preferred candidates? There is no evidence that Ludlam or Waters have lost the support of the people who originally voted for them.

Of course the legal situation is clear: the Constitution prohibits dual citizens from taking a seat in parliament. However, the fact that the legality is clear does not change the more important fact that it is an undemocratic measure. It deprives voters of the chance to be represented by their preferred candidate.

It also deprives a large part of the population from standing for parliament. We can never know how many people might have put themselves forward for consideration by the electorate but declined to do so because they did not want to renounce their dual citizenship.

Australia is a nation of immigrants and being born overseas — or being a dual citizen for any other reason — should not be an impediment to full participation in the democratic process in this country. Also, it should make no difference if the country of their other citizenship is New Zealand or Iran or anywhere else. The democratic principle is that people should be able to vote for their preferred representatives.

In the case of unpopular politicians like Tony Abbott and Eric Abetz — who have both faced questions about their citizenship status — the left should focus on building popular movements that make it impossible for them to implement their reactionary agendas rather than quibbling about legal technicalities.

The citizenship provision is only one of many undemocratic features of the Australian Constitution. There is a similar provision that a person cannot run for election if they are the holder of an “office of profit under the crown”, in other words, they cannot be a public servant.

This may make sense when referring to high-level political advisors and departmental heads in the public service. But it makes no sense to exclude teachers, nurses and clerks who happen to work in the public system.

People in such employment need only resign for the six weeks or so of the election campaign with a convention in place that they will be re-employed if they are not elected. However it is still a barrier to democratic participation by ordinary workers. How many people can afford to go six weeks without pay?

The situation is worse for those on a temporary contract — an increasingly common arrangement in the public service. To my knowledge, such a candidate's legal rights to resume their employment is untested in the courts.

More fundamentally, the Constitution also specifies that the lower house of parliament is made up of representatives of local electorates. This prevents election by the far more democratic method of proportional representation.

Under proportional representation, a party with 10% of the vote gets 10% of the seats. To form a majority government a party needs the support of at least half the voting population. The Greens regularly get more than 10% of the vote but end up with less than 1% of the lower house seats. On the other hand, the current federal government was formed with the votes of less than 42% of the electorate.

New Zealand has a system combining proportional representation with local member representatives, so having a proportional system does not necessarily prevent people from having a “local member”.

The Constitution also provides no mechanism of accountability and no means for voters to recall a politician who violates their pre-election promises. These should be standard in any democratic system.

Most importantly, the Constitution — the rules governing this country — has never been voted on by today's population. Just because a document is called a “constitution” does not make it democratic and does not mean it has popular or even majority support.

There are so many fundamental flaws in the Constitution and countless ways it could be improved. Arguably the whole document should be rewritten and a new and democratic version put to a referendum. This would need to involve a democratic process of popular participation alongside treaty negotiations with First Nations peoples.

Such a development could only be achieved with strong popular movements for fundamental change. That is the context in which similar democratic reform has occurred in Latin America and Northern Syria.