James McConvill has an article on online opinion titled, Australia's constitution is constrained by people power . Pretty tough headline, however the Online Opinion editors will often modify or create a new headline that they believe will fit the article best. It may not be McConvill's title but matches his argument which is that alteration to the Australian Constitution should not be via popular referendum but instead by parliamentary a majority in a joint sitting.

McConvill writes;

Supporters of the Australian constitution will obviously dispute this, referring doubters to section 128 of the constitution, which provides that it is only the voting public who can change the constitution, by way of referendum. Thus, unlike the United States constitution which can be amended by congressional vote (and approval of two-thirds of state legislatures), Australian citizens really have power when it comes to their constitution.

But in my view, this "power to the people" approach to amending our constitution is the major problem with the document. Counter-intuitively, giving power to the voting public to change the constitution has resulted in a stale document reflecting the attitudes and values of our dead ancestors, rather than a living document representative of our community today.

There is often talk about the need for constitutional reform in Australia, but rarely, if ever, is the referendum process for changing the constitution raised as an aspect of our constitution being in need of change. It should be.

Surprisingly, McConvill is not against the three forms of majority the Australian constitution requires - a majority in both houses of Parliament, a majority of states and a majority of the popular vote - he is against the public referendum process altogether.

Australia was one of the first nations to try and formalise a Westminster system into a single constitutional document. For instance the UK still does not have a formal constitution, and Canada only recently collapsed its multitude of acts that informally made up their constitution into one document. New Zealand does not have a formal constitution, nor do Western Australia, Tasmania and South Australia.

A constitution as the highest law in the land places restriction on the governmental process and is by definition a conservative document. The formal document is also seen as a means to moderate violent minority faction, as a consequence any amendment that may entrench discrimination or violence against a minority is protected by referendums that require a majority.

This is not true in all Westminster systems, the NSW Constitution [pdf] being an example. The NSW Constitution is essentially a statutory bill rather than a constitutional one. Parts of it are entrenched and certain sections require a Parliamentary majority to be changed , but it is a statutory document and not as conservative as the Australian Constitution.

McConvill is arguing that Parliamentarians in the federal system should be perceived as statutory and constitutional specialists and experts, giving the Parliament the power to alter the constitution. I do not agree with this.

Parties are themselves a minority, even though we give them the appearance of majority backing by democratic elections, party members numbers are tiny minorities and the party-machine itself is a minority of a minority. It leaves the public dependent on a party's good liberalist manners that they won't enact discriminative and violent clauses in the constitution.

McConvill argues that the Australian referendum system is too difficult to get anything to pass;

Since federation, there have been 44 referenda in Australia in which only eight have been successful. Despite consistent commentary that proposed referenda have been rejected because the public are protective of their constitution, this is far from true. Rather, Australians are a conservative bunch who when faced with change - even positive change - that they don't fully understand, vote to maintain or restore the status -quo. No more is this true than when it comes to referenda in Australia.

I would have more empathy with the argument that the majority of states clause be dropped - something I would be in favour of - however. McConvill's argument does not survive empirical scrutiny . When the referendums are categorised, Australian voters are over-whelmingly rejecting centralisation at the federal level ;

This suggests that if the Federal Government stopped trying to expand their power through the referendums then voters may listen sufficiently to vote in favour of them.

McConvill argues that Australian voters are not likely to vote in a referendum that takes away their voting rights in referendums - something which fits entirely with the above graph - so the best way to achieve it is to have the Parliament introduce a new Constitution and replace the existing constitution in its entirety, leaving out section 128;

One way around this, however, is to just get rid of the current constitution in its entirety. Section 128 of the constitution says that a referendum is required to "alter" the constitution, but it is my contention that this process would not apply if a new constitution was enacted by the Federal Parliament to repeal the existing one. The new constitution could be brought before the Federal Parliament for debate as early as the next session. Much of the existing constitution could be retained, but there would be some important changes to be made.

First, the referendum process would be gone. Instead, a change to the constitution would require a positive vote of an absolute majority of the Federal Parliament at a joint sitting.

That is too radical, won't fly and is not politically achievable anyway. Certainly not with a Howard Government facing election next year in what is appearing at this stage to be a tight race.

The Australian Constitution does need reform, a century of operation has exposed structural inconsistencies that need updating as Australia has tried to shoe-horn republican principles of government into a Westminster system.

As much as I prefer the idea of a separate executive, it is not politically achievable with an Australian electorate who is comfortable with the incongruities of the Prime Minister position; however an immediate target for reform is the Senate, in particular making it Legislatively independent of the Executive and adding explicit constitutional language for the Senate to become an active check and balance on the Executive.

The referendum process has been so static and stagnant because so many of the referendums have been to centralise more power in Canberra. Of the areas needing constitutional reform, the referendum process does not rank highly.

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