A Real States’ House

After the indigenous shenanigans of Australia Day, and after further developments as to who said what, prime ministerial talk of a referendum has been put on hold. This week’s Closing the Gap statement to parliament, however, is perhaps seen as a gentle way of easing the electorate back into that discussion, guided as it now is by the recommendations of the so-called Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. Any referendum in the terms of the expert panel’s report is guaranteed to fail, regardless of whether or not it has bipartisan support – substituting one racistrace provision for a meaningless race provision will not be seen by the voting public as a good reason to bugger around with a document that has served Australia well. And that was the consensus before what happened on Australia Day!

Of course the now infamous sections 25 and 51 (xxvi) of the Constitution should be repealed. In fact they should never have been enacted. Just as the proposed sections 51A, 116A and 127A should never be enacted. I suppose I could be wrong on the outcome of such a referendum, but I comfort in the hope that I’m right.

But allow me to suggest a constitutional change that even hope could not help, but one that actually would actually go a long way to “secure the advancement of Aboriginal and Torres Strait Islander peoples,” ensuring democracy and freedom for them, as well as for run-of-the-mill Aussies like me.

What it will take to do this is a change to the Australian Senate. There is, of course, an equal number of senators for each of the unequally populated states, the point being to represent the states, protecting their rights, and limiting the power of the Commonwealth. In fact, that aspect of the federal system is designed to, according to the Senate’s website, provide “an additional safeguard against misuse of government powers.”

But of course it does nothing of the sort. When 18 of the 31 Labor senators are either government ministers or parliamentary secretaries, the chance of the Senate providing any real sort of oversight or safeguard against the misuse of federal powers is nil. And with the further expansion of federal powers, every Labor and coalition senator is a potential minister, utterly compromising the Senate’s function of limiting the federal executive government to protect the states. And because we do have minister-senators (and I’m not against that practice per se), we need an unelected senate even more than the United States. To be sure there are some Australian senators who believe in small government and state rights, but they are few and far between.

And if you’re unconvinced about the federal takeover of state powers, look no further than the recent debate about poker machines. Until Andrew Wilkie got “wilkied” by Julia Gillard, it had been a deal and a promise made between the government and an independent member of parliament. And just so we’re clear, Wilkie is a federal member of parliament – a member of the parliament that, according to section 51 of the Constitution, has no power to make laws regarding poker machines, or gambling generally, or the registering and licensing of pubs and clubs. I mean, the commonwealth can legislate for the coinage that the pokies gobble up (subsection xii), the registration of the banks that provide the ATMs in question (xiii), and, currently at least, even banning Aborigines (or Poms and Kiwis, for that matter) from using pokies (xxvi). But not the way the machines work, or how much can be dispensed by the adjacent ATM. The current (at least theoretical) state supremacy in this issue can be most clearly seen in Western Australia where pokies are confined to the casino, not as part of a federal agenda, but as a result of rightly-made, constitutionally sound, state legislation.

So here’s the plan. Let’s amend the Constitution such that senators are not elected but rather appointed by their respective state (and territory) parliaments. I admit that this may seem like a bizarre arrangement and, on the face of it, a throwback to a less democratic age. But consider two things:

Firstly, this arrangement is actually how the United States Constitution was originally intended. The “Connecticut Compromise” of 1787 dictated that all states would be equally represented in the upper house, and that senators would be elected by the state legislature, ensuring that they defended the rights of state governments to legislate on state matters. Of course anyone who follows the U.S. midterm elections knows that this arrangement is no longer in operation, the current system being but a recent innovation, coming into force with the 17th Amendment in 1913. The American result: an expansionist federal government. Who’d have thought?

Secondly, although an elected senate results in greater representation – and particularly if you live in Tasmania – it never guarantees greater democracy. But it does guarantee an erosion of state powers, rendering impotent both the Constitution, and the democratic process at that more local level.

My proposal, however, like that of the expert panel, is guaranteed to fail. But in this instance, it is not because it wouldn’t produce real, tangible benefits for states and those who live in them, but because the allure of “greater representation” trumps “real democracy” every time.

This article first published in On Line Opinion on 17 February 2012.