PDC: Constitutional Reform Policy

Constitutional reform
The Constitution of Australia has been amended only eight times since it came into force in 1901. It was drafted in the final decade of the Nineteenth Century and contains many flaws that reflect the cultural attitudes of the time. The Australian Constitution can only be amended through a referendum, and Pirate Party Australia is committed to putting the following constitutional reforms on the agenda.

An Australian Bill of Rights
The Pirate Party supports the introduction of a constitutional Bill of Rights in Australia - view details here.

Citizens' initiatives
Australians lack any direct way to enact, amend, repeal or vote for or against legislation which affects their lives. A solution to this is to allow citizens to directly petition the Commonwealth Parliament for referendums.

Citizens' initiatives allow citizens to directly participate in legislative decisions. Mechanisms of this kind have been implemented in various forms and to varying degrees in Austria, at the supranational level in the European Union, Finland, all German states, Hungary, Italy, Latvia,, Lichtenstein, Lithuania, New Zealand, Poland, Portugal, Spain, Switzerland, several states of the United States and Uruguay.

The Pirate Party supports the right of Australians to exercise legislative power in certain circumstances using citizens' initiatives. However, the Pirate Party also recognises that setting a threshold is necessary to prevent abuse of the system by special interest groups.

The Pirate Party therefore supports two levels of initiatives modelled closely on the systems in Latvia, Hungary, Brandenburg and Hamburg, but with adjustments made to accommodate Australia's significant geographic size and low population density. The first level, an agenda initiative, would have a lower threshold and be a binding petition to place an issue on the parliamentary agenda. If Parliament fails to take action, a full-scale initiative with a higher threshold would compel Parliament to hold a binding referendum. This allows legislative development to be guided by parliamentary institutions and procedures and to arrive at considered and enlightened decisions, as well as helping to avoid populism and the disregarding of minority interests. Combining agenda and full-scale initiatives allows Australian citizens to encourage their representatives to take action, while providing a mechanism to challenge parliamentary decisions.

The Pirate Party supports legislation allowing citizens' initiatives as a temporary measure, but ultimately this right should be enshrined in the Australian Constitution.

Recognition of Aboriginal and Torres Strait Islander Peoples and prohibition of racial discrimination
Although European colonisation of our country began in 1788, the Australian continent has been the home of indigenous societies and cultures for at least 40,000 years. However, numerous indigenous societies have faced virtual destruction as a consequence of discrimination, paternalism, genocide, as well as the introduction of diseases, substance abuse, slavery and dependency on the state. Families have been broken up, and discrimination in the criminal justice system has inflicted further harm on Aboriginal and Torres Strait Islander Peoples and their societies. Moves to amend the travesties of the past have been positive. The High Court's decision in the Mabo v Queensland (No 2) overturned the doctrine of terra nullius that was used to dispossess Aboriginal and Torres Strait Islander Peoples. The Native Title Act 1993 (Cth) restored some land rights to Aboriginal and Torres Strait Islander Peoples. The 2008 apology to Aboriginal and Torres Strait Islander Peoples was symbolic of a nation willing to make amends for the horrors of the past. However, more needs to be done before we can truly have reconciliation in Australia.

Efforts have been made to recognise the rights of indigenous peoples (particularly in relation to land) in places such as the United States, New Zealand, Canada, Malaysia and South Africa. The Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples draws attention to the recognition of indigenous inhabitants in Finland, Norway, Sweden, Greenland (Denmark), Russia, Bolivia, Brazil, Colombia, Ecuador, Mexico and the Philippines, in addition to Canada, New Zealand, South Africa and the United States. These efforts range from recognition by the courts to treaties and constitutional recognition.

The Australian Constitution does not recognise Aboriginal and Torres Strait Islander Peoples as the original inhabitants of our country. It was drafted in an era of racial discrimination and the shadow on our constitution is undeniable. In particular Section 25 permits states to discriminate on the basis of race by disqualifying persons of that race from voting, and Section 51(xxvi) permits the Commonwealth Parliament to create laws for "the people of any race for whom it is deemed necessary to make special laws."

It is against this backdrop that the Pirate Party supports the recommendations of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples for a single referendum to repeal the 'race provisions' in the Australian Constitution (Sections 25 and 51(xxvi)), recognise Aboriginal and Torres Strait Islander Peoples as the original inhabitants and their languages as the original languages, and to include an explicit prohibition of racial discrimination. The Pirate Party agrees that, although there is still a long way to go, "constitutional recognition would provide a foundation to bring the 2.5 per cent [of Aboriginal and Torres Strait Islander Peoples] and the 97.5 per cent [of non-indigenous Australians] together, in a spirit of equality, recognition and respect, and contribute to a truly reconciled nation for the benefit of all Australians."

Support for citizens' initiatives

 * Enact a referendum to insert provisions allowing citizens' initiatives in the Australian Constitution.
 * Initiatives would be divided into two tiers: "agenda initiatives" and "full-scale initiatives."
 * Agenda initiatives would be non-binding mechanisms modelled on the systems in Latvia, Hungary, Brandenburg and Hamburg, which would compel Parliament to consider a particular proposal.
 * Agenda initiatives would have a petition threshold set at 0.2% of the number of enrolled electors at the Federal Election prior to the submission of the petition.
 * Full-scale intitiatives are binding mechanisms to compel the holding of a referendum on a particular proposal.
 * Full-scale intitiatives would have a petition threshold set at 1% of the number of enrolled electors at the Federal Election prior to the submission of the petition.
 * Citizens' initiatives should be permitted for enacting, amending, repealing or otherwise challenging legislation.
 * Specifics relating to citizens' initiatives would be dealt with by legislation.
 * Citizens' initiatives will be obliged to provide reasons for the petition and identify objectionable aims or provisions of the legislation if supporting a repeal.
 * Legislation repealed or rejected as a result of a citizens' initiative (or legislation that is similar) could not be re-enacted without the approval of a referendum unless the objectionable provisions or their effect have been removed.
 * The High Court of Australia will have power to determine whether legislation is the same or similar and whether or not the objectionable aspects remain.
 * To avoid excessive polling, referendums should be held at fixed intervals.
 * Unless there are three or greater successful full-scale initiatives, referendums should be held at the same time as Federal Elections.

Support for the recommendations of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

 * The Pirate Party supports a referendum as recommended by the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in order to:
 * Repeal Section 25 and Section 51(xxvi) of the Constitution.
 * Insert a new Section 51A recognising Aboriginal and Torres Strait Islander peoples and providing the Commonwealth Parliament with the power to make laws in the interests of Aboriginal and Torres Strait Islander Peoples.
 * Insert a new Section 116A prohibiting racial discrimination.
 * Insert a new Section 127A recognising English as the national language and the Aboriginal and Torres Strait Islander languages as the original Australian languages, a part of our national heritage.

Certain decisions to be reserved for Parliament

 * The decision to go to war should be vested exclusively in the Australian Parliament, not the Executive.
 * Executive power should be removed with regard to international legal instruments such as treaties and trade agreements.
 * The accession to and ratification of such instruments will be decided by Parliament.