PDC: Constitutional Reform Policy

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Draft Policy
This is a draft policy which may still be under development and is not approved or endorsed by the party.
Until such time as it is endorsed by the party, it does not represent the views or intentions of the party.


Constitutional reform

The Constitution of Australia has been amended only eight times[1] 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.[2] 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,[3] at the supranational level in the European Union,[4] Finland,[5] all German states,[6] Hungary,[7] Italy,[8] Latvia,[9], Lichtenstein,[10] Lithuania,[11] New Zealand,[12] Poland,[13] Portugal,[14] Spain,[15] Switzerland,[16] several states of the United States[17] and Uruguay.[18]

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,[19] 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.[20] 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.[21] However, numerous indigenous societies have faced virtual destruction as a consequence of discrimination,[22] paternalism,[23] genocide,[24] as well as the introduction of diseases,[25] substance abuse,[26] slavery[27] and dependency on the state.[28] Families have been broken up,[29] and discrimination in the criminal justice system[30] 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)[31] overturned the doctrine of terra nullius that was used to dispossess Aboriginal and Torres Strait Islander Peoples.[32] 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.[33] 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.[34] 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.[35] 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.[36] 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."[37]

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.[38] 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."[39]

Policy text

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.[40]
        • 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.[41]
      • 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.[42]
      • 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[43] 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.

References

  1. ↑ Parliamentary Education Office, How the Constitution can be changed <http://www.peo.gov.au/learning/closer-look/the-australian-constitution/how-the-constitution-can-be-changed.html>.
  2. ↑ Official Record of the Debates of the Australasian Federal Convention, Melbourne, 8 February 1898, 664–691; Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, 5th Edition, 2010) 125–126; George Williams, Human Rights under the Australian Constitution (Oxford University Press, 1999), 39–42.
  3. ↑ Karim Giese, 'The Austrian Agenda Initiative: An Instrument Dominated by Opposition Parties' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 175.
  4. ↑ Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, opened for signature 13 December 2007, [2007] OJ C 306/1 (entered into force 1 December 2009) art 11.4; Bruno Kaufman, 'Transnational "Babystep": The European Citizens' Initiative' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 228.
  5. ↑ Constitution of Finland (1999) s 53.
  6. ↑ Theo Schiller, 'Initiative Instruments in Germany: Variations in Regional States' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 89.
  7. ↑ Zoltán Tibor Pállinger, 'Citizens' Initiatives in Hungary: An Additional Opportunity for Power-Sharing in an Extremely Majoritarian System' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 113.
  8. ↑ Pier Vincenzo Uleri, 'Institutions of Citizens' Political Participation in Italy: Crooked Forms, Hindered Institutionalization' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 71.
  9. ↑ Daunis Auers, 'An Electoral Tactic? Citizens' Initiatives in Post-Soviet Latvia' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 53.
  10. ↑ Wilfried Marxer, 'Initiatives in Lichtenstein: Safety Valve in a Complex System of Government' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 37.
  11. ↑ Algis Krupavičius 'Citizens' Initiatives in Lithuania: Initiative Institutions and Their Political Impact in a New Democracy' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 134.
  12. ↑ Citizens Initiated Referenda Act 1993 (NZ).
  13. ↑ Anna Rytel-Warzocha, 'Popular Initiatives in Poland: Citizens' Empowerment or Keeping Up Appearances?' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 212.
  14. ↑ Constitution of the Portuguese Republic (2005) art 52.
  15. ↑ Víctor Cuesta-López, 'The Spanish Agenda Initiative and the Reform of Its Legal Regime: A New Chance for Participatory Democracy?' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 193.
  16. ↑ Georg Lutz, 'Switzerland: Citizens' Initiatives as a Measure to Control the Political Agenda' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 17.
  17. ↑ University of Southern California, State I&R, Initiative & Referendum Institute <http://www.iandrinstitute.org/statewide_i%26r.htm>.
  18. ↑ Constitution of the Oriental Republic of Uruguay (1966) art 79.
  19. ↑ Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 248, 8–9.
  20. ↑ Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 4.
  21. ↑ Bill Gammage, The Biggest Estate on Earth: How Aborigines Made Australia (Allen & Unwin, 2011) xxii.
  22. ↑ Prue Vines, Law and Justice in Australia (Oxford University Press, 2nd ed, 2013) 125; Namatjira v Raabe (1959) 100 CLR 664.
  23. ↑ See eg Aboriginals Ordinance Act 1918 (NT) s 16(1); Barbara Cummings, 'Writs and rights in the Stolen Generations (NT) case' (1996) 3(86) Aboriginal Law Bulletin 8, 8–10; Trevorrow v State of South Australia (No 5) [2007] SASC 285; see generally Prue Vines, Law and Justice in Australia (Oxford University Press, 2nd ed, 2013) 137–154.
  24. ↑ Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Report of the Inquiry into the Death of Malcolm Charles Smith (1989) 1–5; Henry Reynolds, Forgotten War (NewSouth, 2013) 138–157; compare to the definition of 'genocide' in the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 2; Kevin Gilbert, Because a White Man will Never Do It (Angus and Robertson, 1994) 2–5, 10; Henry Reynolds, Frontier: Aborigines, Settlers and Land (Allen & Unwin, 1987) 48–50, 73–74, 104–105.
  25. ↑ Watkin Tench and Tim Flannery (ed), 1788 (Text Publishing, first published 1789, 1996 ed) 103; Henry Reynolds, Forgotten War (NewSouth, 2013) 136–137; Russell Hogg and David Brown, Rethinking Law & Order (Pluto Press, 1998) 69.
  26. ↑ Kevin Gilbert, Because a White Man will Never Do It (Angus and Robertson, 1994) 2–5, 10; Russell Hogg and David Brown, Rethinking Law & Order (Pluto Press, 1998) 69.
  27. ↑ Henry Reynolds, Frontier: Aborigines, Settlers and Land (Allen & Unwin, 1987) 48–50, 73–74, 104–105.
  28. ↑ Russell Hogg and David Brown, Rethinking Law & Order (Pluto Press, 1998) 69; Kevin Gilbert, Because a White Man will Never Do It (Angus and Robertson, 1994) 2–5, 10.
  29. ↑ Russell Hogg, 'Punishment and Race in Colonial Settler Society: The Australian Case' (2001) 3 Punishment and Society 362, 362–365; Barbara Cummings, 'Writs and rights in the Stolen Generations (NT) case' (1996) 3(86) Aboriginal Law Bulletin 8, 8–10; Prue Vines, Law and Justice in Australia (Oxford University Press, 2nd ed, 2013) 137–154.
  30. ↑ Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991); Prue Vines, Law and Justice in Australia (Oxford University Press, 2nd ed, 2013) 135–137; Russell Hogg and David Brown, Rethinking Law & Order (Pluto Press, 1998) 69; Alan Norrie, Crime, Reason and History (Butterworths, 2001) 214; Rob White and Santina Perrone, Crime and Social Control (Oxford University Press, 2nd ed, 2005) 42; Michael Head and Scott Mann, Law in Perspective (UNSW Press, 2nd ed, 2009) 48; Kevin Gilbert, Because a White Man will Never Do It (Angus and Robertson, 1994) 2–5, 10–11.
  31. ↑ (1992) 175 CLR 1.
  32. ↑ Peter Butt, Land Law (Thomson Reuters, 6th ed, 2010) 975–976.
  33. ↑ Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, 167–177 (Kevin Rudd, Prime Minister and Brendan Nelson, Leader of the Opposition).
  34. ↑ Delgamuukw v British Columbia (1997) 153 DLR (4th) 193; Faulkner v Tauranga District Council (1996) 1 NZLR 357; Johnson v McIntosh 21 US 681 (1823); see also Fejo v Northern Territory (1998) 195 CLR 96, 149 (Kirby J); Treaty of Waitangi (signed 6 February 1840); Sir Kenneth Keith, 'The Treaty of Waitangi in the Courts' (1990) 14 New Zealand Universities Law Review 37; Howard R Berman, 'The Concept of Aboriginal Rights in the Early Legal History of the United States' (1978) 27 Buffalo Law Review 637; Sir Anthony Mason, 'The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown' (1997) 46 International & Comparative Law Quarterly 812; Ronald Sackville, 'The Emerging Australian Law of Native Title: Some North American Comparisons' (2000) 74 Australian Law Journal 820; Paul Havemann (ed), Indigenous Peoples Rights in Australia, Canada and New Zealand (Oxford University Press, 1999); Canada Act 1982 (UK) c 11, sch B s 35; Adong bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418; Nor Anak Nyawai v Borneo Pulp Plantations [2001] CLJ 769; Sagong Tasi v Kerajaan Negeri Selangor [2002] 2 CLJ 543; Alexkor Ltd v Richtersveld Community (2004) 5 SA 460 (Constitutional Court).
  35. ↑ Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, January 2012, 49–61.
  36. ↑ Official Record of the Debates of the Australasian Federal Convention, Melbourne, 8 February 1898, 664–691; Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, 5th ed, 2010) 127; George Williams, Human Rights under the Australian Constitution (Oxford University Press, 1999) 41.
  37. ↑ Australian Constitution ss 25, 51(xxvi).
  38. ↑ Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, January 2012, 220–221.
  39. ↑ Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, January 2012, 11.
  40. ↑ Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 8–9.
  41. ↑ Helen Gregorczuk, 'Citizens Initiated Referenda' (Research Bulletin No 1/98, Parliamentary Library, Parliament of Queensland, 1998) 8.
  42. ↑ Georg Lutz, 'Switzerland: Citizens’ Initiatives as a Measure to Control the Political Agenda' in Maija Setälä and Theo Schiller (eds), Citizens' Initiatives in Europe (Palgrave Macmillan, 2012) 18.
  43. ↑ Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, January 2012, 220–221.
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