Reform constitution to give a voice to all



Amid the moral turpitude of the Australian government's treatment of refugees on Manus Island, the reactionary manoeuvrings of anti-marriage-equality parliamentarians, and the patronising response of the Prime Minister to the Uluru Statement, the big political story over recent weeks has been the wash up of the operation of section 44 of the Constitution.

MicrophonesSection 44 provides that to be eligible to nominate for the Australian Parliament, the candidate must not hold allegiance to a foreign power. This has been interpreted very narrowly by the High Court and as a consequence, those who are found to have dual citizenship — even where they were not aware — will be found ineligible to sit. So far, section 44 has forced eight resignations, prompted two by-elections, and will see more MPs appear before the High Court to determine their status.

Many have called for a referendum to change section 44 on the basis that it inevitably excludes so many Australians. In a multicultural society, a significant proportion of the population will have 'foreign' ancestry sufficiently recent to qualify for dual citizenship. Others do not wish to 'waste' a referendum on what they see as a procedural matter. If those nominating simply took care of their paperwork, so the argument goes, then they would not get into trouble.

The issue is, however, a deeper one that goes to the heart of the Constitution itself. In affecting white Australians of British ancestry — Barnaby Joyce, Jacqui Lambie, John Alexander — the racist presumptions of our Constitution have finally been exposed.

Beyond section 44 though, and beyond other identifiably racist provisions of the Constitution, the political landscape in Australia at the moment reveals a more profound battle over who has a voice in this country. The positioning of dominant groups at the centre of this struggle, to shore up their own power, is simply brought into sharp relief through the section 44 debate.

In the face of the shock realisation that the dominant members of Australian society might be affected by attempts to exclude 'foreigners' from the Parliament, there are immediate calls for constitutional reform. The effect of this reform would be, presumably, to guarantee a voice in Parliament of those with dual nationality. But there are other examples of the deployment of power in favour of the powerful.

Thus, a voice for some — dual nationals — would not equate to a voice for others. Indigenous Australians will remain outside our institutions following the rejection by the political class of the measured and conscientious proposal of a First Nations Voice enshrined in the Constitution. Not as a third tier of government, as was disingenuously claimed, but as an advisory body that would permit the voice of Indigenous Australians to be heard within Australian governance.


"The government has weaponised Australian citizenship laws to prosecute its political agenda of exclusion, even as it seeks to relax the citizenship requirements of those inside circles of power."


In the wake of the 'yes' vote for marriage equality, those hankering for entrenched patriarchal norms are now invoking international human rights instruments to ensure their own voice permits them to deny the voice of others. In the guise of 'religious freedoms' protecting 'relevant marriage belief', some MPs are proposing a radical winding back of anti-discrimination laws.

The premise of these suggestions is to allow adherents of a particular belief to enact their conscientious objection to same sex marriage and a range of other gendered propositions, through denial of service or other discrimination.

Yet it was not so long ago that these same so-called conservatives rejected constitutional reform in favour of Indigenous Australians because it was a 'one clause bill of rights'. Those proposing such 'human rights' amendments are the same cohort that is 'sick of being lectured to by the UN', rejects human rights, and has waged war on the Australian Human Rights Commission.

Meanwhile, the Australian government is under fire from the UN itself for its flagrant disregard of human rights on Manus Island. The government has weaponised Australian citizenship laws to prosecute its political agenda of exclusion, even as it seeks to relax the citizenship requirements of those inside circles of power, to maintain their voice in our polity.

The hypocrisy is breathtaking. But the common thread through all of these stories is the need to have a mature conversation about the nature of Australian society, and the ways in which we can, and should, afford a meaningful voice to our communities. If human rights are the benchmark, then rights must be afforded to all. There will be trade-offs, but it is not right that those with the least power must continue to compromise while the powerful act to enhance their own power.

Recent events in Australia point to a clear case for constitutional reform — but not reform that tinkers around the edges. It is time for a constitution that reflects who we are and who we aspire to be: an inclusive polity.



Kate GallowayKate Galloway is a legal academic with an interest in social justice.

Topic tags: Kate Galloway, constitutional reform, Aboriginal Australians, citizenship



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Existing comments

The Section 44 situation is a storm in a teacup. Now that everybody knows what it does, this time next year it'll have been a storm in yesterday's teacup.
Roy Chen Yee | 23 November 2017

This piece is not about section 44 Roy. It's about who we are and the polity we want to be.
Ginger Meggs | 23 November 2017

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