In his recent Barton Lecture at the University of Newcastle, Defence Minister Joel Fitzgibbon advocated three constitutional reforms Australia becoming a republic, the abolition of the states (by which he really meant abolition of the federal system) and proportional representation for both chambers of Parliament.
This is heady stuff, particularly coming from a minister. It may be a sign that the Rudd Government is considering a long overdue constitutional overhaul. (There's been only one general constitutional review since Federation, in 1988, and its findings led to no concrete reform.)
Which aspects of the Constitution are most in need of reform? The electoral system is a prime candidate. It fails the most basic test of representative government, which is that the composition of the legislature should reflect the political sentiment of the electorate. Indeed, the current system frequently produces a result where the governing party or coalition receives fewer first-preference votes than does the opposition.
In 1977 and 1996 the Liberals won a majority of seats in the House with only 38 per cent of the first-preference vote, while in every election between 1983 and 1993 Labor won a majority of seats with a minority of votes. Minor parties which may have support in the order of 20 per cent nationwide win no representation in the House.
Proportional representation is the obvious answer to this. In anticipation of the criticism that the coalition governments it usually produces are inherently unstable, it should be noted that Germany (which has PR) has had fewer post-war governments than Britain (which does not), while every government elected in New Zealand since that country adopted the German system in 1993 has run its full term.
The republic is the least important issue we face. Its significance is purely symbolic. However, opinion polls have repeatedly shown a clear majority of voters in favour of a republic provided the Queen and Governor-General are replaced by an elected president. That could be achieved without any change in the largely unwritten powers wielded by the Governor-General.
However, to allay the fears of those who think that an elected president might believe he or she had a popular mandate to exercise power contrary to the conventions, we could codify the powers in the Constitution as has been done in many other Commonwealth countries.
Abolition of the federal system means that the Constitution would vest legislative power over all matters in the Commonwealth, which could then delegate it to the states. Despite the undoubted economic advantages of such a change, it would be viewed with suspicion by voters. However, if this augmentation in Commonwealth power were counterbalanced by additional restraints, it might prove acceptable.
This brings me to two key reforms not mentioned by Fitzgibbon a bill of rights and enhancement of the powers of parliamentary committees. A Constitution should do two things distribute powers between the organs of government and define the relationship between the government and the individual.
Our Constitution does the first passably well but the second hardly at all. The four express rights it protects (freedom of religion, freedom of interstate commerce, the right to compensation when the Commonwealth acquires property and the right not to be discriminated against on grounds of residence in a state) all reflect political concerns relevant at the time of Federation.
The Constitution assumes that democracy, rather than individual liberty, lies at the foundation of a free society, and so offers the individual no protection against unjust laws enacted by Parliament.
The inclusion in the Constitution of provisions incorporating into law the fundamental rights Australia has long agreed to uphold by ratifying international human rights conventions would remedy this.
The final reform I advocate relates to the functioning of Parliament. In theory, all members of the executive, including ministers, are obliged to answer questions put by parliamentary committees. However, in reality ministers frequently refuse to answer questions and instruct their staffers and public servants not to do so.
Theoretically this amounts to contempt but, given that contempt proceedings require the agreement of a chamber as a whole, and neither major party is willing to establish the precedent, in practice the executive is able to thumb its nose at Parliament, as the Howard government frequently did.
Furthermore, Labor acquiesced in this by failing to use the opposition's Senate majority to pursue refusals to testify regarding the Children Overboard affair.
What is needed is a constitutional amendment, requiring members to answer questions and produce documents before a parliamentary committee, subject to a right to apply to the courts for exemption if a public interest test is met.
The key obstacle to reform is the cumbersome amendment procedure required by section 128 of the Constitution. Professor George Williams has made the useful suggestion that the constitutional amendment process could be made more flexible by amending the legislation governing constitutional referendums so as to allow the process to be initiated by voters, rather than waiting for a member of either house to introduce a referendum proposal to Parliament.
He is also of the view that constitutional reform has the greatest chance of success if done gradually, with each proposal preceded by extensive public consultation and the mustering of bipartisan support.
I agree with the need for public consultation. However, bipartisanship is unlikely, given that many within the two major parties would oppose the diminution of their powers resulting from proportional representation, the enhancement of committee powers and a bill of rights.
In other words, constitutional reform will have to be driven by the people, not politicians.
Bede Harris is a senior lecturer in the Faculty of Law, University of Canberra, and author of A New Constitution for Australia.