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Australia will need a strong constitution for the Asian Century

If Australia is to set an example in the region, we need to clean up our constitution and abolish the race powers act. AAP/Courtesy of Traditional Owners and Rio Tinto Alcan/Peter Eve

AUSTRALIA IN THE ASIAN CENTURY – A series examining Australia’s role in the rapidly transforming Asian region. Delivered in partnership with the Australian government.

Here, Dr Matt Harvey argues that our constitution will define us in the region this century, and it’s not up to scratch yet.

Australia is well-placed to benefit from the Asian Century, but issues of law and culture remain.

In constitutional law, Australia presents a longstanding, stable model featuring democracy, the rule of law, the separation of powers, accountability, respect for human rights, free speech and media, federalism and a multi-party system with frequent peaceful changes of government.

This is not an exact model for others to follow, but presents a combination of features unusual in the Asian region, which may provide inspiration and insight for other nations.

The problem with the monarchy

Australia has a different constitutional history to most Asian countries. In common with India, Pakistan, Bangladesh, Sri Lanka, Burma, Malaysia, Singapore, Brunei and Hong Kong, Australia is a former British colony. But unlike them, Australia gained self-government much earlier, in 1901.

Whereas Australia was happy to remain part of the British Empire, the Asian colonies were keen to gain complete independence.

Australia would no doubt be better understood as fully independent if it became a republic. The region is not lacking in monarchies: Malaysia, Brunei, Thailand and Japan are also monarchies, but their monarchs live locally.

A tricky accord

The differences in legal system and culture have not prevented trade in Asia thus far, but definitely hamper closer co-operation in other areas.

It is often suggested that an entity like the European Union should be established in the Asian region, but the EU is based on a commitment to the rule of law as well as free trade.

It is not clear that there is yet such a shared commitment to the rule of law in the Asian region to enable a supranational legal system like the EU.

Australia should engage in dialogue with its Asian neighbours in the hope of moving them in our constitutional direction while not being seen to preach or dictate. Australians also need to learn a lot more about the Asian legal systems.

Where to begin

India may provide a good starting point for greater constitutional engagement. A fellow former British colony, India has become the world’s largest democracy. Like Australia, it has a federal system. And perhaps our shared passion for cricket may provide the basis for dialogue on governance.

Burma has been an international pariah for some years but has recently allowed some long-term political prisoners such as Aung San Su Kyi to re-enter politics. ASEAN remained in dialogue with Burma and welcomed it as a member. This engagement assisted in moving Burma towards democracy.

China will need to find its own solutions to the massive challenges of governance, but is now looking at how other countries, including Australia, implement law and administration. In addition to transparency and accountability, federalism may be the feature of the Australian system of most use to China.

Cleaning up the Aussie backyard

Australia can also lead in the Asian region by getting its own constitutional house in order. Getting rid of the race power (Section 51(xxvi) of the constitution) would be a good start, replacing it with a guarantee of racial equality. Conversion to a republic would help to demonstrate that we are no longer clinging to Britain.

Environmental regulation is an area in which Australia can set a good example but we risk loss of credibility by refusing to set targets and continuing to export coal.

Australia can set a good example in labour relations, which should be seen as part of an overall commitment to human rights, something we preach in the Asian region but do not always put into practice at home.

The debacle of the “Malaysia solution” demonstrates the wrong approach. Instead of trying to exchange with a country that is not even a party to the International Refugee Convention, Australia should have been exploring how to persuade Malaysia to become a signatory to the convention so a regional approach to asylum seekers could be devised. One which adhered to the highest standards of human rights protection.

Teaching and learning

Education should assist constitutional convergence. Australia has educated many Asian students, including in law.

The Colombo Plan that first brought Asian students to Australia was designed to build bridges, not make money. Its graduates now hold senior posts in many countries and have ties to Australia on which more can be built. Asian alumni are a living link between Australia and Asia.

We need to get more Australians studying in Asia, too. Australian universities should be actively encouraging students to attend their Asian campuses and their Asian partner universities.

Australia had its origins in the British Century, came of age in the American Century, and is now poised to play a leading role in the Asian Century, with the help of the Australian Constitution.

This is part eight of Australia in the Asian Century. You can read other instalments by clicking the links below:

Part One: Want to get ahead this century? Learn an Asian language

Part Two: Australia’s great, untapped resource … Chinese investment

Part Three: Beyond China: Australia and Asia’s northern democracies

Part Four: More than a farm on top of a mine: Australia’s soft power potential in Asia

Part Five: Australia can lead the fight against Asia’s lifestyle disease epidemic

Part Six: Why Australia needs an Asian Century Institute

Part Seven: Taming the tigers: tourism in Asia to become a two-way street

Part Nine: A focus on skills will allow Australia to reap fruits of its labour

Part Ten: Engaging with Asia? We’ve been here before

Part Eleven: China, India and Australian gas – who controls energy in the Asian Century?

Part Twelve: Dealing with the threat of deadly viruses from Asia

Part Thirteen: Defence agreements with US harm Australia’s reputation in Asia

Part Fourteen: As Asia faces climate change upheaval, how will Australia respond?

Part Fifteen: How Australia can become Asia’s food bowl

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