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AUS1st: (Part 4 & Final) Democratising our Constitution

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"The challenge for Australian Republicans" — democratising our Constitution. In the last of his four-part series, Ross Garrad completes the plan for a unified and sovereign Australia.

Read Part One herePart Two here and Part Three here.

Aust1st: Australian Unity and Sovereignty First (Part 4)

Details of the AUS1st constitution alteration: Democratising our Constitution

THIS ARTICLE follows on from Part 3 in the AUS1st series.

Details of the AUS1st constitution alteration: Our own Head of State.

It provides full details and explanatory notes for the proposed new sections 3 and 127, deletion of s25 and amendment of s25.

The usual typographical conventions are used here:
Plain text for existing constitutional text to be retained;
Strikethrough for existing constitutional text to be deleted;
Underlined for new constitutional text.

D. ADDITION OF A NEW SECTION 3

The Constitutional Assembly.

3. The Australian Constitutional Assembly will be convened by the Governor-General or the Acting Governor-General when there is a vacancy or impending vacancy in the office of Governor-General. At least one month’s notice will be given of the convening of an Assembly, but where possible, a greater period of notice will be given, to allow the efficient and economical selection of the Members of the Assembly.

The functions of the Australian Constitutional Assembly will be to

  1. Elect a distinguished Australian to the position of Governor-General;
  2. Make recommendations to the Parliament and the Nation regarding constitutional reform.
Leader of the Opposition Bill Shorten in March this year saying time for an Australian Head of State.
 

Composition.

The Assembly will consist of five groups of members, of equal size:

Group 1: Representatives of the House of Representatives, elected by proportional voting;
Group 2: Representatives of the Senate, elected by proportional voting;
Group 3: Representatives of State and Territory Parliaments, elected by proportional voting, from both houses of parliament together in the case of a bicameral legislature;
Group 4: Representatives of local governments, chosen by each Premier or Chief Minister from nominations by local governments.
Group 5: Citizen Representatives randomly chosen by the Electoral Commission from State and Territory lists of enrolled voters who have advised the Commission that they are willing to serve.

The representation of each State or Territory in groups 3, 4 and 5 is obtained by dividing the population at the beginning of the relevant year by one million, with the result rounded up to the next highest integer if less than 4, or rounded to the nearest integer if greater than 4.

A Member of the Assembly may appoint one substitute for all or part of the proceedings of the Assembly, provided that the substitute would have been capable of selection in the same Group as the Member. In unforeseen circumstances the Assembly may, at its discretion, appoint a substitute by resolution.

Procedures.
Not less than four weeks prior to the commencement of an Assembly, nominations will be called for the position of Governor-General. Nominations will be open for at least two weeks and must be signed by at least 100 enrolled voters. The Chairperson of the Assembly will table the valid nominations and the Assembly will determine its process for dealing with the nominations.

In general, the procedures of the Assembly should be determined by resolutions of the Assembly, subject to the following:

  • All Members of the Assembly will be regarded as representatives of the nation of equal standing, and in the proceedings of the Assembly there will be no discrimination between Members on the basis of status or origin.
  • All voting to decide between the nominees for Governor-General will be by secret ballot.
  • It shall be illegal for any person or organization to offer any inducement or threaten any reprisal in an attempt to influence the vote of any member of the Assembly.

Notes

This section sets out a suitable selection method for the Governor-General, designed to serve the country well, both before and after our separation from the monarchy. It is obviously not the only possibility; there is a whole range of “middle-of-the-road” options that would do the job. However, not all options would suit this evolutionary approach to a fully sovereign Australia. At one extreme, any form of direct election would be unrealistic at this stage of our constitutional development. At the other extreme, any form of political appointment would lack the required democratic credibility, for an office evolving into a true Head of State for our country.

There is another task which could very appropriately be performed by a Constitutional Assembly: examination of proposals for constitutional reform. The existing mish-mash, consisting of parliamentary committees complemented by the occasional convention or commission, has failed our nation. A Constitutional Assembly, meeting every 5 or 6 years and drawn from all 3 levels of government, with the addition of a group of ordinary citizens, could do no worse and would probably in reality do a far better job of providing sound advice to the Parliament and the nation.

E. DELETION OF SECTION 25

Provisions as to races disqualified from voting.
25
. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

Notes

This should require no justification. Although the original intent of this section may not have been as malevolent as is usually assumed, and although it could never conceivably be applied, its presence in our Constitution continues to be a national disgrace. Even though this deletion may not be perceived as being directly relevant to the central thrust of the proposed alteration, there is a crucial connection: equality before the law is an essential feature of a genuine, modern democratic republic.

F. AMENDMENT OF SECTION 42

Oath or affirmation of allegiance.
42
. Every senator and every member of the House of Representatives shall may before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution prescribed by the Parliament, but failure to do so will not disqualify a duly elected member or senator from taking his seat.

Notes

“Oath of allegiance” is an essentially monarchical concept, and it would be an affront to the democratic will of the people if a duly elected person could not take office because he or she did not agree with a particular form of words.  The presence of such words in the Schedule to the Constitution gives this issue an importance it does not deserve, as well as adding an unnecessary complication to the structure of the Constitution. If an oath or affirmation is to be specified, it should be implemented by ordinary legislation, and it should not be compulsory.

This amendment, combined with the new section 1, simplifies the Constitution’s structure by removing all references to the Schedule from the Constitution, thus ensuring that it is no longer part of the Constitution proper. Its continuing presence in the Commonwealth of Australia Constitution Act 1900 would simply be a matter of historical record with no legal force.

G. ADDITION OF A NEW SECTION 127

The Special Constitutional Convention.
127. Not more than twelve months after the convening of the first Constitutional Assembly following separation from the monarchy, the Parliament, after receiving recommendations from the Constitutional Assembly, will legislate for a People’s Constitutional Convention, generally along the lines of the 1998 Convention, but meeting for at least twenty days during a period of at least six months. The Convention will report to the Parliament its recommendations for constitutional reform.

If fully detailed proposals for constitution alterations are supported by a majority of the elected members of the Convention, then those proposals will be submitted to the electors within three years under section 128, as if they had been passed by both Houses of the Parliament.

If a fully detailed proposal for a constitution alteration to restore the monarchy is supported by at least 25% of the elected members of the Convention, then that proposal will be submitted to the electors within three years under section 128, as if it had been passed by both Houses of the Parliament.

If a fully detailed proposal for a constitution alteration to provide for a directly elected Head of State is supported by at least 25% of the elected members of the Convention, then that proposal will be submitted to the electors within three years under section 128, as if it had been passed by both Houses of the Parliament.

Mode of altering the Constitution.
128. Subject to section 127, this Constitution shall not be altered except in the following manner:- ……

Notes

Any organisational reform should be followed, after an appropriate interval, by a process of reassessment, potentially leading to further reform. In recent years, many thoughtful and innovative ideas have been put forward, to enhance the safety, stability and transparency of our constitutional system, but these would not receive fair consideration in the initial phase of our transition, when the emphasis is on “monarchy or republic” and the selection system for the Head of State. The appropriate time for fine-tuning is after, not before, our separation from the monarchy. However, the timing of the Constitutional Convention should be specified by reference to the timing of the Constitutional Assembly, rather than by any particular time interval after our transition to a republic. The Assembly, occurring at the end of the Governor-General’s tenure, should be the “first port of call”, with the Convention building on its recommendations. Regarding the format of the convention, the words “generally along the lines of the 1998 Convention” are merely illustrative, and a better form of words could no doubt be found at the drafting stage.

There is another imperative, driving the need for a constitutionally-specified Constitutional Convention: the vital necessity of reassuring voters that “sovereignty of the people” is more than just an empty slogan, and that the Australian people will be fully involved at each step of the journey. For this reason, a specific proposal with fully detailed changes to the constitutional wording supported by at least half of the Convention should be put to the people, without the possibility of its being vetoed or altered by the Parliament as is usually the case.

Ross Garrad has a Masters degree in Applied Law and has served as Treasurer and Convenor of the Queensland branch of the Australian Republican Movement. 

Find out more about an Australian republic here.

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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