Constitution Day blog – 2010

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40 Responses to “Constitution Day blog – 2010”

  1. Annie Florence Says:

    Thank you very much for such an interesting thought provoking evening last night. All the speakers were excellent – such a pleasure to listen to. Look forward to more of these type of events……Annie

    • Joseph Says:

      Greg Craven call it Democratic although he did mention in the same breath how Women were excluded from the right to Vote. I would also like to mention the Constitution was written without consultation or involvement of Aboriginal peoples of Australia who were excluded the right to vote. How sexy do you feel misleading us the Audience as democratic means equality for all, and it is not our Constitution?
      So given the grounds that our constitution were written on, that was Racist and sexist, and have instilled this recital disadvantage to Aboriginal culture that needs to be changed. Do the public think as a mature nation, be able to rectify these errors of our forebears or are we going to struggle with this inherent racism for decades to come?
      I bring to you a petition addrtessed to the House of Representatives.
      TO THE HONOURABLE THE SPEAKER AND MEMBERS OF
      THE HOUSE OF REPRESENTATIVES

      This petition of the undersigned draws to the attention of the House:

       The Australian Constitution was written without consultation or involvement of Aboriginal Peoples of Australia who were excluded the right to vote.
       This error by the founders of our democracy, which created a social state that is racist and inequitable, is unacceptable and the ongoing exclusion of Aboriginal people in the public debate relating to their own affairs is linked to a life expectancy many years shorter for Aboriginal people than other Australian’s.
       It is our present Politicians who have a moral and social obligation to correct this situation.

      We, the undersigned, therefore demand the House set up a constitutional working group that represents all Australians to collect amendments to the Australian Constitution needed to create a truly democratic constitution. This should include consultations with all Aboriginal Nations and acknowledge the different Aboriginal cultures of Australia, who are and have always been owners and custodians of this continent. The outcome of the working group will be an amended constitution that can be put to a referendum, to create true democracy for all in Australia.

      PRINCIPAL PETITIONER: Joseph Lafferty PO Box 445, Curtin ACT 2605 or Mobile 0414 774 752.

  2. John Ward Says:

    The issue I wish to raise with you is more urgent than ever in terms of the legal jeopardy our troops face, becauseof a PM who overreaches his or her authority under our laws, and in particular the doctrine of the separation of powers.

    Under our political system all three arms of Government exist separately yet none may have unbridled power unto itself or untrammelled power over any other. This is known as the doctrine of the separation of powers.

    This division of power is intended to stop one person or group of people taking over all the power to govern Australia.

    So it comes to my mind, strange indeed, that a Prime Minister, any PM, can take it on himself or herself to make a decision to send our armed forces to war. To send our people into harms way, with out the checks and balances established by the separation of powers.

    My concern is that should these decisions to go to a particular war, are found to be illegal one day. I am concerned that service men and women, who are in need of compensation or legal protection are put beyond the protection of the law by a whim of one person.
    What if, we find that legally, there are no grounds to continuing to pay compensation to war widows or veterans because the actions of Prime ministers were not constitutional?

    We are not living in a dictatorship, but this situation is not a democratic one. We need to be above the law when we risk going to war and losing our children in service to their nation.
    The Australian Constitution vests ‘command in chief’ of the Commonwealth’s military forces in the Governor- General who exercises this power on advice of the Prime Minister.
    Decisions about war and the deployment of Australian forces, have therefore, ultimately become matters for the Prime Minister of the day.

    Once in the case of the Korean war, the Deputy PM a Country party minister made this decision before informing Menzies.

    On 9 July 1950 Prime Minister Menzies left Australia on an overseas trip to Britain and the United States. Menzies heard nothing in London that caused him to change his mind (not to send troops). The British had given him the impression that they had no intention of committing ground troops either. In fact the British were considering making such a commitment. As Menzies traveled on to New York aboard the Queen Mary, Canberra was informed by London that they had decided to send troops to Korea and that an announcement was imminent. Concerned that Australia was about to be upstaged, Spender badgered Fadden to get in first and make an immediate announcement that Australia would be committing ground troops. The decision was made without consulting Menzies (or the rest of the Cabinet) and broadcast on ABC radio an hour before the British announcement.

    Spender told Menzies of the decision by radiotelephone. By the time Menzies spoke to reporters’ quayside in New York. However, he was giving every indication that he had been a party to the decision

    Coming only hours after the announcement from Canberra, Menzies’ arrival in the United States turned out to be particularly propitious. He was invited to lunch at the White House, spoke to the National Press Club and addressed both Houses of Congress. Never before had an Australian Prime Minister received such an enthusiastic welcome in Washington. Menzies also took every opportunity to assert Australian primacy in the decision to commit ground troops to Korea. He brazenly told Congress that he expected British and New Zealand troops soon to be joining Australians and Americans in fighting the communists in Korea.

    We as a people deserve a more democratic process in place before making this, one of the gravest decisions of all.

  3. Ange T Kenos Says:

    The Constitution of Australia was written in a period of history far removed from today and, with respect to the writers, with no possible vision about where this nation would be today.
    How could they have imagined a nation so large in population? Or so culturally diversified?
    The constitution has served us well in so many ways but as we all know it has also created issues with the difficulty in amending it.
    It needs reform so that the majority need not be 70% to achieve change. It needs reform to include local government. It needs reform across a range of areas and it is about time that we had a serious constitutional convention with that in mind. I believe that we should so demand of whoever is PM after the federal election.

  4. RD Place Says:

    Interesting reading but as a migrant to Australia, one who has lived in several other countries so I have a comparrison, I must say that the Australian Constitution is not a democratic document at all. In fact it is simplistic, racialistic and a totally red-neck document.
    Previous writers are correct in stating that both women and the native people were excluded, not only from voting, but from and consultation during the process.
    The document has more to do with preserving the jealously guarded State’s rights’ than it has to do with democracy; ie it a document based almost entirely on the selfishness of the population of each state.

    It is inevitable that, one day, Australia will become a republic. Hopefully this will happen only after Australians are capable of understanding more than only a five second political grab. When debate on a republic begins seriously, and with this I mean more than the simple statement ‘we should be a republic’, then the debate should be broadened into one that includes discussion on a new constitution.

    Such a constitution should allow for a more participatory form of democracy. The electorate at present is only permitted to vote once every few years, for some yobo to make all the decisions on thier behalf. There is currently no obligation for the ‘yobo’ to refer again to the electorate. The right for a voter to make only one decision every three to four years is not democracy!

    As a minimum the electorate should have the right of recall. This will keep the ‘yobos’ on thier toes, result in more consultation, and give the electorate the ability to sack a representative who is not performing satisfactory.
    We also desperately need to include a Bill of Rights in any new constitution. At present Australian’s have no protection against laws that restrain, prohibit or infringe on basic human freedoms.
    Democratic??? I think not.

    • Rob Neave Says:

      Thank you RD Place, for emphasising the role of the states in biasing our constitution towards state’s rights and away from citizen’s rights.

      The problem today is state sovereignty.

      The next constitution should retain states as administrative regions, but without independent sovereignty. State governments should become subordinate jurisdictions to the Commonwealth. Then, their roles and responsibilities would be defined in the State Government Act, administered by the Minister for State Government. He or she would remove a state government that was incompetent or corrupt. Now there’s a thought!

      The constitution was written in the 1890s, when the next new big things in transport and communications were the steamship and the telegraph. Administration of our continent from a single centre would have been impossible.

      But all that has changed.

  5. Mai Says:

    I agree with John Ward who wrote that the powers of the Prime Minister should be set out in writing instead of being so loose that he/she can apparently do anything they like. Originally (in England) a prime minister was only ‘first among equals’ and his role was restricted to chairing Cabinet meetings in the absence of the King. Successive PMs have grabbed more and more executive power so that now they have puffed themselves up into some kind of presidential head of government.
    The constitution explicitly states that executive power is vested in the Queen and exercised through the Governor-General with advice from the Queen’s MINISTERS OF STATE. There is no mention of a Prime Minister.

  6. Joseph Says:

    Yes, I totally agree and I would like to add that the document is a way of legitimising the theft of Aboriginal land and has to change to address this theft and breath life back into Aboriginal culture that is being suffocated but the facts that it is racist and sexist and undemocratic theft of land and power.

    To this day Aboriginal culture is being denied Access at PhotoAccess to celebrate NADOC Week, here in Canberra. And July issue 2010 The Monthly quotes like “Aboriginal people in Western Australia are quite possibly the most incarcerated ethnic group in the world”.

    So change is needed with whatever time is needed to consult and involve all Australians, along with the excluded (Aboriginal) cultures, the right of their being, stated for all to enjoy and infuse with all Australians.

    Its good to hear the words of truth from all, and the facts put on the table because we are only going to get change with discussion and inclusiveness to create democracy.

  7. Geoff Says:

    After reading the Australian Constitution in preparation for the 1st July event, several things came to my attention;

    1. I was offended by section 25 ‘Provisions as to races disqualified from voting’ – I find this section repugnant and the inherent racism contained within as a deep shame on our nation. Despite the current federal legislation and legislative processes that would effectively prevent this section from having an adverse impact on a race, I believe it should be removed from the constitution and preferably replaced with a section that protects against racism in a manner that reflects the deep seated desire for equality among people.

    2. Other than the Queen, there is no mention of women in the constitution. There is also, notably, no exclusion of women, however it remains that women did not vote on the constitution and have only had the opportunity to make their preferences known on the many amendments since the original document. In the interests of equality (without getting bogged down in political correctness), I would like to see men and women given an explicit position of equality in the Australian constitution.

    3. There are many sections in the constitution which contain transitional or provisional clauses, where the transition or provision has been accounted for and as such, the sections no longer have any effect, nor will they ever in the future. Examples include references to the colonies, New Zealand, whether Western Australia would ratify the act, etc. While these don’t have any adverse impact being left in, as a living document, I would prefer that it was updated to remove this ‘dead wood’ and better reflect the nation we have become in the 110 year since federation.

    The commonwealth of Australia act of British Parliament applied only to the members of the six British colonies that became the commonwealth – excluding the Aboriginal population that were resident in these lands prior to British settlement. In addition, the population of Australia is becoming increasingly multicultural and even people of British stock may have well over one hundred years of family history in Australia and feel no allegiance to a country beyond our shores. I believe our future as a nation will be better for reviewing the constitution and updating it in light of the global and national development that has occurred since federation. There is opportunity for better equality and recognition of our place as custodians, not owners, of the land we live in and the myriad species who share it. There is opportunity to recognise how we as a country have changed.

    It is a source of immense pride, the manner in which Australia became a nation, despite the imperfections and inequalities mentioned above. I applaud the constitution as a stable and comprehensive document that was appropriate for the time and the first period of our history as a nation. Michael Kirby encouraged us to stand up for our rights as citizens. I have outlined the areas where I believe our constitution does not stand up in our current period and does not meet my expectations as a citizen. I support a debate for constitutional reform.

  8. Ange T Kenos Says:

    Dear Geoff. Exceptionally well stated. Re point 1, the conservatives under J B Petersen effectively used this to discriminate against all aboriginals. It was a national disgrace. Re point 2, women and aborigines should be noted within a rewritten preamble just as elsewhere in the document we should mention government and the leaders thereof better, local government (which is ignored) and more. Re point 3, again I agree.
    I studied constitutional law as a part of my uni degree many years ago and maybe at least it can find some value in blogs such as this one.

  9. John Ward Says:

    From my reading the Aboriginal peoples were better respected and had more rights, under colonial (British Law), before the adoption of the Constitution than they did after after.

  10. klaas woldring Says:

    I am disappointed about the contest organised by the ABC in that conservative views have pre vailed. The Australian Constitution is an archaic document hardly relevant to today’s conditions. The people have no power to initiate amendments and the process of amendment is dependent on agreement between the major parties – which is rare. It is frozen in time in reality and is only amended very occasionally by interpretations of high court judges who have to decide what the Founding Fathers may have meant with certain clauses meaningful around 1900 but not now. This is plainly a ridiculous situation and that is what we should be talking about!

    I request again that the competitors and the public generally are informed who the judges were in this contest and on what basis they were selected. There are plenty of constitutional lawyers, political scientists and others, like eg corporate leaders, who have a realistic understanding of the Constitution and the need for major and, indeed, radical change to the system of governance in Australia. The ABC should adopt a progressive attitude here rather than having itself constrained by conservative spokespersons.

    Dr. Klaas Woldring
    A/Prof (retired)
    Convenor of Republic Now!

  11. Geoff D Bolton Says:

    As suggested by earlier writers, state governments and their unduly dominant state capitals are no longer relevant.
    After creation of the Second Commonwealth (i.e. republic) a slow but vital convention process must aim toward building a central government focused on defence, education, and foreign policy, with regional governments (12-15 ?) which deliver most health & welfare services. Regions will include associated areas crossing present state lines, similar to Albury-Wodonga. Present state capitals may each form one of these regions (as with city-states in Germany) and govern their own people – but NOT dominate and suck dry the state areas outside them. This work may take 5+ years but will deal with the needs of today, not as perceived in the 1890s.

  12. klaas woldring Says:

    A response to Geoff Bolton

    Towards a two and a half tier system: National and Local Government

    The replacement of federation needs to be discussed widely. This Forum may be a new start but the Federal Government and the educational institutions, especially the universities, have a responsibility to alert the people to options. Regrettably, for the moment at least, they are failing utterly in this task. Governance reform, with the exception perhaps of health and hospitals, is low on the list of public policy priorities of the major parties.

    I strongly favour the strengthening of local government rather than the creation of new regions, as new political units, which some writers have proposed in recent years, varying from around 12 to as many as 99 regions. In these proposals local government is either treated as a third level of a unitary state or removed altogether as a level of Government. I will not discuss these several proposals. Nevertheless, the creation of regions, specifically as adjuncts to both local and national governments, is regarded here as undoubtedly of vital importance to a construct that would replace federation. I presented at a Tenterfield conference on federalism in October 2008 which can be viewed here.

    http://www.griffith.edu.au/__data/assets/pdf_file/0014/206510/tinkering-with-federalism.pdf

    Regions can play a mezzanine level role as creations primarily by local government. Local government is the very level where local community democracy in an otherwise complex society can and should be practised. However, for various, mostly historical reasons, it has had a chequered career, some have argued it was created as “afterthought”, many would agree that it has never come into its own thus far, and that federation actually blocked it from flourishing. Could it be that its time has come?

    The problem of centralisation of decision-making is that currently it is still predominantly located in state governments, not in Canberra. The feds collect most of the taxes – about 82% – so the fiscal imbalance is huge but there is no point in putting the clock back. This is not practical anyway. Australia needs a complete reorganisation that provides effectively for decentralisation away from state governments dominated by the woes of the metropoles. Superior decentralisation means more power to local government, as well as to regions, but what actually is regional decentralisation?

    The concept of region has many aspects. Therefore several valid answers exist depending on what criteria are used. Flexibility is essential. Attempts to force regions into one dimension, the geo/political dimension, as a principal building stone for a new constitutional construct is fraught with problems. On the other hand, those who argue in favour of a two-tier structure based on a national government and much improved local governments favour regional constructs primarily as adjuncts to local governments. This allows for much greater flexibility in that specific needs for regional administrations, which can be functional/departmental, biological, environmental and/or people oriented, can be accommodated more effectively. The voluntary organisations of regional councils already reflect this thinking. There are 64 of them with over 400 Councils participating. Secondly, at the national level functional/departmental decentralisation (e.g. health, education, IR, etc) can follow best practice of what already is in place in some states. In addition to this we need effective specific city government as a special category of second tier. The problems of the metropolis are so unique that they cannot be left to financial weak state governments any longer. Remember that many well-decentralised states are NOT federations. One type of response to ending federation is that centralisation will take over and decentralisation will suffer. This would be the wrong kind of reform. It is not what is promoted here. It is also far fetched to argue that centralisation in Canberra would be “inevitable”. However, to achieve superior decentralisation a pro-active approach will be essential. To hear senior planners in Sydney preparing for a city of seven million by 2050 reflects a totally undesirable mindset that needs to be changed. Little or no consideration is given to the need of moving the population to regional Australia.

    All Australians should reflect on this. The state of knowledge on matters of governance structure is inadequate, but surely this can be rectified. The Government itself, educators, public and commercial broadcasters and the media should have a major role to play to rectify this. Why was THIS not part of Rudd’s and Gillard’s “education revolution”? Especially the public broadcasters, rather than over-concentrating on “current affairs”, which means discussing/highlighting issues within the parameters of current system of governance, should run public education programs on governance that includes discussions outside the square. It should include comparative studies that are not tied to any kind of ideological framework or interest group. It is valuable to look at the place, functions, role and financing of local government in other countries and to assess their place in both unitary and federal systems. Local government outside the metropoles need to be prepared to provide employment and accommodation to a much larger number of people than has been the case in the past. This cannot be left to the market place alone but, of course, it will play a role in this. However, the provision of very considerable new infrastructure surely is largely a task for the national government, in part via local government. Further commentary can be sourced on the following website http://www.republicnow.org. Please go to the “Role of local government” page.

  13. John Belcher Says:

    30 Jul.2010. I come to this matter a little late as my wife and I have been away from home travelling.When this “Commonwealth Test “appeared in the Canberra Times on 21 May2010, I immediately logged into the National Archives web address and submitted a Question pertaining to Section 44(1) of the Australian Constitiution. I will quote it below.

    “Disqualification

    44 Any person who

    (i) is under any acknowledgement of allegiance, obedience,or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privilages of a subject or a citizen of a foreign power;
    or

    (There are (ii,iii,ivand v)other paras.) but it is 44(i) that is in question.

    shall be incapable of being chosen or of sitting as a senator or a member of the House of Represntatives”

    On the day Ms Julia Gillard became Prime Minister the former Labor Politician Mr G Richardson stated that to be the leader in America you had to have been born there. His insinuation being the we in Australia had no such barrier/test. He made no mention of Section 44(i) above.

    Queen Victoria gave her Royal Assent to the Constitution on 9 July 1900.

    It took our founding fathers 10 years to draft it. I think when the Australian Constitution was passed as part of a British Act of Parliament in 1900 and it took effect on 1 January 1901 we were classed as British Subjects i.e subjects of “the Queen” (meaning Queen Victoria).The Nationality Act of 1920 confirmed that status.

    In my rersearch I have read “Aspects of Section 44 of the Australian Constitution Chapter 2″ which was issued as a publication in July 1997.

    In 1930 in The Hague in Holland there was a “Convention on Certain Questions relating to the Conflict of Nationality Laws (1930, in force 1937).

    Chapter 1 General Principles

    Article 1.

    It is for each State to determine under its own law who are its nationals.This law shall be recognisedby other states in so far as it is consistentr with international conventions, international custom and the principles of law generally recognised with regard to nationality.

    Article 2.

    Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.

    Article 3.

    Subject to the provisions of the present Convention ,a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.

    Article 4.

    A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

    Article 5.

    Within a third State , a person having more than one nationality shall be treated as if he only had one.Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident or, the nationality of the country with which in the circumstances he appears to be in fact most closely connected.

    Article 6.

    Without prejudice to the liberty of a State to accord wider rights to renounce its nationality , a person possessing two nationalities acquired without any voluntary act on his part may renounce one of them with the authorisation of the State whose nationality he desires to surrender.

    So in Australia in 1948 officers of the Department of Immigration on the direction of the Parliament of the day drafted the Australian Citizenship Act 1948 which came into effect on 26 Jan 1949. As Australia did not agree with Dual Citizenship Section 17 of the Act provided for Loss of Australian citizenship status when another Citizenship was acquired.

    Section 17 was repealed in March 2002. So Australia now has a very large proportion of persons who hold two or more Citizenships, one of them being Australian.

    All persons who hold two or more citizenships can only be one citizen at any given time. In essence we are all only Austrlian citizens there is no such Citizenship status as an Australian/British. My ethnic background is German/English/Irish but I am simply an Australian and I wish that was how we referred to all Australian citizens.

    As it Election time and in this instance a very important one. If as our Parliament knows of this Section 44 (i) but are sitting on the fence then it is time to tell all Australian electors of this Section get it out in the open and let us all know who are and who are not dual citizens occupying places in our House of Representives and the Senate. Have they really tried to renounce their other citizenship(s) or have the taken “reasonable steps” as granted hy the Australian High Court.

  14. John Ward Says:

    Are we talking about Erika Betz?

  15. Ange Kenos Says:

    I think that it is abundantly clear that our national constitution is in need of amendment. Arriving at an agreeable determination re what should be included will be difficult but the politicians on all sides appear disinterested.

    Should we therefore consider a new preamble? Draft words that respect the traditional owners and the ethnic pioneers, to be respectful of the ethnic heritage of Australia and I do not mean English alone. Include local government and other areas that have been neglected?

    The time has come for the people to think for themselves and to make determinations which their “representatives” in parliament cannot subsequently ignore

  16. John Ward Says:

    Ange ,
    That is what people call him in Tassie,”ERIKA” and everyone knows who you are referring to.

    Given that some time in the future, we may move to become a republic. I seek your indulgence to canvas the opinions of you readers on what might constitute a preamble to a renewed Australian Constitution. Below is my effort……

    Preamble to the Australian Constitution

    We the people of Australia, having come from all the lands on earth, join with the original owners of this Island Continent to commit to this Constitution.

    We call on all future legislators to protect the rights of Australian citizens seven generations hence, each and every time they consider making new laws.

    We call on all future legislators to eliminate the adverse consequences that their legislative decisions may have on unborn generations, each and every time they consider making any laws.

    Just as we require the utmost protection for our future generations, we from this day forward, establish as our national pledge. That:

    We shall provide for and protect our young, our weak, our ill and our aged from the ravages of poverty, injustice and disease, by establishing the leading health care, legal and social justice support systems any where on earth.

    For justice we require; that all laws or powers under this Constitution are framed so as to provide the citizens of our nation and those refugees who seek our protection, with the absolute right to human rights, fairness, dignity, respect and the freedom to be different.

    For justice we require; the absolute right to freedom of religion, freedom of speech and association.

    For justice we require; freedom from discrimination of any description, be it on the grounds of race, gender, sexuality, age, marital status, religion or political belief or any other failure to respect group or individual rights to freedom.

    We establish as inviolable and mandatory, the right to free education as a national imperative to enable our people to develop their talents to the fullest. We consider the provision of quality education for all, the soundest basis for our defence and prosperity.

    We will honour our treaties and international obligations to the United Nations. Any Government that attempts to break our commitment must relinquish office and take the issue to the people.

    Further we command and establish Citizen led Referendum and the vote as both an absolute right and responsibility.

    We establish as inviolable and mandatory, the principle that our armed forces shall never be used to make or begin an offensive war and will only ever act internally or beyond our borders, to defend and protect the security of or citizens and the sovereignty of our republic. The use of our armed forces against the human rights of immigrants, refugees, asylum seekers and any of our peoples in times of civil unrest, is repugnant to the memory of those who have served our nation and would debase the honourable military tradition we hold so dear.

    We therefore, mandate that all civil unrest whether it is generated internally or from beyond our borders shall be addressed by our civilian police force under civil law.

    And so, we pass to you who follow the care of our beloved Australia, honour our trust, and sustain our democracy with courage, integrity, fairness and good humour.

    • Rob Neave Says:

      John

      Your preamble contains all the right ideas and is in clear language. I thought a number of those items ought to be in the body of the constitution, not in the unenforceable preamble. Specifically all the rights provisions, including free and SECULAR education.

      Not sure about “the right to be different”. As a nation, we have successfully assimilated migrants (including me) from many countries. The right to be different almost implies a constitutional right to have separate communities with different language and culture. Probably not a good idea.

      Absolute freedom of religion might be a problem too. Anyone can start a religion and use it to oppress people, hiding behind religious freedom. It is not even necessary to start a religion, there are plenty of dodgy ones here already.

  17. John Ward Says:

    And just to show again how the constitution decays and needs to be maintained.

    I was very excited to see your comments on TV last night and believe now is the time to raise this issue as a national debate during the election campaign.

    Our service men and women face legal jeopardy, when a Prime Minister overreaches his or her authority under the law I am particularly concerned, regarding the flouting of the doctrine of the separation of powers. I do not presume to lecture on the doctrine; rather I describe the doctrine to make my case.

    Under our political system all three arms of Government exist separately yet none may have unbridled power unto itself or untrammeled power over any other. This is known as the doctrine of the separation of powers.

    The separation of powers is a convention we adopted from the United States of America as part of our constitutional arrangements.

    The doctrine of the separation of powers was described by Montesquieu in his L’Esprit des Lois in 1748. In this political treatise Montesquieu advocates constitutionalism and the separation of powers, the abolition of slavery, the preservation of civil liberties and the rule of law, and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community.
    He said that a nation’s liberty depended on the separation of the three types of power, legislative, executive and judicial with each having their own separate institution.

    This doctrine is central to the Australian Constitution.

    Under the Federal Constitution the people of Australia are the sovereign power. It (the Constitution) sets out the legal rules and functions of the three arms of government.
    They are; The Parliament (Senate, the House of Representatives and the Queen).
    The Executive (The Prime Minister, the various Ministers and their Departments),
    and The Judicature.

    The system works in this way. Parliament makes the law, the Executive carries it out and the Judiciary, (in this case the High Court), determines the law is legal and constitutional.
    The High Court is charged with the responsibility of determining whether a Government is acting legally and within the Constitution.

    This division of power is intended to stop one person or group of people taking over all power to govern Australia.

    I find it strange indeed, that a Prime Minister, any PM, can take it on himself or herself to make a decision to send our armed forces to war, without the checks and balances established by the separation of powers.

    I believe that, as the Constitution was being written, the framers of the constitution were focused on building a federation of colonies to create the Commonwealth of Australia.
    The concepts of World Wars and the changes that came with twentieth century were beyond the imagination of the Australians of the 1890’s.

    If England went to war, we went with her, just as we had done in the Boer war.
    On 31 July 1914, the day after the Governor-General received official advice that war was imminent, both Andrew Fisher (ALP) and Joseph Cook (Liberal) pledged support to the Empire. Fisher delivered his famous phrase, repeated in many speeches:”Australians will stand beside our own to help and defend her to our last man and our last shilling”. Four days later, Britain declared war on Germany. For Australians, this meant their nation too was at war.

    Menzies broadcast to the nation, announcing his; “melancholy duty to inform you officially that, in consequence of a persistence by Germany in her invasion of Poland, Great Britain has declared war on her, and that, as a result, Australia is also at war”. This practice became almost a convention.

    We are not living in a dictatorship and this situation is not a democratic one. We need to be sure of our Constitutional Legality when we risk going to war.

    No one has yet set in place a sound legal basis for us to make this gravest of all decisions. International law is moving closer and closer to the point where national leaders like Tony Blair are coming under forensic scrutiny and it would certainly be prudent to put our house in order now.

    The Question to be asked is. What if in the future, decisions to go to a war are found to be illegal and service men and women, who are in need of compensation or legal protection, are put beyond the protection of the law by an action of one person?

    For example, what if we find that a future government or the High Court decides that there are no grounds to continuing to pay compensation to war widows or veterans because the actions of previous Prime Ministers were not constitutional?

    The Australian Constitution vests ‘command in chief’ of the Commonwealth’s military forces in the Governor- General who exercises this power on advice of the Prime Minister.

    Decisions about war and the deployment of Australian forces, have, therefore, has ultimately become a matter for the Prime Minister of the day.

    We, the people, deserve a more democratic process in place before making this, grave decision.

    I believe that the decision to go to war can only ever be made by a joint sitting of both houses, sitting as the Parliament of Australia, including the Governor General representing the Queen, and as Chief of the Armed Forces.

    This would remove such assumed power from the Executive and in particular from the Prime Minister.
    To make absolutely sure, the High Court should then decide that the Parliament acted legally and within the Constitution.

  18. Ange Kenos Says:

    What a sensational draft Of course I struggle to see almost all politicians agreeing to it because it forces them to a greater level of honesty and service than quite a few have ever considered

    Yet is this not precisely what we the people who ARE Australia demand of the so called ‘representatives’?

    • John Ward Says:

      Ange,
      Yes they are responsible to us for their goings on. And are meant to represent us. As in Re-Present us, our wishes and requirements to the Parliament.
      We should kick this around a lot more to put ideas out around the people and then tall the politicians what is expect of them , OR we will elect representatives to do our biding not tell us what they think we ought to cop. Certainly not their Sedition laws and High muckyMuckisms!!!

  19. Ange Kenos Says:

    Our latest correspondent raises an interesting issue – if these words are in the preamble they may have no force. But then would they not be very influential in any appeal before the High Court? Of course who wats to go that far or even afford it.
    But we need to select words with real meaning that will not be over turned by MPs with vested interests or special interests (remember Arny’s California campaign words).
    We need to highlight those areas in which the vats majority of us agree and, for example, the opening paragraph is without question perfect. But where we talk about freedoms and justice etc then there will be great fights between the two main political sides just as they have over a Bill of Rights.
    I would love to get some retired MPs who might be willing to advise us and who still have some influence in their parties, as elder statesmen, to pursue the right words.
    Afterall, it will be the MPs who agree or disagree and thus affect if not direct the success or failure of the referendum that considers all of this before us.

  20. John Ward Says:

    Rob Neave,
    You are correct about a plethora of religions.I read a book once that recorded 7,00 Religions in the last 4,000 years and every one was the one and only true….. I would hope that the provision of the best legal and social justice systems within our power may limit the oppression of which you speak.
    However, I believe in this sort of document should be as open hearted as we hope for and not limit or be restricted right from the start, such small limitations stem creativity.
    At the same time a devils advocate or two are vital to the process to flag the danger of ‘Group Think’ and to mark barriers we can plan to circumvent. As you say being naive about the subject can waste valuable effort.

    Ange Kenos:
    One provision that should be maintained always is section 77.5 of the Constitution itself, because though it has been used very little to date, it is the means by which we can express our sovereign right over the political system via the constitution.

    Read what Ms Mary G. Gaudron (Australia), President of ILO Admin Tribunal, and former High Court Judge, had to say, in a speech entitled “Remembering the Declaration of Human Rights”. S
    he said “the Universal Declaration recognises there is no protection of human rights without the rule of law”.

    “Well, if Australia was tardy in implementing or giving effect to Article 7 of the Universal Declaration, it was more than ingenious in recognising the rule of law. The genius of the Australian Constitution lies in a little subsection called section 75(5). Its terms are probably meaningless to those of you non-lawyers who are present here today. It gives the High Court original jurisdiction in which any person, citizen or non citizen seeks mandamus, prohibition or an injunction against an officer of the Commonwealth. As a result of that tiny little subsection, ministers of the federal government, federal public servants, their agents and others acting on their behalf may be compelled to perform their Constitutional and legal duty and may be restrained from acting in excess of their constitutional or legal power. The section, is all our own; our own peculiar genius. Not surprisingly, governments of both sides have sought from time to time to cut down the operation of that little subsection; and equally not surprisingly, High Court has resisted their attempts every time. That little subsection is quite unique. It has no equivalent, as far as I know, in any other Constitution. Certainly it has no equivalent in the United States of America. And it is only because America hasn’t got that equivalent provision that we have that legal black hole known as Guantanamo Bay”.
    ““““““““““
    A woman who will inspire generations to come with her clear thought and courage.
    I mentally salute her each time I hear her name. She is without doubt my hero.

  21. Peter jackson Says:

    National Sovereignty

    Patrick Henry – American lawyer, patriot and orator, held as a symbol of the American struggle for liberty 1736-1799.

    The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.
    We are called the Australian Sovereignty Party (ASP) because we will restore and preserve the independent, self-governing and sovereign character of Australia. In this nation, according to our Constitution, it is the community collectively that is sovereign. As our forefathers and frame-workers of our great Constitution stated, “the supreme absolute and uncontrollable authority remains with the people.”

    We are against the surrendering of our sovereignty, as offshore bodies such as the IMF, World Bank, the U.N., and other organisations, now exercise excessive influence over the policy making decisions of our present government.
    We reject the idea of a global government. We will expose the globalist agenda to make every nation inter-dependent and ultimately destroy the sovereignty of all nations in their efforts to create a one world global government (commonly referred to as the New World Order – see here).
    We will clean house in Canberra, and wrest the government out of the hands of the corporations and other organisations set on destroying our sovereignty and making enormous profits while robbing us all. We shall return the government back to the people, for the people.
    As it is essential to our sovereignty, independence, good health and survivability, we will ensure Australia can produce all of its own food and nutrition needs, thus not relying on imported foods from an increasingly unstable world.
    We will revolutionise our economy, delivering prosperity and wealth to all Australians, and in the process we will boost our manufacturing capacity to a level such that we can produce all the goods, products and materials we need. We should be as self-sufficient; not overseas dependent.
    We will recall our troops from unjust wars, boost defence spending, and vastly increase the size and power of our military to ensure we can defend our nation and protect our borders, without having to rely on any corrupt and unreliable foreign power to defend our country.
    We recognise that the protections and freedoms we enjoy under our Constitution, with its inherited rights such as the Magna Carta (1215), and the Bill of Rights (1688). Unfortunately, our Constitution has been manipulated by previous governments without lawful referendum such as the Australia Act 1986. The Queen does not control our Constitution and our affairs. Under our Constitution, Australians should be amongst the most free and sovereign people in the world.
    We should all be proud to be Australians and proud of our diverse cultural heritage. Whilst respecting the varying cultures and beliefs of all who reside here, we encourage all citizens to learn the national language (English), and be part of the wider Australian community.
    We will put a stop to the politically correct non-sense of diminishing, removing or frowning upon Aussie icons, habits, traditions and cultural uniqueness, in the name of not offending people of foreign cultures who reside here, particularly in our schools.

    Confucius

    The strength of a nation derives from the integrity of the home.

    William Somerset Maugham

    If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.

    Thomas Jefferson

    What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals
    http://www.sovereigntyparty.org.au/

  22. Peter jackson Says:

    Reasons to vote The Australian Sovereignty Party http://www.sovereigntyparty.org.au/

    To upheld the Australian Constitution
    A simple and fair tax – that raises all our revenue without GST or income tax.
    An honest money system – that will free the government from debt.
    Increasing exports of our goods – and not of our jobs to “slave labour” economies.
    Genuine environmental care – since we are the custodians of our children’s world.
    No privatization of common assets – we paid for it and own it, so why sell it just to continue paying ?
    A small and efficient government – to protect our rights and not to be our nanny.
    No road tolls – unhindered travel is a right and not a privilege.
    No speed camera fines – a higher police presence will contribute to better road safety.
    Free public transport – and no management outsourcing to offshore companies.
    A better focus on rural development – farmers are the backbone of our economy.
    Informing farming communities and consumers of the dangers of GM crops.
    A more effective judicial system – to better reflect sentencing expectations.
    High quality health care and education – our wealth lies in our minds and bodies.
    The right of individuals to choose their own food and medicine.

  23. Joseph Says:

    How can the people have authority within the Constitution when the people who are the custodians of this land, Aboriginal People were omitted from contributing, to the framework of our Constitution?

    Our Constitution is racist. Because it was constructed to rascally exclude Aboriginal people from the Australian Constitution.

    Lets all step back, and look at the real issues of this omission, and the great injustice it is, within our Constitution, and start to offer leadership, by suggesting we address this injustice.

    Peter Jackson needs to hop off his National Sovereignty horse, and confront his misconceptions, of our Constitution being great, and address the rascally unjust document our constitution really is.

    This deception, that people like Peter Jackson lather on, to hide the truth is lame, and gives us all clear view of the ugliness within our society that maintains the idiot state of the general public we communicate with.

  24. Klaas Woldring Says:

    Happy New Year to all. It is most encouraging that a number of new contributors have entered the debate and resumed floating ideas. I had an article published by the National Times (web magazine, Sydney Morning Herald) which was reprinted by the Age and Westaustralian. I have entered it on the blog page of Republic Now!. It promotes the idea that the Constitution needs to be rewritten, not amended. I recommend to you to have a look at it. I do not see any reason why a sovereign people should not decide to rewrite a Constitution if they come to the conclusion that this the best way to deal with the issue. In this contribution I question with John Ward’s contention that the separation of powers is central to the federal Australian Constitution. Montesquieu’s idea of Trias Politicas is seriously undermined by the Westminster system. That is one reason why I am not a supporter of the Westminster system. I quote a short section of my book How about OUR Republic?
    a. Fusion between the Government and the Legislature
    b. Very limited choice of competent Ministers

    This section presents a challenge to two particular aspects of the Westminster system, (a) the fusion of the political executive (the Government/Ministry) and the Legislature; (b) the very limited choice of talent for the Ministry. The survey of selected countries is contained in Appendix 1 but a short introduction is provided here to highlight the more important findings. It should be remembered that many commentators would see the two party system also as a distinguishing aspect of the Westminster system. When looking at definitions this is not particularly highlighted though but it is true that the Westminster model is usually combined with the single-district electoral regime, which mostly results in a two-party system. In reality there are two different causes and effects here. In this text the two-party system is criticised as not being democratic but strictly speaking it is not part of the Westminster model. Both Ireland and Malta have in fact proportional representation as their electoral regime but otherwise would be classed as Westminster models.

    Westminster System – what does it really mean? Originated in the UK and only exists in that country and in some of the British Commonwealth or former Commonwealth countries.

    Definition: A Representative Parliamentary system in which the Ministers are “IN AND OF THE PARLIAMENT”. Citizens cannot be Ministers unless they are elected to Parliament as MPs. This virtually ensures that Ministers are functional amateurs. Also in this system there is a fusion of the legislative and executive powers.

    Really, in Australia the political executives of the major parties COMPLETELY dominate the legislature. Why should Australia continue with this system? Most countries have extra-parliamentary executives. in virtually all European systems (collegiate) and in the US (Presidential) as well. I think it is much to be preferred.

  25. Nick Says:

    Watch the and audio visual presentation of the Australian Constitution, other constitutional documents and other relative documents of our nation FOR FREE at: http://www.youtube.com/user/ozconstitution#grid/user/8A25C4B9C7F58B55

  26. Patricia Says:

    Many thanks for writing “Constitution Day blog – 2010 Constitution Day 9 July”.
    I actuallywill surely be back again for much more reading through and commenting shortly.
    Thanks, Chester

  27. Klaas Woldring Says:

    Patricia, I am delighted that you read this Blog. I think the ALP Government in Canberra should call a group of progressive thinkers together and ask them to come up with a proposal for a new Constitution which has great appeal to the Australian people
    and put it in a referendum as provided for in Section 128. The entire current Constitution can be changed in terms of that Section and my instinct tells me that this is the way to successfully re-write the entire Constutition. The conservatives would probably vote against it but the ALP, Greens and Independents do still have the numbers to take that initiative.
    They certainly would have to hurry up but I would think that taking steps towards that end, even if the referendum would have to be left to the next parliamentary session, would reflect very well on the Gillard Government. As the PM promised, she would take the country FORWARD!. This would be one major step forward to clean up the archaic, frozen Constitution in one go!!

    Klaas Woldring, Ph. D.
    A/Prof. SCU Political Science and Management (ret)

  28. Klaas Woldring Says:

    Hi Cat Meow,

    It is to be hoped that a lot more people stumble over this Blog as a debate on the Constitution is exactly what my friends in the Beyond Federation group favour (http://www.beyondfederation.org.au) While the group concerns itself predominantly with the constitutional replacement of federation, my own interests go beyond this because there are major barriers associated with this endeavour which, in my view, cannot be disregarded. These barriers are embedded in the political system itself. Amending the Constitution has been so very difficult not just on account of section 128 and the federal structure of Australia but also on account of the dominant electoral system (HofR) and the fact that the initiative of launching amendments to the Constitution lies exclusively with the (federal) politicians. The elctoral system has been cemented by the 1918 Commonwealth Electoral Acts of 1918 and 1924 which have resulted in the two-party hegemony. The system is based on single-member-electoral districts, with compulsory preferential voting, together with compulsory enrolment and compulsory voting.
    This system is grossly biased in favour of the major parries – in the House of Representatives; it contributes enormously to the rigidity of the Constitution. So what I continue to urge my friends and anyone who is serious about rewriting the Constitution is that is essential to look at the totally of the package that is under consideration. A debate that is merely considering the problems of the present Constitution will fail unless it goes well beyond that.
    One has to say that the major parties have very little if anything in their policy platforms that suggest a move in this direction. It5 is regarded as not being in their interest. Of the possible party leaders
    now vying for popular support I would think that only Rudd could be expected to be persuaded of embracing major changes

  29. Charles S Mollison Says:

    There remains a desperate need to rewrite our Constitution. The standard of politician currently serving this nation is at an all-time low. Consequently, the standard of governance is deplorable.
    This low standard is a direct result of the fact that the two major political parties have hijacked our democracy. They have manipulated the Electoral Act to such an extent that they are now guaranteed that one or other of them will form the Government. As a result, we are now represented, not by representatives of communities as was intended, but by representatives of political parties.
    However, writing a Constitution is a daunting task. And the worst thing that could happen is that it is left to politicians; or worse still, lawyers! No, our new Constitution must be written by the People!
    But where to start?
    The good news is that The Foundation for National Renewal, a not-for-profit, voluntary, non-partisan organization of ordinary Citizens; has done the hard yards and produced the First Draft of a whole new Constitution for Australia.
    This First Draft has been published to allow wide spread debate and amendment as required by the People of Australia.
    It is available for free download from http://www.restoreaustralia.org.au/download-free-pdf-draft-constitution/
    Alternatively, if you are sick of reading stuff on a computer screen, a copy in book form is available from Restore Australia, PO Box 82, Woombye, Qld, 4559; $15 incl P&P.
    Check it out and have your say for inclusion in the Second Draft!

  30. Jillian Gillispie Says:

    Dear Legal Education Program,

    What does the constitution mean to me? I think the constition gave me the right to express my self in speech and in writing. I think that we shouldn’t have to have a consitution to solve a problem like expressing our feelings. Some people may think that writting the constitution was a waste of everyones time. But in my mind I am glad we have it because if we didnt we probably couldnt express our selves and we would have probably never thought about ending slavery because usually when we hear of ending slavery most people think about the speech Martin Luther King Jr gave but
    I bet you didnt think it was in the consitution. Well that tells you what the constitution means to me.

    Sincerely, Jillian

  31. Johng258 Says:

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  32. Klaas Woldring Says:

    Hi all,

    I draw your attention to a forthcoming eBook produced by the Beyond Federation group. The title is: Beyond Federation: Options for a new Australian Constitution for a changing society. Target date 15th August. There are 14 contributors, I’ll provide further information by the end of this month.

    Klaas Woldring,
    Editor.

  33. Klaas Woldring Says:

    I have commented on the fact that it is ridiculous that the Federal Attorney-General Brandis want to tamper with section 18c of the Race discrimination Act on the grounds that it limits freedom of expression of opinion. This Act came about because most human rights are in fact NOT protected in the written Australian Constitution. If you want to change anything start with the Australian Constitution.

    I am asking Paul Barclay, apparently the moderator again, why don’t you publish my comments? You are encouraging comments: “Have your say” is the heading of this Blog!

    Klaas Woldring

  34. Ashton Says:

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