Ian & Stuart's Australian Mac: Not for Sale/Another.not.for.sale (Australia).iso/Dr. Doyle/Republican Constitution - Quick

Text File | 1994-11-11 | 14KB | 252 lines

The Australian Republican Movement (ARM) - A Few Comments on its Draft
Constitution

In 1993 the Chairman of the Australian Republican Movement, Malcolm
Turnbull, finally published his monograph ?Reluctant Republic?. The
publication had been delayed by his involvement in the Prime Minister?s
Republic Advisory Committee. Turnbull confesses that his involvement as
the Chairman of the Advisory Committee served him well in the production
of the ?Reluctant Republic?.

Despite this involvement at the centre of the Republican debate and
despite his credentials, Turnbull  manages to produce a somewhat
unbalanced argument in support of  the changes to the Australian
Constitution the ARM is promoting. In an attempt to forestall people?s
concern, the ARM promotes a ?minimalist? policy of change and hen claims
that the proposed changes will really only change the Constitution by
removing the foreigner (Queen) from the constitutional process. Australia
is assured that the other changes are largely cosmetic and will not
enhance the power of any individual or group in the political system.

Rather than going through a lengthy analysis of the Turnbull arguments,
it may be more effective to concentrate on the model constitution
proposed by the ARM. This was first published following a largely
academic exercise by Professor Winterton (Macquarie University) which
produced the draft republican constitution (first Published en masse in
the Independent Monthly) and now included as an annex in both the Report
of the Republic Advisory Committee and in Turnbull?s ?Reluctant Republic?.

The following will detail the changes and point to the officially
acknowledged implications and then discuss some of the real outcomes in
terms of current power relationships in the Australian political
landscape.

Proposed Constitutional Changes

PREAMBLE

The preamble insets a new section ?acknowledging the equality of all
under the law regardless of colour, race, sex or creed ...?

The intent is to embed some form of rights clause.

The effect is to not include equality regardless of age, ethnicity  (and
numerous other criteria). It also fails to state whether this provision
refers just to citizens or to citizens, residents or visitors.

Sections 7 and 8  of the preamble are deleted. Section 7 validated laws
passed by the Federal Council of Australasia. There is a possibility that
the removal of this section will invalidate still existing legislation in
part on whole. Since its removal is regarded as mere ?tidying up? it
might as well be left and ensure that no unforeseen invalidation of
current legislation (at State and Federal levels) can occur.

THE CONSTITUTION

S1. Section 1 declares that there shall be a ?President? (replacing the
Queen in this and other sections). While only a minor point, the title of
Head of State could easily remain as Governor General. This makes some
sense in a federation where the heads of states are called Governors.

Section 2 has been totally replaced by one which describes the process of
getting a new President into office. The process suggested involves:

2.(b)     [The First President] ?the Prime Minister shall, after consulting
the leaders of the other parties, propose the name of a person to fill
the position of President.

This section is supposed to ensure that the name put forward by the PM
will be acceptable to opposition parties.

It should be noted that only one name will be put forward and that
independents (who are not members of any parties) will not be required
for the consultation process. Effectively, any minor party?s and
independents? opinions can be ignored if the PM thinks the numbers will
be there in a joint sitting. It appears that this section only applies to
the first ?election? although clause (f) seems to assume that this
process will be followed whenever a vacancy occurs for the office of
President.  At the very least this is untidy and at worst it could lead
to a major dispute about interpretation. The problems with 2.(b) continue
since it specifies that the body electing the President will be ?a joint
sitting? of the House of Representatives and the Senate.

Since the Senate is half the size of the House of Representatives, the
weight of the lower house can tilt the balance in favour of the ruling
party considerably. Now Turnbull argues that a two thirds majority in a
joint sitting will be difficult for any one party to attain. This is
perfectly correct under the current system of proportional representation
for the Senate. At the moment it would take 150 votes in favour of the
Prime Minister?s nominee to elect the President under that model. The ALP
with 109 members would need the support of the Liberal Party in both
houses to achieve a favourable result. In 1992 the Prime Minister
foreshadowed changes to the way that Senators will be elected (if he can
get his way). The overt aim was to eliminate small parties and
independents from the Senate by having each State divided into 12
electorates and voting for a single senator in each electorate. Even
given that the staggered nature of the States? senatorial terms will
cause some lag, one would expect that the Senate would more closely
mirror the shape of the House of Representatives. Were that the case in
the current Parliament the ALP would be able to muster 120 votes, even
after its marginal performance in the 1993 election. Following a
landslide win (like Fraser?s in 1975), the governing party would, under
the proposed electoral system, be able to dominate totally.

Since the method of electing Senators is not constitutionally bound, it
is the Parliament of the day which determines the underlying system. A
manipulative government would be very tempted to try and dominate both
houses and, if it could, the election of a president. The ARM system
would make this possible and Malcolm Turnbull should know this.

A possible solution is to have a President elected by a two thirds
majority of BOTH houses, sitting separately. It would be difficult to
distort the electoral system sufficiently to obtain a two thirds majority
(or better) in both houses and since the larger number of members of the
House of Representatives cannot swamp the Senators under these
circumstances, a manipulation of the Senate would be less worth while.


Section 4 is a totally new section. It cements the position of Prime
Minister for the first time. This is needed in the proposed Constitution
as this person will, in fact, wield a great degree of personal power
under the Constitution. We find, for example that it will be the Prime
Minister who can dictate to the President in the President?s exercise of
his or her powers:

    ?The President shall exercise his or her powers and functions in
accordance with the advice tendered to him or her by the Federal
Executive Council, the Prime Minister or such other Minister of State as
are authorised to do so by the Prime Minister.?

The Prime Minister has, in fact, been given total control over the
President. The use of the word ?or? to separate Federal Executive Council
and other Ministers frees the Prime Minister from acting without
concurrence by the Cabinet (Federal Executive Council) when offering
advice to the President. The word ?shall? compels the President to act on
the ?advice? of the Prime Minister. If we re-write this in English we get:

    ?The President will act as the Prime Minister directs.? The Prime
Minister may approve other ministers to order the President to act in
accordance with their directions.?

The only exceptions are when the President is required to act in
appointing and dismissing a President. Turnbull?s copy of the new
constitution also refers to a section 4G which is mysteriously left out
(or relegated to fine print?).

In an attempt to avoid a situation where a caretaker Prime Minister can
be appointed, this flexibility has been removed by the new section 4B.
The Prime Minister no longer needs the support of Parliament, just the
House of Representatives. We also see that it is impossible under the
proposed constitution to have a Prime Minister in the Senate. While
impractical at the moment, it is not impossible. At times it might be
highly desirable to have a Senator as the Prime Minister without that
person having to go through a transfer process. A good example might be
on the death of a Prime Minister in office. His or her deputy might well
have been a Senator. The performance of that Senator may also be quite
outstanding but the proposed constitution would prevent the Deputy Prime
Minister from serving as Prime Minister after 90 days unless he or she
became a member of the lower house. The effect is to reduce the
importance of the Senate and to remove important flexibility from our
system of government. Even if the House of Representatives were to
unanimously endorse a Senator as Prime Minister, that Senator would be
unavailable.

Section 4B also compels the President to remove Ministers only on the
Prime Minister?s orders (except the Prime Minister of course).

Sections 4D  and E allow the removal of a Prime Minister by the President
if the House of Representatives withdraws its support. This is not a
problem in itself but the sections? use of the term ?absolute majority?
is. It is not defined in the draft constitution.

Section 4E is similarly loose when it talks about the authority of the
President to dismiss the Prime Minister if the ?Government .... is not
complying with an order of a court...? A loos interpretation would allow
a Magistrate?s Court to order the Government to act and, if the latter
failed to perform, the President would have the ability to dismiss the
Prime Minister.

Section 58(i) is modified to remove the ability of the President to
with-hold assent to legislation.  Section 61 further limits the freedom
of the President to act since it forces him or her to act only with the
advice of the Federal Executive Council which has been appointed by the
President on orders from the Prime Minister (S 62). The President is also
given the supreme command of the defence forces (S 68) provided that he
or she follows the orders of the Federal Executive Council. While this is
not a problem as such, the diminutive nature of the of President should
become quite clear at this stage. The President cannot even appoint a
deputy without getting the advice of the Federal Executive Council first.
What this means precisely is unclear. It appears that in this case there
might be some discretion of  not following the advice offered - surely an
oversight by the drafters of this constitution.

Finally we have Section 128 which has been changed to force the President
to assent to legislation passed at a referendum. Again this is not a
problem in itself, it just leaves one wondering why we need a president
at all if he or she is restricted to act as directed by the Prime
Minister.

Turnbull comes to the rescue here and suggests that a President would be
useful in opening shows and cutting ribbons and going on trips
representing Australia. He is either naive to the extreme or lacks an
understanding of the politician?s mind. No Prime Minister will miss photo
opportunities which will enhance his or her standing in the next
election. The President will not be allowed to usurp the vital TV and
radio appearances, front page shots in the papers and headlines. No
president will be allowed to say anything contrary to the Government?s
stated and unstated policies in the real political world.

What the ARM has done is to produce a constitution which eliminates the
Queen and Governor general, hands most of the powers currently held by
the Queen and the Governor General and establishes the position of
impotent President. The President is left with no discretion about the
application of powers, is compelled to act on the orders of the Prime
Minister and prohibited from acting under any other circumstances.  The
power of the Senate is reduced by its subservient role in holding the
government of the day accountable and in the process of removing or
appointing a President. At the same time Turnbull?s vision of this
non-partisan President acting as a unifying public representative of
Australia are based on a naive belief that a Prime Minister would allow
anyone else to dominate the media over any issue. Furthermore, the
electoral system proposed for the production of the President is flawed
since it relies on the continued existence of an electoral system the
current prime Minister has already threatened to manipulate.

The balance of the present political system would be totally undermined
by the implementation of the proposed Constitution as it stands now.
Considerably more thought needs to go into the production of a
constitution which does not provide the Prime Minister of the day with
powers even the President of the US can only dream of. It would entrench
and enhance the power of the executive by creating an environment in
which the Prime Minister could act, without fearing anyone outside his or
her own party - room. The Prime Minister would appoint the Federal
Executive Council, instruct the President and, provided his or her party
continued its support, largely ignore Parliament. The only remaining
protective mechanisms (the Senate and the Sates) are already under
threat. Once empowered with the proposed constitutional powers, the Prime
Minister would have far fewer difficulties in manipulating the political
structures to the advantages of the office of the Prime Minister.

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