A Constitution part 1

I mentioned to Cam earlier that I had chosen to adopt the Na*WriMo tradition of not actually finishing in the alloted time. I have delayed half a week, and I'm *still* not finished. Part 1 ensues.

Elections

Elections for the Australian government shall be held on the first Saturday of June, every second year, starting from the first such day after this Constitution is ratified. The Government

The Australian Government shall comprise three bodies: the Legislature, embodied by Parliament; the Executive Council; and the High Court. It shall by overseen by the States on behalf of the People of Australia. Qualifications

Any Australian citizen may be elected to any position in the Government unless previously convicted of treason. However, it shall be forbidden to move from one body of the Government unless an election to the later body has occurred after leaving the former body. In the case of the later body being the High Court, four years must pass after leaving the former body before being appointed to the High Court. The Parliament

The Parliament of Australia shall be divided into two houses, the House of Representatives, and the Senate.

The Parliament shall sit no later than one month after election, and shall hold session no less than once a month. Parliament shall appoint such times as it sees fit – within these strictures - to sit. No body may susoend or dissolve Parliament other than itself or this constitution. Senate

The Senate shall be comprised of an equal number of representatives from each State. On the first Election Day after this constitution is adopted the Senate shall diviide itself into three classes, with an equal number of senators from each state in each class. The first class shall retain their places for two years. The second class shall retain their places for four years. The third class shall retain their places for six years. Afterwards, each class shall hold their places for a term of six years.

Each State shall be represented by nine senators.

The Senate shall make laws prescribing the method of electing senators. Subject to any such laws, each State may make laws prescribing the method of electing senators within that State. Each State shall make laws regulating the places of election of senators for that State.

Within one month of an election, and before any other business, the Senate shall elect from its numbers a President. The President may be emoved by a vote of the Senate, or by resigning their office in a writen statement to the Governor-General who shall then notify the Senate, or by ceasing to be a senator. The Senate shall then appoint a new President within a month of the vanacy and before any other business. The President shall in all cases be entitled to a vote. If the President is temporarily absent, the Senate shall appoint a temporary replacement.

If the place of a senator becomes vacant before the expiration of the term of service, the State for which which the Senator was chosen shall apppoint a replacement. Each State shall make laws to regulate the appointment of temporary senators to vacant places. Any vacancy so filled shall expire at the next election; the senate place shall then expire along with the rest of its class. The President of the Senate shall advise the States of vacancies.

No Senator shall be absent from the Senate without the assent of the Senate for more than two consecutive sittings. If any senator fails to attend more than two consecutive sittings the senator's place shall be vacated. At least one-third of senators must be present to constitute a meeting of the Senate.

In all cases, a majority of votes shall decide a question, with one vote per senator. Tied votes shall pass in the negative. House of Representatives

The House of Represenatives shall be comprised of representatives of equal-sized electorates, one representative from each electorate. The election of these representatives shall occur on the first Election Day after the adoption of this constitution. The term of each representative shall expire after four years.

The Parliament shall make laws regulating the placement of these electorates. The electorates must be physically contigious and as compact as reasonable. The electorates shall comprise as close to 120,000 voters as reasonable. The electorates may be formed out of different States. The House shall make laws regulating the method of electing Representatives.

Within one month of an election and before any other business, the House of Representatives shall elect from their own numbers, a Prime Minister. If the position of Prime Minister should become vacant, the House shall elect from their own numbers a replacement within a month of the vacancy, and before any other business. The Prime Minister shall cease to hold the office if they should lose their seat in the House of Representatives. The Prime Minister may also resign the position with a written notification to the Governor-General who shall then notify the House. The Prime Minister may also be removed by a majority vote of the House, or by the Governor-General followingt the advise of the States Council. If the Prime Minister is temporarily absent, the House shall elect a replacement to fill the office during this absence.

If the place of a Representative becomes vacant before the end of the House term, the Prime Minister shall issue a writ for the election of a replacement within two weeks of the vacancy. The electorate shall then hold, within six weeks of the issuance of this writ an election to fill the vacancy.

No Representative shall be absent from the House without the assent of the House for more than two consecutive sittings. If any representative fails to attend more than two consecutive sittings the representative's place shall be vacated. At least one-third of representativess must be present to constitute a meeting of the House.

Questions arising in the House shall be decided by majority vote with one vote per Representative except the Prime Minister. The Prime Minister shall not vote unless the votes are euqal, and then shall have the deciding vote. Powers of the Parliament

Comments

avocadia . # .

Proof reading: When I finish part 2 - which I assure you will indeed be quite personal - I\'ll take the time to proof read part 1 as well and re-post. Just quickly thoigh, obviously the Senate will divide itself into classes after the first election, not during the first Election Day.

cam . # .

State based electoral systems: I like this idea;

The Senate shall make laws prescribing the method of electing senators.

It puts some federalism into the states\' house. Electoral systems have been one area where Australia has been innovative.

cam

No change:

I have to tell you, that line is more or less how it works at the moment. All I have done is take the House out of it, but I remain sure that the Senate shall remain a States\' House wholly dominated by the parties and as such throughly anti-federalist.

9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.
The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

What can you do to de-couple the Senate from the parties? Everything I have thought of either makes the situation worse by most likely squeezing out the minor parties or seems to be the beginnings of a constitutional crisis.

Yeh ultimately it becomes the liberty: to form and participate in a faction. Which is the thesis of Madison\'s Federalist No.10 , quelling faction means reducing liberty, which is bad, but as long as violence of faction can be contained by the system then liberty is the better choice.

Partial answer:

I think it is a hack, and such liable to have the Law of Unintended Consequences inflicted upon it, but a partial solution might be that

A sub-majority vote is required to bring a debate to the floor of the Senate.
A majority vote can close the debate except in the case of a filibuster in which case a supermajority is required to kill the filibuster first.

However that kind of falls out of the realm of a constitution and into that of the Senate setting its own rules. Is the filibuster enshrined in the US Constitution? Can\'t be, I suspect, otherwise the whole Nucelar Option malarky would just be so much toothless huffing.

adam . # .

Filibuster: Part of the standing orders of the Senate as I recall ... dates to the mid-19th century .

Parties are machines for winning elections; so long as you elect the Senate, you ensure partisanship.

Partisanship: The key is to then find some way of empowering the minority parties to offset the majority party

Ok: The easiest way I can think of is to expand the size of the Senate electorate. Pure PR systems like the Netherlands or Israel force seem to prevent any party having a majority. The Netherlands has a single nationwide electorate.

That totally undermines the Senate as a house of the states.

You could got one step further in formalising the filibuster and make all Senate votes require 60%. Which is constitutional crisis territory I guess. You could exclude money bills, but it would remove the Senate deficit-hawk / welfare vigilante role.

dlatimer . # .

The Senate is the States House: I think these comments overlook the actual nature of parliamentary democracy. Of course the Senate is the States House. It is the States House because Tasmania and NSW both have 10 Senators. That means NSW and Tasmania are equal on the floor of the Senate.

The real action occurs in the Cabinet, Ministry and Caucus. Tasmania is well represented in all aspects of government because of the Senate. There is one Tasmanian Minister and one Tasmanian Parliamentary Secretary. The current President is also a Tasmanian. That is the real and profound impact of having 12 Tasmanian Senators.

Do not forget that Senator Humphries last week crossed the floor in protest of ACT legislation being struck down.

In constitutional terms, there is no difference between a minor and major party. The real question is whether the Senators are representative of the their electorate. Labor and Liberal dominate the Senate because the vast majority of people vote for Labor and Liberal. It is as simple as that.

Rewriting the constitution - bad idea: I have always believed that rewriting the constitution is a really bad idea.

The constitution is an document in full operation. Thousands of lawyers are professionally trained to use it. Millions of students have been taught about it at school. The entire body of federal law is based upon it. There are thousands of High Court Judgements which interpret it. So much depends upon it.

The constitution can be legally ammended under s128. That means that words can be taken out or inserted. The idea that every word in the constitution needs to be replaced is absurd.

A genuine effort to reform the constitution will involve identifying specific objectives related to actual problems, potential problems or specific improvements. Identify these and carefully propose solutions.

Specific criticisms: The definition of government and parliament in this consitution makes no sense. The nexus of one Senator for every two MHR\'s appears to be broken. The High Court is put into a position of deciding if electoral boundries are contigious and compact. Section 15 is rolled back. What does \"pass in the negative\" mean? What is the \"States council\" and why can it remove the Prime Minister?

Answers:

\"Passing in the negative\" is quoted directly from the existing Constitution. It means that if a vote is tied, it fails.

I don\'t think the definition of Government and Parliament are substansively differentfrom that in the existing Constitution aside replacing the Queen with the Executive Council, or making the defacto de jeur if you like. But of course YMMV.

I don\'t know where I picked it up but I seem to have the idea that 2:1 MHR:Senator ratio is the status quo. I don\'t actually know if it is correct though.

Section 15 can hardly be said to have been rolled back. My intention was to ignore the rule that a replacement Senator must be from the same party - why should the document mire itself in factionalism? If I broke the process, well that is what drafts are for, I guess.

Once I made the decision to drop the restriction forbidding electorates from crossing state boundaries, it made no sense for the States to set the electoral boundaries. Move it on up the Federal Parliament. And yes, I have no problem at all involving the High Court in the process. I\'d rather they were involved than have no recourse for removing a gerrymander - it is the health of democracy at question and all.

As I said, the document was not finished. However, the States Council is intended to be one representative from each State who advise the GG. The idea is to put something concrete behind the exercise of the reserve powers and also to shift the balance of power in the Federation marginally towards the States. Thus the GG sacks the PM under the advise of the States Council. And, of course, there must be a way for the GG to ignore the States Council so as to not move the balance of power to much.

The brief:

The Brief was to have fun and write a constitution. Deeply sorry that you disapprove of our gedankenexperiment.

The problem with the Au Constitution: is that is crap in constitutional terms, it is hard to modify (referendums are near impossible to pass) and it has become so far removed from its original/explicit meaning that a passing read from a citizen does not convey the breadth of Australian government. Much of the constitution\'s meaning is tied up not in the document itself, but in High Court rulings.

One of the problems with the bearded men was a lack of constitutional writing skills. Ingless Clark did the drafting but the likes of Griffiths showed a lack of understanding by making the judicial subservant to the legislature, which had to be fought to be put back to it original form of separation of powers.

One of the purposes of the CFC is to promote constitution writing in the citizenry. This has benefits beyond the federal constitution, Queensland recently collapsed their bills/act into a single constitution and IIRC WA and Tas still do not have a formal constitution either. So the promotion of constitutional skills, with a bit of fun alaong the way is civicly important IMNSHO.

Jefferson believed constitution\'s should be sunsetted every 25 years, so each succeeding generation can rewrite government to be a reflection of themselves. I agree. The reason republicanism has such traction is that our constitution is a 16thC document with an elected upper house thrown in. Many of the errors, skewings and inefficiencies in our system can be traced to their constitutional origins.

So I believe constitutional writing skills and a deep understanding of constitutional issues are necessary for Australian republicans.

Senator Humphries: Don\'t forget that it\'s still extremely rare. There\'s been two instances of crossing the floor in this parliament, where the ACT Humphries and Circus Barnaby chose state over party. In historical terms that whopping total represents a golden age of State power being expressed in the State\'s house; and that should tell you how abstracted from any federal principle the Senate has become.

If it was truly a state house: Then we would have expected the state\'s senatorial delegation to cross the floor en-masse, not just isolated senators breaking party discipline.

Was not aware of the brief: I was not aware of the brief. I assumed this was a contribution to the republican debate.

Huh?: Tasmania and WA certainly do have constitutions. The new Queensland constitution is a bit weird in that the actual entrenched provisions remain in their original form and what is called the constitution is a series of references to those provisions. Now that\'s an imaginative piece of legislation!

Learn something new: \"Pass in the negative\" found it in section 23! Learn something new every day. The very next section provides for a 2:1 ratio, \"as nearly as practicable\".

Now that I aware of the \"brief\", it seems to me that its quite important to know the policy idea right first, then implement it using the appropriate legislative instrument.

Why concentrate on the PM at all. The more legislative focus exists on a particular officeholder, it either becomes all powerful (Presidential) or entirely undesirable to hold. The Constitution creates an environment in which power is legal wielded, and the net result of this at present is a Prime Minister who governs the country.

You sure?: IIRC WA and Tas have originating acts (British bills I think), rather than constitutions. I will have to go and check again. But am pretty sure, I went through all the state constitution about a year ago.

List of state constitutional acts: http://www.ntu.edu.au/faculties/lba/schools/Law/apl/Constitutional_Law/constitutions.htm

Now Queensland has a legislative instrument called the \"Constitution of Queensland 2001\", that \"declares, consolidates and modernises the Constitution of Queensland.\" However the real power of Queensland lawmaking is still with the Constitution Act of 1867, because those key provisions can only be changed via referendum.

I cannot understand the Queensland legislative strategy. The intent is to consolidate the consitution, but infact they have created another legislative instrument, not entrenched, which is even more confusing, because the most important provisions are not in the body of the 2001 act.

Crossing the floor dramatic: Crossing the floor is a dramatic act, but is it such a good idea to do frequently?

I feel that we are influenced to much by the drama we see on our TV screens and in the movies. But that is not the real world works. Politicians need to work together (at least in the same party). Crossing the floor makes for excitement but it\'s a failure of the caucus process.

The influence of 12 Senators from each state will impact every important piece of legislation and many minor pieces, even if that is not obviously evident on the floor.

Comments

Recent Comments

Most Popular

Recently Popular

Australian Constitutions

Worth Reading