Felix the Cassowary: Constitutional change:

The \'bearded men\' wrote a poor constitution that is static to change except in the hands of the High Court. It is an inferior constitutional model.

Well, that\'s not exactly true now, is it? High Court decisions leave the wording of the constitution exactly the same, but change the way it is interpreted. But because it is so distant from the intended practice, it allows for a lot of flexibility. The office of Prime Minister is not included, but surely it is a constitutional role: And it can change whenever we get a new government. So ... either the High Court can change the constitution, and it can be changed in other ways, too; or the High Court can\'t change the constitution, and it\'s relatively static.

And furthermore, our constitution does have a mechanism for change, and that\'s via referenda. When proposals don\'t get through, it only means we were unwilling to agree to politician\'s proposals. If we\'re unsure of the value of the particular proposal, why should we have let the government over-rule us? I\'ve heard this objection many-a-time, but I\'ve never understood it. (Then there\'s also the option of following the approach of the Australia Act, which (it seems to me) changed our constitution without changing the Constitution.)

cam: The document hasnt changed: but the words in it have widely different meanings from an explicit reading. If you read the constitution explicitly and then looked at what the federal government is responsible for the two dont reconcile. A good example of the High Court making the constitution breath is their decision that there is an implied right to freedom of speech in it. Where is the explicit language that says that? Simply by being a constitution, it implies it?

The Australian referendum process is overly rigourous. Absolute majorities in both houses, a majority of states and a majority of electors - a triple majority - pretty difficult. Which is why we have such a high failure rate, 38 of 47 have failed.

Switzerland by contrast has amended its constitution six times by referendum since 1999!

From the Swiss Constitution;

(1) Proposals submitted to the vote of the People shall be accepted if the majority of those voting approves them.
(2) Proposals submitted to the vote of the People and the Cantons shall be accepted if the majority of those voting and the majority of the Cantons approve them.

Looks like a referendum submitted to the people can be passed on a simple majority, while ones submitted to the people and cantons must have majorities in both. I dont know how they determine which ones are submitted only to the people and which ones involve the cantons.

It can be inferred that the referendum process can stifle constitutional change.

Even inside Australia, compare how many times the NSW Constitution has been amended in comparison to the federal one . Seventy-one times.

The NSW Constitution is largely statutory with only a few areas being entrenched and requiring popular referendum. A referendum can pass in NSW with a simple majority of electors.

cam

Felix the Cassowary: Mostly on change: When the High Court decided that there was an implied right of free speech in Australia, they added to the constitution. When the Commonwealth Government, the state governments, and the British Government passed the Australia Acts, they also added to the constitution. Neither however changed the Constitution.

The Australian referendum process is overly rigourous. Absolute majorities in both houses, a majority of states and a majority of electors - a triple majority - pretty difficult. Which is why we have such a high failure rate, 38 of 47 have failed.

The correct figure is 36 of 44, actually.

On the first of the majorities, I cannot see why any constitutional alteration should pass without Parliamentary approval; are there any states which allow their constitution to change without approval by the relevant legislative bodies? How productive has this been? (I understand the Californian constitution is a bit hm).

On the final of the majorities, I cannot see why any constitutional alteration should pass without Popular approval. I especially cannot see why a republican constitution should allow this. The state exists at our sufferance, to serve us. It should hardly be too much to ask for us to be consulted before our contract is changed.

On the remainder, only five referenda have failed because of the majority of states requirement. That leaves a massive 31/44 which a majority of people have refused to change. Referenda in Australia have failed not because of the number and type of majorities—they\'ve failed because the Australian people don\'t want them. You\'ll also note that most referenda that passed passed in conjunction with proposals that failed, and the numbers when this didn\'t happen were significantly different, anyway. Australians aren\'t just rejecting proposals for change, they\'re rejecting specific referenda, with which they don\'t agree.

Further, how many of these failures are because the same proposal (or largely the same proposal) were rejected on different occasions?

Not all change is good change. And even for the radical Swiss constitutional changers, if you compare not just numbers, but the nature of the changes, do you get a different perspective (I don\'t know where data on the Swiss referenda are, and I\'m too tired to search for it at 2 am!) How many of the Swiss constitutional changes were power grabs and Republics We Had To Have?

It can be inferred that the referendum process can stifle constitutional change.

And so too can PINs stifle the withdrawal of money from bank accounts. This doesn\'t seem to be a bad thing ... ?

dlatimer: More on the republican doctrine: From my perspective, there is republicanism in the broader constitutional sense. This would means that Australia does not have a monarch, and that the sovereignty is held in the people. All republican proposals meet this, from the McGarvie Model to the Hayden Model.

There is also a republicanism which exists within the thoughts, values and desires of individual citizens. Each person should know that they are the joint kings and queen of their nation. How they express this is up to them. They should have the same rights, liberty, opportunity and responsibilites as everyone else.

This is the strength of the Copernican approach, because it recongnises these fundamental aspects of republicanism. It puts a distinguished citizen in the role of Head of State and given have no more power or rights than any other citizen. How the Head of State expresses their citizenship shall be example for all in for a free republic. This will encourage civil society and a step towards realising the promise of the republican ideal.

In contrast some others propose major constitutional reforms without any evidence or rationale that there will be any positive effect on the people or the efficiency or integrity of government. This is often labelled as a \"real\" or \"true\" republic, but fails these tests when put to even a cursory examination.

The comment about a \'boo\' republic suggests a lack of understanding of the importance of stable government and serious risks associated with change.

 

cam: Risks of Federation:

The comment about a \'boo\' republic suggests a lack of understanding of the importance of stable government and serious risks associated with change.

Federation was a risk and it was pulled off. A republic which matches modern political thought and practices also will be, but Australia has committed itself to good governance in the past, there is no reason why that wont continue.

The 1999 referendum was a no change one, it was intended to appease. It offered no benefits in improved governance, assured liberty or increased representation and political involvement.

It hinged on selling a word, \'republic\'.

It failed. We went boo and despite people having their republican tendencies woken by the reminder, it wasnt enough.

cam

dlatimer: Disagree that it involved no change?: Changing one word of the constitution is change, so why weaken your argument with exageratation?

If we look at the NO case for the 1999 referendum, or any NO case we are looking at a set of reasons why the constitution should not be changed.

The 10 reasons given are as follows:
1 \"The PM can dismiss the President, instantly\"
2 \"The people won\'t choose the President\"
3 \"If it ain\'t broke, don\'t fix it\"
4 \"Major changes with unknown results\"
5 \"Constitutional change should unite us\"
6 \"Australia is already independent\"
7 \"No benefits - only problems\"
8 \"PM can keep the President in office indefinitely\"
9 \"nominations Cmtte won\'t give you a say\"
10 \"Politician one day, President the Next\"

The concluding section says \"We must protect our existing rights, safeguards and constitutional strengths\"

The No case has two limbs. The first limb is the appointed Presidency. The second limb involves highlighting the risks implicit with changing the constitution.

Modest change is said to require \"69 changes in one hit. Each ... untried and untested\" (reason 4). It was succesfully presented as to \"cost us our stability, our certainty and our security\" (reason 7).  The idea that modest change fails simply because it is modest flies in the face of both common sense and the evidence of the actual NO case presented to the people.

The Copernican Group addresses the two limbs of the NO case. It provides for an elected president without otherwise altering the constitutional arrangements. Only the Copernican proposal does this.

Other reforms may or may not be successful, but they can be separate from establishing a republic. Any or all of these other reforms can be implemented under the system of constitutional monarchy, however they would be more likely to succeed under a system with an elected, yet apolitical Head of State.