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Suggested "Stage 2" Amendments

This document contains suggestions for amendments to my "Minimalist Constitution (Model 1)", (referred to in this document as "Stage 1"), which would be implemented in a "Stage 2" constitution.


Summary of Suggested Changes

Key suggested changes include:



(I want to review everything beyond this point in line with the above points!)


Preamble and Covering Clauses

Preamble. There will always be alternatives put forward for the Preamble. Possible subjects which could be included are respect for the land and environment and recognition of the diversity of cultures, customs and beliefs. This requires ongoing attention.

Covering clauses. Incorporate these into the body of the Constitution in a Part entitled "Definitions" or "Preliminary Provisions".

2. Change references to "the Crown" to "the State".

Change references to "States" to "Provinces".

6.See covering clause 2.


THE CONSTITUTION


Chapter I - The Parliament

Part I - General

2. (2) Require that the writs be returned as soon as is practicable.


Part II - The Senate

7-9. Restrict any such changes to an organic law called the Parliament Act.

11. Consider prohibiting the Senate from voting to pass or reject proposed laws or proposed amendments as long as the place of a Senator is vacant.

13-14. Ensure that Senators who received the greatest number of votes are allocated the six year terms.

15. Rather than having a State Parliament appoint Senators to fill vacancies (which detracts from the principle in s.7 of the Senators being chosen directly by the people, and tends to invite mischievous manipulation of this provision), prescribe a system of "counting back" - this has been used successfully in the Tasmanian lower house and the ACT legislature, which both use electoral systems similar to the Senate.

17. Devise a provision which helps to ensure that the President of the Senate is independent and impartial.

18. Substitute a more watertight provision, such as that used in the case of the President.

23. Provide for special majorities in the case of an organic law.


Part III - The House of Representatives

24. Relax the nexus so that, for example, the number of Senators may be no less than 50% of the number of members of the House of Representatives and no more than 65% of the number of members of the House of Representatives. This makes it a little easier to conduct electoral redistributions, and ensures that numbers in the House of Representatives can't be increased to the point where a majority of votes at a joint sitting is any easier to achieve than it is at present.

Guarantee one vote one value.

Enable a mixed member-proportional system to be implemented with a national party list for the proportional component.

25. Instead, guarantee the right to vote and/or prohibit disqualification from voting on grounds of race, gender etc. and include this in the Part entitled "Rights and Freedoms".

27. Restrict any such changes to an organic law called the Parliament Act.

28. Provide instead for some form of four year term.

29. Enable a mixed member-proportional system to be implemented with a national party list for the proportional component.

34. Restrict any such laws to an organic law called the Parliament Act.

35-36. Devise a provision which helps to ensure that the Speaker is independent and impartial. Finding an independent, impartial Speaker is difficult when he represents a constituency and probably belongs to, and was elected by, the governing party.

39. The Parliament should not provide for any number less than one-third, and the number should be specified in an organic law called the Parliament Act.


Part IV - Both Houses of the Parliament

41. Change the wording of this section to guarantee the right to vote (perhaps subject to disqualifications laid down in an organic law called the Parliament Act) and include this in the Part entitled "Rights and Freedoms".

43. Enable members of one House to run for election to the other House without having to resign. Provide instead that if a member of one House becomes a member of the other House, he ceases to be a member of the former House. Provision also should be made for a person who is stands for election for both Houses and is elected to both, in which case one House should take precedence. Provision might also be made for a person who is a member of the Legislature of a State or Territory, noting that this is also affected by s.44.

44. Overhaul these qualifications, and separate qualifications for being chosen from qualifications for sitting. Also, remove the exception for State Ministers - it is inappropriate that members of the Commonwealth Parliament be permitted also to be State Ministers. Instead of sub-section (iv) applying, it could be provided that as soon as a person becomes a member of Parliament, any remuneration received from that date be forfeited to the Commonwealth, and that any office of profit under the Crown be suspended or relinquished as soon as practicable.

45. Include organisations with the reference to "person or State" in (iii).

49. Provide that powers, privileges and immunities be specified in an organic law called the Parliament Act.

50. Provide that this be subject to an organic law called the Parliament Act.


Part V - Powers of the Parliament

51. This whole section should be reviewed to reflect contemporary circumstances and deal with certain real or perceived problems. For example, providing powers for the Commonwealth to impose uniform laws in respect of defamation, providing concurrent powers for the Commonwealth to protect the natural environment, providing greater flexibility in respect of allowing the Commonwealth Parliament to legislate in national interest or in order to provide for uniformity of regulation, and what checks and limitations there should be on the exercise of such powers are all issues which need to be addressed.

(i) Consider extending this to intra-State trade.

(vi) Delete "naval and military".

(xiii) Delete references to State banking.

(xiv) Delete references to State insurance.

(xix) Add citizenship.

(xx) Include all forms of company law.

(xxvi) Clarify that this is meant only to apply when changes are for the benefit of a group which is unfairly disadvantaged.

(xxx) Replace reference to "islands of the Pacific" with "foreign powers".

(xxxi) Move these "just terms" provision to the Part entitled "Rights and Freedoms". Have it also apply to organisations.

(xxxii- xxxiv) Replace "naval and military" with "defence".

Refer also to roads and other means of transport.

(xxxiii) Refer also to roads and other means of transport.

(xxxv) Delete "extending beyond the limits of any one State" to reflect reality.

(xxxvii) May need clarification.

52. Change the words "transferred to" to "vested in".

Move some heads of power, such as foreign affairs and defence, to this section.

52A. Move this section to the Part entitled "Rights and Freedoms". Have it apply to the Crown in general, and not just to the Commonwealth.

53. Consider the power of the Senate to block supply. Consider also whether government-sponsored bills should be introduced into the Senate, or whether they should always be introduced into the House of Representatives. If this were the case, no Bill introduced into the Senate but rejected by the House of Representatives could be used as a double dissolution trigger. Also, this has implications as to whether it is appropriate for Senators to be appointed as Ministers, given that it is the Senate's function to review and to be a check on the executive government.

54. Some mechanism should be in place to enable "ordinary annual services" to be more clearly defined, perhaps in an organic law. Also note that this refers somewhat anomalously to "proposed laws" whereas s.55 refers to "laws". There is a question as to whether provisions referring to proposed laws would be justiciable if breached.

57. This controversial section may need re-examination. Some changes to be considered are as follows. The point at which the Senate "fails to pass" a bill needs to be more clearly defined. The procedure for resolution of deadlocks is too slow in the case of appropriation bills. Thus, the power of the Senate to reject money bills could be removed or diminished to allow it only to delay such bills up to, say, one month; or the deadlock procedure for money bills would be triggered after only a single rejection by the Senate within a short amount of time, say, one month.

58. (2) Consider enabling referral to the High Court, the Constitutional Council or some other body for an expression of opinion or declaration of constitutionality.


Part VI - Rights and Freedoms

58A. Rights and freedoms of the people, expressed as limitations on the powers of the Crown (i.e., the State), should be inserted here in this new Part. This logically follows the Part which gives power to the Crown (i.e., the State). It is this Part which could be referred to as the "Bill of Rights". An organic law could be authorised which would provide for further protection of rghts and freedoms (such as the Racial Discrimination Act).


Chapter II - The Executive Government

Part I - The President

59-69. Any provision in these sections allowing the Parliament to legislate should provide for regulation through the President Organic Act.


Part II - Executive Power


Part III - Machinery of Government

62A. (2) Ministers (or their nominated representatives) should have the right to participate in the proceedings of either House, except that they would not obtain the right to vote where this right would not otherwise exist. In a reciprocal sense, either House could require a Minister to appear before it to answer questions.

It is inappropriate that the Senate, in its role as a House of Review and as a check on the power of the executive government and on the control that the executive government normally exercises over the House of Representatives, includes Ministers amongst its voting members. What I would suggest here is that if a Senator becomes a Minister, he would immediately forfeit his right to vote as a Senator.

The problem here is that this would probably significantly alter the voting patterns of the Senate. So, I would also suggest that the President in Council have the power to appoint Senators who are Ministers as non-voting members of the House of Representatives, whereupon a casual vacancy would occur for that Senate seat. Ideally, that vacancy would be filled by "counting back" (see suggestion for s.15).

This power to appoint Senators who are Ministers as non-voting members of the House of Representatives could be extended to appointing non members of Parliament who are Ministers as non-voting members of the House of Representatives.

An analogous power of the President, acting in accordance with the advice of the Constitutional Council rather than in accordance with the advice of the Executive Council, could be to appoint persons other than Ministers (such as representatives of indigenous communities) as special non-voting members of the House of Representatives.

If a mixed member-proportional voting system implemented with a national party list for the proportional component were used for elections for the House of Representatives, it would be less likely that there would be so many cases of Senators appointed as Ministers, as many potential Ministers would presumably be elected from the party list.


Part IV - The Constitutional Council

The role of the Constitutional Council, limited in my Minimalist Constitution to selecting candidates for the office of President, could be expanded to appointment of other officers who should ideally be non-partisan, independent of executive government and free from political intervention, and whose role is fundamental in safeguarding and maintaining our constitutional system and its values of freedom and democracy.

Such officers would definitely include justices of the High Court, and possibly other judges (though appointment of other judges could be done by a Judicial Committee of the Constitutional Council, with or without a recommendation from the executive government).

Other officers for which there is a strong case to be made include the Ombudsman, the Auditor-General and the Electoral Commission(er).


Part V - Miscellaneous


Chapter III - The Judicature

72. Provide for the Constitutional Council to advise the President concerning appointment of judges, rather than the Executive Council. Thus, the separation of powers would be enhanced and the executive government would have less opportunity to improperly influence the judiciary.

Clarify the meaning of para. (ii) and clarify the procedure for dismissal.)

73. Delete references to the Inter-State Commission, as it doesn't exist.

Provide that "no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal" but allow the High Court to refer matters to other courts in order to reduce the workload of the High Court.

77. Provide for a more satisfactory form of cross-vesting, or even for a single judicial system (rather than a mixture of Commonwealth, State and Territory systems.)

80. Provide for greater certainty in the right to trial by jury, as "trial on indictment" has not been an effective guarantee, and place this in the Part entitled "Rights and Freedoms"


Chapter IV - Finance And Trade

101-104. Delete these references to the Inter-State Commission, as it doesn't exist. However, it might be appropriate for other bodies (such as the Constitutional Council) which should naturally be independent of the Executive Government to be constitutionally established in a similar way.


Chapter V - The States

Local government should be recognised as a legitimate polity. To be considered is whether anything more then a statement of recognition should be included; for example, Are matters concerning local government the sole preserve of the States? Does the Commonwealth have a role? Should there be any prescription regarding the system of government, e.g. that proportional representation be used to elect representatives, except in the case where a mayor is elected separately?

116. See s.52A.

117. Move this section to the Part entitled "Rights and Freedoms". It should apply to the Crown in general, and not just to the Commonwealth.


Chapter VI - New States

121. The question of appropriate Parliamentary representation should be more extensively addressed, in the context of a wider question of fair and appropriate representation in each house for each State and for all parts of the country.

122. Provide that representation of a Territory in the House of Representatives be on the basis of population, but that there be no more members of the House of Representatives than the least number of members representing a State, and that representation in the Senate be no more than two members for the ACT and two members for all other Territories combined.


Chapter VII - Miscellaneous

125. Name the Territory as the Australian Capital Territory and the City as Canberra, and determine its placement relative to the current position of Canberra.

Express the area in square kilometres, and delete all words after "miles".


Chapter VIII - Alteration Of The Constitution

128. If the covering clauses are retained separated from the body of the Constitution, provide that this section applies equally to the covering clauses to remove any doubt.

Provide that a referendum shall be deemed to have been approved by the people if it has been passed in 50% or more of the States, or if a simple super majority (e.g., 65%) is obtained, regardless of whether or not it has been approved in a majority of States.


Chapter IX - Transitional and Temporary Provisions


Schedule I


Last updated 26 December 1997.


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