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Drafting Principles |
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Drafting Principles on which the Advancing Democracy Model is Based
The 1999 referendum aimed to make as few changes as were necessary to replace the Queen and Governor-General with a President. This model aims to solve real problems and accordingly is much more ambitious. The drafting has been governed by these considerations:
1. Democratic Conventions Must Become Written Provisions
The 1975 crisis showed that we cannot guarantee democracy by relying on unenforceable constitutional conventions. Democracy must be written in to the Constitution.
2. The Scope of the Changes Proposed is Limited
Not one section of the Constitution is worth retaining in its present form. Ideally, the entire Constitution should be replaced. However, as the appetite for change of the average Australian is limited, the aim of this proposed model is more limited.
The aim is to remove from our political system the undemocratic features which make it vulnerable to political instability. Changes which are not connected to removing instability have generally (but not entirely) been avoided, even if they are consistent with improving democracy. For example:
▸ Our Constitution should have a guarantee that each elector’s vote in the House of Representatives has equal value. This omission is a cause of unfairness, but not (yet) a prime cause of instability, so it has been omitted from the model.
▸ The Senate should not have nearly the same powers as the House of Representatives. But only one Senate power is targeted for removal by the Advancing Democracy model - its power to blackmail an elected Government, since that is another prime cause of instability. Even that change does not affect the Senate’s legislative powers. It is to be removed indirectly by removing the Crown’s power to appoint the Government.
3. Replacing Monarchy with Democracy
The model aims to remove monarchy, because the ancient rules concerning the Crown are the major source of instability and uncertainty. This requires more than simply replacing the Queen with an alternate head of state. All residual aspects of monarchy must be removed. Sometimes this requires the abolition of a function rather than just the reallocation of the function to the new head of state. For example:
▸ Our present Constitution contains a number of provisions where, after either the voters, Parliament or the Government has made a decision, the Queen’s representative must do something before the decision is valid. This allows decisions by the people or their representatives to be stymied by the Head of State simply declining to act, for whatever reason, or by acting against the wishes of the majority. A democracy does not need someone to supervise or rubber stamp the people’s decisions.
▸ Our Constitution provides for the holders of various positions to swear oaths of office. This is a primitive, feudal practice which originated in notions of personal loyalty. Personal loyalty is not a basis for democracy. We need loyalty to principle. The correct principle is that the will of the people is to prevail. If the people or their representatives have selected someone to fill a position, no other step should be necessary before the person attains the position. Oaths of office have been discarded.
All provisions which refer to the Queen or Governor-General in Council must be amended. Where the provision is redundant, it has been discarded, but other redundant provisions are not altered if they do not refer to the monarchy.
4. The People Should Understand their Constitution
The Constitution belongs to the people of Australia. It is the foundation of our system of Government and the ultimate law with which all other laws must be consistent.
At present, an ordinary person reading the Constitution would not understand how our Government works. In the 1890s this may have been acceptable, but in the current age it is unforgivable. Every rule book should be comprehensible to those governed by the rules. Where possible, the amendments proposed update the language of the Constitution so that contemporary Australians can understand it.
5. The Primary Purpose is Practical
Laws serve a practical purpose. They are rules about what people can and cannot do in particular circumstances. Implicitly they reflect the values held by the law makers in relation to the subject matter of the law, but their primary purpose is not to demonstrate adherence to certain beliefs - it is to achieve a practical result.
The Constitution, as our ultimate law, operates at a higher level than ordinary legislation. Its subject matter is the rules concerning decision-making: by whom, when and how should decisions be made, on which subjects and in which circumstances. It is inevitable and legitimate for the Constitution to reflect the values we hold in relation to the proper scope of rules and decision-making, but unnecessary and possibly counter-productive for it to include statements reflecting values or beliefs which go beyond those which are necessary to achieve the practical result of an improved democratic system.
For example, s.116 of the Constitution prevents the Commonwealth from making “any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ....”. This reflects the belief that religion is a matter of personal choice, beyond the role of Government and the law. This is an appropriate expression of a value, because the value relates to an objective of the Constitution - to set rules about the subjects on which Parliament may make laws. But to insert something in the Constitution about faith in God would serve no practical purpose. It would demonstrate religious belief, which not everyone shares, and which is quite unnecessary.
The amendments presented here avoid grandiose statements about democracy which some might regard as contentious and the practical effect of which would be uncertain.
6. Tradition and Sentiment Are Not Relevant Factors
Similarly tradition and sentiment should be discarded where they have no practical effect. It is not necessary to retain provisions which no longer serve a useful purpose.
Drafting Notes on the Proposed Amendments
The drafting notes:
▸ Record which sections of the Constitution will be altered;
▸ Note how they will be amended; and
▸ Explain why the amending words have been chosen.
They also briefly note the reason for the changes, but generally the justification for the changes is set out more fully in the Rationale.
There are two ways in which to read the Drafting Notes. Firstly, by selecting the Proposed Constitution menu option, a sidebar will open on the left from which each section and its drafting notes may be viewed. Alternatively, you may view a complete version of the Drafting Notes in portable document format by selecting this link: Drafting Principles & Notes V10. This document prints out at 80 A4 pages.
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Drafting Principles on which the Advancing Democracy Model is Based
The 1999 referendum aimed to make as few changes as were necessary to replace the Queen and Governor-General with a President. This model aims to solve real problems and accordingly is much more ambitious. The drafting has been governed by these considerations:
1. Democratic Conventions Must Become Written Provisions
The 1975 crisis showed that we cannot guarantee democracy by relying on unenforceable constitutional conventions. Democracy must be written in to the Constitution.
2. The Scope of the Changes Proposed is Limited
Not one section of the Constitution is worth retaining in its present form. Ideally, the entire Constitution should be replaced. However, as the appetite for change of the average Australian is limited, the aim of this proposed model is more limited.
The aim is to remove from our political system the undemocratic features which make it vulnerable to political instability. Changes which are not connected to removing instability have generally (but not entirely) been avoided, even if they are consistent with improving democracy. For example:
▸ Our Constitution should have a guarantee that each elector’s vote in the House of Representatives has equal value. This omission is a cause of unfairness, but not (yet) a prime cause of instability, so it has been omitted from the model.
▸ The Senate should not have nearly the same powers as the House of Representatives. But only one Senate power is targeted for removal by the Advancing Democracy model - its power to blackmail an elected Government, since that is another prime cause of instability. Even that change does not affect the Senate’s legislative powers. It is to be removed indirectly by removing the Crown’s power to appoint the Government.
3. Replacing Monarchy with Democracy
The model aims to remove monarchy, because the ancient rules concerning the Crown are the major source of instability and uncertainty. This requires more than simply replacing the Queen with an alternate head of state. All residual aspects of monarchy must be removed. Sometimes this requires the abolition of a function rather than just the reallocation of the function to the new head of state. For example:
▸ Our present Constitution contains a number of provisions where, after either the voters, Parliament or the Government has made a decision, the Queen’s representative must do something before the decision is valid. This allows decisions by the people or their representatives to be stymied by the Head of State simply declining to act, for whatever reason, or by acting against the wishes of the majority. A democracy does not need someone to supervise or rubber stamp the people’s decisions.
▸ Our Constitution provides for the holders of various positions to swear oaths of office. This is a primitive, feudal practice which originated in notions of personal loyalty. Personal loyalty is not a basis for democracy. We need loyalty to principle. The correct principle is that the will of the people is to prevail. If the people or their representatives have selected someone to fill a position, no other step should be necessary before the person attains the position. Oaths of office have been discarded.
All provisions which refer to the Queen or Governor-General in Council must be amended. Where the provision is redundant, it has been discarded, but other redundant provisions are not altered if they do not refer to the monarchy.
4. The People Should Understand their Constitution
The Constitution belongs to the people of Australia. It is the foundation of our system of Government and the ultimate law with which all other laws must be consistent.
At present, an ordinary person reading the Constitution would not understand how our Government works. In the 1890s this may have been acceptable, but in the current age it is unforgivable. Every rule book should be comprehensible to those governed by the rules. Where possible, the amendments proposed update the language of the Constitution so that contemporary Australians can understand it.
5. The Primary Purpose is Practical
Laws serve a practical purpose. They are rules about what people can and cannot do in particular circumstances. Implicitly they reflect the values held by the law makers in relation to the subject matter of the law, but their primary purpose is not to demonstrate adherence to certain beliefs - it is to achieve a practical result.
The Constitution, as our ultimate law, operates at a higher level than ordinary legislation. Its subject matter is the rules concerning decision-making: by whom, when and how should decisions be made, on which subjects and in which circumstances. It is inevitable and legitimate for the Constitution to reflect the values we hold in relation to the proper scope of rules and decision-making, but unnecessary and possibly counter-productive for it to include statements reflecting values or beliefs which go beyond those which are necessary to achieve the practical result of an improved democratic system.
For example, s.116 of the Constitution prevents the Commonwealth from making “any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ....”. This reflects the belief that religion is a matter of personal choice, beyond the role of Government and the law. This is an appropriate expression of a value, because the value relates to an objective of the Constitution - to set rules about the subjects on which Parliament may make laws. But to insert something in the Constitution about faith in God would serve no practical purpose. It would demonstrate religious belief, which not everyone shares, and which is quite unnecessary.
The amendments presented here avoid grandiose statements about democracy which some might regard as contentious and the practical effect of which would be uncertain.
6. Tradition and Sentiment Are Not Relevant Factors
Similarly tradition and sentiment should be discarded where they have no practical effect. It is not necessary to retain provisions which no longer serve a useful purpose.
Drafting Notes on the Proposed Amendments
The drafting notes:
▸ Record which sections of the Constitution will be altered;
▸ Note how they will be amended; and
▸ Explain why the amending words have been chosen.
They also briefly note the reason for the changes, but generally the justification for the changes is set out more fully in the Rationale.
There are two ways in which to read the Drafting Notes. Firstly, by selecting the Proposed Constitution menu option, a sidebar will open on the left from which each section and its drafting notes may be viewed. Alternatively, you may view a complete version of the Drafting Notes in portable document format by selecting this link: Drafting Principles & Notes V10. This document prints out at 80 A4 pages.
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