Constitutional Alterations for a Real Republic

[Why Minimal Changes are Not Enough]

by John Pyke, Queensland candidate for the Constitutional Convention

Mr Keating and the Australian Republican Movement have been trying to keep it simple by promoting "minimal" changes to the Commonwealth Constitution. For three examples, drafted by Prof Winterton, ex-Senator Teague, and Malcolm Turnbull, see the ARM's Australian Constitution page. However, I do not believe that these changes would produce a Constitution for a real republic.

What Do I Mean By a Real Republic?

A republic is not just a state without a hereditary monarch. A real republic exists where the state, the organised government, is a res publica, a public thing - where the state is not something "sovereign" over the people, but the People are themselves the sovereign. The constitution of a real republic ought to spell this out. It ought to make it clear that We, the People, are the boss, and the politicians and the executive are our servants (public servants) whose power can be controlled by Us, the People. There are several aspects of this:-

Matters of Power - People, Politicians, or the Executive Government

Guarantees of Basic Democratic Rights and Fair Elections

I believe that the best republican Constitution would have a full Bill of Rights protecting most of the rights mentioned in the United States Bill of Rights, the Canadian Charter of Rights or the International Covenant on Civil and Political Rights - but exactly what rights ought to be protected, and how, is a topic that deserves more detailed debate. Another, later, convention ought to be called to discuss that topic - see Other Issues for Later Conventions.

However, for us to be able to say that Australia is a real republic, the Constitution ought to guarantee at least the following basic rights of the republic's citizens:-

Defects of the Present Constitution and Proposals for Minimal Change

The present Constitution leaves it to Parliament to make laws about voting rights, eligibility to run for Parliament, and the electoral system - see sections 8, 9, 16, 29, 30, 34 - subject only to some harsh provisions about disqualifications of candidates and Mps in sections 44 and 45. As to the harshness of the disqualification provisions, see the cases Sykes v Cleary and the first three paragraphs of Free v Kelly. None of the minimalist proposals propose any change to this.

As to basic legal rights, the only one even half-protected in the present Constitution is trial by jury. Section 80 guarantees a right to trial by jury, but only if the trial is "upon indictment". This is circular - indictment before a magistrate is the procedure used to commit people for trial before a jury, so if the Parliament chose some other procedure it could provide for trial without jury whatever the offence and no matter how severe the penalty. (See Zarb v Kennedy, para 5 of the judgment of Menzies J.) Besides, the section does not apply at all to trials for offences against State law. None of the minimalist proposals propose any change to the section.

My proposed remedies

I propose changes to Chapter 1, Part 4 of the Constitution to expressly guarantee that every adult citizen has the right (subject to minimal exceptions) to vote, and to stand for election to either House of Parliament - see Voting Rights. Further, for elections to be fair, a system of proportional representation ought to be entrenched in the Constitution.

I also suggest that the meaningless reference to trial by jury should be removed from section 80, but that a new short Chapter should be inserted immediately after section 80, guaranteeing the basic legal rights - not to be punished without a fair trial and not to be in jeopardy of a significant sentence of imprisonment without jury trial. I also propose a section (of particular relevance to users of the World Wide Web) guaranteeing a right of free access to sources of law, such as Acts of Parliament and court judgments which set legal precedents. See Legal Rights.

To make the guarantee of voting rights fully effective a guarantee of recognition as a citizen to all those born in Australia or born to an Australian parent is also necessary. A further "basic legal right" that needs recognition in the current climate is a person's claim to be the owner of land, whether that claim is derived from a grant by the "Crown" (government) or from native title. Since these can both be expressed as the kind of fundamental principles that belong at the start of the Constitution they are dealt with together - see The Land and Citizenship.

Limits on the Power of Parliament

The Constitution of a real republic ought to ensure that members of Parliament cannot give themselves special privileges or favours.

Defects of the Present Constitution and Proposals for Minimal Change

The present Constitution allows parliament to make whatever laws the members like about their salaries (section 48)and the extent of Parliamentary privilege (section 49). In the past Parliament has functioned like a kangaroo court in accusing and punishing people accused of committing contempt of Parliament, and even the High Court could not stop it - see the infamous Fitzpatrick and Browne case. Parliament has passed laws, only in the last 25 years, leaving the setting of MP's salaries to the Remuneration Tribunal ( Remuneration Tribunal Act 1973) , and providing that defamation of MP's is not to be punished as contempt ( Parliamentary Privileges Act 1987) - but the Constitution leaves it with the power to repeal these laws. None of the minimalist drafts propose any change to this.

My proposed remedy

I propose to replace section 47 by a new section providing that all benefits received by MP's (salary, allowances and other entitlements while remaining a member, and readjustment to private life and superannuation afterwards) should be determined by an arbitration tribunal, with associations of voters or taxpayers appearing as the MPs' "employers". The tribunal could also impose conditions to apply to claims for, and audit of, all payments.

I also propose amendments to sections 49 and 50 to emphasise that Parliament does not have privileges because it is "sovereign" but so that it can best do its job as representative of the sovereign People - and to provide that Parliament can never again railroad people into gaol for being rude about MPs.

For suggested amendments see Limits on MPs' Power to Aggrandise Themselves

Clear Definition of Who Holds Executive Power

It ought to be possible for the citizens of a republic to read their Constitution and understand their system of government from it. Further, a Constitution ought not to refer to the vesting of power in such a way that it could create disputes between high officers, each claiming that a certain power is vested in him/herself.

Defects of the Present Constitution and Proposals for Minimal Change

Section 61 is written in formal language that does not describe the reality of the way the system works. It proclaims that executive power is vested in the Queen and exercisable by the Governor-General, when in fact it is really exercised by the Ministers in the Cabinet and Executive Council. If we bring in a republic we ought not to "vest executive power" in the President unless we mean him/her to be a real executive President. To have such a section in a Constitution when the idea is to continue with a non-executive Head of State will invite at least confusion in the minds of everyone reading the Constitution, and possibly megalomania in the mind of the President. None of the authors of the minimalist proposals want to vest real executive power in the President, but they all make minimal amendments to section 61, which make it look as if real power is vested in him/her. [The link is to the Turnbull draft, but they are all similar.]

My proposed remedy

I propose a complete redrafting of Chapter 2, in which the first half will give the President power to appoint the executive (in accordance with the conventions of responsible government), but will make it clear that s/he is not part of the executive. See Powers and Functions of the President.

Limits on the Power of the Executive

The Constitution of a real republic ought to put limits on the power of the executive government, that can only be changed by vote of the People.

Defects of the Present Constitution and Proposals for Minimal Change

Chapter 2 of the present Constitution contains no restrictions on the exercise of executive power - the power appears, from all one can tell, to be absolute. There are in fact some common-law doctrines which limit the power of the executive government, vaguely summed up in the notion of the "rule of law", but they were not expressed in the Constitution, perhaps because it seemed like lese majeste to vest power in the Queen and then remind her Majesty that she is subject to legal control. They ought to be expressed in the Constitution, so that Parliament will not be able to override them - and to act as a constant reminder to the executive - but they are not mentioned in the present Constitution and none of the minimalist drafts make any mention of them.

Further, though I believe the issue of a full Bill of Rights ought to be left to a later, separate Convention (see Other Issues for Later Conventions) there is a kind of right that has become much more important to most citizens lately than the traditional criminal-process rights which feature so much in the United States Bill of Rights. I refer to administrative-law rights such as freedom of information and the right to judicial review of adverse decisions made by the executive government. In Queensland we have seen an excellent Freedom of Information Act watered down by amendments, when the Cabinet and Public Service decided that they could not let go of the power to keep their blunders secret. These rights against government ought to be protected by the Constitution, so that they can only be amended with Our approval. At present they are not, and such an idea has not occurred to the writers of the minimalist drafts.

My proposed remedies

As the second half of Chapter 2, I propose a series of sections to spell out the rule of law, to guarantee the availability of administrative law remedies, and to remind the defence services of their fundamental obligation to protect Constitutional government in Australia. See Express Limits on Executive Power

Protection for Bodies that Might Have to Annoy the Executive

A democratic system of government requires an independent judiciary to ensure that disputes between government and citizen are decided fairly. In modern times, a good system of government also includes bodies whose function is to uphold the integrity of the system - an Electoral Commission for fair elections; an Ombudsman to ensure that citizens' rights and interests are not deliberately trampled on, or just overlooked, by officers of the government; an Auditor-General to make sure that public money is not stolen or wasted; Parliamentary officers to ensure that Parliament runs properly, and that both Government and Opposition members have reasonable administrative support.

Any of these bodies is likely, from time to time, to make decisions that will annoy the party in power. If that party has control of both Houses of Parliament it might try to change the law to rob the annoying body of some of its power, or simply starve it of money. In Queensland, there is constant "war" between the government and the Criminal Justice Commission. In Victoria, the powers of the Auditor-General have been attacked. In the Federal Parliament, a Bill threatening the independence of the Clerk of the Senate is being debated.

These bodies should not be above the law, but they need some protection from improper pressure from the executive, and from attacks by the executive designed to "tame" them.

Defects of the Present Constitution and Proposals for Minimal Change

In the present Constitution, federal judges have some protection from executive pressure by the guarantee of tenure and prohibition of salary cuts in section 72. However, other bodies fundamental to the integrity of government receive no protection - they are created by Parliament, and they can be destroyed or emasculated by Parliament. None of the minimalist drafts propose to address this situation.

My proposed remedy

The new South African Constitution extends the judiciary's traditional protection of tenure to members of what it calls the State Institutions Supporting Constitutional Democracy (the Auditor-General, Human Rights Commission, etc). That is, members of those institutions cannot simply be dismissed by the executive government - both Houses of Parliament have to call for their dismissal first. This is only a partial remedy of the problem - the Institutions could be left in office but starved of funding or have their powers diminished.

I suggest we should go further. I propose that the President should be given an explicit role as defender of the independence of the judiciary, the Parliamentary departments, and Institutions of Fairness and Honesty in Government, as I have named them. While normally the President would not have a power of assenting or refusing assent to Bills, I propose that s/he should have a real veto power over Bills affecting the powers or funding of the above bodies, and a role in appointing officers to them. In this one area conflicts could sometimes arise between President and Prime Minister (compare my stated purpose for defining the President's powers, at Clear Definition of Who Holds Executive Power, above) but they would be conflicts with a purpose. The President would not be trying to take over the Prime Minister's role, but would be acting as a "check and balance" against the concentration of too much power in the executive's hands. Merely having these sections in the Constitution may even mean that the executive will rarely propose laws which would unreasonably affect the powers of the "watchdog" bodies. For details of the proposals, see Protection for Bodies that Might Have to Annoy the Executive.

The Power to Propose Changes to the Constitution

In a real republic there also ought to be ways for the People to make changes to the Constitution without having to rely on the majority in both Houses of Parliament to propose desirable changes.

Defects of the Present Constitution and Proposals for Minimal Change

In the present Constitution, section 128 provides that the Constitution cannot be altered unless the proposed alteration is approved by a majority of the voters (and a majority in a majority of the States) at a referendum. The problem is that a proposal can only be put to a referendum if it has been proposed by the Parliament, and in effect that means that if the governing party does not like the proposal it will not be put to the vote of the People, no matter how popular it might be among Us. [The section does say that if only one House of Parliament passes the proposal the Governor-General may submit it to a referendum, but the convention is that the Governor-General follows the Cabinet's advice on such matters, so in practice the House of Representatives may propose a change which will be put to referendum against Senate opposition, but the Senate may not propose a change without the agreement of the House of Representatives.]

None of the minimalist proposals include any suggestion that this might be changed.

My proposed remedy

The only system of proposing amendments that is fully consistent with the sovereignty of the People is Citizens' Initiated Referendum (CIR). Some proponents of CIR suggest that it should be available even for initiating ordinary laws. I am not at all convinced that that is practical - the details of legislation often need a lot of thought, and second thoughts and third thoughts, and this process is probably done best by a small assembly with experts to advise it. But a Constitution is different - it should not be beyond the wit of a group of politically-aware people to suggest a form of words to express ideas about the political structure of the State, purposes towards which government activity should be directed, or limits on government powers. And anyway, if they cannot persuade a majority of voters (and a majority in a majority of the States) that the words are desirable, they will not become part of the Constitution.

Alternatives to full CIR would involve mechanisms whereby some group other than those currently running the Commonwealth government could propose amendments, which would then have to be put to a referendum. Possibilities are:

For the moment I have not drafted a CIR provision, but I will add one soon. For the moment, to see what a simple amendment would be effective to give the Senate a real referendum-initiating power, see Power to Propose Amendments

Matters of National Symbolism

The Constitution as an Enactment of the People

The Constitution of a real republic ought to make it clear that its reason for validity is that it is an enactment of the people. [For example, the Constitution of the United States of America commences with "We the People of the United States, in order to [achieve certain goals], do ordain and establish this Constitution for the United States of America."]

Defects of the Present Constitution and Proposals for Minimal Change

At present the Constitution is something that was enacted by the "Imperial" (United Kingdom) Parliament (though it was drafted by Australians and ratified by referendums in all of the colonies). In form it is a large section of an Act of the United Kingdom Parliament (rather like a frame within a Web page). Although the preamble does begin by reciting the agreement of the people of the colonies (except Western Australia, which made up its mind after the drafting was complete) to join in a federation, it is given legal force because it was enacted by Queen Victoria "by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in [the] Parliament [of the United Kingdom] assembled" - to remind us that we were a bunch of colonists who had no power to enact a national Constitution by ourselves.

The minimalist proposals have all tried to address this issue by making amendments within the preamble, enacting words, and covering clauses of the UK "framing" Act. It is not at all clear that the procedure for altering the Constitution, under section 128, extends to alterations of the "framing" Act - not at least, without a separate amendment first specifically authorising that step.

My proposed remedy

I propose the addition of new "words of enactment", sections about the authority of the Constitution, and definition sections at the start of the actual Commonwealth Constitution - inside it instead of outside the Constitution in the "covering" or "framing" Act - see The Constitution as an Act of the People.

Readability - Correspondence with Current Reality

A Constitution for any democratic State ought to be written so that the majority of the sovereign People, and children who are not yet part of the voting body of the People, can read it and understand their system of government, and their place within that system, from it. It ought to describe, and prescribe, the current workings of the system and not be cluttered up with provisions that expired 95 years ago (or that express polite myths about the system such as that executive power is "exercisable by the Governor-General", as discussed above at Clear Definition of Who Holds Executive Power).

Defects of the Present Constitution and Proposals for Minimal Change

Considering the pomposity of typical political speech at the time of drafting, the Constitution really is written in quite clear English. However, it was really written to serve two purposes:- to spell out our long-term constitutional arrangements, and to get the new Commonwealth going in the short term. It is now cluttered up with transitional provisions dealing with matters like the phasing-in of the new financial arrangements (sections 89, 93, 95, and the second paragraphs of ss.90 and 92) or the transfer of departments from the States to the Commonwealth (sections 69, 70, 84, 85, and para (ii) of s. 52).

There are sections which were not intended to be transitional but are now seen to be utterly out-of-date, such as the ones relating to the Queen's power to disallow Acts of Parliament within a year of the Governor-General's assent (section 59), and to Privy Council appeals (section 74).

Further, there are about 20 sections that apply a transitional rule "until the Parliament otherwise provides" and, at the same time, give Parliament the power to provide otherwise. When reading these "utPop"s, as I call them, it is easy, while wading through the transitional matter, to lose sight of the fact that here is a grant to Parliament of power to make any law that it likes - see section 31 for the best/worst example. These are particularly concentrated near the beginning of the document. Someone who starts reading the document finds it cluttered with a history lesson on how we started up a federation and ran the first set of elections, though no Parliament was yet in being to pass an Electoral Act - a mildly interesting bit of history to some, no doubt, but not very relevant to a teenager, or other citizen, who is reading the Constitution to learn about our current system of government.

The minimalist proposals all include repeal of the totally-expired provisions mentioned in the first two paragraphs above. However, they leave the confusing "utPop" sections just as they are.

My proposed remedy

For my proposals to deal with the mystifying way in which the Constitution refers to executive power, see Clear Definition of Who Holds Executive Power, above.

For more general tidying-up of obsolete, expired and "until the Parliament otherwise provides" provisions, see Simplification of the Constitutional Text.

Back to: Why You Should Vote for Me

Written by John Pyke, 2 November 1997