Details of the Concepts

HOW TO WRITE A PROPER PEOPLE'S CONSTITUTION

This series of notes by GLP is being progressively compiled during the process of writing a new Constitution for an independent Australia. They are not part of the actual Constitution, but are comments to help clarify the concepts and thoughts behind what is written.

Part of the fundamental aim in writing this Constitution is to write it a way that the words can be read to make the intention clearly understood. Hopefully, this will leave little opportunity for manipulation, misinterpretation and deliberate distortion of the intent. 

This Constitution follows a rare and unique approach in the annals of Constitutional law and theory, as it is compiled, virtually entirely, by hundreds of ordinary Australian people. It is intended to be a philosophical document as much as it is a legal document.  

This comes from the fact it is partly based on the responses received from a series of public conventions in various Australian States, organised and sponsored by Joe Bryant’s Alternative 3 Movement in 1998 and 1999. The responses resulting from those earlier conventions came from the common sense of hundreds of interested people, some with experience in politics and law. The Alternative 3 Movement did produce its own draft Constitution, and this new version of a Constitution incorporates part of that work. This updated version is also based on the author’s recently published book, “The Australian Constitution as it is Actually Written.” That book analysed the current Constitution from today’s perspective and in the light of the many significant events that have occurred over the past 114 years. It is also the first time in 114 years that such a clause by clause, section by section, detailed analysis has been done for this now antiquated and out of date document.

I believe it is always necessary to recognise the fundamentals of an issue if one is to understand what one hopes to achieve. When the issues concern a Constitution and Government those fundamentals are crucial if we are to arrive at a logical approach. It is obvious that the people are the originators of both a Constitution and a Governmental system. It is axiomatic that any group of people who wish to live together, whether it’s as a family, a village, a city or a society, there must be a set of rules defining how people should relate to each other. In essence, that set of rules is the Constitution, and it is the people who decide what rules they wish to live by. However, when a set of rules are agreed there needs to be a way of ensuring the rules are followed, and when they are not, there needs to be some system in place to decide what to do about that. So, essentially, when the people create a system to see that the rules laid down in the people’s Constitution are followed, what they basically do is to create a Governmental system. The creation of any such system must then become an additional subject to be dealt with in the Constitution.

It is then obvious that both a Constitution and the Governmental system are a direct creation of the people. In effect, both these things are the property of the people, and it should never be reversed to the extent a Government becomes the authority over the people and tells the people what rules they can or cannot have in their Constitution.

Unfortunately, throughout today’s world the reversal has happened, and in virtually every country, it is the Government that decides what sort of Constitution the nation can have.

In an effort to correct this reversal that has taken place, the whole focus of this new Constitution is from the perspective of “the people.” The intent is to define the powers and limitations the people are prepared to delegate to their elected representatives. This approach clearly distinguishes the people’s representatives from the political party’s representatives. By extension, the powers and limitations apply to every Government instrumentality that is created through this Constitution.

This is a truly unique Constitution concept where a Head of State has specifically limited executive power; where an independent Council of eminent people operates without executive power - but is a body of people who can function as independent adjudicators. The Parliament is the only instrument invested with executive power, but that power is restrained by the Constitution. It is the Council’s responsibility to ensure all legislation complies with the Constitution prior to the Head of State giving assent. The Parliament in turn, is under the control of the people through defined legal processes, starting with elections after each fixed term in office, swearing allegiance to the people under Oaths of Office, a citizen's recall process, a lawful impeachment process right to the top of the political/bureaucratic chain, and an independent and public Periodic Constitution Review Process to keep the Constitution relevant and up to date. 

As far as can be discovered, no other accepted Constitution/Primary Law in modern history has truly been written in this context and from this perspective, although some may claim to do so.

The primary issue related to this exercise of writing a new Constitution, is whether the people truly want Australia to become an independent nation, free of all the legal, political and constitutional ties with the United Kingdom. That should have happened in 1919 when we were admitted as, supposedly, independent members at the formation of the League of Nations. Although there was one attempt in 1920 to formalise our independence, it failed, and ever since we have been tied to Britain’s apron strings.

The following statement was made in 1920 by Sir Geoffrey Butler KBE, MA and Fellow, Librarian and Lecturer in International Law and Diplomacy of Corpus Christi College, CAMBRIDGE, author of "A Handbook to the League of Nations". He refers to Article I of the Covenant of the League of Nations. "It is arguable that this Article is the Covenant’s most significant single measure. By it the British Dominions, namely, New Zealand, Australia, South Africa, and Canada, have their independent nationhood established for the first time. There may be friction over small matters in giving effect to this internationally acknowledged fact, but the Dominions will always look to the League of Nations Covenant as their Declaration of Independence." (source – Annotated Covenant of the League of Nations - League of Nations archives - Geneva, Switzerland).

The late Professor G. Clements, Eminent UK QC and emeritus Professor in Law at Cambridge University, is also reputed to have understood the true legal position of the Australian Constitution when he is said to have remarked,

‘The continued usage of the Australian Constitution Act (UK) by the Australian Governments and the judiciary is a confidence trick of monstrous proportions played upon the Australian people with the intent of maintaining power. It remains an Act of the United Kingdom. After joining the League of Nations in 1919, Australia became a sovereign nation. It had no further legal power to use, alter or otherwise tamper with another nation’s legislation. Authority over the Australian Constitution Act lies not with the Australian government nor with the Australian people, it rests solely with the UK. Only they have the authority to repeal this legislation ...’

The fact still remains true to this day – as long as we continue to use the Commonwealth of Australia Constitutional Act as our Constitution, clearly an Act of the British Parliament, we cannot be an independent nation. There are only two ways Australia can become independent of the UK, one is for the British Parliament to repeal that Act, the other requires the Australian people to take unilateral action and declare our independence.

There are no other options.

Basically, there are three ways we can choose for writing a new Australian Constitution. The first is to do what was proposed in 1999; to modify the existing Constitution, but rather than the deceitful “minimalist” change, bring the antiquated document up to date and make it relevant to the system of Government in place. The second option is to do a complete rewrite starting from scratch and picking out any relevant bits from any other source and adapt them to the Australian environment. The third option is to use the existing Constitution as a base, in as far as some parts have been proven viable, but to change the philosophic foundation and re-write the new Constitution from the perspective of the people. This would create a properly relevant Constitution defining the system of Government and the powers and limitations the people are prepared to allow their elected representatives.

While it tends to be taken for granted that the people of Australia want the nation to be considered as a “democracy,” there seems to be little understanding of what “democracy” actually means. Probably, the best definition is the one provided by Abraham Lincoln as, “Government of the people, for the people and by the people.”

Having a vote does not define a “democracy,” but it is part of the definition along with issues such as “free speech,” the right to life, freedom of choice, and the recognition that the people are the foundation of all political power. A democratic Government is there to serve the people; the people are not there to serve the Government.

The purpose of a people’s Constitution - While a people’s Constitution must be about the people’s rights and freedoms, it must also deal with their responsibilities and the authority the people are prepared to delegate to their elected representatives. Just as importantly, a people’s Constitution needs to focus on the authority of leadership, by stipulating in some detail, how this leadership must be for the benefit of the people, and the nation, and not develop into an authority beyond the control of the people.

Theconcept of an Australian Council came up in 1999 as a way to create a non-political supreme body to replace potential dictatorial powers of a Governor General, and to get the Head of State out of the hands of politics and money. Any election process for a Head of State was seen as inevitably getting entangled in politics and money and degenerating into the farce of the American presidential circus. The Australian Council is designed to replace certain functions of the “Crown”, but one of the Council’s principle functions is to act as an appeal of the last resort for the people. Various names were suggested for the Council, such as, The Australian Crown and The Australian Federal Council, but the use of the former seemed to carry an implication of setting up an Australian “monarchy.” That was definitely not an intention despite the fact that many people do hold the Queen in reverence.

The latter title was in keeping with the practicalities of the Commonwealth being a federation of the States.

The concept of the Council has several functions in addition to the above. If it were created as an independent body, made up from, say, the Governors of the States, it could have the authority granted to the Governor General, but deny such total overriding authority in the hands of one person. In addition, the Council could provide the nominal Head of State for all the ceremonial functions related to that position, and thereby remove that position from the political arena, as well as avoiding an expensive and potentially divisive election process, akin to the ridiculous, US, money oriented and political party controlled system as mentioned above.

The Council could set up a rotational basis for a State Governor to become the nominal Head of State for a defined period (3 to 5 years), but who would only be permitted to act in the legal and political arena with the consent and approval of the full Council.

To reinforce the non-political association of the Council, this would be greatly enhanced if the State Governors were each appointed by a two thirds approval of their State Parliaments.

This would tend to neutralise, or diminish, political party associations. As members of the Council, the Governors would be taking on a higher duty in representing the whole of Australia in addition to their own State. To a large extent, it would negate the failure of the original intent of the Senate; a body designed to represent the respective States, but corrupted into representing political parties.

In terms of the Council,all the State Governors are of equal standing, and any evenly split decisions must be decided in the negative, as any such split decision would clearly indicate some genuine concerns being involved. Thus, it is reasoned, the chosen Head of State, who would chair the Council meetings, is not given a casting vote in any Council deliberations.

Political Parties - While political parties have been a fixture in most countries for the past couple of centuries; it is unrealistic to believe they can be eliminated, but that is not to say they should be ignored in a Constitution. In writing a people’s Constitution a number of facts must be recognised. In modern day politics, the political party represents the greatest potential threat to the well being, freedom and independence of a nation’s citizenry. The Constitution has a duty to future generations of Australians, and part of that duty is to define the conditions that must apply to the politicians. Very few elected representatives in today’s politics are there to represent the people; mostly, their primary responsibility is to represent the political party that contributed to their election. Politicians as a class, have the greatest opportunity to do the most harm to our Nation and our Society. The ‘keystone’ for any people’s Constitution is its ability to control the nation’s elected representatives, and that means controlling the way political parties operate in the political system.

No ruling political party is ever in the position to speak for the nation as a whole. The claim of having a mandate is limited to the political arena in allowing the party, with a majority of seats in the House of Representatives, to form a Government. That is the only mandate a ruling political party ever has. It does not give a political party the authority to speak on behalf of all the people, which they never do anyway, because the ruling party is always biased toward their party members and supporters.

In Australia’s first Constitution, the “founding father” gave the politicians the authority to set up their own “powers, privileges and immunities” without any input from the people. This is akin to giving the inmates the keys to the asylum.

Granting that authority to the politicians is one of the major disasters of the original Constitution, as those “powers, privileges and immunities” are the very crux of what should be entirely in the hands of the people to determine.

Religion and Politics – While it is an accepted myth that religion and politics should not mix, that is to deny the clear historical evidence over the last couple of millennium at least. Politics and religion are completely interwoven with each other, and very much remain so today. This is not something a Constitution can ignore, and it is totally ludicrous to make a statement, as did the original Constitution in Section 116, “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion…….”.

The only valid bit of this Section is the last part, which says, “and no religious test shall be required as a qualification for any office or public trust under the Commonwealth”.

A lot of people consider this a declaration for religious freedom in the Commonwealth, but surely there has to be some criteria to define what can be classified as a “religion”. Unless this is done, virtually any group could call themselves a “religious order” and be free of any government interference. For example, is Scientology, Mormonism, Paganism, Satanism, Buddhism and Taoism, or any other type of proclaimed worship, a legitimate religion, and do they come under the wording of “any religion”?

While this prohibition on making laws is in respect to the specified aspects of establishing a ​

Religion or imposing any religious observance, the bit about prohibiting the free exercise of any religion would seem to deny anyone the right to bar Sharia law. However, Section 116 is largely ignored because; the Commonwealth does make laws relating to religious issues 

​in a great number of other aspects, e.g. religious education and religious schools, and exempting religious organisations from taxation, and not the least, by endorsing the Christian festivals of Christmas and Easter as official holidays.

Preamble – Contrary to the current British Act, and also to the various perceptions some people have regarding that Act, it does not have a specifically defined Preamble. The closest equivalent is the three opening sentences before the commencement of the following nine clauses. If those sentences are to be regarded as valid and legitimate parts of the Act, then it effectively binds Australia as an “indissoluble” colony/dominion to the British Crown in perpetuity.

This would permanently deny Australia any legal opportunity of gaining their independence from the UK, as long as this British Act remains in force.

A Constitutional Preamble is akin to what is today called a “Mission Statement.”  Its purpose is to set out the basic philosophy, which the people wish to accept in the formulation of their government, and the making of the laws that will control their society. Any such Preamble must always be recognised as an integral part of the Constitution, and only subject to change through the nationwide referendum process that is included in the Constitution.

Australia’s Money Supply - Possibly, one of the most important aspects of the original British Act is the way the authors dealt with the issue of “currency, coinage and legal tender.” While these three “things” may have been separate forms of “money” in the 1900’s, they are no longer classed as separate in today’s world. “Money” has now become the single most important tool for survival, and hence, the control and issuing of “money” is the foundation that determines the economic standards and quality of life for every nation on Earth, including Australia.

It can be reasonably assumed that Australia’s founding fathers, and the British Parliament for that matter, had no understanding that they were granting their newly formed Commonwealth of Australia the status of monetary sovereignty. By including the two subsections 51(xii) and 51(xiii) they gave the Australian Parliament total control of all banking in Australia, except State banking within the borders of the State, and the creation of all currency, coinage and legal tender.

The Australian Government was actually granted monetary sovereignty from the time the British Act was proclaimed in 1901, by virtue of the two subsections mentioned above.

That status has only been used once in Australia’s history to date, through the creation of the original Commonwealth Bank of Australia. That Bank operated as the publicly owned Government bank from 1911 to 1923, when it was legislatively destroyed by the Bruce/Page Tory Government. With this new Constitution, Australia will have the authority to create and manage its money supply in the best interests of the people and the nation.

As far as this Constitution is concerned it is axiomatic that no human being is endowed with infallibility. Hence, it is an accepted tenet that everyone is accountable, irrespective of their station in the society. In particular, this applies to the Justices of the High Court of Australia. However, it is an accepted principle that the justice system should be, and must be seen to be, independent, but that is not to say it shouldn’t be held accountable if the Court make a “wrong” decision. The appeals process largely covers this accountability at the lower levels of the justice system, but this Constitution has two provisions for addressing accountability of the High Court. In both cases the Australian Council is the body of last resort. If successfully appealed to, the Council has the authority to instruct the High Court to review a decision, but any subsequent review by the High Court becomes final. The other provision given the Council is to instruct the High Court to hear an issue which they have previously denied a hearing, provided accepted justification is presented to the Council.

Impeachment is a process included in the US Constitution as a guarantee that no person is above the law, right to the very top of the political and bureaucratic chain of command. It is a way of demanding accountability from the people’s representatives and those people employed to serve the people. This draft Constitution includes specific procedures for both initiating and conducting the impeachment process. Part of the initiating process is the inclusion of a Citizen’s Recall provision that is specified and detailed in a Chapter of the draft. This process is distinct from the provisions allowing the Council to intervene with the High Court, but it does not exempt individual Justices from being held accountable on personal grounds.

A Periodic Constitutional Review Process – shall be a process independent of the Government and the legal profession, but open to any interested person, group, or organisation, as well as the Local, State and Federal Governments, to submit proposals for amending the Constitution.

The aim is to create the opportunity for every interested Australian Citizen to become involved in formulating changes to their Constitution.

This concept embraces a fundamental philosophy that must apply in our Democracy – that the Constitution of Australia is the exclusive property of the Citizens of Australia - it is never the property of the Government. It is therefore rejected that the Commonwealth Government has the sole right to propose amendments to ‘our’ Constitution.

The right to alter the Constitutional intent rests solely with the People and not with the Government and certainly not with the High Court.

What is important is that the final outcome of the Process will be translated into definite action through a mandatory referendum of the publicly approved amendment proposals.

 

 A NEW AUSTRALIAN CONSTITUTION

DRAFT

 of a

CONSTITUTION FOR AN INDEPENDENT AUSTRALIAN NATION

 (As updated Sept 2017)

CONTENTS

(Subject to change as the Constitution is written – GLP)

Preamble

Definitions

Chapter 1                                  Transition

Chapter 1   Part 1                   The Foundation

Chapter 1   Part 2                   The Australian Council

Chapter 1   Part 3                   The Head of the Nation

Chapter 2   Part 1                   The Parliament

Chapter 2   Part 2                   The House of Representatives

Chapter 2   Part 3                   The Senate

Chapter 2   Part 4                   The Federal Government

Chapter 2   Part 5                   The Authority of Parliament

Chapter 3   Part 1                   The Judicature

Chapter 3   Part 2                   The High Court

Chapter 4   Part 1                    Finance

Chapter 4   Part 2                   Trade and Commerce

Chapter 5   Part 1                   The States and Territories

Chapter 5   Part 2                   New States

Chapter 6   Part 1                   Elections

Chapter 6   Part 2                   Political Parties

Chapter 7   Part 1                   Citizens Recall

Chapter 7   Part 2                   Impeachment Procedures

Chapter 8   Part 1                   Periodic Primary Law Review Process

Chapter 9   Part 1                   Altering the Constitution

 

Appendix 1                                      Oath of Office

Appendix 2                                      Powers, Privileges and Immunities

Appendix 3                                      Geographical Description of Australia

Appendix 4                                      Outline for a Periodic Primary Law Review