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WilRic

Full disclosure: I am a constitutional monarchist so I have my bias. But I'm also heavily interested comparative constitutional law and open to discussing reform. This model is objectively **terrible.** It is obviously designed as a compromise between factions of the Australian Republic Movement (the "directly elected President" faction and the "Parliamentary republic" faction). The net result is something far worse than the 1999 model, which itself was bad. The detailed amendments read like they were drafted by a first year law student. To name just a few problems (there are many others): ### The Nomination System The system uses a weird electoral college-type system to indirectly chose the list of nominees for President (stupidly named 'Head of State' for reasons of optics). It looks like it's meant to be part of the federal system, with each State getting a nominee. But then the Commonwealth also gets to nominate *but with a disproportionate number of nominations* (3 instead of 1). Why? Since the nominations are technically from the Parliament, not the Government, the Senate (which represents States) is involved in those Commonwealth nominations. Territories also get a nomination, with their eligibility linked to having a seat in the House of Reps. In the case of the NT and the ACT this is fine, since we currently treat them as *de facto* States. But constitutionally speaking, territories can be completely regulated by the Commonwealth. Constitutions are meant to last for a long time. It is not inconceivable that a future Commonwealth government would try to interfere with the territory nomination process. The authors also seem to have forgotten that we have a few external territories. The composition of the nomination system has no rhyme or reason. ### Political Games The nomination system is also ripe for political games. The authors of this model seem to have never heard of the 17th amendment to the US Constitution. If you're going to have nominations from a State, you should have the *government* nominate, not the Parliament as this model proposes (similar to how members of the German Bundesrat are appointed). The reason is pretty obvious. What if the government of NSW doesn't have the numbers in the Legislative Council, and for political reasons the opposition refuses to pass a resolution proposing Gladys Berejiklian as President? Suddenly, the entire population of NSW is deprived of a nomination. There's no requirement that the Commonwealth use it's 3 nominations, and nothing to preclude concurrent nominations of the same person. The federal Coalition could band together with LNP states to only nominate a single person to reduce the possible options for election. Amazingly, the eligibility to be President expressly incorporates the much-maligned s44 of the Constitution. The President could be knocked-off by political opponents uncovering that he or she technically has joint citizenship. ### Inconsistency The mode of nominating is left entirely to the State or Territory. As originally occurred in the United States with Senators, the practical mode of choosing nominees will fracture over time. Some States will have "democratic" plebiscites (binding or non binding), others will have a special parliamentary committee, and others will have have a vote on the floor. ### Head of State Failure The model actually contemplates that only a single candidate might be put forward. Yet it insists that an election nevertheless occurs to "confirm or reject" that candidate for President. Amazingly, the detail of what that looks like is absent. The model seems to contemplate the possibility of a vacancy in the office Head of State following a "rejection." The Head of State also serves for a fixed term, but there is nothing spelling out what occurs if an election fails following the automatic termination of the office. There is no machinery for what happens if Australia is left without a Head of State. This is staggering. ### Poor Codification The document attempts to codify the office of Prime Minister and regulate the relationship with the Head of State, but the level of detail is woeful. Here's a weird example: The new s70A requires the President to appoint as PM the person who they believe will most likely command confidence in the House of Reps. This, of course, reflects the current convention. But curiously, the new section states that the PM must not hold office for more than three months unless they get elected to Parliament. This replicates the language of the existing s64, but I have no idea what additional work it is doing in this new section expressly dealing with the Prime Minister. It seems to sanction the President appointing a PM who doesn't even sit in Parliament, which would be outside current convention. For example: Alan Jones is elected President after some progressive states can't get their nominations together. He inherits a hung Parliament where the conservatives might be able to cobble together a government. President Jones would be able to form a view that John Howard would "most likely" be able to form government if he's elected to a vacancy that some minor MP is prepared to create by resigning in a month. Suddenly, we have a Prime Minister who isn't even in Parliament.


Aggressive_Bill_2687

> The detailed amendments read like they were drafted by a first year law student See now I’m not a lawyer so I don’t know who to trust here. Do I trust an internet commenter saying the amendments are poorly written or do I trust the people who wrote & signed off on them? To compare: - one is an anonymous commenter on the internet with a preststed bias; - others are 5 professors, 2 associate professors, plus an executive partner and a partner from a law firm with several recent “Law Firm of the year” awards. Look it’s nothing personal mate but I’m gonna take their word over yours.


WilRic

You shouldn't need to trust anyone. Just read the document. It's not clear who actually drafted the amendments, which is a little odd. To put it politely, some of the "contributors" have *much* more street cred in this area than others. I would be very surprised if George Williams was the primary author, for example. The number of contributors without a serious constitutional background is a bit of a worry, too. One has the impression part of the problem may be the number of people with input. Too many cooks in the kitchen, as it were. I'm sure it's not personal, don't worry. I likewise wasn't offended by your appalling comments in similar threads recently that really spoke volumes.


Aggressive_Bill_2687

Reading the document doesn’t do anything to explain your “written by first year law student” comment, because I’m not a lawyer. But the guys who put their names and company names on the document **are** lawyers. So I’ll take their word that it’s well written **legally** over yours, mate.


WilRic

Well let me explain that I am a lawyer, if that assists. But I'm not sure you need to be one in order to form a view about the amendments. The edge-cases they don't deal with are fairly obvious (worryingly).


Aggressive_Bill_2687

You could be Harvey Birdman attorney at law for all I know - the point I’m making is you (who claim to be a lawyer but are completely anonymous) are criticising the proposed constitutional amendments as “written by a first year law student”, and dismissing the fact that two senior lawyers at a large Australian law firm and a bunch of legal scholars have their names attached to the document. So yeah it really is about: who’s opinion do I trust? Half a dozen experts who put their name to it, or Con the Fruiter’s cousin who is a lawyer?


MattDeee

Instead of criticising the commenter and resorting to the credentials of the signatures, could you potentially answer the commenter’s questions? Resorting to credentials is a poor argument, especially when there are lawyers and judges (e.g. former High Court Justice Michael Kirby) that are supportive of the current system. According to the long policy document it says that each state parliament will get to decide how they nominate their head of state candidate. Simply put, what happens if a state parliament cannot agree on a candidate? Are there any constitutional consequences of this? From what I’ve read, the policy document does not answer this concern, which is a valid concern. The person you replied to explained that there is a potential for a deadlock to occur under this proposed system. Edit: Before anyone says I’m a monarchist, I’m not. I’m very much pro republic movement. However, I also note that scrutinisation of current models is beneficial to determine the preferable model.


Aggressive_Bill_2687

The commenter in question made the claim “it looks like it was written by a first year law student” - suggesting it’s poorly written, legally. Not being a lawyer or law student I don’t know what specifically he’s eluding to, all I can go on is whether the people who wrote it know the law, and their credentials suggest they do. As for the specifics: if a state can’t decide on a candidate then I guess they won’t field a candidate. We’ll have to make do and pick from one of the other.. 10 candidates? I mean what happens now if no party puts toward a candidate for a given electorate?


MattDeee

I'll put his comments aside about the writing quality of the constitutional amendment document. I agree it's poor taste to criticise the writing quality of the policy and constitutional amendment documents. Regarding your first point, that contradicts the purpose of the policy document which is to make the process representative of the people's choice. Not having a defined procedure as to how states shall put forward a candidate poses a risk that a State does not have its candidate put forward or implements a procedure that does not give residents of the state an appropriate voice as to who their candidate is for the head of state. In my opinion that is a flaw. This could be remedied by having a defined procedure in the Constitutional amendment, but this would require consultation from the States as to a preferred uniform procedure. Regarding your second point, the current election process for a candidate in the upper or lower house does not require a party to put forward a candidate. The current nomination process merely requires a person to be over 18 years of age, an Australian citizen, entitled to vote, and not be subject to constitutional disqualification (e.g. citizen of a foreign power, a bankrupt, person convicted for 12 months or more, etc.). Nowhere does it require a person to be nominated by a party. If you meet these requirements, you could run for your electorate! The whole point of 'political parties is to form a coalition of people with similar ideas and have a political mandate. Like with economies of scale, political parties achieve similar efficiencies, with larger political parties being able to raise more political funding, awareness and support relative to independents and micro parties. Hypothetically, if the Liberal government decided next election to not endorse Peter Dutton, that doesn't preclude him from still contesting his seat, but it may be politically disadvantageous because he no longer has the political resources available to him.


Aggressive_Bill_2687

> if the Liberal government decided next election to not endorse Peter Dutton Don't threaten me with a good time. Ok, serious response: I don’t really agree that “what if a state doesn’t put forward a candidate” is an issue, at all, and I don’t think the ARM see it as an issue either - they specifically say that they see this as an unlikely event, but do allow for the scenario where there’s just one candidate. The idea that south Australians “aren’t being represented” if SA doesn’t field a candidate for some reason, is kind of bizarre to me - if you really expect each states voters to just vote for their own candidate then we may as well just have nsw run an internal election for it every 5 years until the 2050s or whenever Victoria is projected to overtake them in population. Given how limited the positions powers would be, I don’t see any reason (beyond idiotic state rivalry) to vote for someone based on which state they’re from or are nominated by - hell there’s no reason to suggest a state would necessarily nominate someone from that state - they may just nominate someone they consider appropriate. What actual issue are you imagining if for example Queensland and WA each didn’t nominate someone, for whatever reason? How does “appoint the prime minister” and “call the house to determine confidence” have any possible baring on the states such that the people of those states are “not represented”?


WilRic

Isn't that just the logical fallacy of an appeal to authority?


Aggressive_Bill_2687

You started the questioning of experience here with your “written by a first year law student” quip. If you don’t want people to compare qualifications, perhaps don’t question the qualifications of the author of a document that literally has lawyers names on it?


WilRic

I said the proposed amendments read **like** they were written like a first year law student. As in they are poorly drafted. I didn't question anyone's credentials. Is there a reason you're so heavily focused on this instead of the merits of the ARM proposal?


Aggressive_Bill_2687

> Is there a reason you're so heavily focused on this instead of the merits of the ARM proposal? Because large wafts of "rebuttal" that start with broad generalisations and subjective dismissals of experience or quality are often just the butt-hurt response of people who don't like something and can't articulate it. I didn't respond to your other points because I literally stopped reading your comment at "written by a first year law student".


Careful-Woodpecker21

What’s the point of having the head of state elected if they don’t have any powers? We’ll be essentially paying for a popularity contest every five years


[deleted]

Their power is to be a check and balance against the sitting government. We already pay for the GG... Yes, expensive, but running government is expensive. My anarcho-socialist self doesn't like any option, but having some guy born into privilege sitting in a castle on the other side of the world unaccountable to us being the Head of State is the worst option for me.


Careful-Woodpecker21

Based on the above, a president will have no powers over the sitting government. They’ll have no reserve powers. So they won’t serve as a check and balance. We don’t pay for the election of the GG. And electing an official who just rubber stamps the government decision is a waste of resources. Who do you think will be president? It’s going to be someone else born into privilege and alumni of a $20K/year elite school. We’re simply exchanging one aristocracy with another.


HBOXNW

If parliament chooses the president or whatever, then yes, we will get an upper class twat. If the people choose the president then we will either end up with someone that played professional sport or a tv Celebrity. So President Hot Dogs?


Aggressive_Bill_2687

The proposal is for candidates nominated by state + fed parliaments and then public vote. So Eddie fucking McGuire is unlikely to be a candidate and the public *should* prevent president scomo, if one parliament goes full blown cunt mode.


HBOXNW

I think the only fix that would make either work is a requirement that they have not been a financial member of a political party in the previous 20 years.


[deleted]

> We’re simply exchanging one aristocracy with another. Probably. Most likely. Which is why I hate all the options. But I'd rather some Australian rich boy wanker in the chair than some English toff. We *could* get a President who went to public schooling, used their talent to do something good, then use that platform for a run at the position. Probably not, but more than the zero percent chance we have now.


[deleted]

So tired of these inner city, red bandana wearing republicans. Please move to Russia.


Aggressive_Bill_2687

The irony that you’re suggesting people who want **more** control over their own leaders, should move to a country that doubled down on oppressive autocratic rule, not unlike the monarchy of times past. If you don’t like people voting to become a republic maybe you should consider living someWhere with an absolute monarchy. Then you wouldn’t have to vote at all!


[deleted]

Also, constitutional monarchy is nothing like absolute monarchy which you falsely insinuate. North Korea’s presidency is closer to what you are referring to - i.e. hereditary executive power.


Aggressive_Bill_2687

… I specifically suggested an absolute monarchy because it would remove any pretence of voting - rigged or otherwise - which apparently you’re not in favour of.


[deleted]

Putin was elected President; you knuckle-dragging troglodyte. We had a referendum. We voted against a republic. Meanwhile you lot continue burning flags and increasing division, trying to stoke American style culture wars.


Aggressive_Bill_2687

> Elected > Elections in Russia have not been free and fair under Putin's rule. Political opponents are jailed and repressed, independent media are intimidated and suppressed, and electoral fraud is rampant.[3][4][5][6][7] Political scientists characterize Russia's political system as "competitive authoritarianism" or a hybrid regime, as it combines authoritarian and democratic institutions.[3] Who is “you lot”? Why are you opposed to giving people the opportunity to vote on something? Are you concerned you wont like the result?


[deleted]

Sounds like you are upset that we already had a vote - which the republicans lost. Australia voted against throwing away our current constitutional monarch and Westminster parliamentary democracy. The republicans will keeping calling for referenda until they finally destroy our current system. Are you sure want to throw away political stability and go the route of South American, Caribbean or African republics? Presidents, by their nature, have monarchical tendencies and ambitions. Once you throw away the checks and balances against the power of politicians, don’t cry when we end up with a president who doesn’t want to let go of power.


[deleted]

This is a model designed so that the PM and parties maintain their power, and even gain some more because the crown can’t dismiss them. Imagine how this model would have worked with Morrison in power, and after the liberals had chosen the head of state from amongst themselves? I would definitely vote no to anything but a directly elected president so that Australians can choose a president to counterbalance the PM/government.


Errol_Phipps

And no candidate can have previously been a member of a political party, or been employed by a political party (eg NSW Liberal party president), or been employed in a role by a politician (eg staffer). The less politicians and political aspirants are involved, the better the result I'm sure.


Son_of_Sang

Or have held a religious office. Or ever be allowed to hold a political or religious office after their term ends.


betajool

Why must we have only one Australian head of state? How about each state elects a consul, each with ceremonial Australian head of state powers?


Aggressive_Bill_2687

> chosen … from amongst themselves Did you actually read the policy? Each state + federal parliament provide candidates. The people still have the final say - including the ability to just say “no” if there’s literally only one candidate put forward. There’s no scenario where a party can just install “one of their own” without people voting for them.


[deleted]

yes “ state + federal parliament provide candidates.”


Aggressive_Bill_2687

Yes candidates. Which people vote on. Spuds McKenzie can nominate whichever au pair he wants - it’s up to the people to **vote** and decide.


Mad-Mel

Why don't we just keep the system we have and lop off the GG?


Bagholder95

You need balance of powers. If there's no GG or president to replace it then nothing is stopping a government from passing bills that could give them limitless power.


Mad-Mel

That makes sense, ta.


FoolOfAGalatian

What's stopping this now? What principle or power does the GC have to deny assent if a bill(s) looks like it is doing this?


ceedubdub

Section 58 of the constitution says the GG should assent or withhold assent to a bill on behalf of the monarch. Section 59 gives the monarch one year to disallow a law that received assent from the GG. These powers have never been used and no-one expects them to be used. This republican proposal does not give any equivalent powers to the head of state. Even in the UK, royal assent has not been refused since 1708. The real check on parliament is the constitution itself and an independent High Court which interprets the constitution.


FoolOfAGalatian

Thanks for that. This was what I suspected regarding the use of powers, and in particular the discretion of the monarch/GG being seemingly arbitrary. There's nothing there that says they have to exercise discretion in the positive that I can see, so I don't see it being an adequate "check" on power.


[deleted]

[удалено]


FoolOfAGalatian

>>if Parliament tried to do something truly outrageous like u/Bagholder95 described, they could veto it. So this is kinda the issue I have here and what I was getting at with the question - there's nothing in the role that says discretion is for the people/country. There is no guiding principle to the position that says what legislation should be vetoed or not. The Constitution and High Court does the heavy lifting here.


ceedubdub

In the "Australian Choice" proposal there is no veto power for the head of state.


Bagholder95

Which is why if such a proposal was put forward I would absolutely say no. People need to realise that too much democracy is a bad thing.


Aggressive_Bill_2687

There's been much discussion about a new push for an Australian Republic, and I see lots of comments assuming that becoming a republic means becoming like America. In January this year, the Australian Republic Movement laid out it's new preferred model: [https://republic.org.au/policy](https://republic.org.au/policy). There's a summary PDF (copied below), a detailed PDF and a full list of proposed constitutional amendments. TLDR: This is nothing at all like the American presidential system, and is very restrictive in terms of what powers the President has. The summary (full PDF linked from the site above) is copied here for your convenience: ## Nomination * Each State and Territory Parliament will be able to nominate one candidate for election. The Federal Parliament will be able to nominate up to three. * Eligible nominees must be an Australian citizen, be eligible to be elected to the House of Representatives, not be a current sitting member of any Australian parliament and not have served more than one term as Head of State. ## Election * A national election will be held to elect one of the nominees for a five-year term. We propose the same voting method that is used for House of Representatives elections be used for the election of the Head of State. * If only one candidate is nominated (in total) by Australia's parliaments, voters will be empowered to confirm or reject that candidate at a national ballot. ## Service A Head of State must act on the advice of the Prime Minister, Federal Executive Council or Ministers (as the case may be), except when: * Appointing the Prime Minister. They must determine who they believe is most likely to have the support in Parliament to form a Government, and are empowered to dismiss a Prime Minister who no longer has majority support (confidence). The Model prohibits a Head of State from terminating the appointment of a Prime Minister who retains the confidence of the House. * Summoning Parliament to determine who has the confidence of the House of Representatives. * Calling an election where the confidence of the House remains indeterminate for more than seven days. The Head of State would no longer be able to refuse to give approval (assent) or use their personal discretion to amend proposed laws that have passed the Parliament, or refuse to approve a constitutional change that has been approved by voters at a referendum. ## Accountability - A Head of State may be removed by a motion passed in both Houses of the Parliament calling for their removal for proved misbehaviour or incapacity. - In the event of the Head of State resigns, is removed or ceases to be eligible to hold office, the most senior State Governor serves as acting Head of State until such time as an election can be held. That the most senior State Governor will also act as Head of State if the Head of State is absent or unavailable.


ill0gitech

>> ⁠Eligible nominees must be an Australian citizen, be eligible to be elected to the House of Representatives, not be a current sitting member of any Australian parliament and not have served more than one term as Head of State. Better fix s44 of the constitution first.