Apologies in advance for the length of this, but I tried to keep the context
throughout and it starts to get a bit unwieldy! Anyway, it's good to have a
forum for such discussions.
>
>tdunlop wrote:
>
>> Thanks for the response, Trudy. Here's some further thoughts.
>>
>> Trudy wrote
>>
>> >A Bill of Rights would be tested by the High Court of the land - the
>> *legitimate third arm* of government (why do people have such trouble
with that?) - just as it tests constitutional and other matters now. There
would have been no Mabo decision or a Native title act without it. It is
fine to have elected officials but they are not perfect and some check and
balances are needed to protect the
>> >people from their excesses.
tim wrote:
>>
>> I don't have such trouble with that. Under the suggestion I made they
would still have that power, as a check and balance on the parliament.
Under a US-type system, all matters of rights are for the courts alone, not
the parliament/congress at all and it becomes a way for politicians, the
elected representatives, to fob off rights debates and hand it over to the
Court. I'd like to keep the best of both systems, that's all.
Trudy wrote:
>
>Well, there is no need to go to a US type system.
I only really used it as an example because you mentioned it at the end of
your original post. Plus because it's the one I'm most familiar with.
Trudy wrote:
>They aren't the only ones with a Bill of Rights. And having a Bill of
>Rights does not take away anything from parliament in the
>way it legislates.
Actually it does. A constitutional bill of rights shifts the law making
power in matters of rights from the parliament to the judges. Under a
parliamentary system, it is the parliament that has the ultimate say and
they can rewrite law that the High Court has allowed. Under a
constitutional bill of rights the Court has the final say - the parliament
can enact laws, but the Court can over-ride them. There are pros and cons
to both methods, but if the issue is about how democratic a system is, then
I think there is something to be said for having that ultimate power in the
hands of the elected parliament rather than the unelected judges. This does
not preculde some sort of document of rights, as I said, it is just a matter
of where jurisdiction lies. In fact, I think the big advantage of a bill of
rights is that it engenders a culture of rights amongst citizens and it is
worth considering on those grounds alone.
Trudy wrote:
>The only caveat on that is that they cannot take away a person's right >to
something under the Bill of Rights. It is there to protect people >from
having their human rights taken away by the government. If we'd >had a Bill
of Rights, Howard's Wik amendment would have been >more likely to bite the
dust. As for US politicians fobbing of rights >debates...our politicians do
that also without a Bill of Rights.
To your last point - that's why I think we should have a bill of rights
though not necessarily one that hands that power to the judges. The fact
that under either system politicians might fob off such questions is
separate question from whether we should or shouldn't have a bill of rights
or what form it might take.
>> Trudy wrote:
>>
>> >I wasn't talking about Howard's appointments. I meant his penchant for
authoritarian rule which would lose the brakes of 'convention' under a
republic with no Bill of Rights. He has
>> already eliminated most bodies of review and criticism and has taken away
the people's voice in many matters already. Imagine what he could think up
without the restrictions of 'convention'.
tim wrote:
>>
>> I don't understand this point, maybe because I'm not quite sure what you
mean by 'conventions'.
trudy wrote:
>
>The conventions under the Westminster system, the traditional rules that
are not written down anywhere but are adhered to, mostly.
Okay, but why would they disappear under a republican model without a bill
of rights? And I'm not sure what the argument is here - is it against an
appointed president or against a republic without a bill of rights? I make
the point because I thought (maybe wrongly) that the thrust of the argument
was against an appointed president. So it raises the question as to why you
couldn't have a bill of rights with an appointed president. There's nothing
stopping that happening is there? So the question is, is the objection to
an appointed Prez or is to any sort of Republic that doesn't include a bill
of rights?
>> Trudy wrote:
>>
>> >I find the argument of 'turning it into a political office' quite
strange since every public interaction is political to some degree.
tim wrote:
>>
>> Well yes, that's true, but the fact that you say "to some degree"
suggests that the degree of politicisation is variable, so all I'm saying is
that a non-elected President is less political than an elected one and that
I prefer that. Perhaps I should have said "party political".
>
trudy wrote:
>I cannot agree. Sir William Deane was appointed and he has been a >very
political GG. You are assuming that a directly elected president >would be
party political. Why? There is no need for that at all.
I'm not assuming a directly elected Prez would be party political, I'm just
saying that it is highly likely. And it is less likely (if not impossible)
under a system where he/she is appointed by 2/3 of the parliament. So yes
an appointed Prez may be political in the broadest sense, but he/she will
not be party political. Of course, what I AM assuming here is that the Prez
is of the non-executive type, which is my preference, for the reasons of
civil society I mentioned earlier. The argument for an executive Prez is
another story - if we were to have that type of Prez then they would
inevitably be party political.
>> Trudy wrote:
>>
>> >I don't see that swapping an elite monarchy for another 'elite judge,
lawyer,or-what-have-you' by another group of elites is an improvement.
>>
Tim wrote:
>> You can accept the appointment of High Court judges as legitimate, what
is the huge difference with a non-party political President?
Trudy wrote:
>
>How can you assure that the 'non-party political' president is non-party
political. Non membership is not a reliable criterium.
>Appointing a president is fine as long there is honesty involved in
labelling. It seems to me that the people who push this model are really
afraid of a real republic. What they seem to want is a monarchy
>without the monarch.
I can't assure it; all I'm saying it is less likely to happen with a 2/3
appointment model than with direct election. Much less likely. And I now
see at this point that you don't necessarily have a problem with
appointment, though I don't see how you reconcile it with the next sentence.
If appointing a prez is fine, why do you consider that "people who push this
model are really afraid of a real republic"?
>> Trudy wrote:
>>
>> Sovereignty resides with the monarch at the moment by consent of >the
people. When that Sovereignty is taken away from the monarch >by the will of
the people the Sovereignty should return to where it >belongs - with the
people. Why is everyone so afraid of democracy? >Only authoritarians are
afraid of letting the people decide.
tim wrote:
>>
>> Who's afraid of democracy?
trudy wrote:
>
>When I said that it was in general. My comments were not a description of
you so don't take it personal. I am expressing my point of view as it
relates to how the arguments of groups of people appear to me.
Okay, that's fine - and in fact I didn't take it personally in the sense of
being offended, only in the sense of the fact that your answer was in
response to what I had personally said, that is, you were responding to an
email I wrote.
Tim wrote:
>> The whole thrust of my comments on a Bill of rights was to keep the
debate in the democratic parliament, for example. Democracy isn't just
defined by voting. An appointed President could act on behalf of the
people, thus making them sovereign.
trudy wrote:
>A dictator can act on behalf of the people too but it doesn't make it a
democracy. Sovereignty is not something you give to the people. It is
theirs to bestow.
tim wrote:
>
>> Laws, for example, could be made in the name of the people as they are
now made in the name of the crown with either a directly elected or an
appointed President.
trudy wrote:
>True.
tim wrote:
>> Why would you accuse someone of being authoritarian because they don't
agree with your views on the matter?
trudy wrote:
>
>Where did I do that? I said that only authoritarians are afraid of letting
the people decide. It is about control. If the people decide, then the
people who want to have control won't have it and that is what they
>want to avoid at all costs.
tim wrote:
>
>> People of good will can have different opinions without one side being
accused of being authoritarian, can't they?
trudy wrote:
>
>Why are you taking this personally? If my statement above is not logical
then please shoot me down in flames....
tim wrote:
>> As I said, I'm not against direct election, I just think there are
>> disadvantages with it and that there are advantages with an appointment
model and with voting Yes in Nov. Doesn't make me authoritarian or
undemocratic.
trudy wrote:
>
>Please look at what I wrote and see that I didn't accuse you of anything
like it. If that isn't clear to you then I am sorry because I didn't mean
to convey anything of the sort.
I guess I took it personally, as I mentioned above, because the comments
came in response to an email I wrote and were about opinions I had
expressed. I certainly accept that you weren't attacking me personally in
any offensive sense and I wasn't offended in that way, but when I say that I
am fairly happy with a particular idea and you suggest that "Only
authoritarians are afraid of letting the people decide" then there is at
least the suggestion that I - or people with similar views - are being
called authoritarian. But I can see that you didn't mean it like that. I
guess email exchanges are constantly open to such unintentional
consequences.
trudy wrote:
>You are right, of course, everything has advantages and >disadvantages. I
just get very suspicious when a group of politicians >and their corporate
mates decide for us what we should
>have and then won't let us have a say in it.
I don't blame anyone for such suspicions but we are getting a say in it
because we can vote it down on Nov 6 can't we? If you mean that the process
that got us to this stage has not had enough outside output, then I'd
disagree. In terms of a debate within a representative democracy, this has
been about as long and hard and as inclusive as anything I've ever heard.
And even if we don't like the model that is being put, and we didn't think
the convention that devised it was representatvive enough, and that it was
manipulated by self-interested forces, then we still get a chance to vote
no.
trudy wrote:
>Other questions need to be asked and they are: how much needs to be changed
if we become a republic?
The answer to this can be found in the bill that has been drafted to ammend
the constitution if there is a yes vote. Of course there are ramifications
beyond the wording of the bill, and it is largely those ramifications that
people point to in urging caution or an outright No vote. My feeling is
that such ramifications cannot be known entirely in advance but that there
are enough safeguards in place - including the will of the people - to make
it a safe bet. Not foolproof, just safe.
trudy wrote:
>It will cost how much? Who stands to gain from the contracts? Who >>will
they end up with? I think most of us can guess the answers very >well. This
isn't a reason not to become a republic but it does need to >be kept in
mind when we are being pushed by those who stand to
>gain.
All important questions, but I'm not quite sure what "being pushed by those
who stand to gain" means. Do you mean the likes of the ARM and/or pollies
like Beazley and Costello?
>
>> Trudy wrote:
>>
>> >There are ways of ensuring it doesn't become a 'political' battle or the
domain of the rich.
tim wrote:
>>
>> I'm sure that's true and it's one of the reasons I don't rule out a
direct election model. One for instance would be to limit a candidate's
access to paid advertising. I'd like to hear some more if anyone has them.
But I still don't see that the major parties or their proxies would not be
closely involved in any election process.
trudy wrote:
>
>I agree, but I think their influence could be limited if the rules are
clear and enforced. I think one way it could be done is that people send in
nominations, they could pick a certain number with
>the most nominations and ask those people if they are willing to run. That
would whittle it down some more and then they could put a photo with a cv
for the rest and let the people vote. Relatively cheap and simple. There may
be many more ways of doing it so it's not limited to the ones with funds.
>
>> Trudy wrote:
>>
>> >A good example of what can go wrong is Indonesia right now. One party
received the greater number of votes and then backroom wheeling and dealing
succeeded in subverting the will of the people as expressed at the ballot
box. The only reason Megawati got anything at all is because of the need to
stem the rioting.
tim wrote:
>>
>> Well okay, but I don't know how convincing it is here as a comparison.
(gap)
>>
>> Trudy wrote:
>> >
>> >I agree but there is no reason why the people can't elect the
fete-opener directly. That would be the democratic thing to do and the
people should demand it as their right. The fact that the
political/corporate clique don't trust us to do it should make us that much
more determined not to have our rights taken away.
tim wrote:
>>
>> But some of us don't see it as having our rights taken away. Although
I'm inclined to have a directly elected Prez, I don't see that an
appointment model strips me of any fundamental rights -
trudy wrote:
>
>You don't and that is your right. The problem is that the wishes of the
majority of Australians are being ignored and that is undemocratic.
It is arguable that because direct election is not being offered that the
wishes of the majority are being ignored, but this is based only on opinion
polling that I would maintain is, under the circumstances, very dubious.
But even if we take it as a given, then there is still the ability to vote
No, so it doesn't strike me as really being undemocratic.
>
tim wrote:
>> I vote for the politicians and they represent me -
trudy wrote:
>Not really. They represent their party. They would only represent you if
there was voting by conscience in parliament.
>tim wrote:
>> I don't vote on every piece of legislation that goes through and although
I'm not always happy with the result, I don't feel my rights have been
stripped by having them do things on my behalf.
trudy wrote:
>
>It's the sacrifice we make...;-)
Exactly right. The nation is too big for direct democracy (that is,
everyone votes on everything) to be practical, so a system of representative
democracy has evolved instead. The party system is a development on top of
that and it certainly has it drawbacks, though it has advantages too. On
the whole, I'd like to see party discipline relaxed somewhat and the best
way of doing that would probably be to introduce some form of proportional
representation in the house of reps, as in the Senate. But some people
don't like this idea because it would let in a party like One Notion. But
if the argument is for democracy, the I guess we'd just have to live with
that. Could be a pretty tough call.
tim wrote:
>> The prospect of them deciding by two-thrids majority who the
non-executive Prez is doesn't undermine my basic rights. Again the example
of the High Court judges comes to mind - they are appointed and you've
agreed that they perform a legitimate role, so it can't just be the fact of
appointment that is problem.
>>
>> Trudy wrote:
>>
>> A former politician with brakes on is no more worrying than anyone else
for president. There have been GGs in the past and they did the job well.
tim wrote:
>>
>> I'm not sure what you mean here.
trudy wrote:
>
>It was a continuation of the political/party political misunderstanding.
>
>> Trudy wrote:
>> >That is what they would like you to believe. The problem is that if the
'Yes' vote makes it this time there is no impetus left to change anything.
The Political/Corporate Club will have what they want and we can go
whistle. They're not about to share their power with us.
>> >I think we should fight the Australian inclination to say 'she'll be
right' and not accept a camel when we could have a proper model for a
republic. One that is inclusive and protects all of the people.
tim wrote:
>>
>> Again, the notion that I've been duped because I don't happen to agree
seems strange. The substantive point - that a No vote will create impetus
for further change - is debateable. I hope you're right, but I don't see
that there is any guarantee or even a strong likelihood. I'm not saying
you're wrong, but why are you so sure that another referendum will take
place failry soon?
trudy wrote:
>
>Because a majority of Australians want a republic.
>
tim wrote:
>> And why are you so sure it would win? I know polls suggest a
>> vast majority prefer the direct election idea, but no direct election
model has ever been put up so we don't know what would happen in campaign -
trudy wrote:
>The Club made sure of that!
When I said "no direct election model has ever been put up" I meant put up
for a referendum vote. Whether this is because the system that got us to
the referendum was rigged, as I think you're saying, is beside the point to
the point I was making. If we get a direct election model to vote on (and
I'm yet to see the detail of one offered by any of the direct election
people - which is not to say they don't have one waiting in the wings) then
the point I made stands - the scare campaign will be out in force. As
below:
tim wrote:
>> which was why I made the point about the scare campaign that would be
run against a direct election model. As a number of elections have shown
recently, opinion polls even a couple of days out from a vote are not
terribly reliable.
trudy wrote:
>That may be so but the republican/direct election polls have consistently
shown the same preference for a considerable length of time now.
absolutely true, but still no guarantee that they will stay that way in the
heat of an actual campaign. My fear is that a direct election model will be
voted down on the back of an intensive scare campaign and then what do we
do? That will be two republican referendums defeated; what chance a third?
Then we will have lost the chance for even gradual change. If you think the
political/corporate club is organising things now, how much harder do you
think they'll work against a direct election model? Apart from the
monarchists (who are the real establishment) the yes case will lose many
other supporters who genuinely believe that a direct election model is a
problem (not me, I might add). It will be so easy to point out in a No
campaign that direct election will lead to a politician ending up as Prez.
Why? Because it's true! Or at least it is highly likely.
tim wrote:
>
>> I just don't see the reason for people being confident that we'd
>> get a second referendum on the question within a reasonable amount of
time and that it would get up. And I'm yet to hear anyone speculate on what
would happen if a second referendum was lost.
trudy wrote:
>
>That is a matter of personal judgement. My view is that it would be
presented again within a relatively short period of time. Whether it would
succeed or not I think would depend on whether the people are
>consulted the second time. It is also my view that the likelyhood of that
happening are far greater if Howard wasn't running the show for an outcome
he wants.
>
>> Trudy wrote:
>> >
>> >Well, the constitution certainly needs changing. It is not supposed to
be a dead document enshrined for all time but is supposed to reflect the
system of government a majority of Australians agree on. It should be
changed whenever an inequity is found. I can't see that having a
constitution that reflects the morality and worldview of a century or more
ago will necessarily reflect all those things that we have learnt since
then.
>>
tim wrote:
>> I agree with all of this, especially the last sentence.
trudy wrote:
We have a constitution that doesn't mention the Prime Minister, contains two
racist clauses just as an example. I am no legal expert but I think it would
reflect badly on us if we just left it like that in the
>> >interests of 'minimal change'.
>>
tim wrote:
>> Minimal change would be bad if that was all it was - but gradual change
is also possible. Or if you like, step-by-step change. I don't see why
that can't happen.
trudy wrote:
>
>Minimal change is what is being advertised right now. Although I >have read
that we will need 65 amendments so I don't think they are quite telling us
everything. Personally I don't care whether it happens fast or gradually.
Whatever is wrong whenever needs to be fixed.
Most of the changes are to do with replacing the word Queen/governor general
with President. But I agree, this is not really minimal change, though I
dispute that we are not being told everything. The legislation is there to
read and so are a vast array of commentaries and opinions.
Trudy wrote:
>>
>> The US updates it's constitution on an ongoing basis and it hasn't
collapsed >> >in a heap yet.
tim wrote:
>>
>> I'm not sure how true this is. For instance, the second ammendment on
the right to bear arms has proved absolutely impossible to change despite
constant polls that show people want it to change
trudy wrote:
>That is because it doesn't need to be changed. It doesn't give the right to
bear arms to every citizen but only to a citizen militia in times of need.
>It's not the constitution that needs changing but the power of the NRA.
I thought this was the case too, but it isn't true. The idea that the 2nd
ammendment is about the right to be armed within a militia as opposed to as
an individual citizen is not supported by virtually any current legal
opinion in the US. I only know this because I happen to a have read a few
things about it recently, including a brilliant article by Daniel Lazare who
wrote a book called The Frozen Republic: How the Constitution is Paralyzing
Democracy. He quotes chapter and verse of the historical and current
interpretation of the 2nd and it is clear beyond a shadow of a doubt that it
bestows the right to bear arms on the individual. I'll just quote a little
to show the (to me surprising) extent to which this "individualist"
interpretation has grown recently. Lazare writes: "Although the Supreme
Court has not ruled on the Second Amendment since the 1930s, it has
repeatedly upheld gun control measures. But there is evidence that judicial
sentiment is beginning to take heed of the academic change of heart. Two
years ago, Supreme Court Justice Clarence Thomas indicated that he thought
it was time to rethink the Second Amendment; Justice Antonin Scalia
apparently thinks so as well. Then, just this past April, two weeks before
Eric Harris and Dylan Klebold shot up Columbine High School, a federal judge
in a Texas gun case issued a ruling so enthusiastically "individualist" that
it was virtually a brief in favor of what is now known in academic circles
as the "Standard Model" of the Second Amendment. "The plain language of the
amendment," declared Judge Sam R. Cummings, "shows that the function of the
subordinate clause [i.e., the portion referring to a well-regulated militia]
was not to qualify the right [to keep and bear arms], but instead to show
why it must be protected." Rather than mutually exclusive, the collective
right to join a state militia and the individual right to own a gun are,
according to Cummings, mutually reinforcing. Although anti-gun groups
predicted that the decision would soon be overturned, it is clear that a
purely collectivist reading is becoming harder and harder to defend; the
individualist interpretation, harder and harder to deny."
As to how easy it is in the US to change the constitution: it takes a 2/3
majority of both houses plus three quarters of the states to, as Lazare puts
it 'change so much as a comma'. So "as few as thirteen states -
representing...as little as 4.5 percent of the total US population - would
be sufficient to block any change." His conclusion, at least about the 2nd
is that "we the people" are "powerless" to change it.
The overall point I'm making - and it doesn't really contradict anything
Trudy has said - is that a bill of rights is no panacea. I'd like to see us
have one, but I would still like to see parliament retain the final power of
ammendment. That way we are less likely to have the impass described by
Lazare over the 2nd.
So I just hope that, however the referendum goes, we get an ongoing chance
to look at constitutional issues. In the meantime I'll vote yes to break
the British monarch nexus and deal with other matters after that - and
hopefully sooner rather than later.
Tim
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