Time to Open the War Cabinet

Assuming you agree a new Constitution could be a good thing, it’s worth asking what rules you would like to see relating to military action.

Under our current system, there is nothing terribly democratic about the decision making process. Cabinet can pretty much do what it likes.

 

Anything from any government that mentions military action has to be a cause for concern.

The discussion draft of a new Australian Constitution proposes we establish an emergency council, and allow for 3 types of situation:

·         Emergencies like bushfires

·         Definite attacks on Australia

·         Australia taking military action overseas

It tries to strike a balance between the reality that sometimes we need to make quick decisions, and the desirability of robust debate before making a military commitment.

The directly relevant sections of the draft are Sections 34 to 37 [Emergency Council]. S99 has something to say about Displaced Persons, Asylum Seekers and Refugees.

Your input is needed! A new constitution will only be adopted if it promises a better democracy. The draft does not say we must not go to war, nor does it say we should – the focus is on how the decision should be made.

 

It doesn’t matter whether you agree or disagree with me about how best to combat terrorism, or when military action is or is not justified.

Do you think Australia’s navy should be used to turn back asylum seeker boats? Whether you agree or disagree, how well do you think the draft provides for a democratic decision-making process?

You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.

 

Constitution's Treatment of Indigenous Australians Criminal

The Tony Abbott Memes just keep on coming. When another appeared yesterday I had a chuckle but felt, yet again, that while the laughs are cathartic they are also dangerous. Are we becoming too comfortable with the notion of powerlessness; with accepting there is nothing we can do but laugh?

  
The current government is not the first to let Indigenous Australians down and, sadly, probably won’t be the last.
We can blame politicians and change how we vote every 3 years, but many of Australia’s problems are systemic -so far simply voting differently is not proving a great strategy.

There is stuff Federal Governments could do, but there is a lot of stuff they can’t. Quite simply, Our Current Constitution gives States and Territories the power to make their own Criminal Laws.

ABS Imprisonment figures 2007 Population figures 2006

 

WA’s “three strikes law” is a Western Australian law. Those of us who don’t think a kid belongs in jail for stealing biscuits but don’t live in WA can’t do much except protest.

[If I’m right, WA Judges are also currently forbidden to adjust sentences if an Aboriginal person has already been subjected to a traditional punishment.]

The NT law that allows for paperless arrests is a Northern Territory law. Does the Northern Territory Government care what this Victorian thinks? Probably not much.

 

Charlie Pickering mentioned the CNS above – a NSW initiative that has helped prevent deaths in custody. Victoria has dedicated Koori [Magistrate] Courts that have had a positive impact on youth recidivism rates.

Does not look like one country with one set of decent values from where I sit.

 

It could be argued that the Federal Government could find ways to exert pressure on the States to lift their game. I would argue instead that this would take much longer than Indigenous people can afford.

Arguing that Federal governments should intervene is a federalist solution. It amounts in the long run to what I keep proposing anyway – take State Governments out of the equation altogether. Why don’t we just get on with it now, and do it effectively?

 

The discussion draft of a new, more democratic constitution has a bit to say, both directly and indirectly, about Indigenous Australia. [There’s probably more that it should say, but discussion is always invited].

With respect to Indigenous Justice, some key points in the draft are:

S90  - Procedural Fairness

b)    In Indigenous communities where there is limited knowledge of Standard English or understanding of concepts of Australian law;

1.    provide continuity of legal representation;

2.    provide, if necessary to ensure equitable sentencing of Indigenous Australians, culturally appropriate sentences consistent with the aims described under Section 103 a) of this New Australian Constitution Act;

3.    regularly review the legal needs of various communities and the implications of those needs for equitable judgments

 

S101 – Rights of Australian Citizens

The usual e.g. Freedom from disproportionate punishment, presumption of innocence, right to representation, etc

 

S103 [Probably the wrong spot to put this, but at least it’s there]

a)    the right to liberty and freedom may be vitiated where a citizen has been convicted of a crime and a sentence restricting liberty will assist in one or more of

1.    the protection and safety of the public

2.    proportionate punishment of the guilty party

3.    providing a deterrent to the commission of crime

4.    the rehabilitation of the guilty party

In other words, there are reasons for locking people up – being black or making the streets look tidy for tourists are not among them.

Until we have one clear, commonly accepted set of standards, systemic racism will remain a key feature of our "justice" system.

 

Common Decent Law

The overall thrust of the draft is to take the law back from governments who know they are omnipotent, and provide a clear contract that will make them accountable. We need a shift from over-regulation to common sense and a common law notion of what is reasonable.

And should some directly elected President think it’s okay to approve a law putting some kid in jail for stealing biscuits, the people would have the power to demand real change.  

 

You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.

 

*More Info

WA three strikes law

Koori courts

Aboriginal English in the Courts ISBN 0-7242-8071-5

 

 

 

Which Way Do We Turn?

 

The discussion draft for a new, more democratic Australian constitution is built on three main ideas

1.   The parliament will still be elected by voters, but with clearly defined obligations to the people, and limits on power [a contract enforceable by law]

2.   A President will be directly elected by ALL Australians, to be the public face of Australia, and will have some power to veto bad laws or to influence the Parliament

3.   The people will have the right to Petition the President, and to have that petition taken seriously.

The people’s right to Petition the President in this draft is built on an already popular idea - that government should give voters a bigger say on important issues – a right to demand referenda, opinion polls or plebiscites.*

 

 

A major defect of a two or three party system is that we are more or less forced to choose a bundle of policies, and take the good policies with the bad.

If, for example, I want to vote against current asylum seeker problems but in favour of equal marriage laws, it looks like neither of the two major parties is going to cut the mustard at the next election.

The discussion draft tries to strike a balance between giving people a say on what specific or individual policies should be, and leaving the job of implementing those policies to the government.

How Petitions Currently Work

Currently, petitions have some sway but no legal power, and signatures are not necessarily collected in any strictly controlled way.

Voting and Referenda [in Australia, a Plebiscite unless we are talking about a change to the actual constitution] can be expensive. The Abbott Government has recently used the expense of a public vote as a rather poor excuse to ignore the issue of same-sex marriages.

How Petitions Could Work

S50 a) of the draft makes voter registration more secure, makes it easier to check whether someone has the right to sign a petition, and prevents people from signing more than once. Every signature would then have legal weight.

102 – The Right to Petition the President

a)   Where the People present a Petition to the President for change and that Petition is in the proper form, The Australian Electoral Commission shall measure the level of support for the petition.

b)   Where it is shown that support exceeds 35 percent of the number of registered voters, the President shall

1.   Address the people with his thoughts on that matter and

                                                 i.    Encourage policy changes in the Parliament or

                                                ii.    direct the Australian Electoral Commission to prepare papers putting related questions to the people at the next Australia-wide election.

How Much Petition Power People Would Have

The legislative process in the draft has checks and balances built in: Because The President is not bound by Ministry or Caucus politics, he has a chance to return legislation for review. This gives “the people” time to actually protest.

The President is required to respond to big petitions.

If the President agrees with Parliament against the wishes of the people, the decision is delayed until the next election. End of story.
Want to stop fracking through the Artesian Basin? Done with a binding petition.
Want to stop the President signing the TPP? Done with a binding petition.

Under the draft Constitution, we would have one big election day, every two years, on a fixed date. This takes care of all the polling for Presidents, Parliaments, and Local Governments.

It would cost little extra in money terms and require no extra “voting days” – to canvas public opinion more frequently on a bigger range of issues, as well as deal with Petition matters. It’s almost stupid to not make the most of election days.

In some direct democracy systems [see * below], people go to the polls as often as every 3 months. I think this would be overkill. We are more likely to be intent on stopping something bad than voting for some little detail. This draft just focuses on more power over policy - not detail.

 

What do you think would be an appropriate number of signatures for a petition to have some kind of binding power – at the very least, to poll people’s opinions while we are at the polls?

 

 

You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.

 

* To read more about people-power systems: 

Citizen Initiated Referenda

eDemocracy in Australia

Direct Democracy

 

 

 

The High Cost of Truth

 

IFF we had a brand new Constitution and IF it contained a Bill of Rights, what would be the best way to deal with freedom of speech?

Political correctness

The Discussion Draft of a New Australian Constitution Includes a List of Rights and a List of Obligations that go with them. The lists try to find a balance between the need for open-ness in debate, and the need to live in a world that is not overly abusive. Political correctness has a role to play in questioning sometimes defective assumptions or stereotypes, but when does political correctness become censorship?

 

 

 

Defamation

A big issue is the issue of defamation: Most of us rely heavily on others for important information - the truth. The high cost of being sued can be a deterrent that also acts as censorship.

In 2005 each state passed similar defamation acts, in order to create what passes for Uniform Australian law.

In Australia, as in the UK, to claim truth as a defence, the person being sued for defamation must prove that every part of the material published is substantially true.

In the USA the reverse applies – the burden of proof is on the person suing someone else for defamation.

Should the burden of proof remain with the defendant in Australia?

 

 

Going to court is an expensive business for anyone – when publishers bear the burden of proof, they routinely decide not to publish it at all, or publish first then quickly settle out of court later – with an apology that suggests the truth was a lie.

 

In addition, American law requires a plaintiff who is a public figure… to prove that the defendant published the offending statement with knowledge that it was false or in reckless disregard of its truth…

In Britain, an editor or writer who makes every effort to check a statement for accuracy but makes an innocent mistake can be successfully sued for libel.*

 

Anthony Lewis, Introduction History on Trial by Deborah Lipstadt

 

In 1996, David Irving sued both Penguin UK and author Deborah Lipstadt for libel on the grounds he had been falsely labelled a Holocaust denier, falsely accused of falsifying evidence or deliberately misinterpreting it, by which false accusations his reputation as an historian was defamed.

Both Penguin and Lipstadt spent 5 years preparing a defence and fighting the suits. As well as legal representation, they had to fork out for experts to spend 2 years or more examining the evidence Irving was accused of falsifying or manipulating. Lipstadt’s initial quote for simply preparing to fight – which included a great deal of pro bono work – was 1.6 million British Pounds. On top of that she lost a great deal of income over the 5 years, and had to spend money travelling to the UK and living there for months.

 

 

While we might think the world has gone a little mad with rules because everyone is frightened of being sued, it’s not quite the problem here that it is in the USA where people are sometimes awarded millions for being served a dodgy burger.

In the USA the amount of damages is decided by jury, whereas under the UK system it is decided by the Judge.

Even so, the costs Lipstadt might have had to pay had she lost were phenomenal; the royalties from her book Denying the Holocaust had already been donated to charity.

Whistleblowers

The draft discussion also offers protection to bona fide whistleblowers.

At the one extreme we have, as an example, Wikileaks, where anything and everything might be revealed.

At another extreme, we have a situation where medical professionals are at risk of being jailed for talking about what happens in detention centres.

 

 

A reasonable middle ground might be a situation where people are entitled to reveal the truth if it is going to save lives and the only thing at risk is the reputation of a questionable government.

101 and 103 are the main clauses of the draft relevant to this discussion, though 85, 86 and others are also indirectly relevant. You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.

 

 

 

 

Who Would Want Their Home in Such a Sorry State?

 

Proposals to mine coal seam gas under the Great Artesian Basin illustrate an inescapable truth: What happens in or is decided in one state invariably affects other states.

 

 

Australia belongs to Australians. The Great Artesian Basin belongs to Australians – not to New South Welshmen alone, or Queenslanders alone, or South Australians or Northern Territorians alone – but to ALL Australians.

One passport. One currency. One Nationality.

With modern transport and digital communication technologies, there is no compelling reason for a population of around 25 million to support 7 State and Territory Governments. There are, however, many compelling reasons to abolish State Governments.

Our original Constitution was designed to guard State Rights. It was expected the Federal Government would not collect a great deal in taxes to fulfil its limited obligations: It was expected States would probably have to subsidise the Federal Government, not beg the Federal government for handouts.

So how did we come to have a system where The Federal Government pulls most of the purse strings, and where we not only have a Minister for Education, a Minister for Employment or a Minister for Health in each State and Territory, but we have an 8^th Minister for many portfolios at a Federal Level?

A simplistic answer is that during World War II States handed income tax collection powers to the Federal Government.*

This change, undreamt of by those who put the first Constitution together, has been an enormous disaster. The Federal Government, through Section 96, now has disproportionate control over how much States get and what the States might do with their share.

One passport. One currency. One Country.

8 Ministers for Education. 8 Ministers for Health. 8 Ministers for Employment.

8 Parliaments. 8 times a lot of expense is more than makes sense.

When something goes wrong in a State Health System, the State Minister and the Federal Minister can often be seen pointing a finger of blame at each other.

 

 

Same with Education.

8 Parliaments, 8 times the expense, no accountability.

Why Not:
1 Nationality, 1 Parliament, 1/8^th the expense, and ONE Minister with no other government to blame for mistakes?

We worry about who donates how much to different parties at election time, but it is the Federal Government itself that holds the biggest slush fund to buy votes. A Federal leader promises billions for a road – but if a different party wins a state election, the money stays in the federal slush fund.

OUR money.

 

 

 

The worst thing, though, is that not all Australians have a chance to act on things that will affect all Australians.

Mining offers a great example of how this mess makes fewer people accountable to the people.

The stuff people mine belongs to the state where it is mined. The state gets taxes in the form of Royalties.

The Environment belongs to all Australians. The Federal government recently gave the power to make some environmental decisions to the Queensland Government. If the indirect result of mining in Queensland is destruction of the Barrier Reef, who should we hold accountable? How? How long will it take? Do we have the power to prevent disaster, or can we only complain after it’s too late?

If someone in Victoria, or NSW or WA wants to protect the Barrier Reef, who will the Queensland Government listen to? If not their own good conscience, then only the people of Queensland.

Next to Antarctica, Australia is the driest continent on Earth. And somebody is planning – with a high prospect of success – to drill fracking holes deeper than our best water supply, and poison the Great Artesian Basin in Qld, NSW, the NT and SA.

Forget the fact that people surrender power reluctantly. We MUST join together and withdraw consent for the existence of State Governments. State Politicians might squeal a short while, but business people won’t care if it eliminates a whole layer of bureaucratic obstacles from their path.

With a saner, new Constitution that provides for

• direct election of a President,
• a solid system of checks and balances on power,
• the elimination of State Governments and
• an enhanced power for people to petition the President,

all Australians can have a truly meaningful say on things affecting all Australians.

And we’ll save a bucket-load of money in the process.

 

The draft begins with a preamble saying, amongst other things, we value the earth that sustains us. It abolishes states. At S83 it makes clear that Government are custodians of the environment, and requires public discussion before plans can be made that compromise our national heritage. You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.

 

 

*Tax:

 

In 1942 the federal government introduced legislation that increased the federal government income tax rates to raise more revenue. The legislation provided for reimbursement grants to the states provided that they ceased to levy their own income taxes. Although a state could legally continue to impose its income tax, doing so would impose an increased burden on its residents and also disqualify that state from receiving federal government grants. In practice, this prevented the states from continuing to levy their own income taxes. The uniform taxation arrangements were initially only meant to apply for the duration of the Second World War and one year thereafter. At the end of the War, the states sought to regain their income taxing powers but were unsuccessful.

**For more about water:

 

 

 

 

Government Mocks Prayer!

 

There is a whole swag of people and groups in psychospace clamouring for secularism. A logical part of this would be to stop Australia’s elected “representatives” saying The Lord’s Prayer before each sitting day in Parliament.

As an atheist, even I find it a little insulting to true believers that these people recite the prayer and then proceed to act in such a shameful fashion – hurling insults, bullying each other, and competing to see which of them can sink lowest when it comes to inhumane or dehumanising policies.

“God” – whatever that means to an individual – cops the blame quite unfairly for the things people do when they do not want to accept responsibility for their own actions.

 

 

Here’s what the Discussion Draft of the New Constitution has to say on the topic of Religion, directly and indirectly:

91 – Religion

No Australian Government or its delegated authorities shall:

a)    subsidise a religious organisation beyond compensation for approved secular and charitable works

b)    subsidise the promotion or practice of a particular religion

c)    subsidise that portion of an organisation’s budget dedicated to instruction in a particular religion’s beliefs and practices beyond that appropriate to teaching a curriculum of broad general knowledge, or a course of a secular nature.

101 – Rights of Australian Citizens

Australian Citizens have a moral and legal right

a)    …

b)     

c)     

d)     

e)    to express reasonable opinion or belief of fact

f)     to hold, discuss or reject religious beliefs

g)     

h)    to freedom from inferior treatment based solely on

1.     

2.    race, ethnicity or culture,

3.    gender or gender identity,

4.     

5.    sexual identity,

6.    marital status,

7.    religion,

 

103 - Limitations of Rights of Australian Citizens

The legal guarantee of a right carrying with it moral obligations, the rights of Australian Citizens are limited as follows;

a)    the

b)    the right to freedom of assembly, protest, or expression of opinion shall not include the right to

1.    knowingly promote hatred of members of a group rather than abhorrence of specific behaviours or beliefs; or

2.    incite the commission of a crime of violence against person or property; or

3.     

c)    

 

d)    Section 103 c) does not limit the right of bona fide whistleblowers to speak, nor does it grant the right to punish whistleblowers.

e)    the right to freedom from discrimination

1.    shall not include the right to inflict psychosocial or physical violence on persons;

2.    shall not justify a lesser standard for the treatment of animals than that held by the community at large

3.     

4.    shall not justify non-compliance with reasonable health and safety or security requirements;

5.    shall not exempt any person from providing clear and transparent personal identification for purposes including but not limited to

a.    health and safety

b.    administration of Australian law

6.     

7.    should not impose an unreasonable burden on any other citizen, natural or incorporated;

8.     

9.     

10.  

11. shall not provide grounds for exempting any organisation or citizen, natural or incorporated, from complying with the provisions of Australian Taxation Law;

 

There is a further requirement in the draft that The Lord’s Prayer be replaced with the Preamble of the New Constitution.

Ideally, the Preamble people finally approve will be a statement of values upon which Parliamentarians might ponder before they get down to business.

 

 

 

There is a great deal we might say about getting a whole new constitution off the ground, but for this post it would be great to get feedback about what’s wrong, missing or simply okay about the topic of religion.

 

Thanks for dropping in!

 

 

You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.