cam : As a note: I have described the difference between English Constitutionalism and American Constitutionalism before.

In the context of this article the use of Whig doctrine is analogous to English Constitutionalism and Republican doctrine to American Constitutionalism. Whig doctrine is based in popular sovereignty, while American Republicanism is based in fundamental law (natural rights). It is the innovation beyond Whigism which Jefferson was a major part, however, his doctrine of higher obligation was in opposition to Madison's republicanism.

It is also interesting to note that historians which criticise Jefferson's presidency tend to do so with a Madisonian view of executive power, rather than Jefferson's view of executive legitimacy for action through popular sovereignty and higher obligation. Jefferson's presidency becomes more consistent under this doctrine.

dlatimer : Copernican Paradigm resolves the issue: It is great to mark the wise words of Thomas Jefferson, however it does not get to the heart of the matter facing the Australian people.

There is no doubt that Australians are very interested in having their own Head of State, and do realise that constitutional change is necessary to do this.

The problem is what model to present. The bi-partisan appointment model failed because the parliament would be choosing the Head of State, when at the moment they do not select the Queen. Elect-the-GG models have not got anywhere because it does not take much to show the difficulties with that approach: reserve powers! mandate! a semi-political position!

But these models merely copy the systems found in other countries. The proper approach is to set the objectives for a model, and these are clear enough - a ceremonial Head of State, elected by the people, an apolitical position.

For Turnbull and too many republicans, these objectives were contradiction. If we elected the President, the President would ipso facto be a politician. But that result is due to an assumption that the Governor-General shall be promoted to Head of State.

The objectives can be readily achieved by replacing the Queen with an elected Head of State with no real executive power and leaving the Governor-General and State Governors alone. (see Copernican Paradigm http://copernican.info )

When the Australian people see that republicans understand what the people want is not a contradiction, then the movement will succeed.

cam : The copernican model doesnt address: other constitutional issues though. It is a minimal model that seeks to change the constitution as little as possible while appeal to both the political elite and people.

There is a vertical fiscal imbalance that largely exists due to high court decisions rather than an explicit constitution. The federal government also has adopted many responsibilities which do not match an explicit reading of the constitution.

There is also the issue of a bill of rights, which is a constitutional one. The Copernican model doesn\'t address that either.

That isn\'t a criticism, there are republicans who prefer a smaller model and would rather have those issues decided in statutory legislation.

One of the purposes of SSR is to create a wider republican doctrine or philosophy that is unique to the Australian circumstance. To build off the likes of Madison, Jefferson, Harpur, Deniehy; and even Turnbull.

These discussions have been going on for a while now, following on from k5 to here. And it seems we keep coming back to wider constitutional issues.

As soon as the Australian Constitution is focused on, flaws and gaps in it appear. Jefferson said;

They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.

The trouble with the Au constitution is that it is a pretty poor document. It is also hard to change by referendum. It is effectively shutting out future generation\'s and their ability to modernise the constitution to reflect the \'Australian Creed\'.

cam

dlatimer : Copernican Model is a framework for all issues: It is incorrect to say the Copernican Model does not address a Bill of Rights, unless the objective is to adopt forms of liberty found in other nations.

One year ago, I would have said the issues are separate. After all, Canada has a Bill of Rights. One cannot establish a republic in which there is no mechanism for replacing the Queen. And wholesale rewriting of the constitution is unrealistic and change will only occur in steps.

However, the contribution of Prof John Power has been very influential. A Bill of Rights on paper is only as useful as the integrity of the governmental structure protecting those rights. Witness the current struggle in the US.

In http://www.7gs.com/copernican/?p=32, Prof Power has said that historically, the monarchy served as a potent symbol of the public interest, and that as the monarchy wanes, other institutions to enforce integrity have proliferated eg ombudsmen, ICAC ect...

The relationship between the actual government decision makers (eg the PM) and the state is critical in maintaining those rights we currently have, yet alone creating a society in which our rights could be expanded and/or further respected.

Professor Power has used the Copernican paradigm to recast the very apex of government in order to protect our existing rights and promote good government. This is an Australian innovation. Most importantly, it\'s a practicable, achievable reform, with quite specific provisions and objectives.

In conclusion there is far more to the paradigm, than you may be aware. If the ideas of an expanded liberty are ever to take root in reality, it shall take place in a Copernican framework where executive power is held separately from those who exercise it and separate again from those who direct its use.

(Read John Power\'s article here: http://www.7gs.com/copernican/?p=32 )

cam : Constitution\'s get rewritten all the time: Canada rewrote its in the 1980s, Queensland did in 2001. Ourselves, the US and Switzerland are probably the anomolies who have static ones, but even there, the Swiss one is pretty fluid.

Many nations are less than fifty years old, and even ones that arent, like Germany and Japan, have had radical rewrites after World War II.

I recall reading somewhere that something like 80% of national flags are under fifty years old. We just make it, as our flag is 53 years old.

The integrity branch sounds like the GG as rights referee which has appeared here as well. Which is a good role for someone outside of the political process as a non-separate executive form of government would have.

If the ideas of an expanded liberty are ever to take root in reality, it shall take place in a Copernican framework where executive power is held separately from those who exercise it and separate again from those who direct its use.

You have confused me here. The copernican model leaves the executive in the legislative as the Prime Minister right? And replaces the Queen with an elected head of state?

It doesn\'t separate executive power from legislative power. It still remains a Westminster system.

cam

dlatimer : Rewrite? What for?: \"Rewriting the constitution\" is as relevant as saying you\'ll use a word processor to do it. A rewrite of a constitution is done when there is reason to modify so many sections it is worth rewriting. Where are those numerous sections that must be replaced?

In Canada, the British North America Act was modified (without referenda) to meet certain desirable objectives under a concept termed \"patriation\". The Australia Act of 1986 was our equivilant legislative response.

Japan and Germany were fascist states defeated by the allies ending WWII. The objective was to create a liberal democratic state (or a communist one in the case of East Germany.) Not exactly a case for Australia to rewrite its constitution.

Queensland did not actually rewrite their constitution as I mentioned in another post.

dlatimer : Prof Power\'s Proposal - more info: Under Professor Power\'s proposal, the Head of State has the responsibility of reporting to the nation as to the integrity and capacity of the various Executive Councils. The Council of State would be the monitoring institution.

It is the most effective reform one could imagine for a republic as it is not heavy handed, flexible, decidedly apolitical, progressive and would prevent ministers from being above the law.

Consider how a Bill of Rights would be enforced. At the regulatory and executive order level, the Governor\'s role could be crucial. Otherwise, it is left to the courts. Bad decisions are resolved after months or years and a legal bill which only the rich or big corporations can pay. This is the Bill of Rights that Australians fear.

My comment you found confusing, let me expand: Under the paradigm, executive power is held by the Head of State, separate from the Governors who exercise it, and separate again from the Ministers who direct its use.

The philosophical cues are from Rousseau. Nevertheless, as one cannot effectively use Montesquieu to critique the Westminister System - that would be to adopt the formula without understanding its basis. Anyway, people say our legislature is beholden to the executive, but I have thought of it as the other way around. The Prime Minister is firstly a parliamentarian.

Let\'s get back to putting real proposals forward which state the objectives, which are supported in the general will of the people. That\'s what the Copernican Paradigm does. In fact, in order to get a Bill of Rights politically, one would need to adopt the paradigm in a progressive form, as found in Professor Power\'s proposal for a Council of State, so that these rights would manifest themselves directly in the executive rather than in judicial review.

cam : The all used up constitution:

Queensland did not actually rewrite their constitution as I mentioned in another post.

Yeh they did. They didn\'t have a formal constitution prior to 2001, just the standard grab-bag collection of acts and statutes that are only called a constitution under Westminster systems.

I looked at Queensland in detail in January 2005; Focus on Queensland . It lists some of the twenty-seven acts that were collapsed into a formal constitution.

Canada did a similar thing in the 80s. They had several acts, including ones of British origin that were replaced with a formal written constitution.

Japan and Germany were fascist states

Germany came from the Weimar Republic which fell into a state of emergency from which it never came out of. It was a liberal democratic state before executive decree replaced it. The Japanese Meiji Constitution mimicked Westminster government, right down to a House of Lords and Privy Council. It could be argued the military held control over the Diet by the Emperor being the Chief of the Armed Services.

A rewrite of a constitution is done when there is reason to modify so many sections it is worth rewriting.

There are numerous problems with the Australian Constitution and to add to it, the High Court have excaserbated the problem by moving the meaning of its words away from an explicit reading. That is why I was quoting Turnbull and Jefferson in the article. They said similar things.

Excise, corporations power, tied grants, not to mention the reserve powers, the implied position of the prime minister, the lack of separation of powers, no bill of rights etc etc.

Plus it is too hard to modify. Where a constitution is supposed to meet the liberty demands of each generation; ours is a stagnant anachronism that is showing it flaws, age and prejudices.

It does need a rewrite into a modern document matching modern principles of liberty, government and politics.

cam

cam : a bill of rights is to stop tyranny: and arbitrary government. Especially executive government. It is a sphere of liberty that government cannot trespass on. It is also the basis for the contract by which people agree to be governed.

For instance no-one would rationally submit to executive authority unless there was a writ of habeous corpeous. Otherwise an individual is such as well off being in a state of nature; as in both system the individual is suffering under the arbitrary will of another - which is tyranny.

Another example is the halting of discrimination against an individual for their skin colour or religious beliefs. Again, if an individual were to suffer under such a tyrannous system then they may as well be in a state of nature.

Arbitrary government is ultimately destructive and a bill of rights place an explicit and easily identifiable limit on legislative and executive government.

It also gives people a means to appeal to the judicial when the executive and legislative have crossed it. Especially now that executive decree is becoming the standard form of government in liberal democracy.

The Prime Minister is firstly a parliamentarian.

I don\'t agree with that. The PM is a hidden and informal executive who carries the full power of the executive, heads the executive cabinet and advises the GG.

The problem with a parliamentary system is that the executive can make a tyrannous law, and as a legislator have it passed and funded, then as executive put that tyrannous law into action. The only buffer against that is a bill of rights and the judicial.

The embedding of the executive in the legislative is a hack, or a persistent bug, that is left over from when the British Parliament tried to neuter the executive power of the King but weren\'t strong enough to remove the King entirely.

Nations that don\'t have to take a monarch into account as a ceremonial figure separate out the executive.

cam

avocadia : Why?: Forgive me if I appear naive, but what on earth is the problem with having a Head of State with executive power? One who also happens to be a politician? Or is the problem just that we don\'t think the Australian people will go with a change to the role of PM?

dlatimer : A Head of State with no executive power: The easy and simple answer is that such a model will be defeated at referendum. The No case will stress the similarity with the either the French or American System, where the Head of State is a politician and the No case will prevail.

The concept Australians have in mind is an apolitical Head of State. The fundamental strengh of the status quo is that the Queen is apolitical.

Allowing the Head of State to become a political prize is what Australians most fear in a republic. In the bi-partisan apointment model, the fear was that the politicians would reward one of their own. In an elect-the-GG model, the fear would be a Liberal-Labor contest.

dlatimer : Wrong about Queensland: I checked again and I am wrong about Queensland. I read the new \"Queensland Constitution\" and saw the old \"Constitution Act\" was still in force and they did not call a referendum. What I did not realise was that they gutted the old Act, so most of it could be said to be rewritten. The main reason for the Queensland Constitution was to consolidate the various acts. This reason is not applicable to the Australian Constitution.

On the other points, I believe you are underestimating the dislike the allies had for the Nazi party and the Japanese military government. Perhaps the new Iraqi constitution is an example! It is not the written constitutions of those nations which are responsible for history. Interestingly Austria restored its old constitution after the war and Finland kept the same constitution throughout.

Keep in mind, the complaints you mention about the Australian constitution are considered attributes by others. But let\'s assuming that the people accept these as problems. The solution is not a rewrite, but actual solutions.

Finally, section 128 is not to blame for the difficulty in changing the constitution. As they say, the voters are always right.

dlatimer : Australian system of justice: There is no obvious argument of saying arbitary justice is acceptable in Australia. I do not believe Australians feel they live under tyranny more than any other liberal democratic nation. You would use these arguments against a fascist or a Stalinist, because there is a fundamental problem with such beliefs.

\"The PM is a hidden and informal executive\". Is that a Project Manager or Post Master, because it is not a description of any Prime Minister.

Parliamentary government is a common form of constitutional arrangment, even for republics: Portugal, Austria, Greece, Turkey, India, Israel, Ireland, Germany, Poland, Singapore, Italy, Hungary, Finland and many others.

Broadbrush excuses for the wholesale replacement of the constitution and system of government are unlikely to get even a few percent of any referendum vote. Presidential or radical systems of government are consistantly rejected in surveys.

I support what people support: a non-executive, apolitical Head of State, who cannot directly exercise the authority they hold. Those interested in supporting legal rights should be championing a republic where there are impartial Governors formally exercising the power of government, so it can be in conformity of such rights.

Fighting for a Presidential System is to be taken out of the fight for a Bill of Rights altogether.

avocadia : Referendum:

A Powerless Head of State will - and has - lost at referendum because it is the status quo. The No case will stress that the model is indistinguishable from the status quo and say \"If you don\'t know, just vote No\". In my experience, people who don\'t have a dog in the fight, that is those who don\'t think about the political structure of Australia very often, voted No last time because the Yes vote entailed a very expensive way of having no change at all.

In an elect-the-GG model, the fear would be a Liberal-Labor contest

Well, at the very least you should be applauded for swimming against the current of conventional wisdom, that the last referendum failed because the model entailed the people having no say on the occupant of Yarralumla.

dlatimer : Australians want an elected Head of State: The 1999 referendum was not decided on the issue of whether Australia should have a powerless Head of State. Under proposed section 59, the bi-partisan appointment model handed the reserve powers to the President. It established a Head of State with actual power, where the current Head of State (the Queen) is powerless.

If anything, the 1999 referendum was about abandoning the notion of a powerless Head of State.

Looking into the 1999 NO case, the 10 reasons were: Instant dismissal; Parliamentary Appointment; Ain\'t broke; 69 untried changes; Divisive/Republicans divided; Australia already independent; Not beneficial; A job for life; No secret deals; Job for former MP\'s. In the NO case, at best, the powers of the President where indirectly referred to under reason 1: \"An umpire needs to be independent\" however this was about retaining the existing powers of the GG. In survey after survey, the GG\'s existing powers are regarding as sufficient by the majority.

The crucial issue for voters is establishing a Head of State who is elected by the people. In contrast to your post, a model which provides an elected Head of State is markedly distinguished from and superior to the status quo.

Using the words \"no change at all\" is an exageration for any republican model. Even the McGarvie Model represents profound change. That now said, I do want to elect our Head of State (change). I do want the Head of State able to support and benefit Australia (more change). I do want a Head of State who is independent of the PM (even more change).

The Copernican Group does go against the grain, because it recognises the Queen as the current Head of State of Australia, not the occupant of Yarralumla.

We are replacing the Queen. The Head of State is the Queen. Australia\'s links to the UK are through the Queen. Australia is a monarchy because of the... Queen. In a republic there is no...?