At 11:22 AM 22/10/99, Trudy and Rod Bray wrote:
>tdunlop wrote:
>
>> I actually sort of disagree, Trudy; that is, I'm still thinking it through.
>>
>> A bill of rights, although it enshrines certain rights as inalienable, also
>> puts the power to decide any given case within the legal system, that is, by
>> a group of unelected judges. In other words, it takes such questions out of
>> the political system where at least the politicians are elected by people
>> and gives it to unelected judges. So while I'd like to see a document of
>> rights, I'd prefer (I think) to see its jurisdiction remain within the
>> parliament, perhaps under the control of a Senate committee.
>
>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.
Yes, BUT.... If a highly codified system had been in place then Mabo would
not have been possible! It was the late Ron Castan's common law arguments
which won the day. It would simply not have been politically possible to
get legislation equating to the original Mabo decision created by the
Australian parliament at any time in my lifetime.
I tend to share Tim's reservations about excessive codification. Such
processes today tend to favour those who already possess power, rather than
those who have little access to it. The Native Title Act provides a good
example. For the most part the codification involved in the Native Title
Act now results in a reduction of common law rights. Codified systems are
very susceptible to the political whims of the day. Sure, you can get a
"good" document on occasion, but you can also end up with a real doozy (I
wonder how many less US citizens - largely wives and children - would have
lived much longer lives if the "right to bear arms" wasn't enshrined in
the US document!). As Susanne Martin points out in another post the
existence of the Bill of Rights in the US doesn't seem to have had any
substantial benefit in terms of social equity when compared to the
Australian system.
I tend to agree with you about Judges though. If Judges were elected then I
fear we would have far more of the Callaghan ilk and far less like Toohey,
Deane and Kirby. On the other hand we have had some shockers through the
current process as well. It was their comparative freedom from the dictates
of popular politics that enabled Mabo.
>
>> As to this PM and a republic - well, a PM with his own agenda has the power
>> now to appoint whoever he wants - no holds barred. Howard could install a
>> mate and is probably inclined and sneaky enough to do it. At least under
>> the system proposed in the referendum, he would be constrained by needing a
>> two-thirds majority of the parliament, so it's an improvement in that sense.
>
>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'.
Mmm. I haven't heard it suggested that the passage of the referendum would
affect the existing conventions of government and law.
>
>> If the President was popularly elected, I don't really see how it wouldn't
>> just turn it into a political office, with the parties running candidates
>> and thus opening the way for a President with his/her own agenda. A John
>> Howard, it seems to me, is more likely to elected to President than be
>> appointed by two-thirds of the parliament. And a John Howard is more of a
>> threat under the current system.
>
>I find the argument of 'turning it into a political office' quite strange
>since every public interaction is
>political to some degree. 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.
>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.
Well I don't think I'm an authoritarian but I think there are very good
reasons for being afraid of the "democracy" in many situations,
particularly where the rights of minorities are concerned. If the
"peoples'" voice had prevailed in the Myall Creek Massacre trials in NSW in
1836 everyone would have got off, probably with a knighthood and a new gun
thrown in for good measure! There are many times when the rights of
minorities or of the individual have to be upheld against the views of the
majority. "Democracy" is fine for many purposes, but it can lead to tyranny
just as easily as any other system unless there are processes to prevent
its abuse. Look at the outpourings of the staunchly democratic "Bulletin"
magazine in the late 1800's if you want to see just how nasty democracy can
be to minority groups. We didn't have a "White Australia" policy for
decades beacuse of the wishes of power elites. We had it because it was
politically expedient - to advocate its overthrow invoked the wrath of the
democratic majority.
Personally I don't think it matters two hoots whether the president is
elected by the people or by the parliament. Having the parliament do the
job probably costs less, and requiring a two thirds majority in parliament
may well mean that person chosen will be more broadly acceptable than we
would find if it was simply a majority decision by the voters (which would
be likely to lead to polarised decisions not dissimilar to those which we
see in parliamentary politics). A two thirds decision by the voting
population might be better still, but would we ever be able to decide on
anyone in such circumstances?
>There are ways of ensuring it doesn't become a 'political' battle or the
>domain of the rich.
>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.
That's a good example of what can "go wrong" perhaps, but what are the
"ways of ensuring it doesn't"? They aren't immediately apparent to me.
Even Megawati's parties, of course, received far less than 50% of the
popular vote in Indonesia. Does this mean her elevation to president would
have involved "the will of the people"? I don't think it really would have
any more than the current system there.
>
>> Personally, I'd rather the office of President stay non-political, because I
>> think they are of more use in encouraging the institutions of civil society
>> than they are in being involved in the political process. So although
>> people make fun of the GG as office for a fete-opener, I think opening
>> fetes, making speeches at funerals, encouraging community projects etc is a
>> good and useful role for a President to play, especially if he/she is doing
>> it independent of the political parties.
>
>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.
Well, I know that the No case have been pushing this line, but I haven't
seen anything that really suggests that a lack of trust is the motivation
for the "parliamentary elected" model. The primary reasons put forward in
fact seem quite reasonable - that the system discourages US presidential
style hoopla at election time, that it prevents a situation arising where
the government and the president are likely to be elected on essentially
the same platform as part of the same "team" and therefore provides a
greater guarantee of presidential autonomy, and that it costs one hell of
a lot less!
>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.
Yes, some have, some haven't. I suspect whatever happens the same will be
true in the future. None of the three alternative systems seem to me to
guarantee "good" presidents. Keep the Queen, direct elect and parliament
appointment - I suspect it basically comes down to flipping a three sided
coin in terms of the real consequences. Maybe we should have all three
systems operating alternately for a century or so to see if there is any
difference - the queen one year, elected presi the next, and parliamentary
appointment for the final 365 days. That way we could make an informed
choice and wouldn't have to put up with the catastrophies for too long ;-)
>
>> I have to admit too, that I would really just like to see the nexus with the
>> British monarchy broken, which is the main reason I'll vote Yes. And I
>> don't see that a No vote will guarantee a second referendum anytime soon -
>
>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.
But who are "us"? I live in a state where for the last seven years just
over 50% of the population have voted for a populist "grand prix's and
circuses" premier who has had an agenda which in reality was totally geared
to the interests of the "Political / Corporate" club. A few people in the
right places changed their minds this time and we , thank goodness, have
got rid of him. Now 50.3% have voted for someone with a different style.
Roughly half the population feel empowered, the other half feel
disenfranchised.
I don't think there is really anything particularly magical about 50%+ 1
and 50% -1 in terms of "sharing of power". I know the fashionable line is
that a "people's vote" for president is being denied because the powers
that be want to keep the matter for themselves, but I don't really think
it holds water. If people are genuinely affronted by the parliamentary
choice of president no doubt they will let their local member no at the
ballot box the next time around.
As to the chances of having another go it seems to me to be tweedledum and
tweedledee. Sure, the first "Peoples vote" on the constitution was lost at
the end of last century and another one soon followed. On the other hand I
don't think most people really care enough about this particular issue to
generate the enthusiasm for a second round if the vote goes down this time.
>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.
Well, what IS that model? Most of the matters that go to "protecting all
the people" have very little to do with the system of election of the
president it seems to me. They will really only be addressed by long term
changes in the personal and political philosphy of the populace. The
republic debate is really a window dressing issue that has bugger all to do
with such things.
>
>> and you can imagine the scare campaign that will come from all quarters
>> against a direct election model. So I worry about the prospect of anything
>> ever changing and of living and dying in colonial times. But I don't see a
>> Yes vote as the end of the matter and I'm certainly open to further
>> constitutional change, including to direct election.
>
>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.
>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'. The US updates it's constitution on an
>ongoing basis and it hasn't collapsed
>in a heap yet.
Yes, of course the constitution needs changing, but the process for the
determination of the head of state is one of the less substantial areas of
concern. Before the reforms in the 70's which removed the role of the Privy
Council as the final point of appeal and other such matters the "republic"
issue was of real concern, but I fail to see why it matters much now.
If I vote I'll probably vote "Yes" , because I think there is some symbolic
value in severing ties with a colonial past, and because, largely through
habit , I've always thought a republic was nice idea. But I don't really
think it will matter much. The "direct election" versus "parliamentary 2/3
majority" is of even less concern, and , on reflection, I suspect that the
Parliamentary model may actually be more likely to produce presidents who
have broad appeal.
If I had to vote on the notion of a "Bill of Rights" I'd be much more
concerned and much more sceptical. I'd really want to be told how and why
it was better than the common law coupled with legislation as a means of
upholding the rights of minorities and individuals.
Cheers
Rod
Rod Hagen
[EMAIL PROTECTED]
Hurstbridge, Victoria, Australia
WWW http://www.netspace.net.au/~rodhagen
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