Society/Culture RIP Prince Philip

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Malifice

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What makes you think younger people will change it?

The older generation were younger when they voted in the 1999 republican referendum.
And what happens when we get a President who decides to actually use any of the powers vested in them under the Constitution (currently vested in the Governor General, but by convention not actually practiced).

The Governor General has immense powers in the Constitution, all of which have never actually been exercised (barring the dismissal).

A transition to a Republic would require virtually a rewrite of the Constitution, or at a bare minimum a line in the Constitution that made conventions legally binding.
 

Pessimistic

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In this situation, how does the mandate of elections get implemented as through the current change of ministers?
If ministers aren't installed by a president who has a popular mandate for their policies as in say america?
"Mandate' is a really rubbery term in australian politics. Even the fuddy duddy Brits have a better handle on it
 

Malifice

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The national cabinet looks like it will continue past the covid emergency.
That's a different kettle of fish though, being the Premiers of each State and the PM.

It's a fantastic idea that helps with some of the problems of Federalism.

My issue with Cabinet (i.e. the Ministry) is that the members of the Ministry (whom are the heads of the Executive) are also members of the Legislature. It shits in the face of the doctrine of 'the Separation of the Powers' which is vital to prevent tyrannies.

Interestingly, no mention is made of Cabinet or Ministers in the Constitution (which vests all Executive power in the GG as the Monarchs representative). Seeing as the Monarch (and the GG) by convention don't actually wield any Executive power (despite holding it), the Legislative branch took it upon themselves to do so.

Same deal with command of the Armed forces, declarations of War, entering treaties, setting sitting days for Parliament, appointment of Judges etc etc. All are supposed to be done by the Monarchs representative (the GG) according to the Constitution, but are in fact done by the Prime Minister (and Cabinet) - neither of whom are actually mentioned in the Constitution at all!
 

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Pessimistic

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And what happens when we get a President who decides to actually use any of the powers vested in them under the Constitution (currently vested in the Governor General, but by convention not actually practiced).

The Governor General has immense powers in the Constitution, all of which have never actually been exercised (barring the dismissal).

A transition to a Republic would require virtually a rewrite of the Constitution, or at a bare minimum a line in the Constitution that made conventions legally binding.
Establishing the national cabinet? did that require constitutional change?
 

andrewmillman

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Via the Legislature who write the laws they promised to write when running for election.

Those laws then get flicked over to the Executive to execute.
What about when ministers are required to make judgements of their own? Ie today Dutton deciding regarding the honors for the special forces in Afghanistan.

All those sorts of inherently political decisions being made by a "non political" professional civil service member?
 

Malifice

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Establishing the national cabinet? did that require constitutional change?
Nope. There is nothing in the Constitution saying the PM and Premiers cant meet as often as they like. The Commonwealth and the States are free to co-operate as little or as much as they want to.

The Constitution only sets limits on the power of the Commonwealth to go 'over the top' of the States, or to legislate in specific areas (Trade, Defence, Corporations etc).
 

Malifice

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What about when ministers are required to make judgements of their own? Ie today Dutton deciding regarding the honors for the special forces in Afghanistan.
That decision was made subject to the legislation that exists regarding the award (and revocation) of military honors.

All those sorts of inherently political decisions being made by a "non political" professional civil service member?
Feature, not a bug.

Politics should not play a part in the Executive making a decision under written Legislation, any more than it should play a part in Judicial decision making either.
 

andrewmillman

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That decision was made subject to the legislation that exists regarding the award (and revocation) of military honors.



Feature, not a bug.

Politics should not play a part in the Executive making a decision under written Legislation, any more than it should play a part in Judicial decision making either.
I'm not saying you personally are in this camp, but funny all those people in the scomo thread the other day begging for the government to flout/ break its own laws and let those rejected 'asylum seekers' from Sri Lanka stay.

Your hard and fast "by the legislation" style of government would rule out that sort of activist lobbying which has some appeal.
 

Malifice

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Howard did similar with Gun Law reform 25 years back.

Under the Constitution, Fireams laws are State matters (so the Feds couldnt touch them). He was required to get the Premiers together and beg them to sign up to a National platform (they were under no compulsion to do so).

The States could have agreed to hand law making power for firearms regulation over to the Commonwealth, but they refused to do so, and met Howard half way by agreeing to all (independently) make uniform firearms laws under the National Firearms agreement.

They're still State matters though. QLD for example could legalize machine guns tomorrow if they wanted to.
 

Malifice

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I'm not saying you personally are in this camp, but funny all those people in the scomo thread the other day begging for the government to flout/ break its own laws and let those rejected asylum seekers from Sri Lanka stay.

Your hard and fast "by the legislation" style of government would rule out that sort of activist lobbying which has some appeal.
That would be a decision for the Executive (and the Executive alone), applying the Legislation as written by Parliament, and subject to Judicial review by the Courts.

As the system is supposed to work.
 

Taylor

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What about when ministers are required to make judgements of their own? Ie today Dutton deciding regarding the honors for the special forces in Afghanistan.

All those sorts of inherently political decisions being made by a "non political" professional civil service member?
That's a good point, the power would need to be entirely held by the elected member of the group even if by practice those powers are loaned out to the ministers. We don't want national power being delivered by people who aren't elected by the people.

That includes the governor general.
 

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Malifice

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That sounds as it does work today?
Nope. Because today, the Executive is also the Legislature. Dutton (for example) is a member of the Legislature. As is Morrisson. They also act as the Executive, wielding those powers as well.

Meaning the guys that write the laws (the Legislature) then appoint themselves to act as the Executors of those Laws.

Under the Constitution, there is no mention of the Cabinet, the Ministry or even of the PM. All Executive power is vested in the GG. By convention however, the GG doesnt use any of his powers, and the Legislature have taken it on themselves to exersize and wield that Executive power.

Appointment of Judges. Leadership of the Defence forces and declarations of War. Sitting times of Parliament. And many many others powers, that are supposed to be exersized by an independent arm of Government that we simply do not have.

The GG is also supposed to be appointed by the Queen (it's in the Constitution) but by convention, the PM simply appoints them.
 

Malifice

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That's a good point, the power would need to be entirely held by the elected member of the group even if by practice those powers are loaned out to the ministers. We don't want national power being delivered by people who aren't elected by the people.

That includes the governor general.
And the Judiciary? What about them?

And in case you havent noticed, we dont vote for the Monarch or the GG either.
 

Taylor

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And the Judiciary? What about them?

And in case you havent noticed, we dont vote for the Monarch or the GG either.
I addressed the governor general in the post you quoted but for clarity, I think that the head of state whether that is the GG or a President should be directly elected by the people if they are to wield power of the position.

I think judiciary should be independent of the election process, appointed by the leaders of the field with the one stipulation that a judge can be recalled at an election by the people for inappropriately wielding their power, tacking the question on the bottom of the ballot if you wanted to voice an opinion on them.

That way we can avoid people voting directly for judges and the nightmare that comes along with that but still hold them accountable to public expectation.
 

Malifice

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That's how it's supposed to work. Three arms of Government, each separate (and independent from) each other.

The Legislative branch write the laws, the Executive make those laws happen (and make decisions under those laws) and the Judiciary supervise the Executive (if you're aggrieved by a decision of a Minister or their department, you can take the matter to the Courts for review)

In Australia the Executive powers are supposed to be exercised by the GG (as per the Constitution). By convention however, the GG does not exercise any of those powers, so the Legislative branch have taken it on themselves to do so.

In effect they wield Executive power under Legislation they themselves write.

It's for this reason that legislation in Oz increasingly contains special provisions that shield the Minister from Judicial oversight for decisions made, or removes the Minister from the rules of Natural Justice or Procedural fairness in exercising those powers. Which is the reason why the Legislative and Executive branches are supposed to be separate.
 

Malifice

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I addressed the governor general in the post you quoted but for clarity, I think that the head of state whether that is the GG or a President should be directly elected by the people if they are to wield power of the position.
And should the President have the same power as the GG currently has in the Constitution?

The power to veto legislation (by witholding royal assent) supreme command over the ADF, the power to enter (and leave) Treaties, the power to set Parliament sitting times, prorogue Parliament and dissolve it, and the power to appoint Judges (and many other powers)?

All of which are powers (that despite the GG legally having) are currently exercised by convention by the PM.
 

Malifice

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The only way we become a Republic is via sweeping Constitutional reforms.

Seeing as it seems (terrifyingly) that people here are OK with the Legislature having Executive power as well (i.e. writing laws for themselves to execute) we might as well just abolish all references to the GG and not replace the position with anything, and just let the Legislature do what they want with impunity.

What use is a President, if they don't have any actual powers? Why even have one?
 

Taylor

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And should the President have the same power as the GG currently has in the Constitution?

The power to veto legislation (by witholding royal assent) supreme command over the ADF, the power to enter (and leave) Treaties, the power to set Parliament sitting times, prorogue Parliament and dissolve it, and the power to appoint Judges (and many other powers)?

All of which are powers (that despite the GG legally having) are currently exercised by convention by the PM.
Yes. If we have a rewrite of the constitution then we would isolate the powers in the highest position and not in the imaginary one that we currently do.

There are costs that go along with that, obviously we need to elect the President/GG and we need a shift of culture where the house of representatives represents their constituents and not holding national ministerial positions - but that will lower the relevance of the politicians in that chamber and since they were the ones putting together the choice I don't find it surprising that they would propose a system that maintains both the power and relevance of the house of reps executive positions.

It would make for quite a large monster, but imagine an Australian election in which we are voting for President, local HoR member and our choice of all the ministerial positions. They would have to be clearly defined and locked in for each term, but we could have an outcome where the Red side win the Presidency and the ministerial positions are split between the blue and green sides.

A compromised government in the most full sense.

But then the question has to be asked, which you've detailed above, what would the benefits be of changing to that style over what we have now.
 

andrewmillman

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The only way we become a Republic is via sweeping Constitutional reforms.

Seeing as it seems (terrifyingly) that people here are OK with the Legislature having Executive power as well (i.e. writing laws for themselves to execute) we might as well just abolish all references to the GG and not replace the position with anything, and just let the Legislature do what they want with impunity.

What use is a President, if they don't have any actual powers? Why even have one?
I've heard it described before that the Monarchy is like the King in Chess. They cant do much in practical terms, but hold immense theoretical power, largely so no one else (with perhaps sinister intent) can hold that power.
 

Malifice

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Yes. If we have a rewrite of the constitution then we would isolate the powers in the highest position and not in the imaginary one that we currently do.
Those (Executive) powers are currently vested in the GG, but wielded by the Legislature.

So your biggest challenge to implementing such a Republic is not the Monarchy (who have those powers but dont use them) who everyone has been bitching about, its the PM (who uses those powers, despite not actually having them).

You really think a sitting Government (with supreme Legislative and Executive powers) is ever going to surrender the latter powers, command of the Military, ability to appoint Judges, veto Legislation and prorogue and even dissolve Parliament to someone else?

It aint gonna happen.

Any 'Republic' we ever wind up with, will have the PM as officially the Head of State, and will simply just abolish the role of GG and formally (legally) grant all the GG's powers to the PM, so it'll just be buisiness as normal.

In such a model, the only power that is really needed (and the only one that has ever actually been used in recent times despite the PMs objections) is the ability to dissolve Parliament and call an early election (the Dismissal), or to set an election date, but you could vest those powers in the Judiciary or similar body.
 

Malifice

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I've heard it described before that the Monarchy is like the King in Chess. They cant do much in practical terms, but hold immense theoretical power, largely so no one else (with perhaps sinister intent) can hold that power.
But those powers are held and exercised on a daily basis by the Legislature.

Despite the Constitution clearly giving them to the Executive (the GG).

I'd love to see a legal challenge to those conventions that fly in the face of the actual laws. It would present quite the conundrum to the High Court.
 

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All Executive power is vested in the GG.
Executive power is vested in the Sovereign but exercised by the Governor-General.

Ministers are appointed by the Governor-General, on the advice of the Prime Minister, who is the leader of the cabinet. In practice, the Federal Executive Council meets solely to endorse and give legal force to decisions already made by the Cabinet. The Federal Executive Council was established by the Constitution to advise the Crown.

Any reference to the Governor-General in Council in the Constitution or elsewhere refers to the Governor-General acting on and with the advice of the Executive Council. The Acts Interpretation Act provides that where the Governor-General is referred to in an Act, the reference shall, unless the contrary intention appears, be read as referring to the Governor-General acting with the advice of the Executive Council.

The GG is also supposed to be appointed by the Queen (it's in the Constitution) but by convention, the PM simply appoints them.
The Sovereign has the power of veto over the PM's choice of Governor-General, but so far has not had occasion to exercise that power. The PM is well aware of that when making his nomination. It encourages the PM to make 'responsible' nominations. In other words he can't just nominate his best friend or a family member as GG.
 

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