A Gubernatorial Constitution for NSW

I argued in a prior post that a directly elected and separate executive is a more democratic form of governance. Not content with that, over at SSR we developed a gubernatorial constitution for NSW.

This constitution is nothing new. It contains concepts and existing constitutional practice from other governments and constitutions. For instance there are no sortition components, which I consider the next form of democratic input that will improve governance in the Executive and Legislative. This constitution is only different in Australia because all our parliaments are based on the Westminster system which does not separate the executive from the legislative.

This constitution is deliberately sparse and terse despite being taken from the present NSW Constitutional Act. Australia has a strong history of supporting constitutional practice with statutory bills. For instance Tasmania, Western Australia and South Australia do not have a constitution in a single document, it is spread across many bills including UK bills. IIRC Western Australia and Tasmania share an Act from the UK in their Westminster style constitution. Queensland in 2001 collapsed all its statutory bills into one constitutional act.

This gubernatorial constitution attempts to define the constitutional character of the form of government, in the innovative way that American politics does, without stifling the statutory constitutional nature of Australian government. This is intended to harness the maximum amount of constitutional and statutory innovation while still retaining good governance through the character of the system which is defined explicitly in the constitution.

Consequently the Executive is a separate body with a directly elected Governor who has a term of four years and is term limited to two terms. The Executive Cabinet is appointed with Legislative assent and review which is standard checks and balances behaviour between branches. The Governor can be removed by the Legislative and in the case of a vacancy the Speaker steps in as caretaker until an election is held. The removal process was from the South African constitution and the vacancy process from the French constitution.

I am personally against the Chief Justice being the vacancy executive as the judicature, as shown in Bangladesh’s problems, lacks political courage. Alan disagrees with me on that issue though. The other benefit of using the Speaker, in my opinion, is that they are elected to the position from an electorate, as well as by a majority in the House, which gives greater democratic legitimacy. During the vacancy period the Speaker is prohibited from residing or voting in the House.

The Legislative is unicameral, which means it is one house. Since the executive is separated out into a constitutionally distinct branch of government, and the state isn’t federal in structure, there isn’t the necessity of an upper house for the Legislative. However, to avoid it becoming a two-party duopoly like the federal House of Representatives, the House in this constitution is modelled on the Tasmanian Assembly.

The pluralistic nature of the Tasmanian Assembly is important for good governance in a unicameral body in my opinion and multi-member districts achieve that outcome inside the will of electors. For vacancies in the Legislative the next most popular candidate on the ballot becomes elected rather than through a bi-election. Following American lines, the Speaker becomes the most powerful person in the House and its leader. Legislators are also term limited to twenty-four years of service.

If you look at the federal and state constitutions, they like digging into the governments below them. The Federal Constitution has a States section and the State constitutions, like NSWs, Victoria’s and Queensland’s, all have a section on local government. This constitution gives local government home rule and requires them to establish their own charters and constitutions. This is a big difference from the current NSW Constitution.

The Exclusions section would be called a Bill of Rights anywhere else – but – it is not a bill, and it would not be necessary in a state constitution if the federal government had a Bill of Rights. I have chosen to use Avocadia’s Bill of Rights which he, understandably, since Australia lacks such a bill, wrote in the declarative. These have been converted into the negative so that it formally denies government intrusion in these areas.

The exclusions are also protected from being suspended like they can in the Canadian Charter of Freedoms. These are inalienable, and essential for the basis of good republican governance, consequently government doesn’t get to turn them on and off like a tap.

The Constitution:

Executive

The executive shall, subject to the provisions in this constitution, have the power to execute the laws of the Legislative.

Executive power shall be vested in the Governor, who shall be elected by electors, and hold office for the term of four years with a maximum of two terms.

Judges, ministers and officials of the executive shall be appointed by the Governor upon the advice and consent of the Legislature. No judge, minister or official may concurrently be a member of the executive and another branch of government. Ministers and officials of the executive shall hold office during the Governor’s pleasure.

The Governor, upon a resolution adopted with a supporting vote of two-thirds of the Legislative’s members, may be removed on the grounds of; a serious violation of the constitution or the law; serious misconduct; or the inability to perform the function of office.

In the event of the Governor’s vacancy and until a new Governor is elected, the duties of the Governor shall be temporarily exercised in a caretaker capacity by the Speaker, who shall be prohibited from presiding or voting in the Legislature while performing such duties. A ballot for the election of a new Governor shall be held not less than twenty days and not more than thirty-five days after the beginning of the Governor’s vacancy.

The Governor may refuse assent on a bill through veto; by returning the bill to the Legislature with written objection.

Legislative

The Legislature, as a unicameral body, shall, subject to the provisions in this constitution, have power to make laws for peace, welfare and good government of New South Wales.

Every bill shall be presented to the Governor after passage through the Legislature with a majority. Bills shall become an act of legislature when assented to by the Governor; unless the bill is vetoed, in which case, upon a supporting vote of two-thirds of the Legislative’s members, the bill shall become an act of legislature.

There shall be a session of the Legislature at the minimum of once in every calendar year such that a period of twelve months is the maximum between sessions.

The Legislature shall be composed of members from electorates where each electorate contains five members.

Members of the legislature shall hold their office for the term of two years and may serve a maximum of twelve terms.

Members may resign as a member of the Legislative by hand-written memorandum to the Speaker. Upon receipt of resignation by the Speaker, the seat of the member shall be vacant.

Upon a vacancy in the Legislature the next candidate in the vacant electorate, who is not currently a member, who has the highest number of votes from the electorate shall become a member of the Legislature.

The Speaker shall be the presiding officer of the Legislature; and shall be elected by the Legislature, through a secret ballot, upon the first assembly after an election. The Speaker shall be recognized as the Legislature’s independent and impartial representative. The Speaker shall preside at all meetings of the Legislature.

Judicature

The highest court is the Supreme Court which has the sole judicial authority to interpret this constitution. The relative status of any other court of New South Wales is to be determined by legislation.

The Chief Justice shall be the office of the Master of the Supreme Court.

The Chief Justice shall issue writs for election on the appropriate dates for the Executive and Legislature.

Disqualification

A Governor, Legislator or Chief Justice is disqualified from serving if: the person is concurrently a member of more than one branch of government; the person directly, or indirectly, himself, or by any person whatsoever in trust for him or for his use or benefit or on his account, undertakes, executes, holds, or enjoys in the whole or in part any contract or agreement for or on account of the Public Service of New South Wales; the person is bankrupt; convicted of an infamous crime carrying a term of greater than ten years; or convicted of tampering with the electoral system.

Local Government

The local governments in New South Wales shall make their own charters and constitutions in order to manage their affairs.

Amendment

An amendment to the constitution is passed if; a majority of electors voting approves; two-thirds of the Legislative’s members approve; and the amendment has the signature of the Governor.

Exclusions

Exclusions from executive force and legislative intrusion cannot be reduced or suspended; by referendum; by emergency; or declaration of war. The Executive shall execute no law; the Legislative shall make no law; and the Judicature shall endorse no law; that:

deprives an individual of life; or limits or deprives an individual’s; liberty to express their beliefs, opinions or lifestyle; liberty of movement; liberty of association; or liberty of peaceful assembly or protest.

detains an individual indefinitely without charge; limits or removes an individuals right to have counsel with them upon arrest or questioning; limits or removes an individuals right to a writ of habeous corpus upon detention; back-dates punitive measures for an offence; permits an individual to be detained for longer than six months without trial or resolution; enabling an individual to be tried for an offence more than once.

limits or removes an individual’s right to refuse law enforcement access to their property, or permission to search their person and property, unless there is a warrant issued to search specific property for evidence of a specific crime; limits or removes an individuals choice to divulge no information other than their identity, verbally, when under suspicion from law enforcement for a specific crime.

limits, reduces or removes an individual’s right to own property; deprives the individual of property, or devalues an individual’s property without fair exchange or consent.

on the basis of race, age, gender, sexual preference, wealth, health, religion, associations or prior criminal record; discriminates against an individual; limits or removes equal treatment under the law for an individual; limits or removes access to government services for an individual.

disenfranchises an elector; denies an elector representation; denies an elector the ability to run for election; reduces or removes an individual the ability to petition their representatives for a redress of grievances.

abolishes the secret ballot; criminalises, or outlaws a political party; removes access to the Public Service for parties with elected parliamentary members.

For those interested in the previous iterations; v0.1, v0.2 and v0.3.