Republican Debate (1 Viewer)

[RUB!X]

every1 in europe hates switzerland ...

 

[Generator]

Originally posted by teh winnar!

I DON'T WANT TO BE FACING UP AGAINST THE POPE'S ARMY BECAUSE THEY'RE FROM SWITZERLAND AND THEY HAVE HILARIOUS HATS

I wouldn't mind taking one of their halberds home from the battlefield, though.

 

[CM_Tutor]

1. The NSW government passes legislation that allows medically supervised euthanasia, along similar lines to that passed by the NT government a few years ago. The Federal government passes its own legislation to override the NSW Act. Who should have the final say on whether the Federal Act has the power to override the NSW Act?

Originally posted by Enlightened_One
The final say is held by the Consitution. It states, quite plainly, that any law created by the Commonwealth would over rule any law by a State. Though the Commonwealth can only legislate in certain areas, and most of the State governments laws are outside the jurisdiction of Commonwealth law.
If Commonwealth law did not over ride State law our system would collapse, and there would be no need for a central government, as each State would have the complete control, as if it were a country.

I agree that the constitution lays down the rules here, but the issue is not nearly as clear cut as you suggest. For a start, the grant of powers under the constitution grants broad powers to the states and only limited powers to the federal parliament. There is no constitutional head of power that would give the federal parliament direct authority on such an issue - overrulling the NT laws on this subject was through the territories power, which is not applicable to states. Thus, such a federal law would only be constitutional if authorised in some way by some other head of power. Such a matter would undoubtedly be litigated, and whilst the constitution would provide the rules for the game, it would not be the judge of the issue. That would fall to the High Court, at first instance. However - and here we get to the point that I was alluding to in my post - there is a constitutional right to appeal in matters such as these beyond the High Court to Her Majesty in Council, and thus to the Privy Council. (see section 74, if you aren't convinced). I agree that this would be very unlikely to be used, but it still exists, and changing this is (IMO) a necessary and substantial change.

2. John Howard is re-elected at the next Federal election, but the Greens gain the balance of power in the Senate. Together with the ALP, they refuse to pass ANY legislation. Who should have the final say over resolving this matter?

The result, as has happened once before, would be for the Governor General to dismiss everyone and recall an election. That is the upside of our system. The governor general cannot create laws, all he does is assent to them before they became an Act. The fact iswWe have one man who can do only one thing in reality, get rid of the government. It's a safegaurd against tyranny etc.

Leaving aside the question as to whether the GG, who is Commander in Chief of the Armed Forces, can only do one thing in reality, you suggest that the power to sack a democratically elected government is a safeguard against tyranny. The only limits imposed on the power of the GG are imposed by convention - there aren't a lot of constitutional protections designed into this system. In 1975, the GG acted on his own to sack the government. He could also have done so on the instructions of Her Majesty, and so we have a system where the ultimate power to replace a government lies with the Head of State of the United Kingdom. Altering such an arrangement is a change of substance, IMO.

You also note that the GG cannot make laws, but s/he can only grant royal assent. What (other than convention) prevents a GG from refusing royal assent? Section 74 of the Constitution indicates that certain bills must be reserved for Her Majesty's pleasure - where Her Majesty can withhold assent if that is her pleasure.

BTW - one final point. You have answered who would have the final say in a situation such as this, but not whether you think this is who should have the final say. To me, the final say here should rest with either the people or an elected head of state. At present, it rest with neither.

 

[Enlightened_One]

Ah, just a reminder, but appeals to the Privy Council ended in 1986, or doesn't that apply to High Court rulings between the Commonwealth and the States.

The governor general, in theory, has the power not to assent to the law. I'm not sure of the legal status exactly, but as far as I know he is a mere figurehead and nothing else. I think that he can no longer refuse to sign a law of our country and the whole thing with his assenting to documents is simply a formality with respect to the origins of our legal system.

Accordinmg to Section 74, what bills exactly are reserved for the Governor General's discretion (I have never seen the constitution, but I know a few parts)?

There is a meagre safeguard against Tyranny which is the fact that the Government can't go to far in it's actions. The Senate can block all there moves, and failing that the Governor General can get rid of the government. This is a way of preventing the PM fom becoming a sort of dictator.

Who should have the final say? Certainly I believe the Senate should remain in all it's power, but there should be someone, or some people in the role of the Governor General who have the power to abolish the current government and call and election. Perhpas they could simply have the sole power to call a referendum to determine whether the country needs a new government.
For such a process, and such a powerful position, we would need to have a good way of finding such a person (people). I would suggest democratically, but then the whole problem of their political allegiance sneaks in and ruins it all. Maybe a single person from each state should be in this party...

All I am certain of is that the Governor General provides us with a back up against a mad leader, and there ought to be some way to continue his function, even if we become a republic.

BTW: The Queen may have the right, in formality, to dismiss our government, but as far as I know, the power doesn't reside with her except in title, and for reality sake she wouldn't use it, lest Australia protests and her dominion comes to an end. Her power is a formality, nothing more.

 

[Enlightened_One]

Cm_Tutor, do you do legal studies, or are you at uni?

 

[CM_Tutor]

Originally posted by Enlightened_One
Ah, just a reminder, but appeals to the Privy Council ended in 1986, or doesn't that apply to High Court rulings between the Commonwealth and the States.

That doesn't apply to inter se matters, as the line of appeal is enshrined in the constitution, so there is no way to remove it without a referendum. Fortunately, it will never be used.

The governor general, in theory, has the power not to assent to the law. I'm not sure of the legal status exactly, but as far as I know he is a mere figurehead and nothing else. I think that he can no longer refuse to sign a law of our country and the whole thing with his assenting to documents is simply a formality with respect to the origins of our legal system.

The problem is that there really is no codified set of rules that governs what the reserve powers of the Governor General actually are, nor how they should be exercised. There are the Letters Patent from the Queen, but these are pretty general, and (in practice) it is mostly covered by 'convention', and that can be ignored at the whim of the incumbent. In 1974, people would not have believed that the GG would exercise the power to dismiss the government, because of convention. That didn't stop it happening in 1975.

Accordinmg to Section 74, what bills exactly are reserved for the Governor General's discretion (I have never seen the constitution, but I know a few parts)?

All bills go to the GG, but section 74 says (in part) that "Except as provided in this section, this Constitution shall not impair any right which the Queen may be please to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which leave may be asked, but proposed laws containing any such limitations shall be reserved by the Governor-General for Her Majesty's pleasure."

In other words, assent to a bill restricting appeals from the High Court - such as the Australia Act, 1986 - could not be granted assent by the GG, but rather must be reserved by the GG for Her Majesty's pleasure.

There is a meagre safeguard against Tyranny which is the fact that the Government can't go to far in it's actions. The Senate can block all there moves, and failing that the Governor General can get rid of the government. This is a way of preventing the PM fom becoming a sort of dictator.

Who should have the final say? Certainly I believe the Senate should remain in all it's power, but there should be someone, or some people in the role of the Governor General who have the power to abolish the current government and call and election. Perhpas they could simply have the sole power to call a referendum to determine whether the country needs a new government.

A meagre protection against tyrrany, indeed. The protection against tyrrany by the PM and his / her government lies in the people chosing wisely in electing their representatives, and in ensuring that no one group controls the parliament. This is the protection that failed in Germany when the National Socialists came to power, and it is the reason that the US wants to enshrine minority representation into the Iraqi constitution. Power can be misused, and the only real protection we have is our own common sense, and not having a majority group in our society that would seek to subjegate a minority.

For such a process, and such a powerful position, we would need to have a good way of finding such a person (people). I would suggest democratically, but then the whole problem of their political allegiance sneaks in and ruins it all. Maybe a single person from each state should be in this party...

All I am certain of is that the Governor General provides us with a back up against a mad leader, and there ought to be some way to continue his function, even if we become a republic.

All this really means is that you would seek to have this power enshrined into the codified powers of our Head of State - as they are currently held by Her Majesty, our current Head of State.

BTW: The Queen may have the right, in formality, to dismiss our government, but as far as I know, the power doesn't reside with her except in title, and for reality sake she wouldn't use it, lest Australia protests and her dominion comes to an end. Her power is a formality, nothing more.

Her Majesty has the authority to exercise her prerogative powers at her discretion, and there is little (short of a revolution) that we could do about it. This is a 'formality' that must be ended, and the powers placed in the hands of an Australian, and one that is accountable (directly or indirectly) to the people.

Originally posted by Enlightened_One
Cm_Tutor, do you do legal studies, or are you at uni?

Uni - PhD student in Science, but I started out in Science /Law and did OK in my constitutional law subject - but that was quite a while ago.

 

[Enlightened_One]

Thought so. I figured you would have to be a uni student. And for what it's worth, I conceed whatever point. As of yet, I can't find any way to comeback against that above post.