Focus on NSW

New South Wales was once the sole colony of Australia. In the 1850's Australians started demanding forms of self-government which fitted in with British policy of the time. After a battle over what form this new self-government would take, in which William Wentworth tried to establish a titled Legislative Council, a westminster form of responsible government was established. This left the Republicans disappointed, as well as those that wanted innovation such as a Bill of Rights included.

Since then the NSW Constitution has been amended often , in the last ten years being rather innovative for Australian government institutions for establishing a fixed term election period. More recently a Constitutional Amendment has been proposed which would remove all mentions of the Monarchy from the NSW Constitution.

History

In 1851 Victoria separated from NSW and two years later the NSW Constitution was approved . In 1856 the NSW Parliament became a bi-cameral entity with a Legislative Assembly as the lower house, and a Legislative Council as the Upper House. The Legislative Council was appointed by the Governor and had property qualifications to meet. In 1933 this was changed to the Assembly appointing the Legislative Council until 1978 when the Legislative Council became popularly elected through proportional representation.

Jack Lang in 1925 attempted to stack the Legislative Council by adding twenty five new members which were supposed to act as a "suicide squad" and abolish the Legislative Council, similar to what had happened in Queensland. The attempt failed by six votes. In 1929 the Nationalist government entrenched the Legislative Council in the Constitution.

The Legislative Assembly has gone through growth and contractions in numbers. Recently the contractions have been done by sitting governments in order to gain electoral advantage. The shrinking of the number of members by Greiner and Carr, by ten and six members respectively, was to force redistributions. Rodney Smith notes that;

Partisan motives, rather than population size or debates about adequate representation, have driven changes to the size of the Assembly.

The last three decades in the 20thC led to a great deal of electoral reform. But again this was propelled by partisan advantage. The Wran government return to optional preferential voting in 1979 was to reduce informal voting which hurt Labor. The Greiner Government added a single tick or cross innovation in 1990 which disadvantaged Labor in informal voting. In 1995, the Carr Government, acting in their own party political self-interest enacted formal ticks and crosses again.

NSW Government has suffered from the static nature of modern government . Wran (ALP) held power from 1976 until 1986 and Unsworth (ALP) for two years beyond Wran. Greiner (LIB) and Fahey (LIB) held power from 1988 to 1995, and since then the Carr (ALP) Government has held power. Rodney Smith writes on the pattern of office-holding in NSW;

The post-war pattern of party dominance occurred less by default than through government manipulation of electoral systems and use of public policy to shore up support in apparently wavering electoral districts. ...

The fall of post-war NSW governments has had more to do with policy exhaustion, electoral dissatisfaction over government management and the build-up of perceptions of government corruption than the retirement of strong leaders.

This quote may well be the answer to my previous diary .

The Legislature

The NSW Constitution contains sections which explain the different arms of government and their responsibilities. There are several meta-sections which seem to overlap in subject with other sections. For instance Part 2 section 5 limits the Assembly to raising taxes.

Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.

The NSW Constitution allows for some parts of the constitution to be amended by the Assembly or Council without referendum. This has come about by successive governments seeking to entrench constitutional aspects of government. The NSW Constitution has been amended quite a bit in its history . Section 7B for instance shows explicit limits on the ability of the Assembly to modify the Constitution;

A Bill that:

(a) expressly or impliedly repeals or amends section 11B, 26, 27, 28 or 29, Part 9, the Seventh Schedule or this section, or

(b) contains any provision to reduce or extend, or to authorise the reduction or extension of, the duration of any Legislative Assembly or to alter the date required to be named for the taking of the poll in the writs for a general election,

shall not be presented to the Governor for Her Majesty's assent until the Bill has been approved by the electors in accordance with this section.

Despite the entrenching of many constitutional provisions, this has not stopped referendums being passed at the electoral level with strong majorities. For example;

By the same token, in 1961 a referendum to abolish the Legislative Council did not pass as only 42.4% voted yes.

The Constitution limits the amount of time between sittings of parliament to a maximum of twelve months. The Legislative section also contains in section 11B the clause for compulsory voting.

A person who is entitled to vote at a periodic Council election or the election of a Member of the Legislative Assembly shall vote at the election and if he does not do so shall be liable to such penalty as may be provided by law.

A Parliamentary Representative can have their seat vacated for many reasons including parliamentary truancy, treason, crime conviction and remarkably for bankrupcy. Members of one house are ineligible to sit in another house as well.

Governor

The formal Executive consists of the Governor, Lieutenant Governor and the Administrator of the State. The Administrator of the state can be the Chief Justice, unless the Chief Justice is the Lieutenant Governor.

A Governor also has four weeks to get better, otherwise the Lieutenant Governor or Administrator will step in to fulfil the Governor's duties. The Constitution also limits who the Governor can appoint to maintain the Governor tasks. It must be done with the consent of the Premier.

The Constitution also limits the Governor to earning a salary of $80,000 a year.

Legislative Council

The Legislative Council has contracted in recent years to forty-two. Its height was one hundred and forty five members. At each state election half of the Legislative Council is up for election. This means that each Legislative Council members sits for eight years before either retiring or being up for re-election. The Legislative Council does not represent an electorate but rather, the whole state.

Proportional representation, like in the Federal Senate has helped to diversify the parties that are represented. No party has had a majority in the Legislative Council since 1988. The current members are;

The Legislative Council also operates the Committees which serve to review the legislation and operations of the Legislative Assembly. The public is able to make submissions among other things to the Committees.

The Legislative Council also contains a President, who presides over the meetings of the Council. The President also notifies the Governor of any vacancies that occur in the Council. The President also has the casting vote in any tie that occurs in the Council. When the President is unable to maintain their duties, the Chairman of Committees takes the Presidents place.

Legislative Assembly

The Constitution limits the Legislative Assembly to 93 members. Currently there are fifty five ALP members, thirty-two coalition members and six independents. The amendment in 1995 put fixed term elections into the NSW Constitution. The referendum contained the language;

A Bill for an Act to require the Parliament of New South Wales to serve full 4 year terms and to prevent politicians calling early elections or changing these new constitutional rules without a further referendum.

There is however Constitutional language to enable a government to have an early election, if certain circumstances in Section 24B are met.

The Legislative Assembly may be dissolved if:

(a) a motion of no confidence in the Government is passed by the Legislative Assembly (being a motion of which not less than 3 clear days' notice has been given in the Legislative Assembly), and

(b) during the period commencing on the passage of the motion of no confidence and ending 8 clear days thereafter, the Legislative Assembly has not passed a motion of confidence in the then Government.

After the motion of no confidence is passed, the Legislative Assembly may not be prorogued before the end of that 8-day period and may not be adjourned for a period extending beyond that 8-day period, unless the motion of confidence has been passed.

(3) The Legislative Assembly may be dissolved if it:

(a) rejects a Bill which appropriates revenue or moneys for the ordinary annual services of the Government, or

(b) fails to pass such a Bill before the time that the Governor considers that the appropriation is required.

This subsection does not apply to a Bill which appropriates revenue or moneys for the Legislature only.

This same section also lays out some of the Reserve Powers that the Governor has. Subsection five allows for the Governor to dissolve the Legislative Assembly in circumstances other than in subsections 2-4, against the Premiers advice as well. It also allows for the Governor to choose a viable alternate government and Premier if the Governor dissolves the previous government.

These do not specify explicit circumstances which allow the Governor to dissolve the government. This is fitting within the basis of responsible government where there is an implied nature to action. A government has been dismissed in NSW once previously. The government of Jack Lang was dismissed by Sir Phillip Game in the 1930's. During this period NSW and the Federal Government were on the brink of Civil War. Since the Governor's powers are implied, it is still debated whether Game was acting constitutionally.

The presiding position over the Legislative Assembly is the Speaker. In the Speaker's absence the Deputy Speaker takes over the Speaker's duties. The Speaker is chosen by secret ballot with a run off form of voting until the winner is found. If there is a tie in the runoff between the final two candidates, then the Clerk of the Assembly or another presiding over the runoff shall determine the winner.

The Assembly also accepts petitions from the people. This is the means to air grievances with the government.

Executive Council

The NSW Constitution contains explicit recognition of the Executive Council as the legislative advisory to the Governor. The Executive Council is appointed by the Governor, with the Governor also appointing one of the members of the council as the Vice-President of the Executive Council.

The Governor heads this Council. By reading the Constitution it would appear that the Governor is the formal authority in the Council. The truth is, a reading of the Constitution does not bear any similarity to the operational process. The Premier is the leading member of the Assembly for the party that can form a government. The Premier then builds a ministry or cabinet. The Governor appoints these positions on the advice of the Premier.

The Constitution also mentions Minsters of the Crown and Parliamentary Secretaries explicitly as well. The Governor appoints the Ministers, while the Premier appoints the Parliamentary Secretaries. Again it is the Premier which chooses the ministers and advises the Governor. A Secretary's office remains until, amongst other things, the Premier who appointed them ceases to be Premier. This is contained in 38D;

(a) if he dies,

(b) if the person by whom he was appointed as such ceases to be Premier,

(c) if he resigns his office as such by writing under his hand addressed to the Premier,

(d) if he is removed from office as such by the Premier,

(e) if his seat as a Member of either House of Parliament becomes vacant, otherwise than by reason of the fact that the Legislative Assembly has been dissolved or has expired by the effluxion of time, or

(f) upon the day appointed for the taking of the poll for the general election of Members of the Legislative Assembly next following his appointment to hold that office.

The embedding of the formal Executive powers into the Legislative arm of government is the weakest part of the Westminster system. The NSW Constitution at least mentions the Executive Council explicitly. Something the Federal Constitution does not do.

Judicial

The highest courts in NSW are the Supreme Court, the Industrial Court and the Land and Environment Court.

cam

A Gubernatorial NSW Constitution

I believe that a separate executive is a more democratic form of government than a parliamentary system . In certain situations a gubernatorial system is superior to a parliamentary one. NSW is one such example that would benefit from a separate executive. So here is a gubernatorial NSW constitution which contains nothing innovative or new; it is a modern permutation of the current NSW Constitution Act .

A couple of other things; I basically nicked the Tasmanian electoral system as I made the Legislative a unicameral body. Since NSW is a state and not a federal system I did not see the need for an upper house since the executive is split out into the position of Governor, however I tempered unicameralism with a pluralist legislative body that has multi-member districts - like Tasmania.

I also kept the constitutional language terse. Australia has a strong history of statutory innovation to maintain good governance. The United States on the other hand has constitutional innovations galore in its states' however their statutory innovations are very poor and non-existent. The best outcome would be if Australia gets a little dose of American constitutional innovation while America gets a dose of Australian statutory innovation. I have tried that here by leaving many aspects of the constitution to be supported by statutory acts.

Executive

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

The Governor is disqualified from serving in the Executive if: the Governor is a current member of the executive or judicature; the Governor 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 Governor is bankrupt; convicted of an infamous crime carrying a term of greater than ten years.

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 official of the executive shall hold office during the Governor's pleasure.

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.

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.

A member of the Legislature is disqualified from serving in the Legislature if: the person is a current member of the executive or judicature; 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 fails to attend a session of the Legislature; the person is bankrupt; convicted of an infamous crime carrying a term of greater than ten years.

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

Local Government

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

Amendment

The constitution amendment is passed if: a majority of electors voting approves, a super-majority in the legislature, the signature of the Governor.

Exclusions

Since Australia has no bill of rights, this is where Avocadia's Bill of Rights v0.2 would go though termed in the negative rather than declarative.

Critique and amend away!

Update

This constitution has been amended with the suggestions below and some other improvements in a new article.

cam
Felix the Cassowary: Seats, disqualification.: Three members per seats doesn\'t sound like it\'s going to achieve anything, except having thre times the number of members needed (or, a third as much representation as you could get). I would also put such things into regular legislation...

The Governor/A member of the Legislature is disqualified from serving in the Executive/Legislature if: ... convicted of an infamous crime carrying a term of greater than ten years.

or tampering with the electoral system, regardless of the term, of course.
cam: I put the three members per seat in: as it is unicameral so it requires some sort of proportional system to get the pluralism that an upper house allows. Since an electoral act could sabotage that by making it single member electorates with preferential voting (effectively a two-party duopoly) I thought that character of the system needed to be elevated to the constitutional.

Good point on tampering with the electoral system.

cam
Alan: Removal?: I tend to agree with you at state level, although it\'s important for a national government to have a dual executive to prevent presidents from spending too much time masquerading as a man on horseback or in a flightsuit.

I\'m interested in your proposal. How would you provide for removals?
cam: Dont know on removal: As I didn\'t want to put in something too blunt. Not for the state level anyway. What you do for removal inside that style of constitution?

cam
Alan: Removal?: Well, an irremovable executive is a very bad idea. The constitution needs to allow for impeachment or recall. I\'d suugest allowing the the Legislature to impeach the governor before a citizens jury with the chief justice as moderator. Imeachment should not be restricted to high crimes and misdeneanours, which makes it almost useless in the US.

A Novostrocambrianisation of South Africa\'s rule would read:
89 Removal of Governor
(1) The Legislature, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Governor from office only on the grounds of-
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.

You also need to provide for vacancies in the governorship. I\'d argue really strongly that a governor should always be elected and US-style succession belongs back in the Middle Ages. Maybe the chief justice should take over for a brief time until an election can be held.
cam: I decided against an elected: Lieutenant Governor or Attorney General. I didnt want a Lieutenant Governor in the system as they would pollute up the legislative. I am comfortable with the Speaker becoming the Governor until the next election. The legislative has a frequency of 2 years between elections, so a deposed Speaker-become-Governor at max would be 24 months in the job. I would prefer the Speaker to a Chief Justice as the Speaker has to have the confidence of their electorate and the house.

The snippet taken from the South African constitution is good and seems a wise inclusion.

cam

A Gubernatorial NSW Constitution v0.2

An update to the prior gubernatorial NSW constitution . Includes removal of the Governor and what occurs in a vacancy. Also formalises succession from the Speaker and requires an immediate election to replace the Governor. Avo's Bill of Rights have been included. Tampering with the electoral system is now an out on the ear offence too.

It is still a pretty terse constitution. Thanks to Alan and Felix for their suggestions.

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, the Speaker shall resign from the Legislative and resume the caretaker position of Governor until an election can be held.

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 three 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.

The Exclusions section would not be necessary if there was a federal bill of rights. The other thing I added was veto and veto override.

Alan: executive succession: I don\'t think the speaker is a good choice as the acting governor, especially if you require resignation. Strangely enough it was written up in today\'s Washington Post http://www.washingtonpost.com/wp-dyn/content/article/2007/03/02/AR2007030201141.html .
I would specify a time limit for a new gubernatorial election. The \'until a new election can be held\' language is what allowed a VP to declare himself (probably illegally and almost certainly contrary to what was intended) not acting, but permanent, president in the US. A better choice for a shot-term stopgap official would be the chief justice, or perhaps just the cabinet in orer of seniority.

Speakers resign in the US only because, as the articles says, their succession act is extremely dubious in constitutional terms because it allows a member of congress to become president. To avoid any doubt the speaker has to resign his seat.
cam: I agree with Truman: from that article it seems, I think the Speaker has greater confidence because they are an elected position, that has the confidence of their electorate and the majority of the House. I am not prepared to accept the party argument - where the House may be a majority of a different party to the executive - especially when the Cabinet is appointed, as it would be in this constitution. Which is why I do not like the idea of cabinet succession or a chief justice. I think the Speaker is the most democratic choice. Since I made it so there is a gubernatorial bi-election (?) on your suggestion, I think the Speaker can be tolerated for a short period after resigning from the House.

Good point on setting a time limit on the election to stop usurpation. What is reasonable, administratively, but also restrictive enough to stop an executive state of emergency/exception like what Bangladesh is undergoing. 7 days? 14 days?

cam
cam: The other downside of the Speaker being elevated: is that it can cause turmoil in the House at a time when you want political stability and legislative strength. The Speaker has to be elected from the House in that constitution. Parties cannot always be guaranteed to act in national, stable or common weal.

cam
Alan: the Pelosi administration: Let\'s imagine that both Bush and Cheney leave office in the near unexpectedly for whatever reason. You would not catch me weeping. However, President Pelosi would be left with an impossible situation, A divided America would then have to face a crisis of legitimacy in which the government changed hands without an election. Although Pelosi is elected as representative and as speaker she has only ever faced election in her own district and was relatively unknown until she became speaker.

BTW, since you are using the speaker only as a stopgap, what not simply provide that the speaker cannot vote or preside in the Legislature while acting as governor? There is really no reason for the forced resignation, especially for such a short time as interim governor.

IN France, where the president of the senate becomes interim president of the republic, he happily goes back to the senate as soon as soon a s a new presidential election is copulated.
cam: Cool: That is a probably a better arrangement while still keeping the confidence of the house and having a democratically elected representative. I will do a v0.3 without the forced resignation and a time limit on the transition to the next election.

cam
cam: Found the relevant section: in the French Constitution :

Should the Presidency of the Republic fall vacant for any reason whatsoever, or should the Constitutional Council on a reference from the Government rule by an absolute majority of its members that the President of the Republic is incapacitated, the duties of the President of the Republic, with the exception of those specified in articles 11 and 12, shall be temporarily exercised by the President of the Senate or, if the latter is in turn incapacitated, by the Government.

In the case of a vacancy, or where the incapacity of the President is declared permanent by the Constitutional Council, the ballot for the election of the new President shall, except in the event of a finding by the Constitutional Council of force majeure, be held not less than twenty days and not more than thirty-five days after the beginning of the vacancy or the declaration that the incapacity is permanent.

It also suggests a window of twenty to thirty-five days for the elections to be held in. It is interesting that the French Constitution allows for temporary and permanent vacancy.

cam
Alan: ouch: I really need to watch my spell-checker more carefully. You\'ve inspired to produce my own NSW constitution, but without my expansive bill of rights or too much playing around. The language of the NSW constitution is horrendous.

You should also consider providing:

who has the right to vote

how the governor is elected (preferential voting is the obvious choice)

how the legislature is elected (the 3 member districts are not ideal for proportional representation)

how distributions are done
cam: Since it is a state constitution: I want to leave enough room for statutorial innovation within the character of the constitution. So the constitution describes the framework but allows permutations outside of the constitution but within the character. So I don\'t want to limit how the Governor is elected, just demand the Governor be elected, so there leaves some room for innovation.

On who has the right to vote, since this is a conservative constitution, I have left that to an electoral act, where hopefully the act catches up to universal political equality which I think is necessary for good republican governance. IIRC in the CFC I made the defn of an elector anyone above the age of reason under the jurisdiction of the government.

On the three reps per district, I should mimic the Tasmanian electoral structure exactly, since that is what I want and make it five members per district.

cam
Alan: minimal rights: The argument for including the right to vote is that it is the people. not their representatives, who should determine who can vote. The same applies to the method of voting. Now, it\'s impossible to imagine that a governor would not be elected by IRV, but again, it\'s an invitation to political manipulation to allow parliament to mess about with that process.

Once can imagine a governor with who enjoyed a relative, but not absolute majority, in the electorate being very anxious to ensure that preferences do not come into play or that they do not need to face a runoff. It\'s even possible to imagine someone with a track record like Nick Minchin arguing for an electoral college or something equally bizarre.*

It\'s a short step from there to argue that IRV is a fundamental right that ensures that everyone in the electorate has an opportunity to have their vote counted, not just those who vote for the two leading candidates.

*Minchin gave us the current felony disfranchisement in the federal act and early closure of the rolls. His original cabinet submission on the republic referendum contained 10 questions and the republican option would have been to vote no to the first 9 questions and yes and to the last question.
cam: I am not so glued on to preferential voting: In certain instances, such as single member districts, I think first past the post is better in stopping a duopoly. Preference voting in the Federal House as effectively made it a non-pluralistic body.

I am also aware that every electoral change has been to try and game the system so that the current incumbent maintains/keeps their majority (Chifley and the Senate for instance) but they have pretty much backfired (Labor has never had a majority in the Senate since). IIRC only Steele Hall has made an electoral change for altruistic reasons knowing that it would cost him his government.

I know the current mob in government have used their ideology of \'civic obligation\' to disenfranchise citizens. But that has been covered in the excelusions which make it unconsitutional to disenfranchise an elector. There comes a point where I dont want to load the constitution with so much information/regulation such that it loses its character. Since I have made it only changeable by amendments, it will be slow and hard to change, much more so than if it was a statutory document as most of the current NSW Constitution is, so I dont want to limit innovation outside of the constitution as long as the body retains its constitutional character.

That will mean some not cool stuff will happen - politicians do tend to be party-machine selfish - but it will allow for any future electoral technology changes to be tried/used/adapted.

cam

A Gubernatorial NSW Constitution v0.3

This version changes how the vacancy of a Governor is handled, using the French method of having a leading legislator temporarily take over caretaker duties until an election is held. The members in a district has been increased to five to match the Tasmanian Assembly structure.

The changed vacancy section is:

The amended Constitution in its entirety:

Definitions

"elector" is an individual above the age of seventeen.

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 in the previous election, 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.

Previous versions of the Gubernatorial NSW Constitution:

cam
Alan: the right to vote: You\'ve effectively created a right to vote by Paragraph 6 of the exclusions, but you haven\'t defined an elector anywhere. The result is that judicial enforcement of Paragraph 6 becomes impossible.
cam: I added a definitions section: but didn\'t mimic the definition language of the NSW Constitution Act . I couldn\'t find any other words that required defining.

How is your NSW constitution coming along?

cam

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