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South Australian Constitutional Convention

Peter Lewis' Compact for good government

We, the people should decide

Introducing the system of Initiative, Referendum and Recall

PETER LEWIS SAYS THREE CONVENTIONS ARE NEEDED

The Constitutional and Parliamentary Reform Conference set up by the University of Adelaide (17-18th August 2002) had raised more issues than could be dealt with by a single convention - as originally mooted - says Peter Lewis, Independent Member and Speaker of the Lower House in South Australia's Parliament. (Adelaide Advertiser 19th August 2002) The Conference certainly lined up some of the legal and constitutional 'big guns', but the man-in-the-street doesn't seem to be having too much of an input. It is good to know Peter Lewis is emphasizing the fact "The first priority of the convention should be to look at citizen-initiated referenda". He thinks the second priority is the question of the size and the role of Parliament. It would seem the Labor Government tried to take greater control over the convention but Peter stuck to his guns and refused to take a back seat.
The Labor Government has set aside $570,000 for a single convention to be held in March or April 2003, but Peter Lewis is calling for at least three conventions backed by a $2 million budget. Pleased to see Professor Geoffrey de Q. Walker (author of "Initiative & Referendum: The People's Law") of the Queensland University was one of the speakers. He argued strongly for 'direct democracy' (CIR) for the people, "This system would give back to the people the real power to decide the laws under which they live, free from the interference of lobby groups and party machines." He insisted voters were better educated and informed than in the past and were "no longer willing to assume that politicians know best."
Professor Gerard Carney of Bond University said reforms to parliamentary free speech were needed to discourage politicians from using immunity from prosecution to unfairly defame individuals. "There are no effective safeguards to prevent this occurring when a member is determined, with impunity, to destroy another's reputation at all cost," said Professor Carney. He called for a parliamentary ethics committee to be established to investigate complaints and advise appropriate sanctions for the "more serious abuses".
Hard pressed to find 'men of honour'! There was a time when a man of honour would not have abused such a privilege! These days we are hard pressed to find such 'men of honour'! Liberal opposition justice spokesman, Robert Lawson, thought bi-partisan agreement on convention topics was critical to the success of the event. National Party MP Karlene Maywald thought it necessary to first identify what was wrong with the Parliament before considering reforms.

Peter Lewis' Compact for good government

The following agreement has been negotiated between and ratified by Peter Lewis, M.P. and the Labor Government. The aim of this Compact is to provide for stable, open and accountable government, which works productively for the people of South Australia.

I am determined to maintain my Independent status.

I will not become a formal part of any government. However I agree that to provide stability I will vote with the government on:

1. Appropriation and supply bills

2. All motions of No Confidence unless there is evidence of fraud, mismanagement, misuse of public finance, misappropriation, illegal activities or breach or non-performance of any of the other terms and provisions of this Compact. I will not support any government, and will remove my support from a government which: Demonstrates mismanagement or misuse of public finances. Is shown to be corrupt, or which supports any practices which are corrupt or which violates accepted standards of public probity. Abuses the spirit of democratic parliamentary practice and procedure.

The Government undertakes that should it lose the confidence of the House of Assembly the Premier will not advise the Governor that an election should be held if an alternative government can be formed which has the support of the House of Assembly.

I am willing to support a Government, which publicly undertakes to:
(1) Promote open and accountable government
(2) Improve the democratic operation of Parliament
(3) Establish clear plans, strategies and targets to address the urgent needs of rural South Australia
(4) Co-operate meaningfully with Independent Members.
(5) Improve codes of conduct for Ministers and all other Members of Parliament.
1. Promoting open and accountable government This can be demonstrated by The Government undertaking to, within the next sittings of Parliament:

1.1 Accept that future appointments to the position of Auditor-General will be ratified by committee of the Legislative Council specifically constituted for that purpose.

1.2 Rebuild Freedom of Information (FOI) legislation to give full and proper access to government documents by:
(a) Reducing the restrictions on access to documents on the grounds of "cabinet confidentiality"
(b) Removing restrictions based on "commercial confidentiality" (to the extent of the New Zealand Act)
(c) Removing obstructions such as excessive cost claims and appeals against document release
(d) Reducing the delay between a request for and the provision of documents
(e) Adhere to the spirit of FOI legislation and its underlying principles.

1.3 Ensure that budget documents are properly comparable from one year to the next, by including parallel information in both formats where a format change is deemed desirable.

1.4 Initiate such changes to the law as may be necessary to enable the Auditor-General, the Ombudsman and the Employee Ombudsman to initiate enquiries which they deem to be in the public interest and which are separate from any direction from Parliament and Government , where such enquiries are otherwise authorised by their enabling Acts at present and undertake to table reports made by such officers immediately upon their receipt.

2. Improving the democratic operation of Parliament The Government undertaking to, within six months of the commencement of the 50th Parliament;

2.1 Facilitate Constitutional and Parliamentary reform by establishing a South Australian Constitutional Convention to conduct a review of the Constitution and Parliament and to report to Parliament by 30th June 2003 on the issues set out in the Annexure hereto including:
Citizens Initiated Referenda
Reducing the number of Parliamentarians
Constituting the Legislative Council as a House of Review
Ensuring the independence of certain public offices

2.2 Amend Standing Orders to require that secret ballots be undertaken for the election of all Officers of the Parliament which are currently elected from those Members of Parliament such that each Member shall be called forward by name separately by the Clerk (in the case of Government Members) or the Clerk Assistant (in the case of Opposition Members) or by either of them in the case of Members from the cross-bench to be given their ballot paper and to mark their ballot paper at the Table of the House using a method which satisfies the Clerk and Clerk Assistant respectively that no other Member has seen the way the ballot paper was marked by that Member before it is cast in the ballot box.

2.3 Establish a separate Appropriation Bill prepared by the Joint Parliamentary Services Committee and presented to the House of Assembly by the Speaker and be given assent as an Act of Parliament before the introduction of the Budget Appropriations Bill.

2.4 To have a minimum number of sitting days of 69 per year

2.5 Revise Standing Orders of parliament to allow for:
(a) a requirement that Ministers actually answer questions during question time, or if practically unable to do so then within six (6) sitting days of the question being asked.
(b) non-government members to have the opportunity to ask a minimum of 10 questions per Question Time and that Question Time be extended to allow for this.

3. Establishing clear plans, strategies and targets to address the urgent needs of Rural South Australia This can be demonstrated by the Government making commitments, throughout the life of this Parliament continue to:

3.1 Improve the relationship and consultative mechanisms between State government and local Councils and communities.

3.2 Improved rural and regional employment opportunities

3.3 Improve rural infrastructure such as roads, rail, water, power and gas

3.4 Improve and extend Rural health, education, police, emergency, environment and human services.

I REQUIRE THAT THE GOVERNING PARTY WILL DO ALL SUCH THINGS AND PERMIT ALL SUCH THINGS TO BE DONE TO ENSURE THAT THE REASONABLE EXPECTATIONS AIMS AND PRINCIPLES SET OUT HEREIN COME TO FRUITION.

In conclusion, I will maintain my right to vote on all legislation according to the needs of my Electorate and my conscience.

ANNEXURE TO COMPACT ELEMENTS OF THE REFORM OF THE INSTITUTION OF PARLIAMENT

To pass an Act of Parliament and make such other arrangements as deemed necessary by the Speaker to meet such costs and facilitating such processes as may be involved in any aspects of the work related to the establishment of a Constitutional Convention which shall:

1. Advise on a responsible form of Citizen Initiated Referenda and on the mechanism by which such a proposal can be implemented. Consider the legislative and Constitutional changes and mechanisms necessary to:

2.1 locate all Ministers in the Lower House move all Parliamentary Committees (with the exception of the Joint Parliamentary Services Committee) from the House of Assembly to the Legislative Council. reduce the number of Members of Parliament in both Houses to 35 in the House of Assembly and 17 in the Legislative Council or such other number as the Convention determines is desirable. remove all members of political parties from the Legislative Council as of the general election of March 2010 by requiring that no candidate seeking election to the Legislative Council as from the next election may be a member of a political party registered with either Electoral Commission for the purpose of the provisions of the Electoral Act of either State or Federal Parliament.

3. Consider the desirability of and make recommendations on: changing the electoral system of the Legislative Council such that five members shall be elected at large at each general election and retire at the end of each term; and twelve members (in each of six regional seats) to be comprised for convenience in the first instance of two House of Representative seats for two terms (8 years) one such Member from each Electorate being elected at each general election. a requirement that the President of the Council and the Presiding Members of each of the Parliamentary Committees shall be elected by the Legislative Council in session from those five members elected at large

3.3 providing that the Auditor General, the Ombudsman, the Employee Ombudsman, and the Police Commissioner should report to the Parliament as officers acting in the public interest, not under political control of a Minister, to the President of the Legislative Council and that the appointment of all these officers of the Parliament shall be reviewed and ratified by a committee elected by the Legislative Council for the purpose of doing so, instance by instance, in order to secure independence from political interference. establishing a convocation of Members of Parliament and Mayors of all Local Government bodies for the purpose of recommending to the Premier a person who should be appointed Governor.

------------------------------------

We, the people should decide

"We the people........" are the words at the beginning of the most famous, independently-drafted constitution in the recent history of democracy.

It was not "the experts", but "the people" -- and I find it both insulting and, ultimately, dangerous that some politicians and self proclaimed expert commentators are suggesting ordinary South Australians are too stupid, or too ill informed, to be consulted about the future of their own Parliament.

I am stunned that my suggestion to involve hundreds of South Australian voters in the constitutional reform process has provoked such gut-level fear among a very limited number of people with such an obvious vested interest in keeping what they perceive to be "power" within the control of their own, cosy "club" of insiders.

We should adopt a mindset where we have a greenfields site on which to build, a blank slate on which to write, and open minds with which to work.

I believe we should trust our fellow South Australians to help determine our destiny. The people CAN and SHOULD decide for themselves.

What I am suggesting is a four-step process which taps the talents and ideas of ordinary people - as well as the views of constitutional and political science experts.

STEP 1: A series of community meetings in the country and the city to explain the process and begin gathering reform suggestions put forward by the people themselves.

STEP 2: A gathering of constitutional and political science experts to hammer out how to incorporate those suggestions into a number of workable options.

STEP 3: It is the third step which seems to provoke opposition from some quarters - that 300 ordinary, interested South Australians should be chosen at random to sit down, consider and analyse the options before.

STEP 4: Making recommendations to go before Parliament in new legislation.

My personal view is that the all important third step is best achieved via a method known as deliberative polling, which is simply an intensive process that gets ordinary citizens actively involved in analysing balanced information.

It means those involved get ALL the facts, can question COMPETING experts and are given the time for meaningful discussions with their peers - instead of having to rely on eight-second sound "bites" from radio or television news bulletins, 30-second party poiltical advertisements or from tabloid newspaper headlines.

Some people have criticised this suggestion as "loopy" and have bemoaned the fact that no-one knows what the outcome will be.

Their reaction is straight out of a "Yes, Minister" script - dont hold an enquiry unless you already know the outcome!

I do not know what the people will finally propose as changes which should go to the Parliament as new legislation. That does not frighten me. I cannot regard it as a bad thing that ordinary South Australians should have some real say in the future of their own Parliament, their government which derives its authority from the Parliament, and their own State.

My idea is to set in motion a process for debate among the community. If that debate is robust, lively and forthright, so much the better. For me, this is a process which must be led by "the people" - and not which should be hijacked by professional politicians and other vested interests.

I suggest the politicians and anyone else who is knocking the idea should have a bit of patience and a bit more respect for the honesty, interest and intelligence of ordinary South Australians.
Peter Lewis
Speaker of The House Of Assembly and Member for Hammond
South Australia 25/06/2002

Introducing the system of
Initiative, Referendum and Recall


Governments are like fire: good servants but destructive masters. A Democratic Society is one in which the will of the people prevails. Growing frustration with Australian party politics is the result of a feeling that the will of the electors is not being reflected in the Parliaments of the nation. This has resulted in an unhealthy and dangerous cynicism concerning parliamentary institutions.At one time Australians led the world in political reforms. Australians can, to echo the words of a famous British Prime Minister, save themselves by their own exertions and the rest of the world by their example. They are challenged to regenerate the institutions their forefathers bequeathed to them, or to perish as a free nation.The Swiss constitutional system of the Initiative Referendum and Recall, widely discussed in the early years of the Australian Federation, provides an inspiring example of what can, and must be done.
The following questions and answers are offered to those who wish to understand the principles of the system and how it can be applied in Australia.

Q:      Is the Swiss system, which enables electors to demand a referendum on unpopular legislation, a break with the Australian concept of constitutional government, inherited from the British?
A:       No, the traditional British system, sometimes called the Westminster system, was designed to limit the powers of governments and to have the Member of Parliament primarily a representative of his electors. But a number of eminent authorities have pointed out what many people feel: the Westminster system has broken down.

Q:       What are the main causes of this breakdown?
A:       The excessive centralisation of all power, which has led inevitably to an enormous growth in irresponsible bureaucracy beyond the control of parliaments, and a rigid party system which has reduced the Member of Parliament to little more than a rubber stamp and. destroyed the original concept of parliament, as a free assembly in which the respresentatives of the people debated, passed or rejected legislation as they saw, fit.

Q:      Would, then, the introduction of the Swiss constitutional system abolish political parties?
A:. No. Switzerland has a number of political parties. But the Member of Parliament is more responsible to his electors and not regimented. The party system as known in Australia today is a relatively modern development. Originally in Great Britain most of the Members of the House of Commons were Independents. Even after the party system developed, a sprinkling of Independents was regarded as essential for a healthy parliament.

Q:       What is the essence of the Swiss system?
A:       That the electors can, if they feel strongly enough, either veto unwanted legislation by a referendum, put forward their own proposed legislation, this to be put to a referendum, or recall a Member of Parliament not regarded as satisfactory.

Q:       But what is the mechanism for doing these things?
A:       The people have the constitutional right to petition and if the proscribed number of people properly present a petition, it must be acted upon.

Q:      Are the Swiss legislators obliged to abide by whatever the decision of the electors may be?
A:       That is correct.

Q:      Is this not a novel idea for Australia?
A:       No. Their forebears agreed on a Federal Constitution which provided that before any change could be made to that Constitution, there had to be a referendum of the Australian people and, because the Federation was an agreement between separate self-governing States, a referendum was not deemed to be successful unless a majority of electors in a majority of States supported the referendum proposals.

Q:      But what about the Swiss principle of the electors being able to veto legislation, has this ever been used in Australia?
A:          Originally all Australian State Local Government Acts included a provision which enabled ratepayers to petition for a referendum concerning any proposed loans. But this democratic right has been progressively withdrawn from all Local Government Acts, yet another manifestation of the retreat from genuine democracy.

Q:       Did the Swiss system enjoy much support when it was originally discussed in Australia?
A:         The original Labor Party advocated the principle of the Initiative, Referendum and Recall from its beginnings late last century. A number of non-Labor politicians supported it, along with the then influential Australian Natives Association and a number of papers of which the most prominent was the Melbourne Age.

Q:      Was any attempt made to legislate for the system?
A:       In 1915 the Labor government in Queensland introduced the Popular Initiative and Referendum Bill,  but,  after it had been introduced four times, and the Upper House indicated it would not support the referendum principle if initiated by the legislature, not directly by the people, the question was eventually dropped in 1919, primarily because the incoming Labor Premier, Edward Theodore, unlike his predecessor T.J. Ryan, said the people were too fickle and irresponsible to have a say by referendum.In 1914 the famous W.M. (Billy) Hughes sought leave in the Federal Parliament to initiate an Initiative Referendum Bill. Although this was not proceeded with, the Hughes Labor government did put the conscription question to the people in two referendums.

Q:          Were no further attempts made to introduce the Swiss system by the Federal Labor Party?
A:       Led by Dr. W.A. Maloney, a small group of Labor Members in the House of Representatives carried on a campaign in favour of the Swiss system up until the outbreak of the Second World War.

Q:      Why did the Labor Party lose interest in the concept?
A:       The character of the original Labor Party had changed and war-time conditions had encouraged the totalitarian philosophy,  that governments were omnipotent. The Swiss system actually remained as part of the Australian Labor Party platform until 1963, when it was removed on the motion of former South Australian Premier Don Dunstan. The changed philosophy of the Labor Party has been expressed by Sentor Gareth Evans, who says that the electors are not equipped to make responsible decisions on matters of taxation and government spending. But if electors are not equipped to have a say concerning the level of taxation they are prepared to accept, the clock has been turned back hundreds of years to a time when there was little check on the amount of taxation a King could levy.

Q:      How did the system of Initiative Referendum and Recall originate in Switzerland?
A:’ The idea itself, of direct legislative control, is a very old one, going back to the early Greek democracies in the City States where eventually the practice of all the electors coming together was replaced with the concept of the electors selecting people to represent them.The idea is deeply rooted in Swiss history and was first adopted at the Local or Canton level (Cantons having more powers than Australian Municipal governments but less than State governments) from 1830 onwards. The 1848 Constitution required a compulsory referendum for any proposed total revision of the Constitution. This was removed in 1874 giving a specific number of electors or eight Cantons the right to demand a referendum on any act of parliament.

Q:      Have the results of the Initiative Referendum and Recall system been generally beneficial in Switzerland?
A:       The Swiss people are very proud of the system and there have been no suggestions that a system which provides for an effective say by the people should be abolished.

Q:      Has Switzerland the same problems so seriously affecting other countries?
A:          Switzerland is far from perfect, but with electors having the power to check their governments (Local and Federal) it is not surprising that taxation is relatively low, one result being that Switzerland has had one of the lowest inflation rates in the world. It is generally agreed that Switzerland is one of the most stable countries in the world with far fewer social problems than other countries.When the famous Russian exile, Alexander Solzhenitsyn, left the Soviet Union and first resided in Switzerland, he said that the Swiss Constitutional system was a model for the whole world. He was most impressed with a society in which there was a minimum of friction and a high morale as a result of the people being able to have some say in their own affairs.

Q:      What is a specific example of how the Swiss system works?
A:          Switzerland had never joined the United Nations. But in recent years there has been increasing pressure on the Swiss government to join. Under the Swiss Constitution it is mandatory for the Federal government, following a 1977 change to the Swiss Constitution to submit any proposed international agreement of indefinite duration to a referendum of the people. The Swiss electors decisively rejected the proposal to join the United Nations, approximately 70 percent of the electors voting against it. They had a real say about the future of their country.At present Australians have no mechanism by which they can prevent Federal Governments violating the spirit and intentions of the Constitution by exploiting the External Powers of the Constitution to make international agreements of far-reaching implications. A disturbing example is the placing of increasing areas of Australia under the World Heritage Commission, controlled by the United Nations Educational and Cultural Organisation.If the principles of the Swiss system applied, Australians could halt this surrender of Australia’s independence.

Q:      It has been alleged that the Initiative Referendum and Recall system could lead to demagoguery and mob rule. Is there any possibility of this happening?
A:       This is merely one of the allegations made by those who distrust the people having a say. There have been a number of demagogues in countries dominated by party politics, but none in Switzerland. People only turn to demagogues, as Germans turned to Hitler, when they are fearful and desperate. Hitler had relatively little impact on the German-speaking Swiss.

Q:      Where the system has been introduced, in Switzerland and later in Italy, Austria and twenty-four American States, has there been any attempts to abolish the system?
A:       Where the system has been tried, either part or in whole, there is nothing but enthusiasm and efforts to extend the system. Support is growing rapidly in the U.S.A., while there has been a renewed interest in Canada, where several of the Provinces once had features of the system, and where it is still used for local community issues.

Q:      Would the party system be abolished with the introduction of the Initiative Referendum and Recall system?
A:       Not necessarily. But the dictatorship of the party machine would be weakened. There are a number of parties in Switzerland but there is greater co-operation between them than is the case in Australia. With the Swiss system operating the Member of Parliament who genuinely wishes to represent the wishes of his electors, feels more independent.

Q:      But would not deciding major questions by referendum be rather a waste of time and money as the Australian people nearly always vote NO at referendums? Would they not say No to all propopsals?
A:       The Australian people have only voted NO at an over­whelming majorty of referendums because they instinctively oppose all proposals which they fear will centralise power. People generally have more commonsense than elitists credit them with.

Q:          Opponents of the Swiss system have fostered the fear that radical minorities would be given an opportunity to disrupt society by forcing referendums. Is there any possibility of this?
A:       The Swiss system requires that a relatively large percentage of total electors, at least 4 percent, must present a proper petition, either to have a referendum on proposed legislation, or to veto proposed or existing government legislation. Anyone with any experience of obtaining signatures to petitions knows that if 4 percent of the electorate can be organised to sign a petition, there is substantial community support. But the real test comes when an issue must be voted on by the total electorate.Many of the radical minority groups would find it impossible to get the necessary support for a referendum, or if they did,  would be hopelessly outvoted at a general referendum. The Swiss system would effectively expose that many radical groups have no real community support, thus preventing them, often with the aid of the media, from blackmailing politicians.

Q:      What about the financial cost of conducting referendums?
A:       This has proved no problem in Switzerland where provision is made for any referendum polls to be held, if required, every three months. Financial costs are higher in Switzerland because the brochures and ballot papers must be published in three major languages German, French and Italian. If Australians are not willing to pay a few dollars a year to finance referendums, then they are not interested in controlling their own affairs. This suggestion is an insult to the people. It has been demonstrated that where people can use the Initiative, Referendum and Recall system, the financial benefits far outweigh the costs of conducting referendum’s, some of which could be conducted at the same time as elections.

Q:      Would the introduction of the Swiss principle undermine in any way the traditional British-based system of government, with Lower Houses, Upper Houses and the Crown?
A:       It would in fact regenerate a system which has been corrupted from its original form and purpose. The ancient right to petition the Crown is already in the Federal Constitution but has been denigrated by the party politicians, who insist that it is now a convention that the Crown’s representative must automatically give the Royal assent to every piece of legislation. Provision could be made for all petitions demanding referendums on challenged legislation to be presented to the Crown, whose re­presentatives would then direct that a government have a referendum conducted. No Royal Assent should be given to any legislation under challenge, and only if a referendum demonstrated that it had the support of the electors. In this way the role of the Crown would be strengthened.

Q:      If the Initiative Referendum were introduced, would not this result in direct legislation and the decline of parliamentary democracy?
A:          Legislation proposed by electors is not a substitute for parliamentary legislation, but a most valuable adjunct to it. In Switzerland, the home of the Initiative Referendum system, most of the legislation enacted originates with parliament. Under the Swiss system, the politicians are much more conscious of the power of their electors even, if necessary, to petition for their recall from Parliament and therefore seek to anticipate that which electors may require.

Q:      What type of issue is it envisaged could be taken up by electors if they had the Initiative Referendum system?
A:          Immigration immediately springs to mind (the Returned Servicemens’ League has suggested a referendum on this); excessive and retrospective taxation, high interest rates, the misuse of the External powers of the Constitution, foreign aid; foreign investments, the fluoridation of public water supplies, government funding of minority groups and their activities, and compulsory voting are all issues of great concern.

Q:      Would not the introduction of the Swiss system involve the electors in an increase in political activities?
A:       That is correct. But these would be activities in which the electors would be keenly interested. There would be an uplift in public morale and a much healthier community spirit, with a breakdown in many of the present divisions in society, as people realised that they could have a real and effective say in their own affairs. Freedom is something which requires constant cultivation. The price ‘of liberty is eternal vigilance . The community would be able to concentrate upon issues instead of the diversions of political personality battles.The only alternative to the adoption of the principles of the Initiative Referendum and Recall, is a continued sinking in the boglands of rigid party politics with the end result the complete totalitarian State.

Q:      Can the Initiative Referendum principle be adopted at all levels of government, Federal, State and Municipal?
A:       As already mentioned, a limited form of the principle has until recently existed at the Municipal level. It could be restored and expanded. It may prove that the adoption of the principle might best be at the Municipal and State level. But this does not mean that the Federal level should be ignored; far from it.

Q:      How can the Swiss principle be implemented?
A:       In the same way that the Australian people created their own Federal Constitution. The concept first grew in the minds of farsighted men. It had to be fostered by a grassroots movement. Only when the public demand becomes strong enough will the principle be adopted by the politicians. If present politicians will not pledge to work to introduce the principle, or permit the electors to decide by referendum whether or not they want to have the principle implemented, they will have to be replaced by others who will. There are no short-cuts to success; hard work is required by dedicated people along with the use of the type of innovations developed by the pioneers of the Australian nation.

© Published by the Australian League of Rights, P.O. Box 27 Happy Valley, SA 5159