By Dr George Venturini

What kind of republic and how to get there

There are some 600,000 non-for-profit community organisations in Australia. There are serious organisations devoted to analysing, thinking, reasoning. There is an Australian Republican Movement, there still is around a Republican Party of Australia. They could all help. Whatever their purpose, it should be easy to write to the Prime Minister, the Attorney-General, or the Parliamentary Library requesting a copy of the Constitution.

No expert analysis would be need to examine the document and conclude that it is – not old – but archaic, and totally unsuitable to a modern country in which Australians aspire to live.

Every organisation could proceed to elect a Citizen’s Committee with the specific duty:

• to prepare and conduct discussions on the principles to be inserted in a republican constitution,
• to maintain contacts with other similar committees. One of the purposes of such contacts should, eventually, be the preparation of a petition to the Prime Minister of the time, seeking from government the presentation and tabling before the House of Representatives of a bill containing a proposal for the setting up of a Constituent Assembly of, say, no more than 120 members to be elected according to a proportional representation system, including the D’Hondt method, similar to the one presently used in Albania, Argentina, Austria, Belgium, Brazil, Bulgaria, Cambodia, Cape Verde, Chile, Colombia, Croatia, Czech Republic, Denmark, Ecuador, Estonia, Finland, Guatemala, Hungary, Iceland, Israel, Japan, Kosovo, Luxembourg, Macedonia, Moldova, Montenegro, Netherlands, Paraguay, Peru, Poland, Portugal, Romania, Scotland, Serbia, Slovenia, Spain, Timor-Leste, Turkey, Uruguay and Wales; or alternatively the Webster’s method, which is employed in New Zealand, Norway and Sweden.

The Constituent Assembly should invite, receive and accept a final proposal from the Indigenous Peoples of a treaty for recognition and reparation, provided that such final, proposed treaty is submitted within six months of the first sitting of the Constituent Assembly elected for the preparation of a republican constitution to be submitted to the vote of all Australians – Indigenous and non-Indigenous. A favourable vote of a simple majority should be sufficient to proceed to enactment of the Constitution of the Republic of Australia. Simultaneously a new Parliament, made up of a House of Representatives and a Senate, should be elected.

These could be the broad-lines of a reform, which could guarantee a possibility of success if the present Prime Minister and Leader of the Opposition were to be the same persons after next election, which is said to be due sometime in 2017. Both such persons are reputed to be of republican conviction, and one of them was prominent some twenty years ago in agitating for a republic.

Australians believe that they live in a situation of respect of, and abidance to, the international treaties of which the country is a party, and in one case: the Universal Declaration of Human Rights of 1948, as co-author. This and other treaties, particularly those referred to collectively as the International Human Rights Bill, should be referred to in the preamble to the Constitution and their provision ‘domesticated’ so as to become the content of a specific section of the Constitution.

In order to gain assistance from the experience of other countries, the administration of the following Charters of freedom should be consulted: the Canadian Charter of Rights and Freedoms/ La Charte canadienne des droits et libertés, part of the Constitution Act 1982; the New Zealand Bill of Rights Act 1990 and Human Rights Act 1993; the South African Bill of Rights 1997; the United States of America Bill of Rights.

Outside the Anglophone world, one recent experience in advancement of recognition of human rights is that of Finland. It is a highly educated country and – for that alone – a point of comparison and source of admiration in the whole ‘western’ world.

The basic right to education is enshrined in the Finnish constitution. Public authorities must secure equal opportunities for every resident in Finland to receive education and be able to develop her/himself, irrespective of her/his financial standing. Legislation provides for compulsory schooling and the right to free pre-primary and basic education, which includes daily meals for students and subsidised transport. There is a strong atmosphere of trust in the teachers; they have a lot of freedom in their classrooms, do not have to submit their pupils to benchmark testing, and are highly respected within the community.

Education in Finland is the responsibility of the Ministry of Education and Culture, which is the third largest; in 2014 its share of the state budget was 12 per cent. The Finnish National Board of Education works with the Ministry to develop educational aims, content and methods for primary, secondary and adult education.

Local administration is the responsibility of the regional municipal authorities, which play a prominent role as education providers. Kindergartens, day-care centres, comprehensive schools, upper secondary schools, vocational and further education centres are all administered by the local municipality. This includes responsibility for teaching staff salaries, employment conditions and professional development.

Every teacher in Finland – apart from kindergarten teachers – holds at least a Master’s degree as a minimum requirement. Teacher training is organised in the eight universities offering it at University Teacher Training Schools which belong to the Faculties of Education. Teachers in these schools are actually employees of the university, while the schools themselves still follow the National Curriculum and enjoy the same independence that other schools do.

Higher education is also the responsibility of the Ministry and all university tuition is free for all – including for foreign students. Finland has 14 universities.

There are other aspects of the development of Finland which deserve attention: a recent independence: 1917-1918, a modern republic, respectful of minorities, uninterested in foreign adventures, a responsible member of European Union since 1995 and actively committed to the enforcement of the European Convention of Human Rights. The extensive reform of Basic Rights in Chapter II of the Constitution Act came into force in August 1995. The original Constitution Act was enacted in 1919, soon after Finland declared its Independence in 1917, but the current Constitution came into force on 1 March 2000.

A republican constitution for Australia could look like this:

– A preamble

– A first article to read:

1) Australia is a secular, democratic, federal republic.

2) Sovereignty belongs to the Australian people who exercises it in the forms and limits of the constitution.”

The following articles could read:

Article 2 Human rights

1) The Republic recognises and guarantees the inviolable human rights, be it as an individual or in social groups expressing their personality, and it ensures the performance of the unalterable duty to political, economic and social solidarity.

2) For the purpose, the Republic hereby receives into the national law the following instruments: the International Bill of Human Rights, that is to say the Universal Declaration of Human Rights, 1948 the International Covenant on Civil and Political Rights, 1966 with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights, 1966; the United Nations Declaration on the Rights of Indigenous Peoples, 2007; the Convention relating to the Status of Refugees, 1951; the International Convention on the Elimination of all forms of Racial Discrimination, 1965; the Convention on the Elimination of all forms of Discrimination against Women, 1979; the Declaration on the Elimination of all forms of Intolerance and of Discrimination based on religion or belief, 1981; the Convention against Torture and other cruel, inhuman or regarding treatment or Punishment, 1984; and the Convention on the rights of the child, 1989.

Article 3 International law

1) The legal system of Australia conforms to the generally recognised principles of international law.

2) Legal regulation of the status of foreigners conforms to international rules and treaties.

3) Foreigners who are, in their own country, denied the actual exercise of the democratic freedoms guaranteed by the Australian constitution, are entitled to the right to asylum under those conditions provided by law.

4) Foreigners may not be extradited for political offences.

Article 4 Equality

1) All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions.

2) It is the duty of the Republic to remove all economic and social obstacles which, by limiting the freedom and equality of citizens, prevent full individual development and the participation of all citizens in the political, economic, and social organisation of the country.

Article 5 Work

1) The Republic recognises the right of all citizens to work and promotes conditions to fulfil this right.

2) According to capability and choice, every citizen has the duty to undertake an activity or a function which will contribute to the material and moral progress of society.

Article 6 Local autonomy

The Republic, one and indivisible, recognises and promotes local autonomy; it fully applies administrative decentralisation of services and adopts principles and methods of legislation meeting the requirements of autonomy and decentralisation.

Article 7 Linguistic minorities

The Republic embraces the multicultural experience and protects linguistic minorities by special laws.

Article 8 Religion

1) Religious denominations are equally free before the law.

2) Denominations have the right to organise themselves according to their own by-laws, provided they do not conflict with the Australian legal system.

3) Their relationship with the state is regulated by law, based on agreements with their representatives.

Article 9 Research and culture

1) The Republic promotes cultural development and scientific and technical research.

2) It safeguards natural beauty and the historical and artistic heritage of the nation.

Article 10 Repudiation of war

Australia repudiates war as an instrument offending the liberty of other peoples and as a means for settling international disputes; it agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations, provided the principle of equality between nations is guaranteed; and it promotes and encourages international organisations furthering such ends.

Article 11 Flag

The flag of the Republic will be adopted by special law.

Part I Rights and duties of citizens

Title I Civil rights

Article 12 Personal liberty

1) Personal liberty is inviolable.

2) No one may be detained, inspected, or searched nor otherwise restricted in personal liberty except by order of the judiciary stating a reason and only in such cases and in such manner as provided by law.

3) As an exception, under the conditions of necessity and urgency strictly defined by law, the police may take provisional measures which must be reported within 48 hours to the judiciary and, if they are not ratified within another 48 hours, are considered revoked and remain without effect.

4) Acts of physical and moral violence against persons subjected to restrictions of personal liberty are to be punished.

5) The law establishes the maximum duration of preventive detention.

Article 13 Personal domicile

1) Personal domicile is inviolable.

2) No one’s domicile may be inspected, searched, or seized save in cases and in the manner laid down by law conforming to the guarantee of personal liberty.

3) Verifications and inspections for public health and safety, or for economic and fiscal purposes are defined by law.

Article 14 Freedom of correspondence

1) Liberty and secrecy of correspondence and other forms of communication are inviolable.

2) Limitations may only be imposed by judicial decision stating the reasons and in accordance with guarantees defined by law.

Article 15 Freedom of movement

1) Every citizen has the right to reside and travel freely in any part of the national territory except for limitations provided by general laws protecting health or security. No restriction may be imposed for political reasons.

2) Every citizen is free to leave the territory of the Republic and return to it except for obligations defined by law.

Article 16 Right of assembly

1) All citizens have the right to assemble peaceably and unarmed.

2) For meetings, including those held in places to which the general public has access, no previous notice is required.

3) For meetings held in public places previous notice must be given to the authorities, which may prohibit them only on the grounds of proven risks to security or public safety.

Article 17 Freedom of association

1) Citizens have the right freely and without authorisation to form associations for those aims not forbidden by criminal law.

2) Secret associations and associations pursuing political aims by military organisation, even if only indirectly, are forbidden.

Article 18 Freedom of religion

Everyone is entitled freely to profess religious beliefs in any form, individually or with others, to promote them, and to celebrate rites in public or in private, provided they are not offensive to public morality.

Article 19 Religious associations

The religious character or religious or confessional aims of associations or institutions do not justify special limitations or fiscal burdens regarding their establishment, legal capacity, or activities.

Article 20 Freedom of communication

1) Everyone has the right freely to express thoughts in speech, writing, and by other communication.

2) The press may not be controlled by authorisation or submitted to censorship.

3) Seizure is permitted only by judicial order stating the reason and only for offences expressly determined by the press law or for violation of the obligation to identify the persons responsible for such offences.

4) In cases of absolute urgency where immediate judicial intervention is impossible, periodicals may be seized by the police, which must immediately and in no case later than 24 hours report the matter to the judiciary. If the measure is not validated by the judiciary within another 24 hours, it is considered revoked and has no effect.

5) The law may, by general provision, order the disclosure of financial sources of periodical publications.

6) Publications, performances, and other exhibits offensive to public morality are prohibited. Measures of prevention and repression against violations are provided by law.

Article 21 Citizenship and name

No one may be deprived of legal capacity, citizenship, or name for political reasons.

Article 22 Personal services

No one may be forced to perform personal service or payment without legal provision.

Article 23 Right to be heard in court

1) Everyone may bring cases before a court of law in order to protect her/his rights under civil and administrative law.

2) Defence is an inviolable right at every stage and instance of legal proceedings.

3) Anyone who has no financial means is entitled by law to proper means for action or defence in all courts.

4) The law defines the conditions and forms for reparation in the case of judicial errors.

Article 24 Defendant’s rights

1) No case may be removed from a court, but must be heard as provided by law.

2) No punishment is permitted except provided by a law already in force when the offence has been committed.

3) Security measures against persons are only permitted as provided by law.

Article 25 Rights of the accused

1) Criminal responsibility is personal.

2) The defendant may not be considered guilty until the final sentence.

3) Punishments may not offend a sense humanity and must aim at re-educating the convicted person.

4) The death penalty is prohibited.

Article 26 Extradition

1) A citizen may be extradited only as expressly provided by international conventions.

2) In any case, extradition may not be permitted for political offences.

Article 27 Responsibility of public officials

Public officials and employees of other public bodies are directly responsible under civil, criminal, and administrative law for acts committed in violation of rights. Civil liability extends to all public bodies.

Title II Ethical and social relations

Article 28 Marriage

1) The family is recognised by the Republic as a natural association founded on marriage.

2) Marriage entails moral and legal equality of the spouses within legally defined limits to protect the unity of the family.

Article 29 Family

1) The Republic encourages family formation and the fulfilment of related tasks by means of economic and other provisions with special regard to large families.

2) The Republic protects maternity, infancy, and youth; it supports and encourages institutions needed for this purpose.

3) The Republic admits same-sex marriages.

Article 30 Parental duties and rights

1) Parents have the duty and right to support, instruct, and educate their children, including those born out of wedlock.

2) The law provides for the fulfilment of those duties should the parents prove incapable.

3) Full legal and social protection for children born out of wedlock is guaranteed by law, consistent with the rights of other family members.

4) Rules and limits to determine paternity are set by law.

Article 31 Health

1) The Republic protects individual health as a basic right and in the public interest; it provides free medical care to those without means.

2) Nobody may be forcefully submitted to medical treatment except as regulated by law. That law may in no case violate the limits imposed by respect for a human being.

Article 32 Freedom of arts, science and teaching

1) The arts and sciences as well as their teaching are free.

2) The Republic adopts general norms for education and establishes public schools of all kinds and grades.

3) Public and private bodies have the right to establish schools and educational institutes without financial obligations to the Republic.

4) The law, when defining rights and obligations of those private schools requesting recognition must guarantee full liberty to them and equal treatment with pupils of public schools.

5) Exams are defined for admission to various types and grades of schools, as final course exams, and for professional qualification.

6) Institutions of higher learning, universities, and academies have the autonomy to establish by-laws within the limits of public law.

Article 33 Education

1) Schools are open to everyone.

2) Primary education, given for at least eight years, is compulsory and free of tuition.

3) Pupils of ability and merit, even if lacking financial resources, have the right to attain the highest grades of studies.

4) The Republic makes this right effective through scholarships, allowances to families, and other provisions, to be assigned by competitive examinations.

Title III Economic relations

Article 34 Labour

(1) The Republic protects labour in all its forms.

2) It provides for the training and professional enhancement of workers.

3) It promotes and encourages international treaties and institutions aiming to assert and regulate labour rights.

Article 35 Wages

1) Workers are entitled to remuneration commensurate with the quantity and quality of their work, and in any case sufficient to ensure to them and their families a free and honourable existence.

2) The law makes provisions limiting the length of the working day.

3) Workers are entitled to a weekly day of rest and to annual paid holidays; they cannot waive this right.

Article 36 Equality of women at work

1) Working women are entitled to equal rights and, for comparable jobs, equal pay as men. Working conditions must allow women to fulfil their essential family duties and ensure an adequate protection of mothers and children.

2) The law defines a minimal age for paid labour.

3) The Republic establishes special measures protecting juvenile labour and guarantees equal pay for comparable work.

Article 37 Welfare

1) All citizens unable to work and lacking the resources necessary for their existence are entitled to private and social assistance.

2) Workers are entitled to adequate insurance for their needs in case of accident, illness, disability, old age, and involuntary unemployment.

3) Disabled and handicapped persons are entitled to education and vocational training.

4) These responsibilities are entrusted to public bodies and institutions established or supplemented by public law.

5) Private welfare work is free.

Article 38 Trade unions

1) The organisation of trade unions is free.

2) No obligation may be imposed on trade unions except the duty to register at local or central offices as provided by law.

3) Trade unions are only registered on condition that their by-laws lead to internal organisation of a democratic character.

4) Registered trade unions are legal persons. Being represented in proportion to their registered members, they may jointly enter into collective labour contracts, which are mandatory for all who belong to the respective industry of these contracts.

Article 39 Right to strike

The right to strike is exercised according to the law.

Article 40 Freedom of enterprise

1) Private economic enterprise is free.

2) It may not be carried out against the common interest or in a way which may harm public security, liberty, or human dignity.

3) The law determines appropriate planning and controls so that public and private economic activities may be directed and coordinated towards social ends.

Article 41 Property

1) Property is public or private. Economic goods may belong to the Republic, to public bodies, or to private persons.

2) Private ownership is recognised and guaranteed by the law, which determines the manner of acquisition and enjoyment as well as its limits, in order to ensure its social function and to make it accessible to all.

3) Private property, in cases determined by law and with compensation, may be expropriated for reasons of common interest.

4) The law establishes the rules of legitimate and testamentary succession and its limits and the public entities’ right to the heritage.

Article 42 Taxation

1) Everyone must contribute to public expenditure in proportion to her/his/its capacity.

2) The tax system conforms to the principle of progression.

Article 43 Expropriation

In the common interest, the law may reserve establishment or transfer, by expropriation with compensation, to the Republic, public bodies, or workers or consumer communities, specific enterprises or categories of enterprises of primary common interest for essential public services or energy sources, or act as monopolies in the primary public interest.

Article 44 Land

1) For the purpose of ensuring rational utilisation of land and establishing equitable social relations, the law imposes obligations on and limitations to private ownership of land, defines its limits depending on the regions and the various agricultural areas, encourages and imposes land cultivation, transformation of large estates, and the reorganisation of productive units; it assists small and medium sized farms.

2) The rights to land of the Indigenous Peoples are respected and protected.

Article 45 Cooperatives

1) The Republic recognises the social function of cooperation for mutual benefit free of private speculation. The law promotes and encourages its implementation with suitable provisions and ensures its character and purposes through proper controls.

Article 46 Workers’ participation

In order to achieve the economic and social enhancement of labour and in accordance with the requirements of production, the Republic recognises the right of workers to collaborate in the management of commercial entities, within the forms and limits defined by law.

Article 47 Savings

1) The Republic encourages and protects savings in all its forms, regulates, coordinates and controls the provision of credit.

2) It favours access savings for the purchase of homes, for worker-owned farms, and for direct or indirect investment in shares of the country’s large productive enterprises.

Title IV Political rights

Article 48 Voting rights

1) All citizens, men or women, who have attained the age of majority are entitled to vote.

2) Voting is personal, equal, free, and secret. It is compulsory because its exercise is a civic duty.

3) The right to vote may not be limited except for incapacity, as a consequence of a final criminal sentence, or in cases of moral unworthiness established by law.

Article 49 Political parties

All citizens have the right freely to associate in political parties in order to contribute by democratic methods to determine national policy.

Article 50 Petitions

All citizens may address petitions to the Chambers of Parliament demanding legislative measures or presenting general needs.

Article 51 Public offices

1) Citizens of one or the other sex are eligible for public office and for elective positions under equal conditions, according to the rules established by law. To this end, the Republic adopts specific measures in order to promote equal chances for men and women.

2) The law may grant Australians who are not resident in the Republic the same rights as citizens for the purposes of access to public offices and elected positions.

3) Anyone elected to public office is entitled to the time necessary for the fulfilment of the respective duties while keeping his or her job.

Article 52 Military service

1) The defence of the Republic is the sacred duty of every citizen.

2) The organisation of the Defence Forces must conform to the democratic spirit of the Republic.

3) The Defence Forces must be organised essentially for the purpose of acting as auxiliary Civil Defence in case of floods, fires or similar natural occurrences.

4) The Defence Forces cannot be employed outside the territory of the Republic except by decision of the government ratified by Parliament.

Article 53 Loyalty to the Constitution

1) All citizens have the duty to be loyal to the Republic and to observe its constitution and the laws.

2) Citizens entrusted with public functions must perform them with discipline and honour, and take an oath of office where required by law.

Following parts of the Constitution should contain provisions on the organisation of the Republic in two chambers: House of Representatives and Senate, lawmaking, the President of the Republic, the government, the Council of Ministers, the organisation of the public administration, the auxiliary institutions, the Judiciary and its organisation, provisions on jurisdiction, the constitutional guarantees and the function of a Constitutional Court, the States and local authorities, provisions to amend the Constitution and one final declaration to the effect that “The republican form of the federation cannot be changed by way of constitutional amendment.”

Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.