My Constitution, Section 16

Section 16 - Propriety and accountability

16(1) All Officers and employees shall carry out their functions and duties promptly, reasonably, and with intent to secure the liberties of all individuals within their jurisdictions; and all governments shall institute and manage their operations to that end.

The first part is the basic standard of conduct required of every single individual working in or for the government, covering both content and methodology. The second part is that the structures of government functions should be created and operated so as to enable individuals to meet the standards they are to be judged by.

16(2) All individuals who are employees or subsidiary Officers shall obey clear orders irrespective of their opinion on the legality of orders; review by a court shall not be sought without reasonable belief that time permits review without obviating the orders; disobedience shall be an offence irrespective of a finding that the orders were illegal; and obedience shall not be cause for prosecution if that individual had acted as reasonably under the circumstances as was practicable.

A subsidiary Officer frequently will not have the context required to make a full judgement of the legal and moral status of the orders given by a superior, but even if they did there would be a gross departure from the rule of law by way of subverting the role of the courts arising from disobedience. The options that an employee or subsidiary Officer has are to obey the orders, seek a ruling if there is sufficient time, or resign altogether. The junior staff do not get to pick and choose which orders they will and will not obey.

The flip side of a requirement to obey illegal orders on the part of junior staff is immunity from prosecution for that obedience – there cannot be one without the other. Also, while they can’t pick and choose whether to obey, there is frequently still scope for alternative actions while obeying them, and in that case they should pick the course of action within that framework of orders that the Reasonable Person in their shoes would consider the most consistent with liberty.

16(3) In the face of conflicting orders from superiors in conflict with each other, an employee or subsidiary Officer shall make objective judgement as to which is more consistent with:

(i) orders from a superior higher still;
(ii) appropriate manuals of service;
(iii) appropriate legislation; or
(iv) this Constitution;

where he shall make his judgement by the first matter that gives a solution as the Reasonable Person would identify as giving clear priority to one order.

The intent here is to get clarity within the closest context to their ordinary functioning as possible. It is the place of junior staff to ignore a higher Officer, so when two higher Officers are in conflict the first recourse should be to follow both of their immediate superiors, and only if that doesn’t provide a reasonable solution then go only up one abstraction level, and so on one level at a time so as to try to stay as within as narrow context as possible. If that weren’t instituted then the previous section would effectively be nullified because the junior staff would go straight for the legislation, or objecting to that, go straight to the Constitution, and so again pick and choose their orders based on their own Constitutional interpretation while lacking the broader details of context that their superiors may have.

16(4) All high Officers are accountable directly to all Australians through the Constitution before their superiors (if any), and shall not obey an order that in their reasoned opinion is contrary to this Constitution, but shall not enact any disobedience except by a writing an objection with signed copies tendered to:

(i) that superior;
(ii) the President;
(iii) the Chief Justice;
(iv) the Speaker of the Tribunate; and
(v) the Senate President;

or equivalent Officers in the case of a State, where upon a civilian high Officer shall then recuse himself from Office until the matter is resolved by impeachment proceedings, whereas a Command-Level Officer needing to relieve a superior of command shall act reasonably until a higher superior still or Congress itself gives new orders in the interim to a Court-martial or impeachment; and disobedience contrary to this shall be treason irrespective of a court or the Senate finding that the orders were illegal.

A high Officer, in contrast to junior staff, is one with sufficient access to context to be able to make a good and reasonable judgement about legality of laws that junior staff wouldn’t be able to due to lack of context. For that reason high Officers are answerable directly to the Constitution as well as their superiors, and so help to act as part of the checks and balances at the upper levels of governance.

Given that rationale, it then becomes necessary to specify a reasonable methodology by which it can be enacted so that their own disobedience does not itself lead to a break-down of rule of law (an extreme and highly unlikely scenario in today’s world would be two generals clashing and sending their troops against each other, which unlike today was not uncommon in ancient Rome in its decaying Empire stages).

16(5) No Officer of a given jurisdiction shall give orders that are inconsistent with all subordinates’ manuals of service; nor shall a manual of service be inconsistent with all legislation applicable to that jurisdiction; nor shall legislation of any jurisdiction be inconsistent with this Constitution.

Part of what relieves the burden on junior staff, and which is likely to reduce the need for conflicts of conscience on their part, is making the entire structure of chain of command under which they operate clear and consistent and aimed at the protection of liberty under this Constitution. It is using this clause that a court finding may be the means of belaying illegal orders.

16(6) All individuals have the right to petition governments for redress of grievances concerning any action of government or Officer or employee thereof.

It is flesh and blood individuals to whom all governments are accountable. This is formally recognising their right to assert that accountability and to demand that matters be set aright.

JJM