The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Friday, 6 February 1998
Page 10

CHAIRMAN- A proposal was raised by Professor Blainey before lunch that we set up a working group. Any 10 delegates can form a working group and it would be quite appropriate if that were done. I understand processes are under way to do that. It is not a matter of passing a resolution; it is a matter of getting 10 people together. If we do as I suggested before and deal with these working groups on Monday, we will see whether or not that working party has deliberated and is able to get its affairs ready by then. If not, we might have to deal with it on Tuesday. But I thought the idea was a very good one. We now have a series of working group reports.

Ms RAYNER- May I ask for information, Mr Chairman?

CHAIRMAN- Yes, certainly, Ms Rayner.

Ms RAYNER- I simply could not hear you. Are you saying that there will be no presentation of the working group reports?

CHAIRMAN- No, I am saying that before the adjournment there was a proposal that another working party be set up. That working party was to involve discussion on the implications for people taking the oath who also enjoyed another country's citizenship. It was proposed that such a working group be constituted by a resolution of the Convention. I was merely pointing out that any working group can be constituted if 10 delegates of like mind so decide to constitute it. That, I understand, is in process. Once it has been formed, those other delegates who wish to join that working party can do so. It has nothing to do with today's reports; it is all to do with another working party.

Ms RAYNER- I have one follow-up question. I remember that, on the first day of this conference when a very worthy resolution was rejected, a further motion was passed that this Convention would set up a working group to consider an ongoing process of constitutional change. I, like Topsy, imagined it was just going to happen. Is what you are telling me that somebody must actually apply to develop that group in spite of the fact that a resolution was passed by this Convention that such a working group be established?

CHAIRMAN- My understanding is that we have an item on our business paper- and I have not got the business paper in front of me that relates to that matter- and that we are going to deal with that at some stage. But the point I was making is that any 10 delegates can constitute a working party. My understanding is that we did put something down on the Notice Paper about it, but I cannot remember where it is. I am sorry, I do not have one with me at the moment. I will get back to you on that and we will work out where we are. I think that would be the best way.

We are now going to receive the reports from the working groups. I know a number of you have been in working groups and therefore were not at the proceedings this morning, so perhaps I should explain to you where we are. We have dealt with the resolutions received from the Resolutions Group which relate to consequential changes to the Constitution. Those consequential changes were dealt with in accordance with each of the proposals there. There was a further proposition relating to this question of oaths, which I have just mentioned. It gets back to sections 44 and 45 of the Constitution and whether or not the provisions that now restrict parliamentarians should apply to a head of state.

We have decided that we will take the reports from the working groups now. I propose to take them one after the other. Having received each of those working group reports, I thought that we might defer further debate and voting on them subject to some preliminary dialogue following the report of each of the working groups. That would enable us to know where we are. We can come back and debate them on Monday and then vote on them on Monday afternoon.

Initially this afternoon we will be dealing with the reports of the working groups. Subject to how long that takes, I propose that we see whether there are any other speakers from the floor on consequential changes. If there are no more speakers on consequential changes- that is, the resolutions we were dealing with this morning- we might move to general addresses until such time as we move to the voting on the consequential changes at a quarter to four this afternoon. I see from my briefing paper that we have subgroup (i) of a working group on preamble and transitional covering clauses.

REPORT OF SUBGROUP (i)

Preamble and transitional covering clauses.

Dr COCCHIARO- I present the report of subgroup (i), `Preamble and transitional covering clauses'. The preamble, of course, is seen as particularly important as it sets the framework. It says, `This is Australia and this is what we are all about.' This working group had a large number of people in it. It consisted of lay persons like myself, several eminent constitutional lawyers and one or two politicians. It was felt that it was not appropriate for the working group, or even for this Convention, to actually spell out each individual word of the preamble, but that we should set out a clear view of the content of the preamble.

We did not go into a discussion of transitional covering clauses for the reason that this is a technical legal issue and it appeared the Resolutions Group had already looked at these in their recommendation this morning in item 3. Consideration was given to the adequacy of the current preamble. It was agreed that it was inadequate and needed to be changed for obvious reasons- that it needs to recognise formation of the republic, that it does not recognise former indigenous occupation and that it should recognise historical developments since the last changes. Discussion then ensured whether changes should be made to the current preamble or whether it should be left as it is and another updated preamble be inserted elsewhere in the Constitution.

It was decided that the current preamble should be amended. It was also clear from the outset that there was a very strong minority dissent against including civic values such as rule of law, equality, culture diversity and respect for the land and environment in the new preamble. The clear basis for this dissent was that the High Court may interpret the values in the Constitution in some very unexpected ways. One example given was that, if we included equality as a value, this may negate affirmative action in advancing, for example, equal opportunity, women's rights and indigenous rights.

I must make clear that the minority view was not as a result of disagreement with the values but that, by including the values, courts, judges and constitutional lawyers could be spending their time arguing about the definition and scope of each value. Some lay persons were impressed and, at the same time, concerned that something seen as fundamental values could be used by the High Court in unexpected ways. Having heard this, the majority of delegates, including other constitutional lawyers, also felt very strongly that basic values should be included in a constitution. Several other constitutions, for example, the South African constitution, were cited as examples.

You will find, therefore, that resolutions from our group are divided into three sections. There was unanimous agreement on the first points in the report of subgroup (i), namely:

1. build upon the existing preamble

2. recognise prior occupancy/custodianship by Australia's indigenous peoples

3. acknowledge the positive contribution of the crown

4. acknowledge the establishment of an Australian republic

5. conclude with an enactment clause recognising the sovereignty of the Australian people.

There was no disagreement with these clauses, to my understanding. These points are fairly well explanatory and I will not go into them. The second section of resolutions was one favoured by a clear majority of the committee who strongly believed that basic civic values must be included. Some of the core values that were mentioned were representative parliamentary democracy, rule of law, equality, cultural diversity and respect for the land and environment.

The arguments for including what were seen as minimum core values were, first, that some people found it hard to see how there could be any legal problem with inserting well-founded principles and values in the preamble. The second argument was that these values are based on well-recognised principles in law and by international conventions. Also in favour was that other constitutions recognise these core values. It was also felt that including some core values would be highly desirable for young people and others who did not normally read the Constitution, as it would make it more meaningful to them. Further, there needs to be a statement of modern Australian values to meet popular expectations. The younger delegates also stated that young people would be interested to see concepts of environmental protection included.

You should all have a copy of page 1 of the report of subgroup (i), which is at the back of the report. Immediately behind that you should have a copy of a preamble prepared by Professor Winterton. The majority felt that this was an achievable preamble that includes the core values I have just mentioned. The majority group has also added the word `diverse'. Where it says `the people of Australia', we added `the diverse people of Australia have decided to constitute the Commonwealth of Australia' et cetera.

I believe that the majority view was that it still needs to include environmental values in some way. I will read it to further outline it:

Whereas the original, indigenous Australians held in trust this continent of which all Australians are now trustees:

And whereas the people of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia-

you will notice that there has been a change there-

humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas that Federal Commonwealth, the Commonwealth of Australia, evolved into an independent nation under the Crown of Australia:

And whereas the diverse people of Australia have decided to constitute the Commonwealth of Australia as an independent federal republic founded upon democratic government, the rule of law and the equality of all citizens before the law, and dedicated to the principle of equal worth and dignity of every human being:

We, the people of Australia, do hereby enact and give to ourselves this Constitution.

As I have mentioned before, we also felt that perhaps environmental values should be included in some way.

The third section of our report, to which I refer you, in the group of resolutions was the minority view. There was a strongly held minority view that there should be no mention of civic values in the preamble, as I have mentioned before. I will repeat the arguments. The High Court will employ the values named in the Constitution and will or may interpret these values in unexpected ways. We would pick up all the problems of interpreting abstract concepts, including some simple words such as `democracy'.

Personally, I did not see how that could be a problem. However, it was pointed out to me that Plato, regarded as the father of democracy, was in a democratic society where the majority were slaves to the elite or that even our forefathers considered democracy in a society in which the indigenous peoples were invisible and women were unable to vote. In other words, the courts and lawyers would have to be employed to interpret the meaning of these words.

The other argument in favour of the minority view that there should be no mention of civic values in the preamble is that the preamble should be simple and state facts, such as the recognition of indigenous occupation and statement of intention to be a republic. A statement of general values may be misinterpreted and misused by those opposing the referendum. That was an interesting point.

The strongest arguments for delegates to consider for taking this minimalist approach to change the preamble is that it is possible that politically motivated misinterpretation of what are- I am sure, to every Australian- good and proper core values may occur. If I could make some general comments in closing and also point out some of the other views that were presented in the working group.

One view held by some members of the working group was that we include in the preamble a perhaps even longer list of values and then avoid the legal ramifications by including a clause in chapter 3 of the Constitution excluding the courts from considering these values in legal interpretation. The argument put against this course was that it made a mockery of including the values in the preamble in the first place or that the High Court may disregard the exclusion and accept the values.

Another view put was that it may be possible in the referendum to ask two questions- one would be yes or no to a republic; the other yes or no to the adoption of a set of values- and in this way cause less confusion and not impact on the result of the republic question with the values question. Another view put was that the Convention should propose to the government that the following be incorporated into a preamble as much as possible: a statement of history, a statement of present reality and situation, and a reflection of values and future aspirations. But it should include the very important rider that the Convention would note that the legal consequences would have to be considered by the government in the final draft.

In conclusion, the group looked briefly at other preambles presented, including ones from Ron Cassan QC, ATSIC and other ideas for preambles. But because of strong concern for legal implications and all the time spent on that, there was no in-depth discussion.

CHAIRMAN- Thank you very much. Before we move on to the report of subgroup 2, is there any brief comment anybody feels they must make on that or will we leave it to the debate on Monday?

Mr COWAN- One thing that seems to have been omitted which did have general consensus- and it may very well be covered by the fact that the existing preamble was used- was the need for the retention of the federation being the genesis of the Commonwealth of Australia, which is already in the preamble. I thought it would have been appropriate for that particular point to have been reinforced, that there was never an intention to move away from the federation principles.

Dr COCCHIARO- That is perfectly correct, Mr Chairman. I apologise for not including that. It is in the preamble suggested. In the one hour that I had to prepare the report, I forgot to put that one in. But that was definitely generally agreed.

CHAIRMAN- Any further comment?

Mr FOLEY- Let me commend the working group for their efforts. Could I just through you, Mr Chairman, seek a little further explanation from the convener. With respect to the reference in the preamble to `whereas the original, indigenous Australians held in trust this continent of which all Australians are now trustees,' could the convener enlarge a little on the use of the term `trust'? It does appear to be a very positive acknowledgment of the pre-existing state of the law and of the relationship of Aboriginal and Islander people to land and sea. I wonder if the convener could just enlighten us a little of the context in which that term is used.

Dr COCCHIARO- Yes, I can. This was discussed but I believe the second part working group is talking specifically on the question of the indigenous peoples. Because we spent so much time talking about the possible legal problems, we accepted Professor Winterton's inclusion of that in there because we knew that this question would be further discussed.

Mr KILGARIFF- At the risk of being labelled parochial, I think it is about time for the people of the Northern Territory to be recognised as people of Australia too. I do not see any reason why the Northern Territory could not be included in the preamble, even though we are not currently a state. Statehood is an issue that we are currently pushing for and hopefully we will be achieving it around about the same time as we get a republic.

CHAIRMAN- Can I suggest that that be treated as an amendment that you might like to bring up on Monday. I think Professor Winterton wanted to add something. I am really only allowing brief dialogue. We will have a debate and amendments on Monday.

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Last updated: 21 October 2000