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 13

Sir DAVID SMITH- I rise to support both Father Fleming and Lois O'Donoghue. I thought Father Fleming had brilliantly encapsulated the unanimity of what he described as a very diverse group. He brought it into here and as soon as he did the lawyers and the politicians got stuck into it and tried to mess it up. I suggest we take Father Fleming's report in its entirety and adopt it unanimously.

DEPUTY CHAIRMAN- It is a lovely idea but we will not be adopting anything until Monday.

Brigadier GARLAND- My question is: when are we moving on to the next resolution?

DEPUTY CHAIRMAN- I think probably when you sit down. Do you want to respond?

Father JOHN FLEMING- On the matters of the pros and cons of drafting the preamble here and now as distinct from putting up an in-principle thing- you asked me to expand on it- I think the discussion that followed is a very good expansion on it. It is precisely the problem and it is the reason why this is an in-principle statement. The moment you start drafting things people in conventions and committees all want to do their thing. It simply becomes a total disaster area. There is an in-principle report. I think the wisdom of us going in this direction has been well and truly justified by the way things happen. Professor Winterton's question has been addressed, so I will not go over that. Indigenous versus original- I ask the speaker to accept that we are using the term which is acceptable to Aboriginal peoples and Torres Strait Islanders. That is the reason why it is there. I think the final point of Mr Hayden's has also been dealt with.

DEPUTY CHAIRMAN- In a few minutes when we get to the voting stage we will have an opportunity to indicate our desire that this goes forward to the next stage.

REPORT OF SUBGROUP (iv)

Preamble- to provide constitutional recognition of citizens rights.

Ms RAYNER- This subgroup's task was to look at a preamble in terms of providing constitutional recognition of citizens' rights. As this meeting will recall, on Monday it was decided to proceed with any definition of a Bill of Rights and, as this meeting and the public now listening to our words today will also understand, there has been a considerable amount of debate in this chamber and in our working group about the effect of adopting a preamble which refers in any way to rights.

Indeed, there has been extraordinarily alarmist language spoken as if the adoption of a preamble which spoke of citizens' rights in any way would somehow have the effect of giving an unelected body- namely, the High Court- the power to determine citizens' rights and responsibilities. So there was a lot of discussion in our workshop about the legal effect of a preamble. There was a lot of discussion about exactly how one would proceed if you determined that a constitutional preamble should not have an effect on rights or whether it was intended to leave the status as it was.

What our working group did was pick up the draft preamble endorsed by the ATSIC Board of Commissioners, make some suggestions as to possible additions to it and recommend that it- that is, the ATSIC recommendation our recommendation- should be referred to the Resolutions Group, In the interests of the public understanding what we are talking about, let me read out to you what such a preamble might sound like with the additions that we have suggested. It might read like this:

Australians affirm their Constitution as the foundation of their commitment to, and their aspirations for, constitutional government.

Our nation dedicates itself to a mutually cooperative relationship with our neighbours, to a responsible and representative system of government that is inclusive of all its people, upholds fundamental human rights, respects and cherishes diversity and our developing way of life, and ensures full participation in its social, culture and economic life.

Australia recognises that Aboriginal peoples and Torres Strait Islanders are its indigenous peoples with continuing rights by virtue of that status.

We recognise the spiritual wealth of our people and we are conscious of our responsibilities to future generations.

We seek a united Australia that respects and protects the land and the indigenous heritage, values and cultures of its peoples, and provides justice and equity for all.

We the people of Australia give ourselves this Constitution.

That is how the preamble to the Constitution might read if this Convention decides to adopt it. The effect of the discussion we have had today about not having these statements, or alternatively making sure that no court can take these statements into account when interpreting the Constitution or laws passed on it, must be evident. Imagine those really inspiring words followed by a clause in the Constitution which says, `This preamble shall have no legal effect.' That is what those who argue about this matter say is necessary to prevent, by stealth, the equivalent of a Bill of Rights being shoved onto the Australian people.

Let me say to you that there is another way of dealing with the possibility that in some instances a court might consider, along with second reading speeches, official reports and the history of the documents, a preamble at the time of institution of constitutional change. The obvious thing that this parliament should do is address the issue of the rights of the citizens in terms of a statutory charter of freedoms and responsibilities. How can one seriously argue against some form of entrenchment of citizens' rights to dignity, to entitlement to rights and freedoms without discrimination or distinction, to life and liberty, to freedom from slavery, to freedom from cruel, inhuman or degrading punishment and to recognition as a person before the law?

How can we argue that it would be inappropriate for our Constitution, in some way, to protect equality and equal protection before the law and to the law, the right to an effective remedy for wrongs, freedom from arbitrary arrest and the right to a fair hearing, the right to be presumed innocent, the right not to be convicted of a crime retrospectively, the right to privacy, to freedom of movement, to asylum, to nationality and, more than anything else, the right to a family?

How can they argue that it would be wrong for our Constitution to refer and protect every citizen's rights to own property, to freedom of thought and conscience, to freedom of opinion and expression, assembly and association and to take part in government? Why should it not be reasonable for our parliament to pass legislation of a constitutional nature which protects our rights to an adequate standard of living and, above all, the right to work? We should have, because it matters so much to us, the right to work, to free choice of employment, to just and favourable conditions of work and protection against unemployment and against unequal treatment at work.

We need to have these protections, as well as protections for our standard of living, our right of access to public education without paying a price, our right to participate in cultural life, our right to social order and our right to be treated with respect as citizens. To say these things is not revolutionary. It is just plain commonsense.

If we are concerned that the High Court, as an unelected, unrepresentative, elitist body of mostly male judges, should not have the discretion to find in our Constitution implied democratic common law and human rights protections of our civil freedoms and our human rights and responsibilities, the only way to deal with this is to say what our values are in the preamble and to invite, as this Convention should do, our parliament to take the issue of our rights, status and relationship with our government by the throat and enact a statutory charter of freedoms and responsibilities as New Zealand, my home country, has done without bringing down western civilisation.

That is the obvious answer. That is why we have, as a result of our considerations on this day, recommended that an inspirational preamble should be attempted, that it should include the matters which are addressed by the ATSIC board of commissioners and that it should address the specific issues in paragraph (2) of our recommendations.

Let me explain why we added a few things in just as a suggestion without wishing to do any disrespect to the ATSIC commissioners who had approved a preamble which they believed constitutionally recognises citizens' rights. We suggested that it would be appropriate to add a reference not only to our diversity but also to our developing way of life. We need to acknowledge not only our history, which has been tragic, brave, gallant, frightening and, in many respects, both a disappointment and an inspiration, but also that we are changing all the time and that we are living on the cusp of challenging and exciting times. It is a developing way of life.

We referred specifically in item (b) to the recognition of the spiritual wealth of people. That was to address the issue that you have all heard a number of statements of personal faith about this afternoon. That is an acknowledgment that, for the vast majority of Australians, we have a spiritual commitment which we reflect in many different ways and which in its own wealth and diversity is part of our treasury of the nation.

We did not specifically adopt the language `humbly committing ourselves to Almighty God' not because we rejected those word, but because we thought there should be discussion of the possibility of wider language to include those of other faiths entitled to equal respect in a nation which respects freedom of conscience, religious beliefs and expression.

We said in item (c) that we should have an `expansion of the reference to our unique and diverse land' because we wanted to emphasise the environmental aspects of our care for the land- those responsibilities and trusts towards the land which the Aboriginal owners of the land had, for so many thousands of years, exercised until we came and changed things so much.

We added in item `d' a wish to express our `consciousness of our responsibilities to future generations' for what we do in this one. We believe that is one of the fundamental values of a democratic system. We need to be aware that in using up precious resources and in developing our nation in a particular direction we will affect the generations who are growing up now and the generations to come. We also asked that we should consider whether or not it would be appropriate in the preamble to our national Constitution to have a desire to seek mutually cooperative relations with our neighbours. It seems timely for us to realise that this great island country is not an island; it is surrounded by neighbours who are just a telephone call, a radio wave or a TV wave away.

I commend the report to you with these reminding words. A preamble is not just a set of words which enables you to shove an act of parliament under a heading which is filled with a royal or non-royal insignia. A preamble is a document which should say why we have bothered to create a nation out of a number of military colonies first established in the 18th century. A preamble is important because it does say what we care about. If we really do care about the values we express in it and we really are concerned about the uncertainties of courts applying our values in interpretation of our laws, then we should put those values into the statutes that our parliament of elected representatives make. We should try it on for size and see whether it is worth being so frightened about.

DEPUTY CHAIRMAN- I remind you that we will have the opportunity to debate this on Monday. While it was in a sense formally a presentation of the report, do not take that as an open sesame to simply give a speech for and against. Are there any questions or comments relating to content?

Professor WINTERTON- Moira, you did allude to it, but I just have two questions on the same point: what does our developing way of life mean and what is the point of including it in the preamble?

DEPUTY CHAIRMAN- Do you want to take these all on board and do them all in one go at the end?

Ms RAYNER- I will do one sentence I think for George. George and I went to law school together; we know each other very well and he is being cheeky. I told you what the sentiment was. We suggest it goes to the Resolutions Group to take on board the sentiment I expressed, but you apparently did not understand. I will talk to you later.

DEPUTY CHAIRMAN- If we can dispose of this quickly, there may be room for one of those amazing 15-minute speeches before we start the voting. I should just indicate that I know some of the people on the list are not here, but the list that we have is: Allan Rocher, who I do not think is here; Mike Elliot, who may be; Father John Fleming; Kirsten Andrews; and Ben Myers. I just give warning that there is a possibility that we could slip in one 15-minute speech as soon as we have actually dealt with subgroup 4. Are there any other questions or comments?

Mr LI- Could I just ask for some clarification. The fourth paragraph of the resolution reads:

We seek a united Australia that respects and protects the land and the indigenous heritage, values and cultures of its peoples . . . 

Is that referring to indigenous peoples only or to all peoples? It is a bit ambiguous.

Ms RAYNER- This was drafted and approved by ATSIC. My understanding is that it refers to `its peoples', not just the indigenous peoples. That is why we found the model so attractive.

Mr CLEARY- I would have thought that the learned professor would have a perfect understanding of what a developing way of life means. If he does not understand that, I do not know why he has not got that little tag in front of his name. It is a petty comment. Pauline Hanson believes in one way of life. A developing way of life is the counter to that, and I think the professor knows that full well.

DEPUTY CHAIRMAN- It was a debating point essentially. No doubt we will hear from you again on Monday.

Ms MOORE- I just wanted to clarify whether there is going to be any time, as the Chairman mentioned earlier, for the continuation of five-minute speeches before we go on to the major speeches.

DEPUTY CHAIRMAN- That is the other possibility, I suppose. How many of the five-minuters were left? I think you were the only one left on the list. Are any of the people that I mentioned before ready and willing? The other way of handling it is for you to speak for five minutes, and David Curtis I understand wants to speak for five minutes.

Mr IAN SINCLAIR- That is on the issues matter that we have been dealing with today. The two speakers who have been identified are the two speakers who are outstanding.

DEPUTY CHAIRMAN- Yes, and because of the elasticity of the place the two five-minute speeches might take a bit more than 10.

Ms O'SHANE- Could I just clarify on what issue the five-minute speakers are speaking. I myself had my name down to speak on the preamble. Is that the issue for us today?

DEPUTY CHAIRMAN- No. We will have an opportunity for questions for Moira and suggestions about textual change, otherwise we will put it. Then, in the remaining 15 minutes, we will call on some of the five-minute speeches that were held over from this morning. The debate on the preamble will be Monday.

Ms O'SHANE- Is the issue consequential changes?

DEPUTY CHAIRMAN- Yes. Do you need to respond to anything?

Ms RAYNER- No, I have done it all.

DEPUTY CHAIRMAN- We will then pass on and resume the five-minute speeches.

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Last updated: 21 October 2000