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Constitutional Convention: Introduction  The Constitutional Convention of February 1998

Federal Election October 2004:
Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Monday, 9 February 1998
Page 11

CHAIRMAN- We have another motion, notice of which was given by Matt Foley, who does not seem to be with us today. I have been hanging on to see whether he would arrive. I need somebody to move the motion.

 

Mr GROGAN- I move:

 

That in the event that a republican form of government is established, the title of the head of state should be "President".

 

Mr CLEM JONES- I second the motion.

 

CHAIRMAN- Mr Clem Jones, because your name is on the notice of motion we will invite you to speak.

 

Mr CLEM JONES- I do not think we need to waste time talking about this. I depend on the eloquence of Mr Rann, in support of the name of president, which I think is appropriate. I do not second this with any reluctance, as Mr Turnbull did when speaking in favour of it. I believe it is the only way to go. I support it entirely as I believe will the majority of delegates.

 

Mr RUXTON- I would just like to speak against the naming of our head of state as president. Our friend from South Australia said that we are going back to the colonial days when we had dominions. But, I tell you what, if we are going to be a bit different in this country- and I have been listening to it for a week- Australia is going to have a different sort of republic. For goodness sake, why do we have to attach the name president? You could go to the 200 republics in this world and there would be only three or four that are any good, including those in the British Commonwealth- from Idi Amin to Hussein to Gaddafi, you could keep rattling them off. It is about time we got away from it and had something a little more Australian than president. I think the Sydney chardonnay set met on the weekend. That is what did it.

 

Professor PATRICK O'BRIEN- My position on all these procedural motions is that they are pretty trivial. We have spent two days discussing largely trivial matters. We should have been discussing in workshops the substantial question of the actual form of government under republican detail. Therefore, I think what we are doing- and I would like the public to know this- is merely discussing outward symbols. People treat flags like voodoo sticks. They think if they wave them the good and evil will disappear. Whether we have Governor-General or president will not make a great difference to the form of government. It will not make one iota of difference what we call the head of state.

Logically, I can see the point of maintaining continuity. But if we become a republic we are not maintaining continuity with the previous system. Therefore, people who support the present system, logically, should support the motion that the president should be the title in a new order- and we are getting a new order. Because I favour a democratic republic, I shall vote for the title president, though I understand the reasons why people want Governor-General. But let us be absolutely certain that this has nothing whatsoever to do with the content of the future form of government in Australia.

 

CHAIRMAN- What I propose to do is to put this motion as those in favour of the term `Governor-General' and then those in favour of the term `president', if there should be a change to the head of state. There being 37 in favour of the term `Governor-General' and 83 in favour of the term `president', the motion moved by Mr Grogan and seconded by Mr Clem Jones `That the title of the head of state in the event of Australia becoming a republic be `President' is carried.

CHAIRMAN- We will move to voting on the working group reports and we will come back then to the notice of motion of which Mr Hourn has given notice.

 

REPORT OF WORKING GROUP ON THE PREAMBLE

Subgroup (i)- Preamble and transitional covering clauses

CHAIRMAN- The first motion is from the first working group. Can I have the spokesman for working group 1 please.

 

Dr COCCHIARO- I move:

     
    (i1) In relation to the preamble to the Constitution there was agreement that a new preamble should:

    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.

    (i2) The Committee was divided on the issue on whether basic civil values should be acknowledged in the preamble. A clear majority of the Committee strongly favoured recognition in the preamble of basic civic values including:

    - representative Parliamentary democracy

    - rule of law

    - equality

    - Australia's cultural diversity

    - respect for the land/environment

    (i3) The Committee considered the attached draft preamble an example of the type of preamble that could embody its proposals.

    (i4) There was a strongly held minority view that there should be no recognition of basic civil values in the preamble. There was concern that the judiciary could employ such values in Constitutional interpretation.

    (i5) Some members of the Committee suggested that this could be avoided by including a clause in Chapter 3 of the Constitution directing the judiciary not to employ the preamble in Constitutional interpretation.

 

Professor WINTERTON- I second the motion.

 

CHAIRMAN- Does anyone wish to speak to that first preamble motion? If not, we will go through each of the preamble matters before we vote.

 

Mr GROGAN- Just to repeat the comments that I made this morning, joined by Dame Leonie Kramer: it would be truly a great thing if this afternoon we could all join in sending these preambles forward. That will be on the basis that they go forward for further consideration at the Convention and on the basis that those legal issues and concerns can be dealt with in the drafting stage.

 

CHAIRMAN- Can we move on to subgroup (ii)?

 

Mr RUXTON- Have we got a copy, sir?

 

CHAIRMAN- Haven't we got these papers either? They were circulated. We were discussing them this morning so they are probably in your papers. We have a series of amendments to that preamble. In order that people are aware of where we are going, we had better look at each of these. We will try to run through it all, then we will go back and go through the amendments and back to the motion. I would like to go through them all.

 

Mr LEO McLEAY- On a point of procedure, Mr Chairman: obviously this afternoon it is too late, but could you ensure that tomorrow and for the rest of the Convention, of an afternoon when we are all here for the voting, that the secretariat circulate to people in the chamber the matters that are before us for a vote. Putting proposals up on a screen is reasonable but it is not good enough if we are actually going to be making decisions on matters of some importance. Surely it is not beyond the wit of the secretariat to provide this material before we begin the voting of an afternoon. We vote at a particular time. Could you give that undertaking to the Convention, Mr Chairman?

 

CHAIRMAN- I understand they were all distributed this morning, Mr McLeay. The trouble is it sounds as though we have got to distribute them in the afternoon as well.

 

Mr LEO McLEAY- With all due respect, that is the point: half the people in here have not got it.

 

CHAIRMAN- That is precisely right.

 

Mr LEO McLEAY- The secretariat should be able to do that for us. That is what they are paid for.

 

CHAIRMAN- I call on Professor Craven, who has the first amendment, to speak to the motion. We will put Professor Craven's amendment on the board. We will run through each of these so we know what these amendments are.

 

Professor CRAVEN- I move:

 

Add to the resolutions of sub-group 1 the following words:

"Alternatively, that in relation to the preamble, the following principles should be applied:

    1. any preamble should build upon the existing preamble;

    2. the preamble should recognise prior occupancy of Australia's indigenous peoples;

    3. the preamble should acknowledge the past contribution of the Crown;

    4. the preamble should contain appropriate statements of acknowledged historical fact: principally, the conversion of Australia to a republic, and the subsistence of parliamentary and federal government;

    5. the preamble should not contain statements of abstract values or rights such as equality or democracy.

 

The Most Reverend PETER HOLLINGWORTH- I second the amendment.

 

CHAIRMAN- Do you wish to speak to it, Professor Craven?

Professor CRAVEN- Very briefly. This amendment is designed to put into the Constitution- or at least to set a framework for putting into the Constitution- a preamble that does nothing more than to reflect the realities of a republic Constitution, to provide an appropriate opening to that Constitution, to recognise the position of Aboriginal people, not to insert inappropriately vague values that could be the subject of inappropriately vague judicial determination and, in particular, to prevent any chance of a political scare campaign based upon a suicidal preamble as part of a republican amendment.

 

Mr BRUMBY- This is a key issue, and it is one which the committee spent a great deal of time discussing last Friday morning. The committee was overwhelming of the view that there should be some basic but fairly non-contentious values inserted in the preamble. As the committee has reported, those basic civic values should include representative parliamentary democracy, the rule of law, equality, a reference to Australia's cultural diversity and a reference to respect for the land. These were basic values. We were not proposing a wide charter of citizens' rights or things which could be called a bill of rights or issues which could be challenged in the courts. But we do believe that the preamble should refer to some of those historical civic values which we hold strong in Australia.

Professor Craven has said that this opens up the prospects for a High Court challenge; that it would be an unusual thing to do. If you look at the constitutions of the world, you find that there are basic civic values entrenched in most constitutions. If you look at the Indian constitution, you find justice, liberty, equality and fraternity. If you look at the South African constitution, you find unity, democracy, equality and social justice. If you look at the Irish constitution, you find prudence, justice, charity, dignity and freedom. If you look at the German constitution, it refers to self-determination, to being free and united. The United States constitution embedded well and truly the values of justice, peace and liberty.

We are not after a fight with the High Court. We are not after a bill of rights, but I think it is absolutely crucial that in the preamble we include some basic reference to civic values that are important to us as Australians, that we have developed over hundreds and hundreds of years, and that they be written in a way which is not contentious but in a way that reflects appropriately our support for representative parliamentary democracy and the rule of law, our belief in the equality of all citizens, our understanding of cultural diversity and our respect for the land in which we live. I do not believe they are contentious, and I believe they are crucial to any reasonable preamble we put before the Australian people.

 

Ms O'SHANE- I have a question for Professor Craven. I note that paragraph 4 reads:

 

. . . the preamble should contain appropriate statements of acknowledged historical fact . . .

 

And it goes on to give an illustration. The question that I want to put to Professor Craven is: do statements of acknowledged historical fact include the brutal murder and dispossession of the indigenous peoples of this country; the stealing of their children; the breakdown of their communities; the dispersal of their communities and then the institutionalisation of indigenous communities in reserves? These are acknowledged historical facts. Do I take it that we will include these in the preamble that Mr Craven is proposing?

 

CHAIRMAN- I will ask Professor Craven to respond when the debate is finished.

 

Dame LEONIE KRAMER- I am taking issue with the phrase `the conversion of Australia to a republic'. I think it is inappropriate to invite us to vote on that when we do not have the result of a referendum. I do not think in any case, to make a more general point, that the preamble should include such statements. That is not a statement of principle at all.

 

CHAIRMAN- Can I point out that these working group proposals are within the embrace of the resolution we passed the other day. Therefore, when we have been through them this afternoon, if there is more than 25 per cent in favour they will be referred to the Resolutions Group. We will have another opportunity to revisit them after the Resolutions group has considered them.

Professor WINTERTON- I support the principal resolution and all of Greg Craven's amendment, except for point No. 5. Perhaps I could suggest to delegates a way of evaluating what ought to be in the preamble. Logically, one ought to begin by asking: what is the purpose of a preamble?

It seems to me that there are three basic purposes, if you look at world constitutions. The first is to state what is the purpose of the Constitution. Our Constitution was adopted by the people before enactment at Westminster, so it ought to say that it is based upon popular sovereignty, which is a fact and which the High Court and many others have recognised. If we do change to a republic, it ought to say that. The second is the statement of who we are. That ought to indicate the people who constitute the Australian community, including the indigenous people and, if one wishes to state it, the fact we are a multicultural or diverse nation. There should be some reference to that. The third and most important, in this context, is how we would wish others to see us and how we see ourselves. Here, I think values that unite us and help to give a picture at the beginning of our national constituting document are appropriate.

I fully understand Greg Craven's concerns. Those concerns have been expressed by many people who support the values that are in the Constitution. Sir Anthony Mason, for example, the former chief justice, has expressed the same concerns as Greg Craven- and they are serious considerations. The reality is that the High Court will take the preamble into account. Nevertheless, it is essential that we not be dominated by the fact of constitutional interpretation. If we believe these values are central to the Australian ethos, we should state them.

The important thing to bear in mind is that the High Court can derive these values from elsewhere. Take the rule of law: the High Court recognised this in the Communist Party case, without any statement of preamble. With regard to democracy, the High Court has recognised this from other constitutional provisions providing for election of the Commonwealth parliament. They do not need the preamble. As all the critics of the High Court will note, they can rely on international instruments- other constitutions of the world. The reality is that whether or not they are in the preamble will make no difference to constitutional interpretation.

 

Dame LEONIE KRAMER- Could I request that you take each of these five proposals separately?

 

CHAIRMAN- Yes, I shall.

 

Professor PATRICK O'BRIEN- I am absolutely dumbfounded when I look up at that screen. There it says, in No. 5, that `the preamble should not contain statements of abstract values or rights such as equality or democracy.' Goodness me- we must not talk about democracy! That is the dirty word. That is the `Boo' word. Democracy an abstract value? Good God- do the authors of that phrase understand what they are saying? Have they read no history? Do not they understand that we have just witnessed the collapse of totalitarian regimes- the attempts to institute very practical things called democracy? Do not they understand what the Glorious Revolution of 1688-89 was at least partly about? Do not they know that people were hung, drawn and quartered because they advocated the sovereignty of the people? How ridiculous that a Constitutional Convention in a democracy says that we must not put the word `democracy' in a preamble to the Constitution. That is disgraceful.

 

Dr O'DONOGHUE- I want to draw attention to what many speakers this morning referred to as `prior occupancy'. I rise to my feet because I want to make it quite clear to the assembly here that we were not the prior occupants; we were the original occupants. I would like that to be clear once and for all in the assembly. I would want a change to `prior occupancy'. It would be better if we took out the words `prior occupancy' and `custodian' to recognise Australia's indigenous peoples.

 

CHAIRMAN- I would point out that we are only dealing with these provisionally. I think we will take on board your recommendations without making a formal recommendation. We can refer that to the Resolutions Group if it is passed.

Mr BRADLEY- I understand entirely the sentiment expressed by the movers of these amendments. Their concern is that by putting words like `democracy' and `equality' into the preamble, we may deny our parliaments the ability to enact the laws that we elect them to enact and place the responsibility for limiting their action and interpreting their words in the hands of courts who are not elected. I would have thought that those who sit on those benches and purport to support the popular election of positions and abhor the appointment of people to offices should not sit well with the proposition that they would transfer power from the parliaments of this nation to the courts and leave to them the rights to decide what is or is not democratic. That is the sentiment behind these amendments, and I support that sentiment.

On the other hand, I must say that I do not think it is beyond the wit of this nation to compose some words to sit as a preamble not to the act but to the Constitution, which would adequately meet the requirements of 95 per cent of the people in Australia, including the very legitimate requirements of the indigenous people of this nation and in a way which would not effect a massive transfer of scrutiny and power from our parliaments to our courts.

In the hope that the message might go from this Convention to the government, who is listening to its report, I would support the sentiments behind this amendment because I think it would be unwise for us as a body to suggest a further transfer of power out of our parliaments into our courts.

 

CHAIRMAN- I want to try to keep this to a minimum because we have a large number of amendments, and time is running out. I call Mr Wilcox and then Mr Rann.

 

Mr WILCOX- I get a bit astounded here at the rush, rush, rush, as if there is some magic in the year 2000 or anything else. I am not against probably recognising nearly all of what is in that preamble. I might say at the outset that I do not have a copy. I have a copy of the amendment proposed by Professor Craven. I do not have the original. It is very difficult to read it up there. There is no No. 1 on that screen. No. 5 is nearly cut off at the bottom. It talks about abstract values or rights and equality and democracy- all great words. Let me remind you that the present preamble has one, two, three, four, five, six, seven, eight lines. That is all it has- eight lines. We think that we can work magic here and bring about an entirely new preamble within two weeks.

The founders of the Constitution were very erudite men. They took two decades- 20 years. We are trying to do all sorts of things in two weeks. It is an instant coffee syndrome today. Everything has to be instant. I just sound a warning. Somebody said, `Do the courts take preambles into account?' It is pretty hard to keep up with what the courts do today. You never know what they do. As a lawyer from way back, I used to have a pretty fair idea what the courts did, but today you never know what they do. They decide to have judgments on what they believe to be international expressions of opinion.

I just sound a warning. I am not speaking about anything particular in the preamble and the many things that were mentioned, some of which I heard this morning. Some of them were excellent statements of principle of what this country is about. But we just want to be careful. No. 5 has disappeared, so I cannot even look at that. I have to rely on my head, and that is not too good sometimes at this stage of the afternoon after a few days of this.

I just sound a warning: you change one word in a legal document- and that is what the Constitution is and I include the preamble- you change a clause and the litigation is just tremendous. In a country which goes for litigation like the Americans have, goodness knows where we would finish up. I sound the warning. I am not against it, but there should be a lot more work put into it. I do not think this Convention has time to do it. If it goes away, and the government sees it, well and good.

 

CHAIRMAN- I point out that these are going to be considered provisionally. Mr Rann wants to make a brief intervention and then I want to call Mr Turnbull. Then we will take it on that provisional basis.

Mr RANN- I think there is some confusion about this. We are not talking about a Bill of Rights- that would take us months to determine- we are talking about a statement of Australian values which should not be beyond our wit. Hopefully, that statement of Australian values says what we stand for as a nation: things like the rule of law; things like the sovereignty of the people, diverse as they may be; things like representative parliamentary democracy in a federation of Commonwealth and states; things about equal justice under the law; equality of men and women under the law and equality of opportunity. Those basic things that we, as Australians, hold dear should not be beyond our wit in a brief preamble to a Constitution.

 

Mr TURNBULL- As far as the preamble is concerned, I think it is quite plain that there are three things that delegates overall seek to achieve. First is a recognition of the Aboriginal people of this country, the first Australians, who are excluded from the preamble and ought to be included in it. Secondly, the preamble should be an uplifting document; it should say something inspiring about Australia's values. Thirdly, there is a legitimate concern expressed by Professor Craven that those two first objectives should not be effected in a manner that creates all sorts of unforeseen consequences and unforeseen change.

This is not a particularly easy thing to put together. We are not going to be able to do it. The best we can do is tell the Australian parliament what our concerns are and what we want to be in there. I have no doubt that over time, in consultations with ATSIC who, with great respect to other interested parties, I think have the primary status in terms of speaking about this preamble because they were here first and have been left out of it longest, a preamble will be developed that meets all of those objectives. So I would urge delegates to remember we are not drafting the preamble; we are talking about simply some drafting guidelines which parliament can take into account.

 

CHAIRMAN- Professor Craven, do you wish to respond?

 

Professor CRAVEN- No.

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