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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 13

CHAIRMAN- There are those who wish it to proceed, even though I think Professor Winterton's comments are quite valid. Those in favour of local government being referred please raise their hand. There are 48 in favour so I do not need to take the number against. Local government is referred. The next paragraph we are dealing with is gender equity. Those in favour of gender equity being referred? Those against? You have your numbers, gender equity is referred.

Paragraph 3 recognises Aboriginal people; that has already been referred under the earlier proposition. We have a further amendment. I do not know quite how we deal with this, Dr Cocchiaro. You moved the original motion, but there is a further proposition which I gather you are advancing as some form of a hybrid. Do you wish to proceed with that, Dr Cocchiaro?

 

CHAIRMAN- Can I urge you not to speak, we are running out of time.

 

Dr COCCHIARO- I move:

 

Amend the preamble to add the following:

 

Ms ANDREWS- I second the amendment.

 

Dr COCCHIARO- This is just additional to Professor Winterton's. It seeks to be inclusive of people who may be atheist. It also emphasises cultural diversity and points out environmental concerns.

 

CHAIRMAN- Thank you. Those in favour of referring Dr Cocchiaro's hybrid? Those against? It is referred.

We will go back to the report of subgroup (i). Are we in favour of it being referred with those various addendums? Remember, you have more than one vote; this is all for the sake of reference to the Resolutions Group. The motion is that the report of subgroup (i), as amended, be referred to the Resolutions Group.

Motion carried.

 

Subgroup (ii)- Preamble- to retain the words "humbly relying on the blessing of Almighty God".

CHAIRMAN- We will now go to subgroup (ii). These are only to be referred. We are considering them subsequently. Archbishop Peter Hollingworth, do you wish to move your resolution?

 

Dr DAVID MITCHELL- Mr Chairman, there is a proposed amendment.

 

CHAIRMAN- Yes, I understand, but the resolution has to be moved first. Archbishop Hollingworth, do you wish to propose your group's report?

The Most Reverend PETER HOLLINGWORTH- I move:

 

(ii1) It is recommended to the Convention that the present formula, "humbly relying on the blessing of Almighty God", be retained in any subsequent amendments to the Preamble.

(ii2) This action will keep our Constitution clearly in line with nearly all other constitutions of nations in this region and beyond where reference is made to the Divinity as the source of all power and be a unifying statement for people of all religious faiths throughout Australia.

 

I will be very brief about it. Just to reiterate quickly what we said in the earlier discussion, the word `God' is to be understood in the generic sense as every man, woman and child understands him/her to be according to their own particular experience. I think that probably covers the issue.

 

Ms AXARLIS- I second the motion.

 

Dr DAVID MITCHELL- I move:

 

Add a further paragraph as follows:

3. The Preamble to the covering clauses of the Constitution should include all the concepts expressed in the following words:

"The people of the Commonwealth of Australia, humbly relying on the blessing of almighty God:

 

Acknowledge that their sovereign, independent nation has been well served since 1 January 1901 by the Constitution then established;

 

Unanimously recognise that Aboriginal peoples and Torres Strait Islanders are the indigenous peoples of Australia and that almighty God made every race of mankind to be of one blood and to inhabit the whole earth and He determined the times set for them and the exact places where they should live;

 

Sincerely affirm the principles and rules for government expressed and acknowledged up to this time in the historic oath and ceremonies of the coronation of Kings and Queens of Great Britain;

 

Totally reject practices of injustice based on race, colour, creed, sex, language, incapacity or any other characteristic or fact;

 

Recognise and cherish the contribution to their nation of people of diverse backgrounds and cultures;

 

Agree together that Australia is and shall continue to be one indissoluble Federal Commonwealth;

 

Live in a land of opportunity and they demand respect for, and the proper use and protection of, the gifts bestowed by Nature on their great nation and they expect each person to use his or her abilities and resources diligently and wisely so that all may prosper;

 

Insist on peaceful co-existence according to law within Australia and with the other nations of the world;

 

And they joyfully sing together-

Advance Australia Fair,

 

Very briefly, many of the issues in this amendment have already been referred pursuant to resolution 1. However, there are some specifics relating to this that I must draw to the attention of the Convention. You will see that there are nine sentences, each commencing with a letter and the letters spell out `Australia'. The sentence beginning `U', relating to the recognition of Aboriginal peoples and Torres Strait Islanders, perhaps looks wordy on its face. It is drawn straight from the scriptures in Acts, chapter 17, verse 26.

You will see that this proposal includes not only questions of discrimination and recognition of the contribution of people of diverse backgrounds but also that the preamble must declare that Australia continues to be one indissoluble federal Commonwealth.

This amendment proposes a recognition of the forests and the other natural resources of this country. It calls for work for toil, and respects the peaceful coexistence according to law within Australia and within other nations. These are matters which are not raised in the other resolutions. I put it in this place as an amendment to resolution 2 not because it necessarily fits better there than anywhere else but because I did not wish to detract from any of the matters in resolutions 1, 3 or 4.

 

Brigadier GARLAND- I second the amendment.

 

CHAIRMAN- The question is that the amendment be referred to the Resolutions Group.

Motion lost.

 

CHAIRMAN- The question now is that the report of subgroup (ii) be referred to the Resolutions Group.

Motion carried.

 

Subgroup (iii)- Preamble- to provide constitutional recognition of the indigenous people as prior inhabitants of Australia.

Father JOHN FLEMING- I move:

 

(iii1) That this Working Group, representing a wide range of opinion on the republic, recommends to the Constitutional Convention:

a) that the Preamble should include recognition of Aboriginal peoples and Torres Strait Islanders as the original inhabitants of Australia who enjoy equally with all other Australians fundamental human rights;

b) that this separate referendum question on the Preamble be put to the Australian people at the same time as the referendum on the republic; and

c) that there be wide community consultation and negotiations with ATSIC and other relevant bodies to reach an agreement on the form of words to be used in such a proposed constitutional change before it is put to the people.

 

As I said at the end of the last week, the report makes sure that the recognition of Aboriginal and Torres Strait Islanders as the original inhabitants of Australia be entrenched in the preamble and that the matter can be dealt with as a separate referendum question. You simply need another act of parliament. The two questions can be put, as has occurred many times in the past in Australia. A lot of referendum questions have been put at the one time. However, because this is an in-principle motion, the wording shall be in agreement with and in consultation with the various interested community groups mentioned in the article.

 

Dame LEONIE KRAMER- I second the motion.

 

CHAIRMAN- The question is that the report of subgroup (iii) be referred to the Resolutions Group.

Motion carried.

 

Subgroup (iv)- Preamble- to provide constitutional recognition of citizens rights.

Ms RAYNER- I move:

 

(iv1) This working group recommends the adoption of the draft preamble endorsed by the ATSIC Board of Commissioners which we believe meets most of the working group's needs, and appears in the following terms:

(iv2) Further, this working group suggests the resolutions group also consider including references to the following:

 

Mr DJERRKURA- I second the motion.

Mr HAYDEN- There are an extraordinarily large number of abstract notions put forward there which could allow very wide subjective interpretation as to what is exactly meant. I hope therefore that if this goes forward the Convention will bear in mind what Mr Turnbull said earlier about subjective issues in the first resolution that came before us. It could end in a disaster. When the High Court interprets a meaning in the Constitution it rules out any opportunity for parliament thereafter to pass any laws inconsistent with the interpretation even if parliament and perhaps the public believe that that interpretation is not the sort of thing they would want. It would require a referendum to change it. So we have to be very careful. And that is apart from the litigation and the high costs which can occur with these sorts of abstract notions.

 

CHAIRMAN- Are there any other comments?

 

Ms RAYNER- I was not going to say anything but since Mr Hayden did speak against the motion may I simply point out that this is a motion which says that the ATSIC Board of Commissioners' recommended preamble should be sent to the Resolutions Group. It is far from a radical document and there is really little point in saying that we should be afraid about how it is interpreted. We should in fact be ensuring that we deal with human rights and the rights and democratic principles upon which we are governed in a statutory framework and in further constitutional review. This is merely a document which gives us somewhere to look which is above our own navels.

 

CHAIRMAN- Are you ready? I know that it is a reference, a provisional resolution. We are considering that the report of Working Group 4 be referred to the Resolutions Group from which it will come back and we will make sure that you all have all the bits of paper so that you know the full detail of the final words. There being no further comment, I put the question that the report of subgroup (iv) be referred to the Resolutions Group.

Motion carried.

 

CHAIRMAN- We have one other item and that is the motion of Mr Geoffrey Hourn. Do you wish to proceed with your motion, Mr Hourn?

 

Mr HOURN- Yes. I move:

 

That this Convention calls on the Treasurer to provide an estimate of the total cost of transition to, and establishment of, each of the models of a republic currently being considered by this Convention, namely:

(a) where a head of state is popularly elected;

(b) where a head of state is elected by a joint sitting of the Federal Parliament; and

(c) where a head of state is appointed by the Prime Minister or a Constitutional Council

and with reference in each estimate to the consequential changes, such as the revision of prior federal and state legislation and practices.

 

Mr BARTLETT- I second the motion.

 

Mr HOURN- Last Friday I was wondering late in the afternoon whether five days in Canberra in the hot house of this Convention removes one's reason or diminishes one's perspective. As you will recall, on Friday afternoon a similar motion was put by Senator Boswell and was defeated 68 votes to 65. A charitable view might be that delegates may have been preoccupied with thoughts of returning home on Friday afternoon to their loved ones or thoughts of that first sip of chardonnay and therefore did not put much consideration into the particular matter of the costs of any republic. But in simple terms it is an important issue to be considered. You certainly do not buy a racehorse when all you can afford is a camel.

Senator Boswell put up a reasonable proposition although some speakers suggested that it was a debating point and was really a trick of some form. In moving the motion Senator Boswell said that he thought that the people of Australia deserve all the information they can get in formulating their opinions of whether or not we should change our system of government and that an important part of that information is what it would cost to change.

Senator Boswell also acknowledged that democracy should not have a price on it. But nevertheless the public does deserve at least a ball park figure of what any change would cost. Mr Lavarch said that this was a bit of gamesmanship and then Mr Turnbull asked for the Treasurer to make a comment. The Treasurer got up and said that he was a servant of the Convention and would make the best attempt possible to gain this figure and supported that statement by later voting for this motion. Nevertheless the motion was lost.

Now that we have had the weekend to reflect on the matter, it is important that the matter be put to us again because the people of Australia do want to know what the cost of changing our former government will be before they make any decision. The Convention will make the resolutions and the recommendations which will go to the Prime Minister and which the Australian people will take note of. It is therefore important that delegates understand the cost and what that implication is.

The cost may also determine such things as timing. We talked about timing earlier today. It is important that we take into consideration all aspects when we are making our recommendations on what sort of a republic we might wish to put to the people.

In summary, we need to be transparent. We need to be honest. We need to have all the cards on the table. Considering the cost- even if it is in ballpark figures- of what a change would mean is a very important consideration.

 

CHAIRMAN- My difficulty is that the Convention yesterday decided against the motion that this Convention call the Treasurer to provide to this Convention an estimate of the total cost of transition to and establishment of a republic with reference to consequential changes such as the provision of prior federal and state legislation and practices. This motion is very much of an agenda that fits within that. I really require a recision motion on Senator Boswell's motion. If we have that we can consider the two. But unless Senator Boswell's motion is rescinded we would have difficulty in accepting that yours is significant or substantial.

 

Senator HILL- How can you rescind it if it has been defeated?

 

CHAIRMAN- With a motion that has been defeated we would have to have it revived- put it the other way around. Mr Jones suggests that procedurally he has an alternative. I want to know how I can get the new motion up.

 

Mr BARRY JONES- It was put to the Resolutions Group this morning that this is certainly something that is well above the 25 per cent threshold. It was unanimously agreed around the table at the Resolutions Group that the Boswell resolution should be put and a fresh vote taken on it. That is the recommendation of your Resolutions Group.

 

CHAIRMAN- I would propose that we need to have a mechanism to revisit the Boswell motion. In order to do that I will allow the Boswell motion to be considered as an amendment. Then we can go back to Mr Hourn's motion. In other words, we will recommit Senator Boswell's motion. But I have to do something about that vote yesterday or I do not believe we can do it.

 

Ms HOLMES a COURT- As I understand it, Senator Boswell's motion was asking the Treasurer to provide the information by next Friday. As I understand it the Treasurer was highly relieved when this meeting agreed that he did not have to do that- when it was voted against- because he had no hope in hell of giving the proper figures to this Convention. This Convention will be finished on Friday.

Mr Hourn has said that the people of Australia deserve information. They do deserve information; they deserve proper information, and more correct and more accurate information than can possibly be obtained for this Convention. There is nothing against them getting information. I think that the idea of putting Senator Boswell's motion- as I stand here I can see that I have as much Alzheimer's as a few other people perhaps. Maybe I have made a huge mistake, have I?

 

CHAIRMAN- No, Senator Boswell's motion required a report to this Convention whereas the motion today calls for a report on the matters currently being considered by this Convention.

 

Ms HOLMES a COURT- So we want the formal motion that is before us to be put.

Mr GARETH EVANS- Mr Chairman, there is nothing in meeting procedure which stops you seeking the leave of this Convention to put a new motion to the Convention notwithstanding its similarity to one previously dealt with and negatived by this Convention. If you simply seek the leave of the Convention to put a motion in these terms, I am sure that that leave will be granted, because it does seem to be the prevailing will of the Convention that this issue be readdressed in the form in which it now comes forward, which is significantly different from Senator Boswell's motion on Friday, even though it obviously covers a lot of the same ground. You cannot ignore the motion on Friday; I agree with you about that. But what you can do is to seek the leave of the Convention to proceed in the way I have proposed and then to put this motion in these terms.

 

Mr BARTLETT- Many people I spoke to after that vote was taken on Friday were under the impression that it was a silly motion, with all due respect, Senator, because it was very generic in the sense that it did not cover the models or at least try to cover the models we are looking at in the Convention. That is why we have put the new motion: to make it more specific and make it easier for those, as they would be forward estimates. I know that many of the people also who voted against Friday's motion were under the impression that the whole issue of cost could be seen as a political stunt and used as such by those people opposed to a republic. I can understand that. For some that may be true; for me it is not. I am here as an independent and for me it is about practicality, it is about fairness and it is about accountability. As a journalist let me say this: I am well aware that it could be used as a scare campaign in a referendum, but I urge you to turn a negative into a positive. In that sense, remember that, with the model with the full cost built in, as it were, being endorsed by this Convention, even though it is a ballpark figure, the Australian people will know that we have considered cost and decided that it is worth while to proceed on that basis with full information. Trust me: if you ignore it, it will become an issue.

 

Mr HAYDEN- Mr Chairman, if you cannot accept Mr Gareth Evans's submission that this is a different resolution and you are worried about the technical complexities of resubmitting this item, could I suggest that there was a very simple precedent that was adopted last week when certain matters were determined here in relation to matters being sent to the Resolutions Committee. According to that precedent, matters that had been defeated on the floor of this chamber in fact were allowed to be resubmitted to the chamber to go back to the Resolutions Committee. So I do not see any reason why we should be spending any more time on this, because the precedent is there if you cannot accept Gareth Evans's and Mrs Holmes a Court's recommendation, which is well taken.

 

Ms RAYNER- I have a request for information, really. I would like to ask of the Prime Minister whether in fact an informal calculation of these costs has already been done and been communicated to interested parties.

 

Mr HOWARD- No.

 

CHAIRMAN- I ask Mr Hourn whether he would like to seek leave to move his motion.

 

Mr HOURN- I do seek leave. In doing so, can I clarify a point. This motion is not meant to go to the Resolutions Committee; it is a request to the Treasurer.

 

CHAIRMAN- Leave is granted. You have Mr Hourn's resolution in front of you. Do you wish to discuss it further?

 

Delegates- No.

 

Mr HOURN- I move:

 

That this Convention calls on the Treasurer to provide an estimate of the total cost of transition to, and establishment of, each of the models of a republic currently being considered by this Convention, namely:

 

Motion carried.

 

Senator BOSWELL- On a point of order, I want to make this very clear to the Convention. I want to point out what we have done now: we have no figure to base a decision on. I believe the Convention now has relieved the Treasurer of providing a figure to be presented to the Convention. If we accepted Mr Hourn's motion, some time in another 12 months we may get a figure. Anyhow, that is the decision of the Convention and I am not going to take my bat and ball and go home. I did want this Convention to have a figure that would be presented to the Convention so the Convention could make an informed decision, but it appears that we are not going to do that.

CHAIRMAN- I have a notice of motion from Mr Bruce Ruxton relating to the head of state not to hold dual citizenship and relating to his role as Commander-in-Chief of the Defence Force. I suggest that motion be referred to the working group and be referred to us tomorrow.

The only amendments and motions before us that I believe need to be dealt with have been concluded, so it is my intention now to revert to the debate on the general address. Prior to doing so, can I advise delegates that the working groups that are to consider the several proposals relating to section 44 of the Constitution- that is, with respect to the flag, the coat of arms, the future discussions regarding changes to the Constitution and the oath of allegiance- are all to take place in venues that have been advised.

I am told that Working Group J, on the oath of allegiance of the new head of state, will now meet in convention committee room 5, not one as listed on the green sheet. If you are leaving the chamber, could you please do so quietly. I also remind delegates that an informal drinks function, hosted by Mr Dick Smith and Tony Everton, will be held from 5.30 p.m. in the courtyard outside Backbenches Cafe. I now call on those who are to proceed with their general addresses to remain in the chamber.

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