The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Monday, 9 February 1998
Page 4

Mrs Annette KNIGHT- Whilst I broadly agree with Professor Craven's amendment, which includes such issues as the preamble building upon the existing preamble, recognition of the prior occupancy of Australia's indigenous peoples, acknowledging the past contribution of the Crown, with certain appropriate statements of acknowledged historic fact and the subsistence of parliamentary and federal government, I have to say that I believe that part 5, which reads `the preamble should not contain statements of abstract values or rights such as equality or democracy' will strike significant opposition in this house, since many feel there should be a reference to democracy in the preamble, along with a statement of our commitment to certain principles that we hold dear as Australians.

Whilst acknowledging Professor Craven's warning of the dangers of too definitive a preamble that may be subject to the courts' interpretation and that could form the basis of endless legal argument, and subject to a proper legal assessment of the measures that may be incorporated into the Constitution to limit such action, I would like to advance the Australian Local Government Association's request that within the preamble, or in another appropriate section of the Constitution, there be a commitment to democratic principles at all levels of government. This should include local government.

The commitment would recognise the important role that local government plays in the good government of Australia at its most practical level- the level that determines those things that are essential to ensure the best possible quality of life for every Australian. Excessive concentration of power in the executive arms of government must be avoided. The Constitution must reflect this as it does in some other countries. For instance, the Swedish Constitution mentions Swedish democracy as founded on freedom of opinion and on universal and equal suffrage and that it shall be realised through a representative and parliamentary policy and through local government- local government has significant focus placed upon it, and this is its proper place.

Local democracy has currently no constitutional protection and that can have an adverse effect on the rights of local communities to participate with certainty in this sphere of government which most touches their daily lives. Should this conference vote to see the word `democracy' included in the preamble I would urge an inclusion to reflect `at all levels of government'.

Ms ATKINSON- I am delighted to follow on from my friend Annette Knight, the Mayor of Albany, because it gives me a chance to correct in this place a mistake I made the other day when I said she was the Mayor of `Awlbany'. I very promptly received a letter from that place advising me of my error. I am also delighted to follow her because I am speaking to her theme.

All of us in this chamber would agree that the preamble is a very important part of the Constitution although some may argue that it is not part of the Constitution. But certainly it does set the scene, it says a lot about how we feel about the Constitution, which in a way is a sort of mission statement for this country. I believe strongly, as others have argued before me, that it should embody our hopes, our aspirations and our ideals and it should also state some truths about this country. Mary Delahunty very eloquently phrased it as a `welcome mat' document.

I too would have liked to have seen some mention of local government in the preamble. I know that that is not what this Convention is all about in practical terms and I am a practical person. I know we are here to answer three questions. I understand the legal implications. I have been spoken to, sometimes severely, by some of the learned jurists here present. But the Convention is all about providing a framework and a structure for the future. I believe very strongly that we should be making preparations for some changes at later stages; if those changes cannot be incorporated now we should be setting the scene for how this Constitution may evolve and certainly how this country will evolve.

I campaigned very strongly- often against my political colleagues- in 1988 for the referendum for the inclusion of local government in our Constitution. It seemed to me a fairly self-evident and simple premise but it was defeated at referendum. We all know the way things go at referendum.

I say very strongly and sincerely that if we believe in local government, and I am sure we all do, and that local government should exist then it should exist properly- it should be in our Constitution, which is the document of our government. Annette Knight very well described the importance and the role of local government. I will not be repetitious or compete with her- her eloquence is greater than mine because she is in it.

There are a lot of people in this chamber- for example, Joan Moloney from Longreach- who are involved in local government at the moment. There are others of us, such as Doug Sutherland, Clem Jones and myself, who have been in local government. All of us understand how it works. There are 700 or so councils in this country. There are more than 7,000 democratically elected people who represent constituents at what I happen to believe is the most important level of government.

It makes a nonsense of the democratic process if we elect people and they do not have any legitimacy, as it were, in the document of government and can be dismissed at the whim of another level of government. Quite often perhaps these councils should be dismissed. Many people feel that way about state governments and federal governments. There is a mechanism for dismissal, and it is called election. We have now seen many examples where local councils have been dismissed and where those commissioners, put in place by another level of government, have performed actions and have carried out moves that were quite against the will of the people in that place.

This morning I am speaking to the preamble, saying that I would have liked it to have been formed in another way. I would hope there is still some way in which we can incorporate the will of the people at all levels of our democracy. Most importantly, I would like to get a very clear signal that local government feels very strongly about it. If we are all here in the interests of giving people a fair go and democracy, we should certainly give some thought to this matter.

Mr KILGARIFF- I would like to concur with the comments by Sallyanne Atkinson: the role of local government in the Australian Constitution should be recognised. I have long believed that the proposal that was put up many years ago, whereby we had stronger regional governments in Australia and perhaps did away with the second tier of government, was something that we should be considering. Indeed, I believe it is something that, if we do go towards a maximalist change in our Australian Constitution, we should reconsider. I foreshadow that this afternoon I will be moving the following amendment to the report of subgroup 1 in the preamble:

That, in relation to the preamble, the Northern Territory should be recognised as a geographical and legal entity,and it would be expedient to provide for statehood and thus full membership of the Commonwealth of Australia.

Again, while I leave myself open to allegations of parochialism, I was elected on a platform where I undertook to raise statehood at the Australian Constitutional Convention. I am using this opportunity to raise that issue. Thanks to Dr Tony Cocchiaro for his earlier comments endorsing that principle.

While statehood for the Northern Territory is an issue of federation, recognition should be given to the special circumstances of the Northern Territory. The last time I looked at a map, it still clearly showed Darwin and Alice Springs as being part of Australia. It seems a little incongruous that around 1.7 million square kilometres of Australia is somehow not classified as a full member of Australia. The last time I looked at a passport, it clearly showed that I was a citizen of Australia. The last time I voted in a federal election, I was voting for candidates that were to be elected to the Australian Parliament. The last time I filled out my census form, it was in the Australian census.

However, delegates, or Australians for that matter, would not be aware that territorians do not have the same rights that other Australians enjoy. The Territory is not counted in referendums when the majority of states are counted, as Territory votes are counted only in the overall majority of votes. Territory laws are also liable to be overturned by the national parliament, as evidenced by the recent Kevin Andrews bill, overturning the Territory law on the rights of the terminally ill. I am disappointed that he is not here at the present time. Whether you supported or did not support this bill, a situation where the Australian parliament can overturn laws legitimately debated, passed and enacted by the Territory parliament is one that should not be encouraged if we are to be a true federation.

Those who would argue that the population of the Territory does not justify statehood are ignoring the fact that this was not an issue pre federation only to the extent that the less popular states, such as Tasmania, were actually compensated for that fact. As to the number of senators the Territory may have, that is a point on which I and a number of other Territorians are more than willing to undertake negotiation.

The Territory is now funded as a state and attracts no more funding now than it would as a state. A move to a republic by the Australian people would provide an ideal time to progress the Northern Territory to statehood. Debate around the nation has focused on the inevitability of Australia becoming a republic. If that is true, it also follows that it is inevitable that the Northern Territory will become a state. It follows logically that, if delegates here believe that it is inevitable that Australia will become a republic, and that therefore we should proceed down this path by or during the year 2001, it should also be good enough that the Northern Territory should proceed to statehood either prior to any constitutional change to move to a republic or at least at the same time.

I will therefore be seeking some commitment from this Convention that, regardless of whether Australia decides to move to a republic or not, the Northern Territory is given the right of statehood, allowing all Australians to have equal rights under the Australian Constitution.

DEPUTY CHAIRMAN- Wendy Machin has ceded her place to Karin Sowada, so I will give the call to Karin.

Ms SOWADA- Delegates, this morning we are considering what changes if any might be made to the preamble of the Constitution. I would like to add my support to the reports made by Working Groups 1, 2 and 3. The current preamble makes for very dry reading, dressed up in its legalise and its weighty words. It is in its own way an historical statement of its time, carefully framed by serious men. As we consider change, it is appropriate to assess the need for a more up-to-date proclamation of who we are and where we are as a nation.

Delegates, let us frame an historical statement of our time, of our time at the end of the 20th century and of a nation which has come of age. Working Group 1 rightly suggests that such change should not replace what is already there. Whether we like it or not, we cannot escape our colonial past, as much as we might like to shirk from the darker episodes of that history. But the move to a republic is an appropriate time to state our values as a nation- those of equality, the shared love of democratic values and the principle that sovereignty rests with the people rather than the Crown.

Some of the lawyers present have expressed concern about the possible legal effects of new words in the preamble that could be used by the High Court in the interpretation of the constitution. I am not a lawyer; I am an archaeologist. But, given that the High Court found that there was an implied right of free speech in the Constitution in the political advertising case, what they might do with a more specific terminology is anybody's guess.

The question of the role of the preamble in constitutional interpretation is one that cannot be ignored. However, if this Convention supports change to the preamble along the lines suggested by Working Group 1, a form of words will need to be devised that is mindful of any possible legal impact. On the other hand, we may want these principles to have legal effect. I certainly do. Why need we be afraid of enshrining the principle of democratic government, respect for the rule of law and equality of all citizens as a statement of our national values? Why need we be afraid of that? Let's embrace change and let's embrace our vision of our national identity. A form of words embracing these principles can surely be added to the preamble without creating the legal minefield outlined by our constitutional experts.

A second most necessary amendment to the preamble involves the recognition of Aboriginal and Torres Strait Islander peoples as the original inhabitants of Australia. This was supported by Working Group 3. I believe this issue is a basic one of fairness and justice and I hope that this Convention can make a significant contribution to the reconciliation process by unanimous support for this principle.

A third amendment, of course, should include reference to the state of Western Australia. The report from Working Group 1 satisfies all these requirements, with the addition of a short form of words embracing these concepts. I noted that a form had been appended to their report. This is a good start, in my view, but I would hesitate to construct a new preamble at this Convention as I believe it would be a many humped camel indeed.

I would also like to lend my support to the report of Working Group 2, that we retain the words `humbly relying on the blessing of almighty God' in our Constitution. I have listened with great interest to the contributions of others in this debate. I particularly thank Archbishop Hollingworth for his well chosen words the other day. Keeping God in our Constitution is ultimately an expression of the fact that those who govern us are accountable for their actions to someone other than themselves. It is an expression of our dependence on God as creator and sustainer of all things and as the one under whom all authority is established.

The lead-up to the centenary of Federation is a wholly appropriate time to re-examine who we are as a nation and what values we share. In a move to a republic the preamble will require amendment anyway, so what better opportunity to embrace a wider statement of our national identity.

Ms O'SHANE- Last week I was saying on a number of occasions that, even if we make little or no progress on the form of a republic, we must make use of this occasion to change the preamble to our Constitution. I sit on the platform of `A Just Republic- not just a republic' which included the planks that there be a change of the preamble; that there be written into our Constitution a charter of rights; and that there be a very clear statement of definition of the respective roles, functions and responsibilities of the head of state, Prime Minister and cabinet, and of the responsibility of government to parliament.

I have changed my position somewhat on the issue of the preamble. It seems to me that there is really no point in changing a preamble if we are not going to change the Constitution to make it a Constitution which serves a democratic republic of Australia.

The agreement on the wording of a new preamble is the least achievement we should show to our fellow citizens. However, the language and concepts embodied in our national documents should not be exempted from scrutiny. It is true that they have historical worth. I would not put it as high as a number of my fellow delegates have put it, but in any event those words as a preamble are not beyond review and renegotiation.

The two primary rebuttals mounted against any change to the preamble tend to be, `If it ain't broke, don't fix it,' and, `It's so perfect it doesn't need change.' Frankly, I see nothing approaching perfection about these words:

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania . . . have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland . . . 

The words are dull and lacklustre. I put it to you that, in the Australia that is entering the second millennium, they are utterly meaningless. Instead of something that encapsulates our history they are words that point to one moment in time.

Australian history, let me remind you, is many tens of thousands of years older than that paltry, miserly reference allows. As Dr Lois O'Donoghue pointed out last week, there is much about our recent history that is not worthy of celebration. And the claims that the so-called perfection of the Constitution has given us a stable democracy tend to highlight the fact that a Constitution as colourless and as bureaucratic as ours will always be the plaything of the oligarchy rather than the instrument of the people. As a nation we must take the opportunity to reflect on our history and public institutions and to consider the benefits of change, especially if there are reasons to be less than proud about what they represent.

I am willing to agree that the existing Constitution has served a purpose, but that purpose was very specific and has long since been superseded. As it stands, the Constitution of the Commonwealth of Australia merely sets out the terms under which the British parliament confers its consent to the Australian colonies to form a federation. The only references to the people- you, me and all of our fellow Australian citizens- occurs in descriptions of our responsibilities as electors within the states and does not spell out what are the coincidences of our responsibilities as electors within the states.

Much of the document is taken up with definitions of procedures between the states and Commonwealth. As I said a moment ago, in my view we have to spell out in the Constitution the respective roles, functions and powers of the Prime Minister and cabinet and government to parliament. Amongst the pages and pages of text about trade between the states, taxation and the powers of executive government, there is reference to only one specific personal right- the promise in section 116 that the Commonwealth will not make any law prohibiting the free exercise of any religion. However, there is no reference to what the Commonwealth will do if any state attempts to prohibit free exercise of religion.

Otherwise the Constitution offers very little to individuals, other than promising the right to vote for federal parliamentarians and offering protection to irrigators from federal control of water supplies. Perhaps we are content to identify ourselves as a community of enthusiastic voters practising an unfettered array of cults whilst filling oversized swimming pools. But that is not what I am looking for as my national identity. (Extension of time granted)

There is nothing in the Constitution implied or otherwise about who we are as a nation and what our aspirations are. There is nothing in the Constitution that makes reference to the true history of Australia, including our indigenous heritage. I do not understand how people can argue against including in the preamble some words that establish achievable national goals; words that we might take pride in learning to recite in school and words that resonate with a power and a promise.

I want to read to you some of the words which I believe would give us a sense of identity and encapsulate our national vision. Why not say, `Australians affirm their Constitution as the foundation for their commitment to and their aspiration for democratic government'? Why not say, `Our nation dedicates itself to a responsible and representative system of government that is inclusive of all its peoples, upholds fundamental human rights, respects diversity and spiritual wealth and ensures full participation in its social, cultural and economic life'?

This encapsulates our national vision. This is something meaningful for young Australians to learn and respect. This preamble implies as much protection for the rest of us as it does for cult worshipping irrigators. Instead of having:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal,. . . 

why not have:

Australia recognises Aboriginal peoples and Torres Strait Islanders as its indigenous peoples with continuing rights by virtue of that status. 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 peoples of Australia, give ourselves this Constitution.

In this way we take charge of our destiny. We can decide for ourselves what rights should be enshrined in our Constitution. This is something we can act on here and now and resolve by the end of this Convention.

I must say that I am very encouraged by the fact that the people opposing a republic have shown their willingness to consider a preamble that recognises indigenous Australians. We have to go further than that, as I said at the outset of this contribution. Delegates from A Just Republic have prepared a preamble that includes in a few concise sentences all of these points that I have been speaking about and I recommend them for your earnest consideration.

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Last updated: 21 October 2000