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 5

Mr CLEARY- What has been intriguing about this gathering over six days is the diversity of the people represented in this chamber. It is not like this in the federal parliament up the hill. Up the hill it is a branch stacked parliament. You could say a lot more about it, but there is no point talking about it right now. But here all sorts of people have found their way into the chamber to talk about Australia. There is a great irony in it as well, for behind the banner of republicanism what has been forgotten is that international forces are growing with such power that the very republic being proposed will be a republic in name.

The paradox is that the Bruce Ruxtons of the world represent and talk about a particular world, a particular Australia, and actually believe in it. But they think that hanging on to the past will protect them. The reality is that that past also is being threatened severely by these international factors. Just at the moment in the OECD there is a bit of legislation, the multilateral agreement on investment. It is being discussed at this present time by 29 OECD countries. For the people here who represent law and talk about the traditions of the past and value the Crown, how do you feel about handing over power to a group of multinational companies which will not be beholden to the laws of the land?

That takes me to this very issue of the preamble. The preamble is a chance to say something about who we are and what we value. It is a chance to say what kind of traditions we want to embody as we move into this republic. It gives you a chance then to talk about whether you want to hand over power to multinational companies, as is being proposed at this time in the OECD. The people in the gallery should realise that, under the models being proposed at the moment and under the preamble suggested, you are not going to be talked about. Professor Craven is happy to affirm the role of the Crown in Australia's history. But he does not affirm the role of the people. He does not affirm the role of Geoffrey Blainey's miners. He does not affirm the role of any workers- not the Kanakas, not immigrant peoples; they do not get a gig in Professor Craven's history.

Professor Craven, under the smokescreen of constitutional law, wants to rule out the contributions of real people. He wants to wipe out anyone's history that is not his own. There are expressions like `appropriate statements of acknowledged historical fact'. What does that mean? Terra nullius. Yes, we will take Professor Craven's expressions; we will put them into the preamble. `Appropriate statements of acknowledged historical fact'- yes, we will go via the High Court. What has the High Court said in Mabo and in Wik? It has said that the Aboriginal people have rights. Yes, we will put that into the Constitution; thank you, Professor Craven.

As for spiritual beliefs, Professor Craven says, `No abstract values.' You do not get a more abstract value than the concept of god. I am not deriding the concept of god. That is its beauty, Archbishop. Its beauty is that it is an abstraction and we seek out abstractions in our life, because abstractions actually develop our imagination; they can inspire us. A boring little technical legal preamble will be a destructive force.

Right now we must grasp this challenge. Why is it so difficult to actually say things about who we are in a preamble? It is usually these older wise men over here- I use that term advisedly; I will get to the women in a second- who are clinging to the past, and they keep telling us to suppress the young ideas. Yet, if I sit down on the bus with Don Chipp, I think, `Isn't it intriguing that Don Chipp represents particular aspects of Australia that I would like to enshrine in a preamble.' I talk to Geoffrey Blainey about the history of our workers, the contribution of miners and shearers and the like. I do not understand why we cannot grapple with these things.

I go back to that point I make about Professor Craven's suggested amendments to the preamble. They are nothing more than a technical ruse to suppress other people's view of history, and views of history that have been affirmed by the High Court. We worked on one of these preambles- subgroup 4. It says many good things about who we are. It also says that we should seek mutually cooperative relations with our neighbours. I think we must put that in our preamble, especially given this legislation that could pass through the OECD which I am sure, Mr Deputy Chairman, you could not possibly endorse and nor could the royalists, loyalists, unionists or whatever you want to call yourselves to the left over there endorse it also.

Mrs MILNE- The preamble should be totally rewritten and a bill of rights and responsibilities should be incorporated into the Constitution at the same time so that the preamble states the principles and aspirations of the republic and the bill of rights and responsibilities spells out in very specific terms what is legally enforceable in a democratic republic of Australia. If people do not want a bill of rights, the preamble will be subject to the composition, discretion and scrutiny of the High Court. To have no bill of rights and to give the preamble no legal value as an interpretation document is the worst possible outcome for us since it leaves our citizens with no option but to go to the United Nations in Geneva to uphold human rights in Australia.

We have to face the fact that our existing preamble and Constitution do not protect human rights in Australia. I do not want to build on the existing preamble because its language is meaningless to most Australians and it is alienating. Its sentiments, whilst reflecting the values of 1901, certainly do not represent the sentiments, hopes and aspirations of Australians today. It contains no inspirational flourishes or appeals to individual liberty. It is dry and measured and all it says as being the unifying features of federation are that we are loyal to the Crown, that we believe in God and that there was a shared need for unity for white Australia.

The existing preamble does not express the sovereignty of the Australian people as an independent nation and the words `under the Crown' are obsolete in the move to a republic. As a statement, it is also historically wrong. I take Dr Mitchell to task in that regard. It is historically wrong because the preamble indicates the agreement of the people of Australia to federation yet, as we know, Aboriginal and Torres Strait Islander people were not consulted and did not give their consent to federation. Furthermore, except for the colonies of South Australia and Western Australia, women were unable to vote in federation referendum. Whilst racism and sexism reflected the spirit of the age at the time of Federation, they are unacceptable as a fundamental constitutional principle in the 21st century.

To try to cut and shut the existing words, which is being talked about here in the context of building on the existing preamble, will not inspire the nation and it will not be a source of national reflection and collective wisdom. There is a strong argument that a new preamble that is both poetic and pragmatic and a concise, lucid and memorable articulation of the democratic principles, aspirations and common values for which we stand, would also help to elevate the status of an Australian head of state who would embody for all Australians those ideals set out in the preamble for the Australian people.

Any new republic must also address the issue of Aboriginal reconciliation. It must acknowledge indigenous people as the first Australians, tell of their dispossession of traditional land, of their never having ceded ownership of it and recognition of their special cultural status. The preamble must also equip Australia to go into the new millennium with a clear statement of their commitment to the protection of the environment. Respect for the land is a strong unifying force and a shared value for the next millennium, which will be the age of ecology.

But I must also raise the issue of the relationship between the preamble and the bill of rights. Why didn't we have a bill of rights in 1901? Theoretically because the founding fathers preferred to believe in the common law, the good sense of parliament, the convention and the gentlemanly traditions of utilitarian political culture as being sufficient to protect individual rights and freedoms in Australia. The truth is that the delegates at that time were aware that the acceptance of a bill of rights would threaten the legitimacy of existing colonial legislation which discriminated against the Chinese.

Federation was contingent upon racial discrimination in Australia. White Australia would not have voted for Federation if the Constitution had included a bill of rights. I dispute the legal argument about the preamble and the bill of rights. I believe it is not beyond our legal brains to overcome that. The critical thing is to link the two.

DEPUTY CHAIRMAN- We can just get through the speakers on the list if we do not have extensions of time. So the chair will not entertain any extensions of time.

Mr CLEM JONES- Delegates, I will be very brief. What has just been said by the three previous speakers very much outlines my personal views on this matter. I believe also that verbosity in a preamble is undesirable because it encourages misunderstandings and misinterpretations as the years go by. I believe we want a succinct statement which involves all people, all creeds and all wishes and desires.

To that end, I foreshadow an amendment which I will move in due course, and the aim is to incorporate the existing situation and the three fringe areas of the debate we have had during the last six days- local government, the place and rights of women in our community and our indigenous people. I believe the preamble should state:

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which will consist of the President, a Senate, and a House of Representatives, and which is herein-after called "The Parliament", or "The Parliament of the Commonwealth". The three levels of Government shall be the Parliament of the Commonwealth of Australia, the Parliaments of the Sovereign States and internal Territories and Local Government.

It is very important, I believe, to note `and local government', something which we have been talking about for a long time and which we have never done anything about. I continue:

Australia recognises that gender equities shall be recognised in all processes of change, including constitutional changes-

and that provides to involve all of us in the future changes of the Constitution-

so as to promote a woman's equality in society to ensure social cohesion, political stability and promotion of its democratic culture.

Australia recognises Aboriginal people and Torres Strait Islanders as its indigenous people and dedicates itself to a responsible and representative system of government that is inclusive of all its people, upholding fundamental human rights, and ensures participation of all its people in its social, cultural and economic life.

We believe that most of what has been said here today is included succinctly in that preamble. In due course, I will move that amendment.

Dr SHEIL- I am rather attracted to the warnings that were given to all four committees by the parliamentary and constitutional councils that advised them, and that was not to have too diffuse a wording to the preamble of the Constitution. If you make it diffuse it could be confusing and then it could lend itself to interpretation by judges that could be unworldly. I see that as a big danger. I do not think we should have any racial minority enshrined in the Constitution because it could have an adverse effect on, for example, the reconciliation process that Aborigines and whites want. If you enshrine somebody in the Constitution it could drive a bigger wedge between us all than already exists.

As I pointed out the other day- for example, with the Aborigines- Aborigines were not left off the federal rolls at Federation through any sense that they were in any way inferior. The federal government was the creation of the state governments and the only income that it was given was one-quarter of tariff collections. As Aborigines had nothing to do with tariff collections, it was thought that the federal government should not be able to pass restrictive laws about them as it was allowed. A section was put into the Constitution especially so that the federal government could pass restrictive legislation on certain racial minorities: the Afghans, the Japanese pearl and trochus shell divers, the Kanakas, the Chinese in the goldfields- all these people that were felt may need restrictions on their movements or occupations. So the federal government was given the opportunity to pass those laws, but the Aborigines were specifically excluded from that. So really it was a protection for Aborigines that they were left off the federal rolls.

Then in 1967 I think there was a greater rapprochement between the people and the Aborigines than a lot of people realise. In 1967 the people voted in a referendum for unity with the Aborigines, not for the splits that have occurred since. The splits, of course, has been caused by successive federal governments and successive High Courts. In fact, there is great enmity now not only between different sections of the Aborigines and Torres Strait Islanders but between them and the Australian people themselves. I think we should put more faith in the Australian people and the Aborigines and get them back together again, because now they are in court and fighting each other. All the Aborigines want to do is talk to us and come to some arrangement that is agreeable and accommodating, but they cannot because we have been forced into courts. I think we should get back and maybe even have a referendum on the matter so we can get back to the Aborigines and talk to them.

Concerning local government, local government is of course the instrument of the state governments. I can understand how they want to bypass the state governments and get their noses in the federal trough. It sounds very nice and very easy. I remember that the Whitlam government's plan was to get rid of the states, bypass them, have areas of regional development with all the strings tied to Canberra. I think that would be a backward step.

In the matter of human rights, the men that wrote those undying words- that all men are created equal and endowed by their creator with certain inalienable rights and that among these are life, liberty and the pursuit of happiness- owned slaves. They did not count blacks or women, and the legacy has come back to haunt them. If you have a bill of rights, you immediately limit rights because everything that is not in the bill is no longer your right. This could happen in Australia if you persist with having a bill of rights. There are about three ways you can get rights. The Russian way says that you have the right to this, that and the other thing provided you do not break any law. Then they pass a law so that you are effectively robbed of the right. You might think you have the ability to think your own thoughts but you have not. They can tell from what you read or what theatre you go to and lots of ways whether you are thinking subversive thoughts. The American way is to say that you have the right to all these things and no law shall be passed to interfere with those rights, and they have the right to carry guns. They have a gun society that is sunk in litigation, and that is not the sort of thing we want here in Australia.

Reverend TIM COSTELLO- There have been a lot of very memorable metaphors for the preamble. Mary Delahunty spoke of its being a doormat and there have been a number of other images. I think the preamble is the door through which we as Australians enter into what is the most important moral charter between government and the people, which is our Constitution. Some, particularly and most notably Professor Craven, are worried about what goes in here, saying that if there are abstract values like equality, democracy and rights then we only have very vague statements, and vague statements become really dangerous, even poisonous- words that, according to his understanding of biology, and I defer to him on this, are a lymph gland pumping these poisons through the body of the Constitution will actually cause all sorts of terrible problems to occur in the future- and therefore we should be aware of the idealists and their explicit values.

There is absolutely no way of escaping values in the preamble. Whether they are explicit or silent, they are there. In the present preamble that we are considering amending the values are very clear. They scream out loudly. The ones that scream most defiantly and loudly are the ones that have been omitted, particularly the omission of reference to the indigenous people. It is a statement of values of white Australia, a statement of history as it was understood- even though wrongly- in those times, but we want to move on from there and declare as not our times when this debate is taking place.

When you look at the present preamble, the statement of values starts with `Whereas the people . . . ' So it starts with a very strong notion of sovereignty and democracy sheeting home to people. Then it states the spiritual values with `. . . humbly relying on the blessing of Almighty God . . . ' There has been quite a lot of debate about that, but I think that is a very refreshing value, particularly if we find a way of wording it which means students can appeal to their spiritual resources. In the face of crass materialism, oppressive materialism and everyone talking about the bottom line- as if that only ever can mean an economic bottom line- the value of referring to God, to spiritual reality, says that as Australians we affirm there are things much more fundamental, that there is a dimension of life much more life-giving than simply the values that seem to be so dominant with the advertisers and mind benders today.

The present preamble says, `have agreed to unite'- that refers to the colonies uniting with a central government. That is an important value but not as significant today in 1998. We have values that say that what unites us is a common story. States and nation yes, but more particularly our story is European settlement in the midst of a culture that has existed for 40,000 years. Therefore, we feel proud to be living among one of the most ancient, enduring civilisations on earth. That value is our common story- European settlement in the midst of that ancient culture. There is the value of being the only nation with a whole continent to care for environmentally; the value of stewardship which is critical in our times.

Our agreement to unite is not simply to get an administrative document, as our present Constitution is, and doing deals with the states and giving them certain powers, particularly in the Senate so that the states will come in. It is actually the union around values that are very deep with most of us. The value of a fair go is a very profound statement in a globalised society which says that we will continue rewarding winners and the same people will be winning and the same people will be losing. Our value of a fair go rejects that.

Finally, the values in our present preamble say that `it is expedient to provide'. It goes on to talk about some pragmatic values which is rather like what we are doing over these two weeks. We have to practically arrive at a settlement, but it is the interplay between that expedience and those values which are our common story which is fundamental to a preamble setting up a moral charter- inviting people and their rights and concerns into the Constitution and not just the rights of a central government and the states which make up the bulk of our present Constitution. Therefore, I support the ATSIC preamble, which I think does the best in involving environment, the indigenous people, human rights, our diversity and our common story of European settlement in this ancient country.

Senator STOTT DESPOJA- I will address as best I can the issues that have been raised in the working groups in relation to a new preamble. I belong to a political party that supports broader constitutional reform. We see this debate, the republican debate, as a wonderful opportunity to realistically and bravely appraise our current structures and our parliament. We have long supported a new preamble.

I think the republican debate enables us to craft a preamble that reflects modern Australia- one which, without denying our past, embodies our current, our present, aspirations for the future. With all due respect to Professor Craven, I was stunned when I saw point 5 of his amendment, which suggests the preamble should not contain statements of abstract values or rights such as equality and democracy. Since when are rights abstract? Surely democracy, equality and rights are the very things we should seek to prescribe, to enshrine, in our Constitution and indeed in our preamble.

With respect to an earlier speaker, this is not about enshrining the rights of minorities. This is about celebrating our uniquely multicultural and diverse nation. We must use this opportunity to consolidate our multicultural heritage and the generous diverse nation that we now are.

Of course, any new preamble must include recognition of prior ownership by indigenous Australians. Any meaningful republican debate has to discuss how we achieve reconciliation between indigenous and non-indigenous Australians.

I agree with other members who have spoken here today about a vision of a fairer society, and a new preamble must be a greener one as well. We must put into our preamble the fact that we cherish, that we love, the great sky and land and sea of this great nation. Let us put that in our preamble.

I notice that people have sought to enshrine the flag in our preamble. I make a point on behalf of my party that we strongly believe that our flag should not be changed without popular support, and that means a referendum. The Australian Democrats are committed to that position, but do you put it in the preamble? I throw that back to the movers of that amendment and leave it up to them and legal advice as to whether or not that is the best way to proceed.

I have no problem with recognising the role of our country in the Commonwealth. In fact, I think most people here share a desire that we act as a member of a family of nations with cultural make-ups as diverse as our own who are dedicated to the wellbeing of this planet.

Mary, I enjoyed your colourful language, too. I do agree with you. I would like a preamble in our Constitution to include concepts of active citizenship and involvement. It should be a sexy issue. I think this Convention has invigorated debates around the pubs, clubs, school rooms and workplaces of people in Australia. I love Mark Warren's comments from McFeast when he said, `Let's put the pub back in republic.' That is happening- I truly believe that.

On a more serious note, I recommend those marvellously modern constitutions from places like Namibia and South Africa, to which many members of this Convention have referred- the fact that they recognise past injustice, they celebrate their present diversity and they also put in their aspirations for unity and for peace. Professor Craven said that the difficulty in enshrining some of these aspirations was like flying to the moon. Well, Professor Craven, I want to fly to the moon. We can fly to the moon. It is difficult and we know that, but it is worth it. I want a preamble and a constitution that reflect the aspirations, the desires and the truths- all those feelings that we cherish, all those things that Australians hold dear.

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Last updated: 21 October 2000