The Foundation for National Renewal
  Working for a better Australia through constitutional reform

The Constitutional Convention of February 1998

A missed opportunity for much-needed reform.

TRANSCRIPT OF PROCEEDINGS
Monday, 9 February 1998
Page 6

Ms HANDSHIN- Former Chief Judge of the Family Court Elizabeth Evatt commented that it is hard to see that a document framed 100 years ago for the circumstances of the end of the last century could be making a statement that is valid for Australians in the 1990s. A Constitution which is valid for Australians must reflect the realities of our nation and people today.

If the Constitution is to become a more relevant document which fulfils the symbolic function of drawing the people together, then it must attend to two main issues. As the operating manual for our nation, the Constitution must enumerate the actualities of our present system, and it must do so in a language which makes it both comprehensible and accessible to the people for whom it is written. Secondly, and most importantly, it must redress the inequities it currently perpetuates.

The exclusivity of the group of citizens who founded the document is reflected in the narrow parameters of the preamble. If the Constitution is the technical document, then the preamble must be the vision statement. I believe that the preamble can and must play a role in drawing the people to the Constitution.

Among recommendations emerging from the Adelaide Federation Centenary Convention of 1997, of which I was a member, is that a new preamble should reflect the core principles of our nation. It should be aspirational, inclusive and adopting a collective `we, the people' approach. The preamble should support values of democracy, equality, cultural diversity, recognition of the prior occupation and rights of indigenous Australians, a commitment to environmental responsibility, and it should contain an assertion of our independence. It is important that the preamble acknowledge the past, articulate the present and display our intention to embrace the future.

Finally, the task of making the Constitution more accessible lies not only in its revised content but also in the projection of this document to the people. People must be educated about the Constitution and imbued with a sense of pride in and ownership for the document. The fact that the Constitution can be a more relevant and, hence, unifying document is exciting to me as a young person. Let us not squander this remarkable opportunity. We should accept this challenge and reinvigorate the national narrative.

CHAIRMAN- Thank you very much, Mia.

Ms SCHUBERT- One of the pieces of insider wisdom that I have listened to in the last six months of debate about constitutional reform particularly has run a little something like this: we shouldn't change our preamble because, if we tried to enshrine the values and the aspirations of today's community, we might fearfully enshrine the prejudices of an era. What would have happened, these commentators say, if those federators had enshrined their values in the Constitution?

Although the preamble of our existing Constitution does not specifically state their values, the rest of that document does, unequivocally. It does bespeak a nation racist in its outlook. It does bespeak a nation colonial in its practice. And it does bespeak a nation intent on preserving an Anglo heritage above the racial contributions and the cultural contributions of many other peoples who have later come to this nation and made it the rich melting pot of cultural diversity that we own and cherish today.

I think we need and must make a statement in our new Constitution- because we will have one- about the kind of society in which we live and the kind of society we want to be. I think there are overarching perennial values, if you like, that can be safely enshrined: a commitment to those values of democracy, tolerance, the good old Australian fair go, which are not prescriptive or dangerous but which are actually the tools for unifying a nation and for building a sense of self in clearly articulated terms.

Inspirational preambles tell us something of ourselves. They are a place for history and a place for aspiration. They are a place to affirm our sovereignty and to articulate the broad aspirations of a community. A new preamble offers us the chance to strengthen ownership of our Constitution by enhancing its accessibility, its relevance and its resonance.

Also, I cannot agree with the suggestion by Professor Craven- and I fear that he has taken a pretty great beating this morning in the comments of many delegates- that a new preamble should build upon the existing one. Should Australians adopt a new statement, the older version would remain as a matter of historic record- it does not need a second coming. Its retention or that of its language lacks imagination. Instead, I argue that we must use clear, plain language to articulate the common ground of a contemporary community.

We should cite the aspirations which provide a framework for our federal republic: the pursuit of democratic, representative and responsible government in the context of participatory and inclusive political structures. We should cite the overarching, timeless principles of justice and equality and of the fundamental human rights of all of our citizens. We should cite the status of Aboriginal peoples and Torres Strait Islanders as those of Australia's first peoples, recognising their prior occupation, ownership and sovereignty. We should cite our cultural diversity as unique and valuable to our nationhood. We should cite our commitment to the wise management of our natural environment. We should cite our responsibilities to future generations, conscious of the impact of day-to-day decision making in the broader big picture. And we must cite that the authority for constitutional government flows from the Australian people.

Mr ELLIOTT- There is no question that the preamble to the Constitution needs to be reformed. Some parts are quite easy: the historical updates for the inclusion of Western Australia and to make sure the Northern Territory is also acknowledged, and the need to make a correction, long overdue, in a recognition of the prior occupation of Australia. But it is also important that a statement be made of values and aspirations.

I am not fearful of the legal implications. It does not mean I treat them lightly; it simply means we should take care with the words that we choose, and we should clearly state what we intend and what we want. It has been put by others that courts should be explicitly instructed within the Constitution, though I suggest not within the preamble. The preamble should not be used for purposes of legal interpretation. For those who are nervous about legal interpretation, I suppose that offers a safe way out. But I do say: let us be proud of the Constitution and place within the preamble a statement that engenders pride.

I note that subgroup 3 raise the question as to whether or not there should be one question put to people or two questions. Do we simply ask a question about the republic and include within that the question of changes to the preamble or do we ask one question about the republic and a second question about the preamble? I would tend to opt for the latter course.

We know that changes to the Constitution have failed because of opponents grabbing every opportunity to misinform and to strike fear into people's hearts. I think the sorts of arguments that we have heard from Professor Craven will be used to frighten people away from the question of the republic. In the process, we may lose the important changes that we lose in the preamble as well.

I do think that there is strong support for changes to the preamble. If we put the question separately, the likely outcome is that the chances of both getting changes to the preamble and getting the republic will be enhanced. For that reason I believe there should be two questions put and not one. Section 92 on interstate trade may be of value to people, but let us give them something that really excites them- and let us fix up the preamble.

Mr LI- Young Australians know, in general, very little if anything about our Constitution. It was only at constitutional law lectures at Sydney University that I began to take a real interest in this remarkable and fundamental document. I would like to see our Constitution taught to our school children in their classes. It is our basic document: it describes who we are, how our nation was formed, how it has developed and where we want to go with our nation in the next century. Yet the actual provisions of the Constitution are too complex and too legalistic to be taught in schools.

This is where the preamble has the potential to serve as an inspiring piece of writing, uniting all our young Australians under a common national purpose and common identity. In the United States of America young Americans may be united by the words `We the people'. In France the hearts of the young are moved by fundamental principles of the French republic: liberty, equality, fraternity. In Australia let us allow our young Australians to be moved, inspired, educated and united by a preamble which is accessible to them.

A member of the public has sent me a preamble which strikes me as the sort of preamble which has the potential to do all of these things. Allow me to read selectively from it. Bear in mind the potential of these words to educate, to inspire and to unite school children. It reads:

Before the people of Australia was the land.

And the land was the Dreaming.

And we the indigenous people known as the Aboriginal and Torres Strait Islanders came to the land and it possessed us as its ancient power possesses all who live here.

And we, the Australians who came after, acknowledge our debt to the first inhabitants for teaching us that we do not, in spirit, own the land but are owned by it.

. . . . . . . . .

Together we declare that Australians are people of many races from around the world, that we celebrate our diversity and welcome all those who are prepared to live in peace and harmony with us, respecting the values of tolerance and equality and a `fair go' for all, without discrimination against any person on the grounds of race, religion, sex or sexual orientation, age or disability.

. . . . . . . . .

We value achievement in the arts and sciences, in business and in sport and aspire to excellence in all our endeavours be they physical, spiritual, mental or intellectual, scientific or cultural.

Recognising the constitutional legacy derived from Great Britain through the successful establishment of a democratic nation in this continent, we recommit ourselves to the principles of universal suffrage based on one vote for each adult citizen and hereby assert that the rule of law and equal civil, legal and political rights and responsibilities are fundamental to Australian society.

. . . . . . . . .

. . .. we the citizens of Australia humbly relying on Almighty God are united in one indissoluble federal Commonwealth which derives its power and value from our consent to such unity and from these fundamental beliefs that we share.

Mr WEBSTER- Thank you for the opportunity to speak on this very important working group report. I was on Working Group No. 2, which was dealing with the whole concept of Almighty God in the preamble. It is very encouraging to hear, today and on previous days, people speaking in a commendable way to include the whole concept of `humbly relying on the blessing of Almighty God' in our preamble.

I think it was Janet Holmes a Court who asked a question on Friday with regard to how this would sit with Buddhists and Muslims and other people. I had the opportunity during my life in the other parliament on the hill to speak to the Dalai Lama, for example. Somebody said that Buddhism is the fastest growing religion in Australia today. I asked the Dalai Lama about this concept of Almighty God and he said, `At the end of the day it is the same supreme being.' Those were his words.

Just a couple of weeks ago, somebody else said that the Islamic faith was the fastest growing faith in Australia. I was getting a suit dry-cleaned at the Springwood dry-cleaners where my dry-cleaner is Bill, a very strict Moslem. It was unusual for me to be getting my suits dry-cleaned again because I had not been doing that for a few years. Bill said, `Are you off to Canberra again?' I said, `Yes.' He said, `What are you doing?' I said, `I'm on the Constitutional Convention as a delegate.' He said, `Oh, yes. What are you going to do down there?' I said, `Well, one of the things that I am going to be advocating is that we make sure that humbly relying on the blessing of Almighty God remains in our preamble, because there are moves from some quarters to have it removed.'

What happened then was an explosion, as he jumped in the air, banged his ironing machine and steam went in all directions. He said, `How dare they take Almighty God from the Constitution. You tell them from Bill the dry-cleaner'- as he kept banging his steamer- `your Moslem friend in Springwood, that I will be down to see them.' Through the cloud of steam, I could see this name `Salman Rushdie'. I do not know why that flashed into my mind. I said to him, just to calm him down, `Look, Bill, don't get steamed up. I'll go down and press your point and iron out the problem.' So I am here to say that the members of the Islamic faith, I am sure, do not have any problems with the whole concept of Almighty God.

I have sat down in creek beds with Aboriginal leaders; I know many of them. I know that, when they talk of the great creator and the great spirit, they too equate in a measure- some varying degrees of measure, I suppose- with the Christian concept of Almighty God. The Jewish people expressed their view in the 1890s when it was proposed on the first occasion, and they agreed that the concept of Almighty God, humbly relying on the blessing of Almighty God, would be quite acceptable to them. Those who have atheistic views do not believe it whether it is in or out of there, so it does not make any difference.

So, Mr Chairman, I just thought I would bring these thoughts to the Convention with regard to perhaps alleviating some of the concerns that some people might have about including such a statement as `humbly relying on the blessing of Almighty God' in our preamble. I commend to all delegates that we leave it there just as it is.

Mr DJERRKURA- Mr Chairman and delegates, I certainly do not want to confuse the House again with any outburst of my own language, since I have a mission to reach compromise and common ground with my Australian colleagues. We are looking to a new vision, a new direction, a new commitment that will bring out the spirit of the Australian nation united in reconciliation. It is time to reflect what we believe to be our new nation's values and give clear direction to governments.

A new preamble must recognise Australia's history- and Australia's indigenous people are part of that history. Recognition of basic human rights for all citizens and respect for cultural diversity are qualities that a good constitutional preamble must contain; the current preamble does not contain them. This is a very powerful opportunity for a new preamble to become a symbol of reconciliation.

Some people have argued that we should not specify individual groups. But, for Aboriginal and Torres Strait Islander peoples, being invisible in a document that defines our nation means being invisible in the political landscape of our nation. This has been our experience, and it is not something we want to continue. For us, the implications of no change are unacceptable.

The ATSIC proposal for a new preamble reflects ideals and includes truly representative and responsible government that is inclusive of all its peoples; upholds fundamental human rights, diversity and participation; recognises Aboriginal and Torres Strait Islander peoples and the rights due to indigenous peoples; respects this great land of ours and our cultural inheritance; commits us to justice and equity; and derives its authority from all Australians.

For these reasons I seek your support for the following text, which is only slightly different to the text that ATSIC circulated last week:

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

Our nation dedicates itself to a reasonable and representative system of government that is inclusive of all its peoples, upholds fundamental human rights, respects and cherishes diversity and ensures full participation in its social, cultural and economic life.

Australia recognises Aboriginal and Torres Strait Islander peoples 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 environment, including the indigenous heritage and the values and cultures of its people, and provides justice and equity for all people.

We the people of Australia give ourselves this Constitution.

CHAIRMAN- Could I point out that if there are amendments such as that identified by Mr Djerrkura it might be advisable to table them as an amendment that can be considered during our voting process this afternoon.

Mr BEANLAND- Delegates, in looking at the preamble I think it is fair to say that in a republic a preamble needs be inspirational, needs to be visionary, needs to give hope. But, having said that, we must be careful in the way we word that preamble because it is a most significant part of the Constitution. One of the former speakers, I think, said that perhaps we ought to include something in the Constitution to clearly spell out to our judicial officers in the courts of this land that the preamble is not to be used in making judicial decisions.

Unfortunately, whether we like it or not, our judicial officers these days more and more, in some courts at least, seem to want to be legislators, not just mere interpreters of the law laid down by the parliaments. So this is a very significant issue. I notice that Professor Craven has received some criticism for the comments he has made in relation to this. Nevertheless, some of the points he made I totally agree with. The fact is that it is happening more and more.

I appreciate that delegates might want to have a citizens' bill of rights. Sure, if we want it, we put it into the Constitution, and we spell it out in the Constitution so that, when we come to the citizens' bill of rights and people want to relate to it and refer to it, there it is spelt out in some detail. I think it would be quite unwise to have some vague, abstract term simply within the preamble and not go on to spell it out in detail.

I suppose what I am saying in relation to this and to other matters that I will refer to in a moment is that a great deal more work needs to be done on the preamble other than that which we are putting into the preamble over a few days at this Convention. There are months and months of work. Someone referred to the United States' preamble to its Constitution. Of course, that was done over many months indeed, as were the preambles to other nations' constitutions. It is not something to be arrived at in a few minutes. It must be succinct, it must be visionary, it must show hope and it must be long-term. I totally disagree with those who say that it must relate to contemporary society. It must be for the future. It must be all-encompassing. After all, we must not forget, as was said previously, that the current Constitution has lasted on nigh on 100 years. I am sure that the work we are doing here we expect to last in the long term- hopefully for another century, or maybe longer.

Aspirational? Sure, but let us be succinct about it. Let us say what we want to say. I totally agree we have to relate to, and put reference in the preamble to, the indigenous people and certainly to God, and I am pleased to see that is being put back in. There are other areas. Someone mentioned local government. I think we need to have more debate as to whether we should put local government in the preamble or whether it should be spelt out somewhere else. These are issues fundamental to the Constitution but they are receiving but a few moments of attention on the stage of history as people get up and discuss it today.

No doubt we will have a vote at some later stage in relation to it when we come to all of the amendments. Yet I put it to delegates that, having read through the amendments and clauses I have seen to date, I find none of them- with respect- is that inspirational, none of them shows that hope and vision for the future, and none of them covers the aspects that we need to cover. They are all going to end up far too wordy; no-one will remember them or recite them. The great works of history show they do have to be succinct if they are going to be remembered, if they are going to be useful and if they are going to be inspirational and visionary.

So I believe that, if we are going to spell out details in the preamble, certainly we will have to spell out in the Constitution that the judiciary cannot be referring to the preamble and start using it in judicial decisions. As for the more important and detailed issues, particularly a Bill of Rights and a republic, people want them and I totally agree they should be spelt out. They need to be spelt out in the body of the Constitution itself.

There are no short cuts to preparing this nation for a republic. I am shocked to hear that some people around this room seem to think there is some short cut, who seem to think it can be done in five minutes and who seem to have the view that what is needed is some sort of minor touch-up job here and there. It requires a great deal of effort and energy on so many aspects, so many parts of our Constitution in areas that we do not already cover. I implore delegates to be very careful in this area and to send it off to a working party over coming weeks and months for the work and effort that needs to be put into it.

Brigadier GARLAND- Legal advice given to me is that, whilst section 128 of the Constitution most certainly can be used to amend the Constitution as such, it cannot be used to amend or delete the covering clauses, that is, clauses one to eight, nor the preamble. This is the proposal which was put to you by Dr David Mitchell this morning. My advice is separate to his.

It seems to me that, at this stage of the game, trying to amend the preamble to our current Constitution would be akin to a parliament trying to amend a minister's second reading speech on any bill or act that was eventually enacted into law which was 20 years old. It seems to me that we are at cross-purposes when we start talking about changing the preamble.

I personally believe that the rights of Aboriginals ought to be included in the Constitution. Indeed, over my years of service I have had many Aboriginals and also members from the Torres Strait islands serve with me and for me, and I can say without a shadow of a doubt that they have been magnificent soldiers and, what is more, even greater Australians. But I do not believe that any preamble will cover the sorts of things which the Aboriginal community wants.

Most certainly, put it into the Constitution but do not let us worry about putting it into the preamble. Let us make it a section of the Constitution and then there can be no doubt exactly what we are talking about. As for what is in the preamble, do judges take any notice of it or don't they? Mr Beanland has covered that and I will not go into that, but if it is in the Constitution they most certainly have to take notice of what is there.

I am also of the opinion that national symbols- things like the flag, the coat of arms, et cetera- are not going to be preserved if they are included in the preamble. The only way that they can in fact be preserved and the only way the Australian people can have a say if somebody wants to change them is if they are included in the main body of the Constitution. It is not beyond the wit of anybody to put forward a referendum to the people of Australia saying that we wish to change the Constitution to include things like Aboriginal rights, retention of the flag, retention of our coat of arms and a dozen other matters relating to the environment, et cetera. If it is put in the preamble, you might as well flush it down the toilet.

Mr RAMSAY- On this issue of a new preamble for our Constitution, I wanted to offer just one word of warning. In fact, what we are doing is not replacing the existing preamble, because the Constitution as such has no preamble. The existing preamble that has been referred to quite often in this debate is, in fact, the preamble to the act in which the Constitution has been included.

If we are to proceed to the point of supporting a new preamble for the Constitution, it will be something completely new. I will be leaving it to the experts to tell us where in the Constitution it should sit, but one would presume it would be at the very beginning- not the beginning of the act, but at the beginning of the Constitution itself. In that position the preamble will become part of the Constitution, subject to clause 128, and that means the preamble can be altered by referendum in the future. It also means the preamble can become subject to interpretation by the High Court from time to time. Through those interpretations its meaning, which we might feel quite clear about today, may take on a completely different meaning at some time in the future.

Therefore, if a new preamble is to be go into the Australian Constitution, certainly we can put forward ideas from this Convention, but those ideas need to be examined very closely. The wording of them needs to be very precise. To add a preamble which is going to include a whole range of rights for every last conceivable Australian, expressed in general or in particular, may be opening up a can of worms. This will cause Australia more difficulty in the future than the encouragement and help that so many people are genuinely looking to introduce into the Constitution today.

With those words, I would advise any result of this current debate to go forward to further working groups. I do not see it as being something that could be rushed in order to get a referendum up within an a matter of months. It may take much longer than that to get the balance truly correct.

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Last updated: 21 October 2000