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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 7

Major General W. B. JAMES- I wish to speak briefly again and on this occasion it is in regard to the preamble. I support the previous speaker Jim Ramsay. When we refer to the preamble at this Constitutional Convention we should really be referring to principles if we are looking for change, rather than come up with precise words.

Earlier this morning a statement was made by a previous speaker who suggested that I did not want to include our Aboriginal and Torres Strait Islander people in the preamble. Let me state quite clearly that that is not so. In fact, I was on television a couple of days ago saying precisely the opposite. I want that to be absolutely clear. As Alf Garland said when he spoke previously, I have served in the Australian army over the years. I served in both the Korean and Vietnam wars and in both conflicts some of my soldiers were Aboriginals and are friends to this day.

Ladies and gentlemen, Aboriginal and Torres Strait Islanders served in World War I, World War II, Korea and Vietnam- indeed, in every campaign of this century. Their service was recognised in the army as being normal, ordinary, equal people. That is what we are talking about. I think our Constitution should be written to deal with all its people and all Australians, and not to suggest any other way. I would like to support the inclusion in the preamble of relying on the blessing of Almighty God, because I see that as being terribly important.

The third point I want to make relates to the flag. I just simply signal that I believe that in the preamble perhaps, or if we follow Jim Ramsay's suggestion, somehow our flag should be included in our Constitution and thereby only be able to be changed by referendum.

 

Ms MOORE- Thank you for the opportunity to speak briefly and specifically on the issue of the acknowledgment of indigenous peoples' original occupation in the preamble. A previous speaker, Dr Glen Sheil, said that we should talk to Aboriginal people rather than carry out the debate in the courts. I have just been down at the tent embassy. Aboriginal people are outside- they are here in the chamber as well- waiting to talk to us. I urge delegates to hear what they have to say. They are very approachable.

Indigenous peoples, whether they be from ATSIC or from the grassroots community outside, want acknowledgment of their occupation- not their prior occupation but their original and ongoing occupation- in the preamble to the Constitution, and so do the Greens and the other people I represent, as well as many people in the broad community. Indigenous peoples are not merely a racial minority; they are the original inhabitants of this land. Of course this must be acknowledged and celebrated. I suggest that the unwillingness that has been expressed that we do this is born more out of fear and ignorance- fear and ignorance which we must do away with by becoming informed if we are to move to a united nation in our move towards a republic.

 

Mr SUTHERLAND- I rise to support the group 3 recommendation in relation to the recognition of the indigenous people in the Constitution. I do not think the point has been made that when our Constitution was adopted 100 years ago our knowledge of the history of this great land was far diminished from that which it is today. We had no idea, for example, that this continent had been occupied for something like 50,000 years. I think it would be remiss of us all if we did not pick up in the preamble the recognition of that fact and the prior occupancy of the indigenous people.

I would like to now take up the question of recognition of local government, mentioned by the former Mayor of Albany and also the former Lord Mayor Emeritus of Brisbane, Sallyanne Atkinson, who I think mentioned both former Lord Mayor Clem Jones and me. I think the fact that local government is not given security in tenure in the various states where it is a creature of the states diminishes the quality and the value of our Constitution as a whole. I think it can be easily adjusted and remedied by simply a statement. I take the preamble that is on the back of group 1 where it refers to democratic government. There should be a statement or term referring to universal democratic government.

I will give you an example from New South Wales. Many years ago a former Premier of that state who is a delegate to this conference gave an undertaking to amend the state constitution to give due recognition to local government. When it emerged- it is done in that state by legislation, not by referendum- it was put forward with the terms `appointed and democratic local government'. When the Local Government Association, of which I was president at the time, queried the reference to the words `elected or appointed local government' the explanation was given, `That's to accommodate Lord Howe Island.' It has been used to accommodate everything but Lord Howe Island in the many cases since where duly elected local government bodies have been dismissed or dissolved in that state.

I am not one who would say that councils always act in such a way that there does not need to be some course of remedy. But, by introducing those words `universal democratic government', it would give the option- as they have in Papua New Guinea- of procedures for the suspension of the elected officials, those who have been chosen by the people, until some remedy is needed to resolve some impasse with a local body.

Also it would mean, in the way it occurs with the states and the Commonwealth government, that if a local body is dismissed an election would flow automatically. Local government feels very much second rate, demeaned and constantly under the threat of dismissal potentially where that power exists with the state government to dismiss local government, and the resolution of that is to entrench it with the term `universal democratic government'. I repeat: if there needs to be a remedy and a council is dismissed, let an election automatically flow on.

 

Mr MOLLER- Let us be quite clear of what we speak when we speak of amending the preamble and the covering clauses to the Australian Constitution. In effect, we are repatriating the Constitution. Rather than it being an imperial act passed by a foreign parliament just under 100 years ago, we the people of Australia would be repatriating our Constitution pursuant to our own sovereignty as an independent nation. Let us hear no arguments about covering clauses and it being an act and the Constitution being found in only section 9 and what we do with the preamble. Compare our Constitution with that great constitution of the free world, that of the United States, which opens with the words `We the people'. That reference will be found in Australia only in the words of a Hunters and Collectors song. It is nowhere found in the Australian Constitution; it is nowhere found in the document that constitutes this nation.

The direction of repatriation in that regard is one which the High Court has pursued in recent years. Rather than interpret the Constitution as an enactment of a foreign parliament, the court has gradually reached the conclusion that its adoption in 1900 by the Australian people was an exercise of the sovereign will of those people. I think that in amending the Constitution we should reflect that fact. So let us not limit ourselves to simply the preamble; let us ditch the rest of the covering clauses as well. They do very little and that which they do can be quite easily, quite effectively and quite appropriately included in other sections of the Constitution.

I will not go through all the covering clauses with you now, but it seems to me that, in the advice of the acting Solicitor-General which can be found in the volume of the appendices to the RAC report, it is quite clear that many of the clauses are spent and their repatriation or their omission would be quite simple. Amendment of the covering clauses could be done quite simply by the mechanism outlined in section 128, even if it is done pursuant to the Australia Act, of which our friends on this side of the chamber are so fond of reminding us.

Finally, as to the issue of interpretation, I do not think that the inclusion of the preamble in the Australian Constitution is going to give rise to much in the issue of interpretation. The one case in which the High Court has had some difficulties, or in which it has at least referred to the preamble in interpreting the Constitution, is the case of Leith and the Commonwealth. There Justice Brennan and Justices Deane and Toohey in their joint judgment relied upon the preamble in founding an argument that the Constitution enshrined equality of the Australian people. The court retreated from that argument in the stolen children case, Kruger. I am not going to comment on the merits of the decision in Kruger; it is beyond my brief. But there will be no problem. It seems to me that if we phrase those glorious, broad enactments, those freedoms and those ideals which we consider so important in Australia, who cares if they are used in interpretation of the Constitution? So what? They are values we all hold true, we all hold dearly, and if they are used in interpretation of the document so be it.

Councillor LEESER- The preamble presents us with a unique opportunity in this Convention because what the Preamble does, unlike many of the other issues that we are going to be discussing and have discussed over the fortnight that we are here, is give us an opportunity to work together across the divide of the debate of the republic. The one committee that I have been on that has been truly bipartisan in its approach was the committee on the preamble. I had the distinguished pleasure of being able to work with Peter Grogan from the Australian Republican Movement and have lots of his very positive input, and the positive input of people from the ARM, on the question of recognition of indigenous people in the Constitution in our preamble.

I think that there is broad based support in this place for the fact that recognition of the existence of indigenous people is long overdue in our Constitution. It has been long overdue in our legal system. It was a great shame and a great black mark on Australian history that it was only in 1992, with the Mabo judgment, that the notion of terra nullius was finally put to bed. Even now we do not see it completely put to bed with the question over the Wik legislation and the Wik decision. But, that aside, I think we have to take positive steps at this Convention and show that on certain issues we as an Australian community can unite. I believe that on recognition of indigenous people in the Constitution we can unite.

There were questions the other day from both Professor Winterton and Professor Craven about the wisdom of putting indigenous people in the Constitution, in the preamble and what the High Court might read into that in the future. I am going to disagree with the previous speaker, Mr Moller, and say we cannot blindly say that yes, the High Court will never read anything into this and yes, there is a total guarantee that the High Court will never look at the preamble and say that it just means what it says there on the paper, because that is clearly not the case in terms of High Court amendments and interpretation of the Constitution. We cannot predict what the High Court will do in 50, 60 or 100 years time. As Justice Murphy said at one stage, the Constitution is not a Dog Act; it is something that is fundamental law and it has got to last us for that 50 or 60 years of time.

That aside, the recognition of indigenous people is something that is so important that we should put it in the Preamble. As Mr Moller said, the Leith decision was overturned in the Kruger case, but also we should look at the judges who were in the majority in the Leith decision or who were thinking that the preamble should be looked at for interpretative purposes. They were Justices Brennan, Dean and Toohey, all of whom except Justice Brennan are no longer on the High Court and Justice Brennan is about to go. Justice Gaudron is the only person whose position remained unclear on that. She will stay on the High Court for a little longer.

We cannot predict the future of what the High Court will do. We have to say that we are not a drafting committee here. That particular working party did not put up specifics of what they wanted in the preamble; they said they wanted some recognition of indigenous people in the preamble. That was the principle. It is up to the parliament to do the drafting on this particular proposal. It is up to the parliament to have the debates about what should or should not be in the Preamble. I think this is the one issue and the one point in this debate where we can come together and present a unified approach and say, `Yes, indigenous recognition in the Constitution is important, indigenous recognition is long overdue,' so let us work together and support that working group's recommendations.

 

Dame LEONIE KRAMER- My comment is simply a footnote, as it turns out, to the previous speakers. I was a member of group 3 which discussed the question of the inclusion in the preamble of the Aboriginal people and Torres Strait Islanders. I want to appeal to all the delegates in this Convention to treat this in the way the other day they treated the concept of the Commonwealth of Australia. Everyone here by now knows I am anti-republican, but we all agreed that the Commonwealth of Australia should be the name of a republic, should there be one. I want to appeal for you all to agree unanimously, as we did the other day, to the inclusion of Aboriginal people and Torres Strait Islanders in the preamble.

 

CHAIRMAN- At the request of Mr Clem Jones, I table a paper headed `Codification of Proposed Powers and Functions of the President of the Commonwealth of Australia'. At the request of Mr Jason Li, I table a document headed `Proposed New Preamble to the Constitution', drafted by Ms Babette Smith.

 

Proceedings suspended from 1 p.m. to 2 p.m.

CHAIRMAN- I declare the proceedings resumed. Before I call on the report from the Resolutions Group I remind delegates that at 3 o'clock today, instead of at 4 o'clock, we are going to start voting. Our initial resolutions will be on the name of the new head of state, if Australia should change.

I have a proxy appointing Dr. Wendy Craik instead of Mr Donald McGauchie, which I table.

I also have a note about microphones in the chamber and am asked to make the following statement: it is imperative that delegates speaking from their seat wait until they have the microphone before commencing. As I have tried to explain, the use of the microphone is for the purposes of Hansard, and it is essential that people have the microphone before they speak. When I have identified who the speaker might be, the microphone will be handed to you. I remind you that delegates may speak only when given the call. I have asked the chamber attendants not to give any delegate a microphone until the Deputy Chairman or I have given that particular delegate the call.

The working groups designated on a range of issues will be meeting after the voting this afternoon. When we resume after the voting this afternoon, the working groups for the several subjects relating to section 44- on the question of a future constitutional change and on the question of the oath of any future head of state- will commence deliberations at that stage. Delegates will find, when they put their name on the list, where that particular working group is to meet.

I invite all delegates to sign the visitors book in the old Speaker's suite, putting in their names and addresses. That will go into the record of the Convention so that there is an actual signature. We are talking about having another statement so that we can be sure there are several opportunities for delegates' names to be put into the records of this Convention.

Some delegates have not yet advised whether or not they will be attending the reception that the Deputy Chairman and I are giving at the dinner on Thursday night. Would those delegates who have not yet responded do so at the registration desk as soon as possible. I now call on Mr Daryl Williams to make the report on behalf of the Resolutions Group.

 

Mr WILLIAMS- I report on behalf of myself and my co-rapporteur, Mr Gareth Evans, on the outcome of a meeting of the Resolutions Group this morning. There has been circulated, on green paper, a set of recommendations which arise out of that meeting. The objective of the meeting was to identify the method of progressing the ultimate debate on republican models. The decision of the group is to invite individual delegates or groups of delegates to identify their models and to present them to the Chairman for circulation to all Convention delegates. We envisage is that they will all be in by 2 p.m. tomorrow.

In order that there be some uniformity in the presentation, it is desired that each model address the matters listed on the sheet. The specific matters are:

It is not intended to exclude delegates from including other material, but they seem to be the basic items in each of the models that have been discussed until now.

Following the preparation and lodging of those models, it is envisaged that by 2 p.m. on Wednesday another set of models will be prepared and circulated on the basis, in this case, of having the support of 10 delegates. Those models may be those referred to as being required to be lodged by 2 p.m. tomorrow. It might be a revised version of them or it might be completely new. No doubt, with further preparation of the first set of models and discussion of those there will be an opportunity for delegates to form groups, if they do not have groups already formed, or for groups already formed to refine their thinking.

It is envisaged that the second round will involve signature by the supporting delegates, and it is intended that each delegate should subscribe to only one model in this process. They will be circulated as soon as possible after 2 p.m. on Wednesday with a view to debate the following day in the final plenary session on day 9.

There has been quite a variety of formulations of resolutions by working groups. In order that we can introduce consistency and uniformity and achieve appropriate drafting standards, all delegates proposing to have their models circulated are invited to utilise the services of the Attorney-General Department's officers, who can be contacted through the Secretary of the Resolutions Group, himself an AG's officer, in room M65 on telephone No. 4008.

That is as far as the agreement within the Resolutions Group has gone to this point. Further deliberations are going on in relation to what happens to the debate of the models and other matters on days 9 and 10. The Convention can note that the Resolutions Group intends to bring forward as soon as possible a detailed proposal for the conduct of debate on Thursday and Friday. I move:

 

That the report of the Resolutions Group be adopted.

 

Mr GARETH EVANS- I second the motion.

 

DEPUTY CHAIRMAN- Is there to be any discussion about the proposition- otherwise I will put it?

 

Mr HAYDEN- As I understood the arrangements outlined to us last week by Senator Evans, we were going to go in a different direction. Weren't we going to get a compendium resolution? Can I take it that this has proved a bit too difficult? I could understand why that would be so. We would probably need another month to work our way through it. This is replacing that, is it?

 

Mr GARETH EVANS- It is not so much that it proved too difficult, because the drafting job has in fact been done over the weekend, bringing forward draft proposals for the three main models with a number of amendments associated with each that ring the changes on the various refinements. The reason was not that it was impossible, although it certainly makes life a lot easier for the Resolutions Group if we do not have to play gods in terms of anticipating what everybody feels and bringing it forward. The feeling was, rather, that it was better to give the individual proponents and groups of proponents of positions the opportunity to retain ownership of those for as long as possible during the debate, and to have their particular models directly voted upon by the Convention as a whole rather than being diluted through some other process.

The intention is to come back to you with a proposal by which we can reduce these numbers of models to a single preferred model at the end of some preliminary process and then move to a detailed debate of that preferred model to emerge from this process and bring the Convention's results to a conclusion. But that will not happen until day 9, whereas there might have been delegates who might reasonably have felt that they were being a bit short-changed to have their particular preferred form of words and so on lopped at an earlier stage.

The other rationale for it has been simply in order to encourage delegates to work very hard to find consensus as between like-minded other delegates around the room. The requirement of having a minimum threshold support base of 10, while not intended to disqualify anything that has any reasonable support at all, is intended to encourage people to come together and coalesce as far as possible. For example, the direct elections people have just made a public announcement that they have been able to reach a substantial measure of agreement in bringing together all the different versions of that into a single model. This is designed to further encourage that process and make life a bit easier for us all as a result.

 

Mr CHIPP- I ask a question. Clearly, the moment of truth is approaching rapidly. There are many of us here who would like to have some indication from the resolutions committee about the system of voting which is going to be proposed. Is it to be an earlier suggestion by Mr Evans of an exhaustive ballot method? Which models will be included in the exhaustive ballot? Will the status quo position be included as one of the options? That sort of thing would require a great deal of consideration and debate by this Convention.

 

DEPUTY CHAIRMAN- I can perhaps intervene to say that that is the next matter that we hope to reach agreement on. The Resolutions Group is meeting at 6 p.m. tonight. We will try to get that resolution back as soon as we can. If we can get it back tonight, that will be splendid. The worst-case scenario will be first thing in the morning.

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Last updated: 21 October 2000