The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Tuesday, 10 February 1998
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Full Delegates List

PROXIES TABLED BY THE CHAIRMAN

Convention met at 9.00 a.m.

CHAIRMAN- Professor Blainey wishes to raise a point of procedure.

Professor BLAINEY- I hesitate to raise the question of how we proceed, especially since I, like many delegates, admire the way in which you and Mr Jones have carried out your duties- the patience, the tolerance and the courtesy. I do applaud you both. Late yesterday afternoon there was increasing concern amongst delegates that so few delegates were here at the debate. After discussion this morning with quite a variety of people, there is a feeling that urgent consideration should be given to this question. My belief is that the debate on the republic on some important questions is still in its infancy. Listening to the arguments here, I am conscious that from time to time there are important arguments which I have not heard and there are arguments that people with other views have just not heard. Somehow in the remaining four days I think we have to devise a way where the time is used slightly differently.

Yesterday afternoon, when it came to the voting, many delegates were conscious that there was no way, given the shortage of time, that they could put their view, no matter how pithily. I am not a parliamentarian and I do not know the answer to this, but I wonder whether we need to set up a quorum. In that way the working parties would restrict their meetings and perhaps meet only at certain times. Those members of the republican groups who have to come together to sort out differences would select different times. At one stage in the debate yesterday evening there were only 15 people present and that is quite unfair for a matter of such importance. I pass this on to you for your urgent consideration.

CHAIRMAN- Thank you, Professor Blainey. It is a matter that all of us are aware of- how we are able to accommodate the various demands that are on us. We only have four days left and I intend to go through the proceedings in a moment. We are all concerned at the degree to which a number of speakers who have not spoken to the Convention were speaking to very few of their fellow delegates. It is not only an embarrassment to them, but it certainly is necessary that those other proceedings take place.

Ms HOLMES a COURT- I wanted to support Professor Blainey 100 per cent. I was here until 7.30 last evening and there were some marvellous speakers, some wonderfully thought out, great performances and explanations that people really need to hear. I believe it is a great shame that the effort and time that people have put into preparing their speeches is in a sense being wasted unless people read the Hansard report in the morning.

CHAIRMAN- We recognise the problem. At the same time, we also have a discipline which needs to be understood, that is, there are certain resolutions that have to be put to the Convention. They need to be prepared. One of the items I wish to identify at the moment is the requirement for the deadline for submission of proposed models, which is, as you will recall, to be at 2 p.m. today. That is certainly going to require a good deal of work. We shall take on board the comments of Professor Blainey and Mrs Holmes a Court and see whether something can be done in future, certainly for addresses in reply. I would like to proceed to the various items.

Mr RUXTON- You are brushing over it. I think there should be a quorum of some sort. We should have started on this at the beginning of last week. It is not fair. I have sat in this chamber for as long as I can, but the emptiness of it is appalling considering that there are 152 delegates. I think Professor Blainey and Mrs Holmes a Court are right on the ball. I really believe there should be a quorum. I move that there be a 25 per cent quorum.

CHAIRMAN- I take on board those comments. I do not want to proceed with it, but we all register it. While I call on all delegates, I point out that many are not here at the moment. Some of those whose absence you are concerned about are not with us at the moment. I trust all delegates will take note of the remarks made by those few speakers this morning.

Mr WADDY- It would be helpful if you were to point out to the people of Australia watching this on television day in and day out that a vast amount of work is going on outside the chamber. We have met every morning at 8.30; now we are meeting at 8 a.m., as the ARM does. I would not think that Mr Turnbull and I had more than 20 minutes to half an hour to be in the chamber yesterday. The last meeting I had was at 11.30 last night.

It would be quite wrong for the general public to think that the work of this Convention is only happening when it is in session. It is impossible to bring forward resolutions and concentrate the mind of the Convention unless there are working groups. You cannot have working groups unless the people go to them. As a public relations matter and a matter of fairness, people should know that delegates are putting in 12- to 14-hour days working in the precincts and cannot be televised. I might add that the burden on you and the Deputy Chairman is equal.

CHAIRMAN- The other thing that people need to understand is that, unless we have those working groups, it is not possible to produce the resolutions and facilitate debate. Yesterday, we had at least five meetings of the Convention which were essential. While some of them could take place during meal breaks, essentially we are meeting most of the time and there has to be some opportunity to complete those obligations.

Reconciling those two objectives is not easy, but I urge all delegates, if they are not involved in meetings, to sit in the chamber when possible and for as long as possible. There are some excellent contributions, and it is certainly a pity that there is not a larger audience here to hear them. I assure the wider community that the delegates have committed themselves universally to the task. I commend you all for the way in which you have been so assiduous in the pursuit of your obligations.

I have three proxies: the Hon. Leader of the Opposition, Mr Kim Beazley, nominates Bob McMullan for today from 9 a.m. until 2 p.m; Senator Robert Hill nominates Senator Marise Payne as his proxy for today, Tuesday, 10 February; and the Treasurer, the Hon. Peter Costello, nominates Mr Christopher Pyne as his proxy from 9 a.m. to 3 p.m. I table those proxies.

In view of the number of speakers on the list to speak on whether Australia should become a republic- the item that the point raised by Professor Blainey dominantly concentrated on- I propose that we sit until 7.30 p.m. tomorrow night. That will give us more time to hear those general addresses. I also propose- as I indicated yesterday- that we return from lunch at 2 p.m. each day. That gives us another 15 minutes in here to hear those addresses.

I also remind delegates that, in accordance with the resolution passed yesterday, the deadline for submission of proposed models for circulation is 2 o'clock today. Models must be provided to the secretariat by that time. They will be circulated as a set as soon as possible after that.

Each model should address the following specific matters: the proposed nomination procedure; the proposed appointment or election procedure; the proposed dismissal procedure; the definition of powers, including the extent as compared with the status quo and whether any codification is proposed; and the term of office. Delegates will then be able to subscribe to one of the models and each model- or any other models- having the support of at least 10 delegates will go forward for debate on Thursday.

The secretariat will maintain lists of people subscribing to the models. I should remind you that there have been working groups taking place in terms of each model, which ensures that a lot of work has gone into them. I do recommend that people have their models lodged with the secretariat because it will facilitate both the debate and the processing of them.

I now draw your attention to today's Notice Paper. We are going to go through the working group reports first this morning. We are then going on to addresses by delegates on the general question. Voting will be at 3 o'clock. Then we will resume our general debate in this place. The working group sessions on how should the links to the crown at a state level be handled will be conducted concurrently with the general debate. While I know that some will be involved in those working groups, I again pick up the recommendation of Professor Blainey that as many as possible participate in the chamber during those addresses on the general debate.

I have been asked to make two other housekeeping announcements. Delegates are reminded that glasses of water are not permitted on the desks in the chamber due to heritage considerations and because of the damage which could be caused if there were spillages. Water coolers are located outside the chamber. There is also a jug of water and water behind the Speaker's chair. Further to my announcement of yesterday, delegates are reminded to respond this morning for Thursday night's dinner to be given by the Deputy Chairman and me so that final numbers can be settled.

Mr RAMSAY- Just one question on procedure: given that 2 o'clock today is the closing time for models, when could the delegates expect to have copies of those models circulated to them? Will it be before the debates commence or will we have to wait until tomorrow?

CHAIRMAN- It would be my intention to ensure they are distributed to all delegates as soon after that time as is possible. I would think that they should be distributed by 3 o' clock this afternoon, subject to how complex they are and how long the printing takes. But they will be available to all delegates this afternoon.

Also, following suggestions made yesterday, we intend to arrange for copies of all the motions that we need to debate this afternoon for voting to be distributed to members again in the chamber, providing that amendments are lodged in time for them to be prepared. So after you have had the working group debate this morning, if you have any proposed amendments, I urge you to try to prepare them so that they can be lodged and they will then be available for the session this afternoon. We are having the debate this morning. You should be able to lodge your amendments by lunchtime so that they can then be printed and be available for our voting at 3 clock.

We will now proceed to speakers on the four working group reports from yesterday.

Working Group I- Process and procedures for ongoing debate on Constitutional reform

RESOLUTION

That this Convention resolves that the Government incorporate in legislation the following process for ongoing constitutional change:

• • (i)The establishment of a broadly representative Constitutional Committee consisting of no more than one third of serving State and Federal Members of Parliament and two thirds community representatives, appointed by the Government.

    (ii)That this Constitutional Committee oversee a three year community based ongoing process of consultation about constitutional change leading to a plebiscite on concrete constitutional proposals.

    (iii)This Committee and its consultations should be resourced by the Federal Government's Federation Fund.

Matters that should be considered in this process would include:

• .The role of the three tiers of Government.

  .Rights and responsibilities of citizenship.

  .Commonwealth environment power.

  .System of governance and proportional representation.

  .Review the mechanism of constitutional change (Section 128).

  .Constitutional aspects of indigenous reconciliation.

Ms DELAHUNTY- Thank you, Mr Chairman. Good morning, delegates and citizens. In introducing this report, I would like to gently remind delegates of the overwhelming vote of this Convention on day one for ongoing constitutional change. That was one of the highlights of day one: overwhelming consensus for a process of ongoing constitutional change. That strong support for continuing civic conversation was well in evidence at our very large working party last night. Delegates saw a window of opportunity opened by the escalating interest in this Convention, and the delegates in our working party do not want to lose that opportunity to continue the conversation. We were reminded many times of the eminent and august bodies of constitutional reformers who had met many times over the last few decades. Their work was considered skilled and well researched but, sadly, their efforts have been left languishing in government filing cabinets. We do not want that to happen with the momentum here.

I think quite clearly the great difference between those processes of constitutional change- or attempted processes- and this one is that there is at this Convention more than an embryo of public ownership and certainly public interest. The other difference- and this is quite critical to any success at referendum of any process of constitutional change- is that this Convention was supported by the government of the day and the government of the day wanted a tangible result that could be put to referendum. They are the two points that informed our long discussions last night about the best way to continue the process: we wanted to keep public ownership; we also wanted to keep the pressure on the government of the day and bring them and keep them on board. This is a very different dynamic for constitutional change and it is one that has not been enjoyed by Australia thus far. This Convention is not a shot in the pan and many Australians will feel cheated if we do not continue a process of constitutional reform.

On the `how' and the `when', our discussions were very broad. There was early consensus for the community voices to continue to animate the process; that it would die if it did not have that input. There was also an early consensus for the appointment of some sort of ongoing constitutional committee to oversee the process and for that process to endure for at least three years.

The model that we boldly painted- and it is in the form of a resolution that you will have later on today- is this: that this Convention resolves that the government incorporate in legislation the following process for ongoing constitutional change. Firstly, the establishment of a broadly representative constitutional committee consisting of no more than one-thirds serving state, territory or federal members of parliament and no less than two-thirds community representatives, all of whom would be appointed by the government. We played around with numbers. We did not want to be too prescriptive, but I think it is important that the Convention knows that we moved towards a number something like 27, which would not be unwieldy but would involve representation across the states and across various communities.

Secondly, that this constitutional committee oversee a three-year community based ongoing process of consultation about constitutional change leading to a plebiscite on concrete constitutional proposals with the results of that plebiscite to be converted into a constitutional amendment proposal by a joint house committee and put to referendum. So you can clearly see that the model we are looking for is ongoing community consultation, but ending up at the pointy end of a referendum where all Australians have the opportunity to vote `yes' or `no' on the specific issues.

Thirdly, that this committee and its consultations around the country be resourced by the federal government's Federation Fund. Without money the voices will be silent. We did draw up a bit of a wish list and there was quite an amount of agreement, so we have included that in the resolution. I will run through it now. It is not meant to be exhaustive, but indicative.

The matters that should be considered in this process include: the role of the three tiers of government, particularly the role of local government; the rights and responsibilities of citizenship; a Commonwealth environment power; a system of governance and proportional representation; a review of section 128; a review of the mechanism for how constitutional change occurs; and the constitutional aspects of indigenous reconciliation. That is the model.

Let me speak to that and give you some of the arguments for why we moved that way. There was strong representation, particularly from Professor George Winterton, that this is incorporated in legislation- that this is not whistling in the wind; that we actually have the government of the day on side. That is part of the reason for this Convention's success and interest. We believe there should be a large component of the community involved and that it should be well resourced.

There were four options for this ongoing constitutional committee, if you like- a form of administration of constitutional change. Firstly, the appointment by federal parliament of groups, which is perhaps the hybrid we have adopted; secondly, the fully elected group, which was knocked off very early; thirdly, an ongoing executive from this Convention. Perhaps this Convention could spawn the process of constitutional change and that delegates could be elected from this Convention to compose the constitutional committee. There were strong arguments against this notion on the basis that this Convention was created to address the question of the republic. Depending on how we go in the next few days, I suppose it might also be slightly presumptuous.

This process, whichever way we go through the community consultations, gives the committee the ability to call another convention if that is deemed to be the best way to go. If that convention were to be called we recommended that it be at least 50 per cent elected. The fourth model of constitutional committee that would run this process of change is a joint subcommittee convened to run the process. This was attractive to some members because it had the imprimatur of parliament though many felt it might be subject to the whims and passing priorities of the parties. They also felt that a citizen component of this committee was absolutely critical to its success. So after debate the group moved towards the form of model that I have just outlined- a broadly representative constitutional committee consisting of no less than two-thirds citizens and no more than one-third serving state, federal or territory MPs.

I have spoken about the number. That is not meant to be prescriptive. I should say that the group is indebted to the work on this particular model by Catherine Moore. We propose that this constitutional committee drive the process of community consultation around the country which would lead either to another convention, if that was deemed necessary, but certainly to a plebiscite on the matters raised by this community consultation to be converted into a constitutional amendment bill and put to referendum.

The funding was an important topic. As I have said, without the money the voices are silent. We believe that the appropriate funding is already there sitting in a pot. What better way to use the bountiful funds of the Federation Fund itself. Let us not build monuments and statues, let us use some of the money there to continue the civic conversation. Let Australians talk to us and to others about how they want their Constitution renovated to reflect the way we are now not the way we were.

The second point to elaborate on is the community consultation. This should be based in our community and involve local government and even small scale citizen forums and meetings. The process should place a strong emphasis on those who might otherwise feel excluded from this chat about constitutional change because they feel some educational, geographic, gender or socioeconomic disadvantage.

There was also the belief that this proposal for the process of ongoing constitutional change could incorporate and should incorporate the return to our school syllabuses of civics education. As you are probably aware, delegates, there has been bipartisan support for the return of teaching the rights and responsibilities of citizenship and the way our political process works. There is support for returning that subject to our school children and giving them some understanding of how governments work and indeed what process of constitutional change they can be involved in. We felt there was an excellent argument to incorporate civics education with the process of ongoing constitutional change.

So, delegates, when you see this resolution, I do commend it to you. It certainly, I hope, puts some flesh upon the bones of that overwhelming vote on day 1 that said that this Convention wants some process for ongoing constitutional change, and we should not lose the momentum of the escalating interest in this Convention. It is to be encouraged at all costs.

CHAIRMAN- Before I call Mr Ruxton, I table a proxy from Dame Leonie Kramer appointing Professor David Flint as her proxy for Wednesday, 11 February.

Mr RUXTON- I was very interested to hear Mary Delahunty. This is what we have been saying for a long time- that the republic is just a vehicle to crash the Constitution. She said that on day 1 we had decided to do this and that; we decided just the opposite. We decided just to talk about the republic. That was all. That was passed by this chamber.

Yet now we are going on and we have this constitutional committee- the revolutionary committee, we may call it, for goodness sake. I suggest that this is going to be the problem. The Australian people have to wake up because they are going to get a Constitution that is going to contain things that are going to be detrimental to the freedom of this country. That is the way I see it.

CHAIRMAN- Thank you, Mr Ruxton. Before we proceed to debate on these reports, I have a long list of people who want to speak on each of the reports. It would probably be better if we spent a little time on each report and then moved on. I will call Ms Jenny Doran, who is the first on the list of speakers, but we will not go through the whole list before we get all the reports.

Ms DORAN- I am pleased to rise to support the resolution that has been put before this Convention by Mary so ably and to respond to some of the criticisms that have just been made. It is quite clear I think at the outset of this Convention that there are a whole range of broader constitutional issues that people are concerned about. The decision that has been made is that this Convention is not dealing with those issues, so the concerns of Mr Ruxton and others who might be opposed to them are not borne out in fact. The Australian community will not have hoisted upon it any measures or proposals for constitutional change that it is not fully aware of and has not been broadly involved in developing. That is the entire purpose of this resolution and this procedure that has been outlined in Working Group I.

The importance of this Convention for all of us who have been involved in it- who came to the Convention probably not knowing what it was going to be like, wondering whether it was going to be effective- has been that it has exceeded most delegates' expectations in terms of it being a very important forum. The diversity of its delegates, the breadth of experience we have here and the exchange of different, deeply held views in a very civilised way have been very important.

Most importantly, for those of us who have been involved in discussions about broader constitutional change for a number of years, this Convention has finally engaged public attention on constitutional issues. This might be because it is a unique event- it is the first time we have had such a convention- and obviously the media focus on it for that reason has been important. But it is clear, once the media is focusing on it and giving it attention, the public itself will be very interested in these issues. Once they have information before them and are familiar with the issues, people want to be involved. Therefore, a discussion about broader constitutional change can really address our citizens' engagement in the political process; addressing, to some measure, that feeling of alienation from the political process that many in the community have. I think it is an opportunity to reinvigorate representative democracy- talking to the community, asking the community what they expect of our political process.

The ACTU's affiliates have run a range of arguments about broader constitutional change, in particular, centring on the rights and responsibilities of citizenship. We are looking at rights to services accruing from citizenship such as rights to a basic quality public education system, which is a campaign that has been run by the Australian Education Union. A leaflet has been distributed to all delegates in relation to that matter. The Public Service unions have been raising issues relating to the role of the public sector and the delivery of services to our citizens as part of the constitutional debate.

We also, of course, have an interest in the Bill of Rights and the protection of particular basic human rights such as the freedom of expression and the freedom of association. These are very important broader constitutional issues that we believe demand to be discussed in the broader community. We want to take the opportunity arising out of this Convention to endorse an ongoing process- and I think it is very important that this Convention endorse such a process- of engagement with the community about these broader issues. It is for those reasons that I strongly support the resolution that has come from working group 1 and I urge the Convention to support it. Thank you very much, delegates.

Professor PATRICK O'BRIEN- I support the general principle of working group I but with grave reservations about the actual wording, because we are told again that this working group, this permanent working group on constitutional change, will have its membership appointed by government. I found it amazing, just as I found it amazing yesterday, that certain people wanted to exclude the word `democracy' from the preamble of what I thought was going to be a democratic constitution. I was amazed to hear Ms Mary Delahunty say, `We must listen to the people. We must open the process to the people.' Well, Ms Delahunty, Mrs Janet Holmes a Court, Mr Malcolm Turnbull, and Mr Eddie Maguire- who spoke about a reality pill-

Mr RUXTON- What about me?

Senator O'BRIEN- the people have spoken. Once again, the poll published in today's-

Senator WEST- An eminent professor like you should know better.

Professor PATRICK O'BRIEN- That is what the people want. If we are going to have just another process here in which the people speak and are not listened to, then it is not worth having it. Therefore, what `education program' often means to people with partisan viewpoints who have track records of not actually doing what the people ask them to do is simply brainwashing. Let us force them into accepting our point of view.

If the proposer of this motion really meant what she said in her address supporting it, then this Convention would already have a consensus that a president of a republican Australia would be directly elected by the people. I find it quite extraordinary that the people who doggedly, in face of the reality pill talked about by Eddie Maguire, resist and refuse to give the people the right to elect their president, still talk about community consultation, for God's sake! Therefore, I would oppose this motion, though I support the very idea-

Ms DELAHUNTY- Ha, ha!

Professor PATRICK O'BRIEN- Don't you laugh at me, Mary Delahunty. It was a member of my group that was responsible for getting this Convention going.

Mr RUXTON- Get stuck into her, Paddy.

Professor PATRICK O'BRIEN- It was Jonathan Harms who got the proposal on to the agenda of the Western Australian division of the Liberal Party as policy, because he listened to the people. So he went to his party and put on the agenda in 1993 the proposal for a people's constitutional convention. It got through that convention by one vote, was sent to the federal council and John Howard, when he got the leadership, then incorporated it into his political party's platform. That is real community consultation.

My simple point is this: let us be true to what we say. If we are serious, Mary Delahunty, about community consultation, then let the people speak. Let them elect their delegates to such groups. You people over there have closed your eyes to the reality, you who are spitting upon the graves of those Australians who did the great things in this country, because you will not give them the right to vote. Therefore, I will oppose this until it says that the people will have the final say. Thank you very much.

Councillor LEESER- I believe that this Constitutional Convention represents the culmination of what I shall term the Absolutely Fabulous effect, for the republic is the by-product of the Absolutely Fabulous generation. For those who do not know, Absolutely Fabulous is a TV show where two middle-aged baby boomer women swarm around drinking copious amounts of alcohol, smoke pot and try to relive the hedonistic days of the 1960s and 1970s. One of the women has a daughter called Saffy who is about my age and is an infinitely sensible and studious girl who is enormously embarrassed by the antics of her mother and her best friend.

I believe the republic is the Absolutely Fabulous baby boomers' last hoorah, their last tango in Paris, the zenith of a generation who value style over substance, to whom touchy-feely, kumbaya motherhood notions are more important than results. Whilst the baby boomer generation has made some achievements, like all great social movements, they have gone too far. So I cry out to Saffy and all the other Saffys there in the tradition of youth rebellion: stand up to the Ab Fab generation, stand up to them and their vacuous republic.

Whilst I stand up to the Ab Fab generation, I do not believe that they have a monopoly when it comes to the issue of constitutional change. As Justice Kirby has said:

I support the reform of society and its laws, but reform means more than change. It means change for the better.

There are two things I wish to discuss: firstly, the question of future constitutional reform; and, secondly, the methods for discussion of that reform. Whilst I support the place of the Crown in the Constitution, and I am unswerving on that, I acknowledge that there are areas of the Constitution which are crying out for reform. I believe that there are two broad areas of constitutional reform that need our urgent attention: firstly, federalism and, secondly, rights. Since the Ha judgment was handed down last year, there has been a pressing need to revisit federalism. Do we wish to continue as a federation? If so, I believe we need to amend section 90 of the Constitution to allow states to levy excise duties.

We cannot continue with the meaningless legal fiction of the Dennis Hotels exception. Whilst states provide many of the governmental functions, they collect almost no revenue, and this imbalance needs to be addressed. I also believe that we need to look at the Constitution in the light of changing social circumstances and give the Commonwealth more power to make laws in relation to de facto relationships and the adoption of children so the whole question of the family unit is regulated by one level of government. There are other matters which are too voluminous to go into here.

Given the trend of judicial activism, we also need to look at the place of rights in the Constitution. We need to consider whether a Bill of Rights would be beneficial in indicating to the judiciary fundamental values or whether it would merely lock future generations into the ideals of our age. I do not believe that these issues are exhaustive. However, I believe they are worth thinking about.

As to the method of discussing these matters, I believe a Convention like the one that we have had here is the most effective method of achieving this. The idea of the Convention originally did not come from Alexander Downer or John Howard, but it was mooted in 1993 by a brilliant Australian who is given far less credit for his contribution to this country than he deserves, and that is Mr Bob Ellicott QC. Ellicott maintains that his 1977 referenda had been successful because they were dealt with by a Convention not like the 1988 Constitutional Commission which had eminent persons contained in it.

A convention is the best solution because like this one it is half appointed and half elected. It would provide for popular legitimacy as well as encouraging stately and academic minds who would not otherwise put themselves up for election. One thing is for certain: there is no need for more wasted money on royal commissions and the like into the Constitution. Since 1929 there have been no fewer than six telephone book like commissions, which have produced telephone book like results, where the Constitution has been examined with a fine tooth comb and there are enough recommendations as a basis to start constitutional change.

If, however, we are going to have a convention it should be held only on an ad hoc basis. It should not necessarily be a recurring thing, and it must have bipartisan support for whatever is proposed. Otherwise, the only thing that a convention will do is provide dusty volumes and irate taxpayers who believe their money is not being well spent- on an extremely difficult process which is vexed with hardships. Therefore, I propose constitutional conventions on an ad hoc basis whereby partisan support exists for a particular proposal.

In conclusion, constitutional change requires the wisdom of Solomon. We all know that. We need to acknowledge the difficulty of the process. As my great grandmother used to write in her diary every year: `Lord, grant me the knowledge to accept the things I cannot change, the courage to change the things I can and the wisdom to know the difference.'

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Last updated: 21 October 2000