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Constitutional Convention: Introduction  The Constitutional Convention of February 1998

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TRANSCRIPT OF PROCEEDINGS
Tuesday, 10 February 1998
Page 3

Working Group K- Entrenchment of the Australian national flag and of the Coat of Arms of the Commonwealth of Australia.

RESOLUTION

We recommend that a provision be added to the preamble to the Constitution which would ensure:

Sir DAVID SMITH- The proposer of this resolution and the convenor of this working party was Mr Adam Johnston. I was proud to second Adam's motion. Unfortunately, he could not take part in the committee proceedings. Therefore, I present the report of the working group on his behalf.

Working Group K recommends that a provision be added to the preamble to the Constitution which would ensure, firstly, that the Australian national flag and the coat of arms of the Commonwealth of Australia may not be changed without a national vote of the Australian people; secondly, that the passage of any proposal for change to the flag or the coat of arms should require a special majority of the kind required under section 128 of the Constitution; and, thirdly, that the submission of any proposal to add such provisions to the preamble be at a time to be decided by the government of the day but subsequent to any referendum on the republic.

We have reached a stage in our growth as an independent nation where our fundamental symbols around which we have constructed our identity need to be constitutionally entrenched to protect them from being altered or done away with without the approval of the people. Our fear for the flag in particular is heightened by the launch of a campaign by a private organisation, sponsored and supported by foreign companies and republican delegates to this Convention and timed to coincide with the holding of this Convention.

We recall the way in which the symbols of the Sovereign and the Crown were treated by the previous government. These symbols of the constitutional monarchy were diminished or removed altogether by the Keating government on the arrogant assumptions that the republic was inevitable, that the approval of the electorate at a referendum would be forthcoming and that it might therefore be anticipated. We do not want this to happen with the national flag or the coat of arms. Every visitor to the new Parliament House is struck by the prominent display of these two symbols: the national flag flying above the parliament and the coat of arms mounted above the forecourt.

Our young people visiting Australian war graves overseas in search of Australia's story and national identity in ever-increasing numbers carry the flag on their backpacks and look for the flag which flies over these cemeteries and which identifies these sacred places that marked our progress towards nationhood in the fields of battle. At the other end of the spectrum, the national flag has almost entirely displaced the boxing kangaroo wherever Australian teams confront other nations in fields of sport. Has anyone ever tried to tell the Country Women's Association that the Australian flag could readily be exchanged for another design?

The coat of arms has also been threatened before. I recall the occasion when the Australian designer of our decimal currency, Mr Stuart Devlin, who had been chosen by Prime Minister Whitlam to design the insignia of the Order of Australia, presented his first models of the insignia to the Governor-General and the Prime Minister in the drawing room of Admiralty House in Sydney. In the centre of each piece of insignia, Mr Devlin had placed a small enamel disc depicting the Commonwealth coat of arms in full colour. As soon as the Prime Minister saw the pieces laid out before him, he pointed angrily at them and said that the coat of arms would have to go. When Mr Devlin asked what possible objection there could be to the coat of arms, the Prime Minister replied that the arms contained the emblems of each of the states and that he was not going to have the states depicted on his insignia.

The coat of arms is the most potent symbol of our Federation and for those of us who have witnessed the way in which the political representatives of the states have voted consistently at this Convention to put down their states for the sake of the centralist republic- and there is no other kind of republic- the coat of arms may soon be the only remaining symbol of the Federation. The flag has evolved into our most potent symbol of nationhood and the coat of arms has evolved into our most potent symbol of the Federation. Accordingly, the working group strongly recommends that these two symbols be entrenched to protect them from being altered or replaced without the approval of the Australian people, that such approval should require the constitutional double majority and that the matter be dealt with separately from and after the holding of any referendum on the republic.

Mr RUXTON- I would like to support the report given by Sir David Smith, and particularly those remarks concerning the Australian flag. I find it rather odd that there is opposition to the Australian flag being entrenched in the Australian Constitution. Surely to goodness, if the republicans and those who want the flag changed are so sure of themselves why don't they allow it to go into the Constitution. Are they trying to get rid of the flag by other means?

I find it odd too that when I spoke on a television debate with Neville Wran and Malcolm Turnbull some time ago they said, `The flag has got nothing to do with this debate.' They could not get rid of it quick enough. I made the comment that if there is a republic tomorrow the flag will be gone the next day. I also think that what has been put forward about the Australian flag by Ausflag is deceitful. They say, `It has been changed before. It was a red ensign and then a blue ensign.' You cannot make up your minds.

What they have not got the guts to say apparently is that it is a Union Jack in the corner of the flag. It does not matter whether it is a red or blue ensign. Having said that about the blue ensign, there is a photo taken at Polygon Wood on 20 September 1917 with the blue ensign going up. There is a photo of the blue ensign on both sides of the front page of the Anzac book printed at Gallipoli in 1915. I too feel rather ashamed that Nick Greiner and Nicholas Whitlam are the co-chairmen of Ausflag.

I am also ashamed of the sponsors. I cannot believe, as Sir David said and as Digger James said last night, that there are two foreign sponsors of Ausflag. They are Fuji Xerox of Japan- they could not get us in 1942 but they are having a shot now- and Apple of America. Could you imagine BHP or some other Australian company going to America and funding some dissident group to change the Stars and Stripes. Think about it.

I say to Janet Holmes a Court that her company is also a sponsor of John Holland industries. I am quite sure Sir John Holland, that famous engineer from the war and the famous Z special unit leader, would not want his name attached to it. It is rather a shame what business does. I say in all sincerity that it should not bother anyone in this chamber to put the Australian flag into the Constitution because if the flag is to be changed, it will take the vote of a majority of the people. That is all we want. That is what everyone in this chamber, republicans and all, should want. The Australian people will not forget if you eliminate this from their Constitution.

Professor BLAINEY- My understanding is that most leaders of the Republican Movement believe that the present Australian flag must go. They themselves are mostly restrained in criticising it because, understandably, their first priority is to achieve a republic. But, if they finally achieve a republic, they will then argue forcefully that a new republic calls for a new flag.

Initially I had some sympathy for the crusade for a new flag that gained momentum just after Australia acquired its present national anthem. I remember that in the early 1980s when I was teaching undergraduates, many of them were enthusiastic that Australia, like Canada, should devise a brand new flag. I even subscribed to the new Ausflag organisation, carefully pointing out to Ausflag that I would subscribe for only one year. After a year, there was no flag of merit. There is still no new flag of merit.

A few years later, I began to look at the history of flags, and I suddenly realised a few simple facts. These are the facts: a national flag is not necessarily an up-to-date information sheet to be altered every 100 years as the nation itself changes. By this test, many of the world's oldest flags are hopelessly out of date. I am not impressed by the republicans' argument that our flag is tainted. They say it is tainted because it carries relics or remnants of the flag of another nation, yet about four-tenths of the flag of the United States, a noble flag, consists of the British red ensign that flew in North America two centuries ago. Should we therefore tell the United States to design a new flag?

I believe that, if we become a republic, we should retain the present flag. The flag of republican France is seen as one of the most appropriate in the world, but even it embodies royalty- the white on the French flag stands for the French monarchy, which vanished a century-and-a-quarter ago. I am conscious that many Aborigines would like to alter the flag. Although I have not thought it through to the full, I see some merit in placing another star, an anonymous star like all the other stars, on the flag to signify their long presence and history. But the call for the wholesale redesigning of Australia's flag seems to rest on the mistaken knowledge of the history of flags.

I am not in the least persuaded by the persistent argument that Australia needs a new flag just because it resembles the flag of New Zealand. That is New Zealand's problem. In fact, a host of national flags are look-alikes. The flags of Ireland and Italy are breathlessly alike; so, too, are the flags of Holland and France. Should those nations summon the flag doctor? I tender a simple conclusion: for too long we have been brainwashed by the cry that Australia must find a new flag. May I suggest this Mr Chairman: if republicans are to show a real desire for national unity, they should come together and agree upon an essential concession that they will accept the present Australian flag, even embalming it in the Constitution so that it cannot be easily changed.

Whenever I speak on the flag, I get so many letters of interest. Here is a letter written in 1992 from Little Raglan Street in Ballarat by somebody who was obviously well into her 90s. She says, `I lost my husband and two brothers in the world wars, and I know they would like me to stand by the flag.' The flag is not perfect, but it links the living and the dead. It has flown over so many of Australia's triumphs and not a few of its tragedies. Above all, it is our flag and it is the chief symbol of national unity.

Mr FOX- At school academically I was a disaster, but the thing that vividly stands in my memory is the Monday morning assemblies, where there was the roll of the kettle drums, the unfurling of the flag and all the students standing to attention with their hand on their heart repeating, `I love God and my country. I'll honour the flag. I'll serve the King and cheerfully obey my parents, teachers and the laws.' They are the only things I clearly recall of school and it was something that came out every Monday morning, where it was a commitment and an obligation. Today, I guess it is companies like Coca-Cola and McDonald's that get to the kids and give them a theme to look forward to- not that there is anything wrong with Coca-Cola; we deliver most of it.

I spoke to Professor Geoffrey Blainey yesterday. Our flag was put together in 1901. The Union Jack in the corner is symbolic of where we came from. The Southern Cross represents the land on which all of us live below. I do not support the motion for the entrenchment of the flag. However, I support retaining the flag, and the only way of change should be by national vote of all the Australian people.

CHAIRMAN- I call Archbishop Hollingworth.

The Most Reverend PETER HOLLINGWORTH- I travel around this country a good deal and I travel around my own diocese of Brisbane a good deal and I listen to what a lot of people say. On these great and momentous issues before us, there is a good deal of discussion and I think delegates would be greatly heartened to know how much interest is being generated by the events in this chamber.

On the matter of the flag and indeed of our national Coat of Arms, the issue of symbols and signs is a critical thing. I believe there is no support of any substantial nature anywhere in Australia to change our flag. I also believe, with Sir David Smith, that we have an outstanding Coat of Arms which manifests and entrenches the Federation, and that too should stay.

I was part of the working group that discussed this matter at some length and detail last night. I support the entrenchment of both these powerful symbols for one reason, and it is this. As with the general issue of the republic, so with the flag and other national symbols, if this divisive, media catching, sniping activity continues, our national institutions will continue to be undermined. We must have a referendum as quickly as possible to settle the matter of whether we want a republic or not because we will continue to haemorrhage, and the same thing applies to the flag. If this matter is not settled and settled quickly after the referendum, that matter will continue. I have seen no flags in all the ones offered by Ausflag that even approaches what we have today. I believe the matter should be settled once and for all.

CHAIRMAN- I call Graham Edwards.

Mr EDWARDS- I want to urge delegates to give some serious thought to this matter of the flag. I want to point the Convention to the position of both major political parties, where there is bipartisan support for the view that there should only be a change to our flag if the majority of people in Australia vote that way. I want to suggest some caution to the supporters of this resolution that is before us today. That is, if we were to put the entrenchment of the flag to a referendum, you may run the risk of losing it. I urge you to give consideration to that position. I urge you to give consideration to the legislation which has passed before the House of Representatives but is yet to go to the Senate. I urge you to look at what is contained in that legislation.

The most significant feature of our flag, as far as I am concerned, is the Southern Cross. I have felt that for many years, but I strongly support the view of the many ex-servicemen and ex-servicewomen of this nation who feel that the current flag means something deeply emotional to them. I do not necessarily agree with them, but I respect the sacrifice that those people have made for this nation. For that reason, I will support their point of view. For that reason too, for those people who feel that our flag should not change, I urge you again to give support to the legislation that has gone before our House of Representatives and that will go before the Senate. That legislation says that the flag should not be changed without a majority of people in Australia supporting a change.

CHAIRMAN- I propose to call Ms Janet Holmes a Court on that matter. We still have quite a long list of speakers and we are not going to finish them all in time. After Ms Janet Holmes a Court has spoken, I propose to proceed to the next working group. We will then allow a little time for people to speak on any one of the four working group reports before we proceed to the general addresses.

Ms HOLMES a COURT- I have never resiled from my position that I support a new flag for Australia. How could I- I am a director of Ausflag. I believe we need a flag which represents us now- one which people will recognise as being ours. I have a daughter who represented Australia in many international competitions. She said, `Mum, they don't know where we come from.' We need a flag which shows our pride in our nation. A Finnish girl of 17 years, who was being taught by a friend of mine, looked at our flag and said, `Don't you people have any pride, having someone else's flag on your flag?' We need a flag which informs that we are no longer a colony. An Asian cabinet minister assured our ambassador to her country that her people would support us in our struggle for independence.

We need a flag which even the staff at Parliament House up the hill recognise. At a dinner for the Laotian foreign minister, the floral arrangements on the table contained beautifully arranged flags of New Zealand and Laos. However, Mr Chairman, it was my understanding that we were not coming here to speak about our flag but about whether Australia should become a republic.

In 1953 Sir Robert Menzies decided that a red ensign may indicate to other people that Australia was a communist country and, without reference to the Australian people, changed to our present blue ensign. It is Ausflag's position, unlike Sir Robert's, that the flag be changed only by a plebiscite put to the people in the same form as Malcolm Fraser's plebiscite on the national anthem in 1977.

There is great interest in our flag. On 25 January this year, the day before Australia Day, Ausflag opened two exhibitions of potential flag designs. Since that time we have had over one and a half million hits on our web site. I believe we did not come here to discuss the flag, and therefore I do not support the entrenchment of our flag. But the ARM will be moving this afternoon to adopt the position of both political parties in this country- that the flag should be changed only with a national vote.

CHAIRMAN- I propose now to call on Mr Kevin Andrews and then Dr Baden Teague to present the report on dual citizenship. We will then allow a limited period of time for other speakers on those four working group reports, subject to there being nobody else wishing to speak on Working Group L's report.

Mr ANDREWS- I should say at the outset that the content of this report from Working Group L is broader than the issue of dual citizenship and it might be more appropriately characterised as a report on the eligibility conditions and the conditions of disqualification of a head of state should Australia become a republic. I should also say at the outset that Dr Teague seconds the proposal from the working group but does not propose to speak at this stage.

We have, as delegates will see from the paper which has been circulated to them, divided this issue into two parts, the first being those conditions for qualification or eligibility of the proposed head of state and the second being whether there are any conditions upon which the head of state should be disqualified from office. I will take them in turn and explain the position which has been reached by the working party.

In relation to eligibility, the working party was of the opinion that the head of state must, firstly, be a citizen of Australia and, secondly, be eligible to vote in an election for the House of Representatives or the Senate at the time of his or her nomination. So the two requirements for eligibility are simply being an Australian citizen and being one who is eligible to vote in an election for the federal parliament. That, by definition, imposes a certain age restriction, namely, if a person is below the age of 18, they would not be eligible under this proposal to be the head of state of Australia.

In terms of eligibility, we looked at a number of other possible criteria which might be included but, after discussion, rejected and resolved not to forward them as recommendations to the Convention. However, for the sake of completeness, I propose to briefly mention those matters for delegates. One was a question of whether or not a person should, for example, have been born in Australia in order to be the head of state. We decided against making such a recommendation. It seemed to us, if for no other reason, that it could be potentially unfair. One could imagine a situation where a person came to Australia, became a citizen of Australia, had been here for many years and had contributed in many ways and in many walks of life to the wellbeing of the people of Australia and then to turn around and say that this person is not eligible would seem unfair.

There could also be an accident at birth, that is, a child could be the child of, for example, parents who had been overseas to study and born overseas, as happens from time to time. Why should that person, for all intents and purposes, as an Australian be excluded from in the future being considered as someone who could be nominated and possibly elected to the position of the president? For those reasons and for some others, which I will not go into given the time, we rejected the notion that a person had to be born in this country in order to be considered for the head of state.

There was also a proposition, which in a sense was picked up by a motion I believe from Mr Ruxton yesterday, that there should be a minimum age requirement in order for someone to be considered head of state. Again, we have not brought that proposition forward for a couple of reasons. While there is some sympathy for the view that a person should have obtained a certain status in order to be put forward as a head of state, we thought it was unfair to simply choose some arbitrary limit. In fact, the sympathy for perhaps imposing an age limit was not, I think, the reason advanced by Mr Ruxton and, with all due respect to the former Governor-General, Mr Hayden, who is not here in the chamber at the moment, the question on our minds was, `What do you do with former Governors-General?' It is a bit like, `What do you do with former Prime Ministers?' They rattle round the system and we do not seem to have found any particular role for them.

There was a concern that if, for example, a person was made head of state at the age of 40 and finished that term by the age of 45, then what does that person do and what role do we have for them, institutionally or otherwise, within the nation? Therefore, we thought it best to leave it to the good sense of those who are making the nomination and who are ultimately making the choice, whether by election or otherwise, to take these sorts of considerations into account and not to impose in any strict sense an arbitrary limit in terms of years which one must have met in order to be considered the head of state.

We also looked at the question of whether or not one had to be a resident at the time of nomination and, for reasons similar to those advanced in relation to birth, we decided that that was an unusually harsh condition. To take one topical example- and without advancing this particular person but simply to use it because it is a topical example- would that mean that Mr Richard Butler, the Australian diplomat with the United Nations, could not be considered a head of state for Australia because he happens to be working overseas at the present time?

Mr RUXTON- What about Mr Hughes?

Mr ANDREWS- Or for that matter Mr Hughes or, Mr Ruxton, perhaps I can take you down a path which you would like to go- perhaps Ms Germaine Greer or others. We can all make our assessments about people. But, Mr Ruxton, this is not a matter of prejudice; it ought to be a matter of principle. The principle which we are putting forward to you and other delegates to decide about is whether or not a person who happens to be temporarily or otherwise not resident in Australia should be excluded from any consideration for nomination. We do not believe that that is the case.

There was one issue though in which we agreed there should be a further qualification and that related to members of parliament. There is widespread discussion- and there has been even in passing at this Convention- about whether or not a member of parliament or a former member of parliament should be able to be nominated and, in time, elected as a president should we become a republic. We decided that there should not be a complete exclusion upon members of parliament being president, but there ought to be a cooling-off period, if you like, between a person being a member of parliament and being nominated for president.

Mr WRAN- So they can redeem themselves.

Mr ANDREWS- You qualify, Mr Wran, so it is okay. Mr Chairman and delegates, our recommendation is that there ought to be a cooling-off period of 12 months between the period of resignation as a member of parliament and the nomination according to whichever model is chosen. There ought to be a period of 12 months in which a person has left their elected office before they could be considered for nomination. That proposal is put forward in the papers which have been circulated.

We also considered whether that disqualification or qualification, however you characterise it, should apply to membership of other bodies- for example, political parties- and we thought that ought to be left to a matter of convention. For that matter, how do you decide between those bodies which a person should not be a member of and those that escape the net. For example, do you say to people who are members of registered political parties, such as the major parties and the minor parties in Australia, should be disqualified; but if you are a member of some other group which has a political activity- to name two from different ends of the political spectrum: the Fabian Society or the H.R. Nicholls Society- that is okay and the disqualification should not apply? Our view was that ought to be left to a matter of convention, and there should only be a cooling-off period in relation to actual members of parliament.

May I turn then briefly to the disqualification provisions. I say by way of background that we are recommending that the disqualification provisions that exist in the Constitution at the present time in relation to members of the federal parliament should apply to the head of state. I will not go through it all in detail because it is on the paper which has been circulated but, by way of explanation, section 44 of the Constitution provides a series of matters by which a person can be disqualified. These include having allegiance to a foreign power; being attainted of treason or convicted and under a sentence which carries a sentence of imprisonment of one year or longer; being an undischarged bankrupt or insolvent; holding an office of profit under the Crown; or having any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth.

Our recommendation is that those provisions currently contained in section 44 which relate to members of the House of Representatives and the Senate should apply equally to the head of state for the time being. Having said that, I make delegates aware that there is a proposal, which was a report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, on section 44 of the Constitution. The proposal was tabled in the parliament last year. It is proposed that section 44(i) and section 44(iv) be amended by way of a referendum. Provisions in section 44(i) currently relate to disqualification for any person who:

Is under acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power;

The proposal is that that provision be deleted and be replaced with a provision that simply says the a person must be a citizen of Australia, but that the Commonwealth parliament may, from time to time, pass legislation which relates to any adherence to a foreign power. So the proposal is that the constitutional provision be that one must be a citizen of Australia and that, if you are not a citizen of Australia, then you would be disqualified, but if you are a citizen of Australia you would meet the provision of section 44(i).

We have also proposed that section 44(iv) be changed. This is the office of profit under the Crown provision. I think everyone would agree that the wording is an anachronism and is very difficult to interpret. Even the High Court has, from time to time, had some difficulty in interpreting that. We propose that that provision be changed and that there be a three-part categorisation in relation to what I might broadly call public servants.

Those categories are that, firstly, those who hold judicial office must resign that judicial office upon nomination. Secondly, certain senior office-holders, such as the Director-General of ASIO or the Governor of the Reserve Bank, will be deemed to have vacated their office if they nominate for election. And, thirdly, the great bulk of public servants in Australia, whether they be members of departments and officers in departments here or teachers or whatever, would only be deemed to lose their office should they be elected at an election. This proposal is to overcome the problem which Delegate Cleary had as a member of the House of Representatives.

I say that by way of background, because that is a proposal which had the unanimous support of the House of Representatives Legal and Constitutional Affairs Committee which reported last year. The government has accepted those recommendations and said that, provided bipartisan support continues, it will put, by way of a question for a referendum, those issues that were reported upon by the Legal and Constitutional Affairs Committee.

Let me summarise the disqualification provisions. The proposal is, in relation to the head of state, that the current disqualification provisions contained in section 44 of the Constitution apply equally to the head of state as they are written at this stage. Therefore, those matters which are set out in the paper would apply. But I am saying, by way of information to delegates, that there is a proposal which has bipartisan support, and which was accepted by the government last year in its response to the Legal and Constitutional Affairs Committee, to put to the people for alteration of the Constitution changes to sections 44(i) and 44(iv). Those are the matters which were considered by the working party. I commend the report to delegates.

Brigadier GARLAND- I rise on a point of order. I would like to correct the misinformation given to the Convention by Mr Andrews in relation to the nationality status of children born overseas to Australian parents. Any child born overseas to Australian parents only has to have their birth registered at the embassy or the high commission and they are Australians. My eldest boy, who was born in Thailand, falls into that category. It is very wrong to suggest that children born overseas of Australian parents are not Australians.

Mr ANDREWS- On the point of order: I am not denying that, Brigadier Garland, but, unless that registration takes place, they are left in a lacuna. My comments are in relation to those children, for example, whose parents do not register them. Are they to be excluded? In any event, that was simply one reason put forward by the committee in relation to this matter, and the principle which the committee maintains is that there should be a twofold qualification- namely, that one should simply be an Australian citizen and eligible to vote in a federal election.

CHAIRMAN- Each of the matters we are considering this morning are extraordinarily important. We have about 20 speakers listed who have not been called. We have the difficulty that, if we exhaust that list, those who have not yet given a general address, and many of the delegates have not, are going to be inhibited in so doing.

Dr Tony Cocchiaro is the first listed speaker who wants to speak on this matter. Do you wish to speak, Dr Baden Teague? I was going to propose that we go through to 11 o'clock. There will then be a limited opportunity again this afternoon when the resolutions are being put to speak on these matters, but I am afraid we have to make our choices. I think that it would be better if we had a limited number of speakers now until 11 o'clock and then we will go onto the general addresses. So I will call Dr Teague, and then speakers, when called, may speak on any one of the working group reports.

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