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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
Wednesday, 11 February 1998
Page 14

 

DEPUTY CHAIRMAN- Before I call our penultimate speaker, Don McGauchie, there are three proxies that I have to announce. One is from Alasdair Webster to allow Graham McCennan to attend the chamber from 6 p.m. till 7 p.m. today. Unfortunately, he has only 15* minutes- I think of 15 minutes as being one Andy Warhol. There is one from Sir James Killen to nominate Professor David Flint as a proxy for tonight from 7.30 p.m. and Heidi Zwar gives her proxy to Dr Colin Howard.

 

Mr McGAUCHIE- Let me say, as one who has had the opportunity to serve a part of this community directly and to serve this country in a number of roles internationally, I am very proud of what this country has been able to achieve as an independent, sovereign nation that can stand proud in the world. I think we have achieved a remarkable number of things for the size of our country.

The system of government that we have had here has served us very well and has dealt with all of the circumstances in which we have found ourselves in need of our institutions to work. But there is no doubt that- as a nation, as a people- we must ensure that the institutions that support that nation must be relevant to the needs and aspirations of the people on an ongoing basis as those needs and aspirations change over time. Let me also say that because something is old it is not necessarily out of date. In fact, those institutions that have served the test of time and have evolved over time successfully are probably the ones that will serve us best in the long term.

Many Australians, though, are of a general view that the sharing of our head of state with another country, no matter what the historical links, is becoming increasingly less relevant to this country as we go into the next century. But overwhelmingly, people are not demanding change because the current system has failed us. There is some support for change for symbolic reasons associated with our perceptions of our nation's maturity and its position in the world.

But, in reality, the Prime Minister determines the appointment and dismissal of a Governor-General who is, in effect, our head of state. The role of the monarch- the Queen of Australia as we have now determined to call her- is only to give legal effect to the wishes of the Prime Minister. All Governors-General since Casey in 1965 have been Australians. So for all practical purposes we have an Australian head of state, and the supremacy of the Prime Minister and the parliament is intact.

Australians are not demanding change because the system is not delivering acceptable government and yet there is no doubt, out there amongst the people, that there is some uneasiness about the symbols that we operate under. There is a widespread view that the removal of the role of the monarch in this process is inevitable. There is an increasing amount of support for change, but not support for change at any price. The support for change is not so overwhelming as to accept risk in the change that is put in place. There is no support for change that creates risk to our system of democracy as we understand it, live with it and support it.

I could only support a change that strengthens our version of the Westminster system of democracy and reaffirms the authority of the Prime Minister and the parliament in that process. The McGarvie proposal and the Kennett proposals, prima facie, appear to take us in that direction but, as is so often the case, the devil is in the detail. We need to look a great deal more at the detail of those sorts of proposals.

Whilst I am of the view that the role of this Convention is to settle on a workable proposal that can be put to the people in a referendum, we must be very careful not to rush into compromise simply to achieve that objective. I have no doubt that the Australian people will be very unforgiving of such behaviour and any referendum that was put to the people on that basis would almost certainly fail.

I welcome this debate. I think it is a very important part of our development and maturity as a nation. It is a great national occasion on which we have all had the opportunity to participate, and I think it will be an important part of our determining the relevance of this very important national institution.

Ms THOMPSON- Thank you, Mr Chairman and delegates. This is the general address which many of us have been wandering around the corridors for the last eight days calling, in shorthand, the `I believe speech'. I think that shorthand is indicative of what this occasion means to us. It is indicative of where we come from and what we believe in as Australians, as citizens and as delegates of this Convention.

You would all be aware of course that I am a republican. The question is: why? I am a republican for a lot of reasons. I am a republican because this is my home, because this is what I love: this country of ours. I am a republican because at 10 o'clock last night I went to the War Memorial, looked down the avenue and sighed and thought of our freedom, and three great kangaroos hopped in front of us and I thought, `Wow, this is Australia.'

I am a republican because this country gave me the opportunity to come here to be part of this historic occasion, to be part of it with some magnificent and notable public names- people whom I have enjoyed moments with such as Sir James Killen and Stella Axarlis; people who are such an inspiration to me such as Nova Peris-Kneebone and Gatjil Djerrkura; people who are less famous, too- people of integrity and belief such as Mary Kelly; the young people, whom we all have been in awe of this week- Ms Schubert, Moira O'Brien and Andrea Ang.

I believe in a republic because in late January 300 women met at the new parliament to debate our great democracy and work constructively together, despite political differences, despite differences on the republic, to enhance our democracy but maintain our freedom. I am a republican because each Anzac Day morning at dawn I stand at Kings Park and look over the Swan River and thank in my heart the thousands of Australians who gave their lives for my freedom and my democracy.

Years ago I was a Rotary exchange student in Oaxaca, Mexico. That was one of those forming experiences of my life. It was a chance for me to learn about my country because it was a chance that I had to explain it to people who just did not know anything about us. That meant a great deal to me. I remember with extreme clarity the moment 12 months after my departure to Mexico when the Qantas jet landed at Adelaide airport- 40 degrees, Waltzing Matilda playing. I was as emotional then and I am emotional now about my country because this is my home; this is what I love; this is my country. And as well I might be emotional. We have such a great country. A republic for me is not about jobs. It is not about the monarchy and it is certainly not about overseas perceptions of us. It is about how we feel in our hearts about ourselves.

I have a nephew, William, who is six years old. He lives on a station called Mulyungarie on the South Australia-New South Wales border. When I saw him in Adelaide two weeks ago, he said, `Can you do me a favour, Auntie Clare?' I said, `What do you want?' He said, `Are you going to meet Mr Howard?' I said, `I expect so,' and he said, `Can you get me a picture of him, please?' I thought, `This is a great country when my six-year-old nephew wants a photograph of the Prime Minister because he regards the Prime Minister as someone to be looked up to.' I share that with him.

I want a republic because of the way I feel about this country. I say that with no shame. I want a republic for all the reasons I have said. But, more than any other reason, I want a republic so that my nephew William has as much chance as any other person to be a home-grown, true-blue, dinky-di Aussie head of state.

 

CHAIRMAN- As far as we are aware, all those who have sought to speak on the general addresses have now spoken. I am delighted we have been able to give everyone a guernsey. I would also like, as somebody who sat through most of the speeches, to compliment each of you on what I regarded as a very high calibre of addresses. I know for many of you it has been a rather awe-inspiring occasion, but I assure you that for those of us who have sat here and listened to you what you have said has made sense. I trust the members of the Australian public have enjoyed the speeches and respected the degree to which you are committed to the task of this Convention.

We are now going to proceed. The bells are still ringing, so there is a little time before we actually start, but there are a few processes that I need to identify for you before we start on the part of today's proceedings that are identified under clause 7 of the Notice Paper. You recall that it said there would be continuation of debate and voting from seven to 8.30 p.m., and the matters we are to discuss are then identified. In addition, there is a report from the Resolutions Group which I intend, when the two rapporteurs of the Resolutions Group are with us, to get them to present to us. As they are not here at this stage, we will have to wait until they arrive. Mr Williams, I might invite you in a moment to present the supplementary draft resolution so that delegates are aware of it. I have been given it and I presume you have considered it and deliberated.

On another housekeeping matter, as the Convention tonight will be meeting later than originally scheduled, I have been requested to advise that the departure time of the coaches from Old Parliament House to the hotels in which you are staying has been changed to 8.30 p.m.

It is important to register that, while on the Notice Paper we have set this stage of our proceedings down from 7 to 8.30, much will depend on the progress of our consideration. I know numbers of you have seen me about the question of amendments tonight. What I propose to do is to allow a person who is moving an amendment to have five minute to speak to that amendment. Thereafter all speakers on the amendment will be restricted to three minutes. That should allow consideration of issues that have been raised and, where you feel that your views have not been taken into account, for them now to be considered.

I intend to go through the resolutions that are immediately before us in the green package one by one. So we will look at each one of them, take amendments to them and try to vote on them in succession. There are a number of you who have given notice of amendment, and I hope that I will be given a paper with those amendments on soon; it will make life easier. Secondly, for those who feel that the point of view that they had which was referred to the Resolutions Group is not reflected in the recommendations of the Resolutions Group, I will try to ensure that you have an opportunity to have a say.

The time that we spend tonight will depend on the time we take in debating each of these items. There is a supplementary report from the Resolutions Group. I ask Mr Williams to talk to it because I have just received it and I am not aware of its content. Would you please explain it so everybody will know? I intend to proceed with those matters that we dealt with this morning as well as those earlier reports.

 

RESOLUTIONS GROUP

Mr WILLIAMS- I move:

 

(1) Preamble

 

The first subject dealt with in the Resolutions Group is the preamble. In preparing draft resolutions for you the Resolutions Group had a rather difficult task because there was quite a range of subjects dealt with and they were dealt with in quite a range of forms. In some cases there was a draft preamble, in others there were extensive references and in others there were short lists of subjects.

The approach that the Resolutions Group took, and I think that it was close to unanimous in its deliberations, was to identify in the briefest and simplest form those subjects that the Resolutions Group thought the Convention would wish to deal with. It means that those who have gone to the trouble of putting in a full form of preamble have not been satisfied but the Resolutions Group view was that it would not be feasible to debate such a document in the time allowed between now and 5 o'clock on Friday.

When it came to the broad question of a preamble, a preliminary question was raised astutely by Mr Waddy. He pointed out that, while commonly the preamble is contemplated as being a preamble to the Constitution, it is not in fact a preamble to the Constitution; it is a preamble to the Constitution Act. So if you have your little pocket Constitution you can see that the opening words of the act are in fact a preamble:

 

Whereas the people of New South Wales, Victoria, South Australia, Queensland; and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted . . .

 

in the time honoured formula. The act then goes on to provide machinery provisions like the title of the act, the act would extend to the Queen's heirs and successors, when the Commonwealth would be proclaimed and a number of other machinery provisions that are not actually in the Constitution. The Resolutions Group formed the view that the Convention probably intended that the revised preamble be a preamble to the Constitution. Hence in resolution (1)A it is provided that:

 

. . . in the event that Australia becomes a republic, the Constitution include a Preamble, noting that the existing Preamble before the Covering Clauses of the Imperial Act which enacted the Australian Constitution (and which is not itself part of our Constitution) would remain intact.

 

There has been over a number of years- certainly since 1974- an ongoing debate amongst academic lawyers as to whether, in fact, exercising the powers under section 128, the Australian electors can amend the preamble to the act and those covering clauses 1 to 8. I do not want to go through the issues involved there. Two of the participants in that academic discourse are Professor Winterton and Professor Craven, who are both here. I am sure they would be very happy to give tutorials in the delegates' lounge on the subject if that is your wish. The view of the Resolutions Group was that the issue should be presented as a preamble that relates to the Constitution which is really in a form enacted by section 9 of the Constitution Act.

In part B, the Resolutions Group has set out in the simplest form those subject matters that it believes had broad support on the Convention floor when the working groups reported. In Part C it has set out those matters which it regards as rather more contentious, which did not receive that same broad support. Part D deals with another issue altogether. The issue involved there is the extent to which the preamble, when revised or when written in a new form, should be relevant to the interpretation of the Constitution. The issues were expressed on this in the working group reports. Professor Craven has raised the issue on the Convention floor on a couple of occasions.

The Resolutions Group's suggestion is that there should be in effect a drafting instruction that care be taken to avoid drafting a preamble in such a way as to give rise to implications that affect the meaning of the substantive provisions of the Constitution, but that the preamble should not in itself express that point. Mr Chairman, my suggestion would be that, rather than report on the other issues, which I think can be dealt with rather more quickly probably, we proceed to consider this preamble. A number of working groups were involved in the recommendations which would therefore be separate potential movers.

 

CHAIRMAN- Thank you very much, Mr Williams. Is there any question to Mr Williams before we move to considering the draft resolutions on the preamble?

 

Mr COWAN- I listened to the comments of the Attorney-General. As I am not a lawyer, I am not able to contest the remarks he made. We had a number of groups set the task of examining the preamble. I was on one of those that made a decision that the preamble we were examining was the one contained within the Constitution. Now we are told that effectively you cannot touch that and that there is to be a second preamble. Chairman, I find that a nonsense.

I think everybody who debated the issue through the working groups believed that we would be discussing the preamble as it existed and that there would be a decision taken as to whether it would remain or whether it would be amended. I know that my group indicated that the preamble as it existed would be a starting point, that it should be amended and that there should be three or four particular conditions attached to that amendment. The Resolutions Group has thrown that out. Therefore it is not an accurate reflection of the view on the floor of this Convention.

Mr GARETH EVANS- I want to repeat exactly what Daryl Williams said in this respect. If you look at your book, the Australian Constitution does not start with a preamble at all. The Australian Constitution is only something you get to after you have waded your way through a preamble and an imperial act, followed by eight now utterly inconsequential and irrelevant historical clauses, also in an imperial act. When you get to Section 9 of that imperial act, you finally find something which is called `The Constitution'. That has 128 separate sections in it, as we now know. That is what we refer to and think of as the Australian Constitution.

It may well be that one or more of the working groups were focusing in their work on the preamble on the language of that existing provision in the imperial legislation. What I think all of us here want to achieve, having focused on the technical issue involved, is a preamble in appropriate modern language in our own Constitution. We do not want to fiddle around rewriting the language in a now spent, effectively, imperial act of 98 years ago. So the language we are proposing to put to you and which we believe reflects the overwhelming mood of the Convention is language which would be appropriate to go into the Constitution- in other words, the stuff which starts in section 9 of that imperial act. We think the appropriate starting point for that preamble- this is the view of the overwhelming majority of delegates that we pick up from reading the reports and listening to what people are saying- is that the language to start with is `We the people of Australia.' That is what is proposed and what is put to you.

 

CHAIRMAN- Part of the problem has been that, once the Convention referred every working group resolution, on the basis of the resolution we passed the other day, with more than 25 per cent support, the only way by which the Resolutions Group meaningfully could deal with those reports and bring them back to us for digestion was for them to produce their interpretation.

If individual delegates from particular working groups feel their views are not reflected in the resolutions that we now have, they should lodge appropriate amendments. Can I urge that you do so in writing, putting the name of your seconder. At this stage it is only necessary to have a mover and a seconder. If you give the secretariat those amendments, we will endeavour to proceed through them seriatim.

 

Brigadier GARLAND- I am trying to clarify in my mind that there is no smoke and mirrors here designed to confuse us. As I understand what the Attorney-General has said, those lead-in paragraphs to clauses (1) through to (8) will remain and somewhere in clause (9), which will become, say, 1A, we will get a preamble which covers all the new bits and pieces. Is that right?

 

Mr GUNTER- Will the amendment on the screen from Father Fleming and Dame Leonie Kramer and the other amendments that were received prior to the deadline referred to earlier this afternoon be circulated?

 

CHAIRMAN- Those amendments already have been circulated. They are attached to that paper which has only recently been distributed and which Mr Williams referred to as being in the second batch. They are on the back of that paper. It now has a blue cover.

Professor WINTERTON- I understand, of course, the position that the Attorney-General and Gareth Evans have pointed out. This is a suggestion that is probably in a sense somewhat counterproductive to the republican cause, but it would certainly be easier to include this new preamble in the Constitution, which only needs a section 128 amendment. I accept that. But the reality is that the covering clauses and the preamble can be changed. It may involve a more complicated procedure through the Australia Act, requiring state participation, but I think the Constitution would look bizarre having two preambles.

As I understood it, the position was that we agreed that the new preamble should build on the existing preamble. This one does not. I think two references to `Almighty God' would look a bit ridiculous, with all respect. I would suggest that the appropriate thing to do would be to build on the existing preamble. If that is more difficult for the republicans, that is unfortunate, but one must be principled in these matters.

The second matter relates to paragraph C3. I want to point out to some representative of the states that in the past the view has been that local government should be recognised in state constitutions, and it is in most state constitutions. If it is recognised in the preamble of the federal Constitution, that may severely restrict the ability of the states to regulate their local governments. I would think that state representatives would be severely critical of this.

 

CHAIRMAN- Professor Winterton, if you wish to pursue the first of your proposals, I suggest you do so by way of an amendment to 1A. It would seem to me that that would be the appropriate course. There is also the problem that if you wish to preserve the present preamble as it is in the Australia Act without having one in the Constitution, about the only course you have is to vote against everything. I do not know whether that is necessarily the best course.

 

Senator ALAN FERGUSON- I presume this is the appropriate time to ask for a point of clarification about the proposal by the Resolutions Group.

 

CHAIRMAN- Go ahead and we will see whether it is the appropriate time or not.

 

Senator ALAN FERGUSON- In B6 I think there has been unanimous agreement amongst the delegates here that the preamble should include `acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders.' I think that has been a general agreement amongst all the delegates here. I move on to C, where we talk about the Convention recommending that the following matters be considered.

 

CHAIRMAN- Unless this is something new, could you raise these when we get to that particular point?

 

Senator ALAN FERGUSON- I was only going to ask about what I think might be an inconsistency. In C1, where we are talking about matters to be considered for inclusion, we are talking about affirmation of the equality of all people before the law. I presume they mean all Australian citizens. Then we go to C4 and we talk about recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status. If that was to mean traditional rights, I could understand that because that is a term that has been used in a lot of legislation that has passed through the Australian parliament. I am wondering whether there is a certain inconsistency, if it does not mean traditional rights, between `Recognition that Aboriginal and Torres Strait islanders have continuing rights by virtue of their status', as against C1, which talks about all people being equal before the law. I just want a point of clarification.

 

Mr WILLIAMS- Mr Chairman, I think you should bear in mind that these are not the Resolutions Group's ideas necessarily. They are an attempt to put things into language that is as plain and unambiguous as possible. The question raised by Senator Ferguson is an extremely difficult one. I do not think it is really one that we can debate to any useful finality. Dealing with a list of subjects like this, it is put in C because it was regarded as contentious. If the Convention supports it, it will have to be the subject of very detailed examination, particularly if the Convention also supports D.

 

Dr TEAGUE- My question is to the Attorney-General and concerns (1)A. I draw your attention to the words `remain intact'. You are putting to us from the Resolutions Group that clauses (1) to (8) are not subject to the kind of change we are contemplating where the new preamble is going to be put. The words `remain intact' is a fact of history but they need not be in any new publication of this Constitution; they could be put as an appendix. In other words, it is a question of historical fact that the Westminster parliament in the UK adopted eight covering clauses, and they can be in the appendix, but the actual new preamble and the Constitution as such could be set out such as it has the reading that Hendy Cowan and others have referred to. It is a meaningful document that is inspirational from the first page as you read it- `we the people' and so on.

Mr WILLIAMS- The answer to that is: in my view, yes.

 

Mr CLEARY- I have a question for the Attorney-General re C4. Am I not under the impression that the High Court has already ruled that indigenous Australians have particular rights by virtue of their status as indigenous people? Can I get a confirmation from you as to the truth of that matter? If I am wrong and you are right, are you challenging the High Court at this Constitutional Convention?

 

Mr WILLIAMS- Yes and no. The issue is how far those rights extend and that is what I suggest this Convention is not really in a position to be debating.

 

Sir DAVID SMITH- I would like to ask Mr Gareth Evans if he is aware that the Hawke government's 1988 Constitutional Commission, of which his former leader was a very distinguished member, recommended that it was open to the people of Australia to amend or add to the original preamble?

 

Mr GARETH EVANS- Yes, of course I am aware of that and of course the provisions of the Australia Act which we passed in 1986, at least on my reading of the relevant law, could be used to change those covering clauses in the old imperial preamble. Sure, you could do that. One option- and it may well be moved from the floor- is for those provisions which do have some continuing force, or are believed to have some force, to be in fact picked up and put into the text of the Australian Constitution proper, and for those provisions which do not have any continuing force to be repealed using exactly the process that you have described. Maybe that would be one way of achieving cleanliness and godliness in the expression of all this and not having a preamble left in the old imperial legislation, as well as having a brand spanking new preamble as part of our own actual Constitution. Yes, you could do that.

But you do not have to do that. It is perfectly possible to do exactly as Baden Teague said: leave the old imperial bits and pieces off to an old imperial side of this or any other publication and, in all future publications of the Australian Constitution, start with the bit that we actually call our Constitution and have in front of it some language which does seem to be relevant. In terms of what Hendy Cowan was saying, there is absolutely no reason why-

 

Ms SCHUBERT- Mr Chairman, on a point of order, I think that Gareth Evans is actually providing opinion rather than clarification. In the interests of us all concluding this debate with some level of efficiency I would ask that he constrain his comments and let us get to the substance of debate.

 

CHAIRMAN- I think we will move on.

 

Mr GARETH EVANS- It is a very clarifying opinion.

 

CHAIRMAN- Just think what they would all be like if they were in parliament.

 

Mr TURNBULL- I have a question, which Gareth Evans has preadvertised, for Gareth and Daryl Williams. Would they accept an amendment to A which would just add these words:

 

. . . and that any provisions of the Constitution Act which have continuing force be moved into the Constitution itself and those which do not be repealed.

 

I think that then resolves the problem that Hendy Cowan raised and ensures that we have one Constitution that is an Australian document with an Australian preamble and that does not start off as an imperial act of parliament.

 

CHAIRMAN- The easiest way to deal with it so that everybody will have the words is for you to write them and make an amendment. We will deal with it then.

 

Professor CRAVEN- Every other lawyer has troubled the Convention, so I will. In the uncharacteristic role of supporting Mr Evans and the Attorney-General, my view is that it is not easy to amend the covering clauses under section 128. There may be other ways of doing it, but I warn the Convention that this is a contested area. If you go into it and you are going into it unnecessarily then you are opening yourself up to legal complication and challenge. You would be better off accepting the preamble at the start of the Constitution rather than at the Constitution Act.

Professor PATRICK O'BRIEN- I think I have seconded an amendment which you have, but to support something that Mr Turnbull said in the spirit of compromise and in the spirit of trying to get fundamental principles into the Constitution rather than into the preamble, the spirit of what is said in B10 is obviously something that should go into the Constitution in the first clause. If we are going to introduce a new republican order, the source of supreme political authority, generally known as sovereignty, must be clearly defined.

I would imagine there would be no disagreement amongst republicans that that source of all political power lies in the people. Therefore, the source of sovereignty must be defined in the body of the Constitution, not in a preamble which may or may not have the effect of fundamental law. I think that anything- I agree with Mr Turnbull on this- that is fundamental to the actual Constitution must go into the main body to ensure that it becomes a part of fundamental law.

 

CHAIRMAN- Are there any more interventions on the general issue before we start moving to the consideration of the preamble?

 

Mr RUXTON- This morning at about a quarter to nine I lodged an amendment to the preamble, and I do not see it printed anywhere. The amendment that I proposed was that the national language of the new Commonwealth of Australia be English.

 

CHAIRMAN- I do not seem to have a copy of it. I will ask the secretariat if they can identify where-

 

Mr RUXTON- It was lodged down at the office.

 

CHAIRMAN- I will ask the office if they can find a copy of it and to make sure that we have it so that it can be considered at the appropriate time. If anybody else has amendments, I urge them to put them in as soon as possible.

I want to identify what I will be doing in each instance. As Mr Williams has moved the report and Mr Evans has seconded it, it is formal and we can treat everything as amendments. What we will be doing is going through each of the items as an amendment to their resolution. I think that will be the easiest way to deal with it. We might begin with the preamble. We have A as printed, and the first amendment I have is that for which notice was given by Professor Winterton. I do not know whether it has been distributed to everybody. I will ask Professor Winterton to speak to it. Unfortunately, many of them have just been received. What we will do is arrange for all these to be distributed as soon as they are received. I will ask Professor Winterton to speak to his amendment with respect to item A of the preamble.

 

Professor WINTERTON- I move:

 

After paragraph A insert:

"Any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed."

 

Basically this amendment is in line with what I suggested a short time ago: that is, that paragraph A be deleted and that paragraph B line 1 have inserted after the word `Constitution' `Constitution Act.' I agree with Malcolm Turnbull's suggestion that the distinction between the Constitution Act and the Constitution be deleted. If that were adopted, this amendment would be unnecessary.

Basically, as I said before, it seems to me that notwithstanding the legal complications we should not be governed by those matters. The lawyers of the Attorney-General's Department and elsewhere can work out the details. The reality is that it seems to me the Constitution would look ridiculous if it had two preambles, both referring to Almighty God and so on.

The point is that, if we think back on all the discussion we had as to the purpose of the preamble, about how it was to indicate to the world who we are, what we think of ourselves and so on, if the preamble says that we are united under Almighty God and so on and then we have a new preamble mentioning these values, it does not present a very good picture.

Besides, I strongly believe that if the Constitution's preamble is to tell our natural story, in effect, it ought logically to begin at the beginning. I think this is an important part, especially to indigenous people. If you are going to begin at the beginning, you should mention indigenous people first, rather than the states, which came later. Therefore, it would be contradicted by the idea of having a preamble in the Constitution Act and then a subsequent preamble in the Constitution, one referring to the Crown and the United Kingdom, and the other to a republic. It would present a very muddled and confused picture to the world. And there is absolutely no reason for it. The lawyers can work out the details of what is necessary, but I think we should have one preamble.

 

Mr MYERS- I second the amendment.

 

CHAIR- If the seconder does not wish to speak to the motion, are there any speakers against Professor Winterton's amendment?

 

Mr HODGMAN- I will be very brief. I completely agree with Professor Craven. I am not here to advance the republican cause, but what he said is completely correct. I am sorry, Professor Winterton and Malcolm Turnbull, I am once again in disagreement with you. Do what you are about to do and you will create a legal problem which you do not have to have, as Professor Craven has told you. But, if you want to have the fight, you will have it and you will lose the whole ship. Pay attention to Professor Craven, because he is absolutely correct.

 

CHAIRMAN- I will just point out to you, before we have further debate on Professor Winterton's amendment, that you need to have in mind that, if this is defeated, Mr Turnbull has given notice of an amendment which relates to very much the same subject matter. It was a bit difficult in the circumstances for the rapporteurs of the Resolutions Group to accept it, but I will read it to you, because I have a copy of it here. It was that we would add to A, as printed, the words:

 

and that any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.

 

So there is another amendment which relates to very much the same subject matter. Professor Winterton, do you accept Mr Turnbull's amendment or do you wish to proceed with yours?

 

Professor WINTERTON- No, I am happy to accept that. It might, for the sake of clarity and more abundant caution, add `preamble and' Constitution Act, although really the preamble is part of the Constitution Act. Then I would have no problem. It might be appropriate to move Malcolm's first.

CHAIRMAN- Is there any comment for or against?

 

Dr SHEIL- I am against the removal of anything from the Constitution. I suppose quite a few of us here have been involved in making constitutions for small bodies or associations, and we know how difficult it is to get a clause included in it; even if it is just for the West Preston old boys poker school, it is hard to have a clause included.

When it comes to constitutions, I think it is just as important to know where you have been as it is to know where you are going. Even if a clause is in the Constitution and is now effete, it shows the sorts of issues that were exercising the minds of the gentlemen who wrote the Constitution.

There are some who would say that, even if a clause is in there and it has never been used, that is probably one of the safest and best clauses you can have in a Constitution because they cannot do anything to you with it. There are clauses like that in our Constitution- for example, the one where the Queen can knock back any act of parliament. That has never been used. But I do not see why it should not be left there. It is not a long Constitution and we are not pushed for space. I make a plea to leave clauses in because they were considered very important in their day.

 

CHAIRMAN- Is there a speaker in favour of the resolution? Mr Turnbull, you have not technically spoken to it, so we will let you have another go.

 

Mr TURNBULL- Mr Chairman, there is clearly a tidying up exercise that needs to be done with the Constitution Act.

 

Dr SHEIL- Who says?

 

Mr TURNBULL- Thank you, Dr Sheil. It is hardly appropriate for Australia to have a new republican constitution which says, `be it therefore enacted by the Queen's most excellent majesty by and with the advice and consent of the lords spiritual and temporal'- although we have a few lords spiritual and temporal here today.

There is a cleaning up exercise to be done. The Attorney-General's Department will no doubt attend to that. All this clause is intended to do is to make clear that which will inevitably be done in due course by the Attorney-General and presented to the parliament when the Constitution amendment bill is put before the House of Representatives.

 

CHAIRMAN- Is there a speaker against the amendment?

 

Mr BRADLEY- Mr Chairman, delegates: when it comes to constitutional alterations, I think the best principle to apply is that, if it is not necessary to change something, it is necessary not to change it. This discussion, which was meant to be about putting some fairly significant matters into a preamble, whether in the Constitution or the Constitution Act- matters upon which most of us agree- now seems to have been hijacked into some sort of arcane discussion about what we ought to do with provisions in an act passed by the imperial parliament in 1900. We really ought to get on to the matters that we agree about and that we want to decide, and leave aside these entirely unnecessary suggestions which are being made at the moment.

 

CHAIRMAN- Is there a speaker in favour of the amendment?

 

Mr GUNTER- Mr Chairman, I do support Mr Turnbull on this one. It is a matter, though, of not preventing the passage of other changes to the Constitution that the Convention might agree on. I am assuming that the wording chosen by Mr Turnbull allows this matter to be put separately so that the question is not tied in inexorably to the other changes, given that there is some argument between Professor Craven and Professor Winterton as to whether the hurdle is the same as section 128 or a higher one. So, on that ground, assuming that they can be dealt with separately, I would be happy to support this.

CHAIRMAN- Is there a speaker against?

 

Mr RAMSAY- I do not claim to be a lawyer, but I find the drafting of this amendment completely bewildering. The Constitution itself is, in fact, clause 9 of the Constitution Act, and here we are about to provide that any provisions of the Constitution Act- including the Constitution itself, which has continuing force- should be moved into the Constitution itself. The amendment, read literally, is a nonsense and I do not see how I could support it.

 

Mr WRAN- It is almost as if we are dividing on this issue on ideological lines. This is a tidying up exercise in which Mr Turnbull will have no involvement, I will have no involvement and you will have no involvement. It will be left to the federal Attorney-General of Australia to carry out the wishes of the Convention. It is just extraordinary that such a simple household matter of tidying up this Constitution, which speaks of Queen Victoria et cetera, should cause this measure of debate. I move:

 

That the motion be put.

 

CHAIRMAN- Regrettably, this is not parliament and, as you have already spoken, I cannot take the motion. Is there a speaker against the motion?

 

Mr GIFFORD- I am concerned that we are going to be-

 

Mr LEO McLEAY- You can't speak against the question being put.

 

CHAIRMAN- I cannot put the question that the question be put. This is not parliament. Mr Wran has spoken and it is not appropriate that a delegate who has already spoken move that the question be put.

 

Mr GIFFORD- I am concerned at this proposition that the drafting can be left to some later stage; it cannot. Mr Turnbull giggled or laughed about the suggestion that there should be a provision saying that English has to be used. If he had looked up his relevant case law he would have found that there is a case from Wales and that case contended that people living in Wales were entitled to-

 

Senator FAULKNER- It was Jonah.

 

Mr GIFFORD- I do not find it a laughing matter. The result of the decision was that it had not been specified that documents or otherwise in Wales had to be in English. Since they did not have that, the situation is that about 20 per cent of documents and people are using Welsh and not English.

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Last updated: 21 October 2000