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  Working for a better Australia through constitutional reform

The Constitutional Convention of February 1998

A missed opportunity for much-needed reform.

 Introduction  Delegates  Proceedings  Summaries

TRANSCRIPT OF PROCEEDINGS
Wednesday, 11 February 1998
Page 15

 

Mr TIM FISCHER- I move:

 

That the motion be put.

 

Motion carried.

CHAIRMAN- The question is that the amendment moved by Mr Turnbull and seconded by Mr Wran, which is the addition of those words to A in the document that has been distributed to you, in the preamble, be added.

Amendment carried.

 

CHAIRMAN- In those circumstances, are you withdrawing your amendment, Professor Winterton?

 

Professor WINTERTON- Yes.

 

CHAIRMAN- As far as I am aware, and I have so many papers in front of me it is a bit of a problem, that is the only amendment relating to A. Therefore, I put the question that (1)A, as amended, be agreed to. Those in favour, please raise your hands. Those against. I declare the motion carried.

 

Brigadier GARLAND- I would like a count.

 

CHAIRMAN- Those in favour, please raise their hands. Those against. The result is ayes 87, noes 44.

Motion carried.

 

CHAIRMAN- We will now move down to B. What I am going to do is put each of these- B1, B2 and so on. I have about 30 amendments on loose sheets in front of me and I could well miss out. If anybody has an amendment and I do not call on it, will you please so signify and we will ensure that we pick you up.

 

Professor WINTERTON- I would seek clarification from the Resolutions Group. For clarification, I would suggest that they might like to change line 1, so it reads:

 

That this Convention resolves that there be one Preamble to the Constitution which contains the following elements:

 

Otherwise, it still leaves it ambiguous that there are going to be two in the one document.

Mr GARETH EVANS- We could do that, but we could run into problems, in the way that Professor Craven describes, legally, in getting rid of the irrelevant bits of the Constitution Act preamble if that is the interpretation of the courts. So, rather than getting into that minefield and that debate all over again, and given that the context here is clear- and that what we are talking about is a preamble in the Constitution itself and what we are all trying to do is get a single one- perhaps we can leave it on that understanding rather than actually committing ourselves to that language.

 

CHAIRMAN- Could I also explain that nothing that we are passing today is going to be in the final, legal form that any legislation that might follow will pursue. So it is not that we are drafting any referendum bill or drafting any preamble; we are really passing resolutions which will be referred, if passed, to the government, and the government in due course will consider what action it will take upon them. No doubt the Attorney and the Attorney-General's Department will have some input into the final form of the words. On that basis, can I put B1? Are there any amendments to B1? I do not seem to be able to find any. If there are no amendments, are there any speakers on B1- for or against? As there are no speakers, I put B1.

Motion carried.

 

CHAIRMAN- We come to B2. Are there any amendments? I do not have any. Are there any speakers on B2? There being no speakers, I put B2.

Motion carried.

 

CHAIRMAN- We now turn to B3. I have no amendments. Are there any speakers on B3, for or against?

 

Professor CRAVEN- I do not intend to detain the Convention long. I am sure that everyone here is painfully aware of my position on preambles. When the preamble went to the Resolutions Group, we were informed they would do their very best not to put dangerous expressions in it, and I accept that they have worked hard to do that.

Nevertheless, they have failed. The expressions are pretty and the notions are lovely but the expressions are legally dangerous, and I will simply point to all of them rather than come back and trouble you again. We have `democratic' put into the preamble with the possibility now that electoral laws will be challenged by the court on that basis.

We have `representative democracy' there which is, of course, the most controversial phrase in the implied rights cases of the present court. We have `affirmation of the rule of law', and I am sure there are many people who support that who would be doing a lovely essay for me on its meaning, but it would not get a good mark. We have `affirmation of respect for our unique land and the environment', and I have no idea what that means in legal terms.

We have C, which goes, I suppose, the full monty in the preamble, to use the expression of the Convention, and which is even worse. We have a proposed amendment which shows `recognition of our responsibility to future generations', which I presume has been put in by a right to life organisation because that is one of the organisations which will rely upon it in the future.

I also note that one of the main arguments for having these values in a preamble was a clause which would provide that they not be justiciable- that was heavily advanced by proponents. It now disappears in paragraph D. I do not propose to move amendments to the preamble. I do propose to vote against it in its present extraordinarily flawed form which will provide every opponent of a republic with ample information and ammunition to shoot it down.

 

Professor PATRICK O'BRIEN- I will not repeat the remarks I made in this chamber the other day because I would not want to offend the sensibilities of Delegate Thompson once more. However, I just want to make one comment in this regard, and it is not a personal attack. Professor Craven sometimes speaks as a constitutional lawyer and sometimes as a politician. No opinion given by a delegate in this chamber has any legal standing whatsoever. We have not been elected to this Convention as constitutional lawyers or judges; we are here as delegates.

A constitution belongs to the people; it must be written by the people- you might have lawyers tidy it up. So I do suspect that Professor Craven, like many lawyers, is merely putting political opinion under the guise of some ex cathedra legal statement. It is nonsense; it is we, the people, who write the Constitution. If lawyers and judges want to quibble about it later on, fine, but we must write the Constitution ourselves, eventually. So these sentiments must remain because they are what we, the delegates, particularly prefer and hopefully what the people will want.

So I see Professor Craven's statements on this and other issues as having no more standing than the opinion of any other delegate at this Convention. He can warn us about the consequences as the priests might warn us about the consequences of doing certain things to ourselves in the middle of the night.

 

CHAIRMAN- Is there a speaker for Professor Craven's concern?

 

Mr ANDREWS- Whether Professor O'Brien likes it or not, the Australian Constitution is a legal document pored over and interpreted by lawyers and fought over in the High Court- resolutions are given by the High Court. It is, at the end of the day, a legal document. Whether Professor O'Brien likes it or not, we are giving a form of drafting instructions to the federal Attorney-General and his department as to a bill to be put before the Commonwealth parliament. It is simply nonsense, Professor O'Brien, for you to come in here, flourishing your democratic rhetoric, saying, `We, the people, are going to put any form of words we want into this document,' as if the High Court does not exist, as if this is not going to be treated as a legal document. Let us have some sense about this matter and not listen to this nonsense. This whole debate is quite absurd. This is going to be looked at by lawyers. They are going to decide what can be put in proper legal terms to the parliament. We should not be wasting time with the sort of nonsense that is going on at the present time.

We have heard advice from an Attorney-General, a former Attorney-General and two distinguished professors of constitutional law in this country and yet we are acting as if that advice should count for nought. I ask for some sense in this matter. Let us simply take into account the fact that, at the end of the day, what we will have had a part in creating is a legal document.

 

CHAIRMAN- Dr O'Shane, are you for or against?

 

Ms O'SHANE- I am for the retention of these words. The fact of the matter is that we are engaged in this exercise at this Convention because we are about designing the future. We are not about fossilising the past. We are not about casting it in reinforced concrete and steel so that nobody can ever move it. The fact of the matter is that these principles, these values, this language, is the language of today and tomorrow.

Constitutional lawyers- any lawyers- should be servants of the people; they are not directors of the people. And, by the way, I also speak as a lawyer. Since when do lawyers tell the people what they may or may not say in determining their future? They do not and people should not get carried away with that elitist rhetoric. If the people of this country say, `We have evolved into an independent democratic and sovereign nation,' then they will say it. If the people say, `We have a democracy,' and they understand the practice, then we will have it. If the people say, `We affirm the rule of law,' then they can say it. If lawyers want to play around with it and earn millions of dollars while they are at it, thereby increasing the gulf between themselves and the ordinary people of this country, then let them go as far as they can. And when the people stop them do not cry blood over it. If the people of Australia want to say that they will acknowledge the original occupancy and custodianship of Australia by Aboriginal peoples then they will say it. And the governments that they elect will enact it and they will act on the enactments. But the important thing is that we are shaping the future. That is where we are going. We are not going back to the past, fuzzy and warm as it might be.

Mr TIM FISCHER- I have a procedural motion. It may help to expedite matters, given the nature of the debate with the last couple of speakers, that I move a procedural motion that items B3 to B10 be put as one question. Clearly people are going to be either for or against that grouping. Under C, if you look closely, you see that they then come back in a couple of critical areas. I move:

 

That items B3 to B10 be put en bloc.

 

Mr ANDERSON- I second the motion.

 

CHAIRMAN- We have a procedural motion. I have a number of amendments that will intrude on that. If we were to put that procedural motion, I would have to allow for consideration of those amendments when they appeared.

 

Mr TIM FISCHER- Absolutely.

 

CHAIRMAN- Mr Turnbull is giving notice of another procedural motion. I will hear his foreshadowed procedural motion before we proceed.

 

Mr TURNBULL- Now that we are into a group confession here, I am prepared to let you all know that I am a lawyer too. I foreshadow a procedural motion that we move immediately to consider items D1 and D2- in particular D2, which is a recommendation that care should be taken to draft the preamble in such a way that it does not have implications for the interpretation of the Constitution. As we all know, there are three things that we are trying to achieve.

 

CHAIRMAN- You are foreshadowing it?

 

Mr TURNBULL- Yes, I foreshadow it. If that is passed, it will make a lot of delegates much more comfortable about voting for the earlier motions.

 

CHAIRMAN- Mr Fischer has moved a procedural motion to deal with B3 to B10 as one. Mr Turnbull has foreshadowed a procedural amendment that we deal with D1 and D2 before we proceed to considering further B3 or any of the subsequent items under item B.

 

Mr GARETH EVANS- On the procedural motion: I have the greatest respect for Tim trying to help us out in this respect. But I think the real problem is that, if we treat all these together, move all the amendments and then debate them all simultaneously, we are going to be in an even more protracted muddle than we are at the moment. What we really need to do, bearing in mind the time and the length of the agenda, is limit the course of this debate. I would suggest that we agree that there be no more than two speakers for or against any given proposition or amendment, save by leave of the Convention to do otherwise. If we do that, I think we will expose the issues that are involved here and be able to work through them systematically in a reasonably expeditious way. I suggest that Tim might be prepared to accept that as an alternative.

 

CHAIRMAN- I think one of the difficulties with the course of action Mr Evans proposes- which, for time, I am sure all of us would be happy with- is that it does presuppose a lot of delegates have a greater understanding than I think they might have. We are at the moment considering a procedural motion by Mr Fischer. Are there any speakers in favour of that procedural motion?

 

Ms MARY KELLY- It is a question of the intent of the procedural motion. Was it an act of intention to include 10 or to stop at 9? B10 does not strike me as being in the same area of controversy.

 

Mr TIM FISCHER- I am trying to expedite, not cut out, the amendments which would still be dealt with. Looking at B10, I am prepared to amend the motion, if it suits you, to B3 to B9, excluding B10.

Mr COWAN- I cannot support this amendment because if you look at the each of those particular items, some of them are statements of fact and some of them are, as put by Professor Craven previously, matters of abstract values. Those are the statements of fact I would be prepared to support; others I wouldn't. I would rather deal with them separately.

 

CHAIRMAN- I put the procedural motion of Mr Fischer that we deal with B3 to B9 en bloc.

 

Professor WINTERTON- It has been drawn to my attention that B6 is in a different position. It is not what one might call a civic value but it is referring to prior occupancy. I suggest to Mr Fischer that he might like to exclude B6.

 

CHAIRMAN- Mr Fischer is leaving it as it is.

Motion lost.

 

CHAIRMAN- We have a procedural motion from Mr Turnbull which he has foreshadowed.

 

Mr TURNBULL- I move:

 

That the Convention considers items D1 and D2 together forthwith.

 

There are three things that we are trying to achieve in this preamble discussion. I say, firstly, that these are only literally guides to drafting which we are offering as a suggestion to the Commonwealth parliament. The three things we are trying to achieve are: first, the long overdue recognition of the Aboriginal and Torres Strait Islander people of Australia in the preamble; second, some reflection or recognition of Australian values; third, to take care that by doing so we do not create the spectre of unforeseen change in terms of its impact on the interpretation of the Constitution. I propose to you that we should consider items D1 and D2. I am particularly concerned that we consider D2 because if that is carried, I believe that will give the Convention a great deal of comfort in knowing that in voting for some of these abstract terms, notwithstanding the issues that have been raised by Professor Craven and others, we can rely on the good sense and the legal advice of the Commonwealth government to ensure that they are incorporated in a manner that does not create the sorts of interpretive problems that the law professors have mentioned.

 

Mr WRAN- I second the motion.

 

Mr HODGMAN- I want to say this to the Convention, with the greatest of respect: how can you ignore what you have just heard from Professor Craven and Kevin Andrews? I am not a spoiler. What you have put in D1 and D2 would be laughed at by any first year law student in the Commonwealth. I will tell you why.

 

Mr TURNBULL- Just deal with the motion.

 

Mr HODGMAN- I am dealing with your motion, Mr Turnbull, and you do not have control of the chamber. The motion is that the preamble should remain silent on the extent to which it may be used to interpret the provisions.

 

CHAIRMAN- We are not talking about the substance; we are talking about a procedural motion.

 

Mr HODGMAN- None of you have apparently read the Commonwealth interpretation of statutes legislation by which every court in the land, including the High Court, can read-

 

CHAIRMAN- Do not talk to the substance of the motion.

 

Mr HODGMAN- I am not talking to the substance of the motion at all. I am saying that Mr Turnbull is asking you to vote on something which is a legal nonsense.

 

CHAIRMAN- No, he is not; he is asking that we deal with that before we deal with the other motion. I suggest you address the procedural motion and not the substance of the motion.

 

Mr HODGMAN- I oppose the procedural motion because if you do this, it is an absolute nonsense.

CHAIRMAN- Is there a speaker in favour of Mr Turnbull's procedural motion?

 

Professor WINTERTON- Greg Craven was rubbished quite wrongly. The arguments he points out are very valid. I take a different view, but the concerns he expresses are valid. All Malcolm's motion is doing is suggesting we should address this issue, as the Chairman has pointed out, not in any particular way. Mr Hodgman, it is precisely because we take your point and Greg Craven's point seriously that I support Malcolm Turnbull's motion.

 

Mr ANDREWS- I have lodged with the secretariat a proposed item D3 to the effect that the preamble state that it not be used to interpret the remaining provisions of the Constitution. That way there can be a clear vote of the delegates because if you vote in favour of remaining silent it still, as Professor Winterton and Professor Craven have indicated, remains uncertain.

 

CHAIRMAN- We are speaking to the procedural motion. I don't want people identifying the contents. I am more interested in whether we consider those propositions D1 and D2 before we proceed with B3.

 

Mr WRAN- I move:

 

That the question be put.

 

Motion carried.

 

CHAIRMAN- The question is that we consider D1 and D2 before we proceed to further consider B3.

Motion carried.

 

Mr ANDREWS- In order for it to be absolutely a clear vote of this Convention, I move:

 

That the Convention consider item D3 before considering item D1 or item D2.

 

Professor CRAVEN- I second the motion.

Motion carried.

 

Mr ANDREWS- I now move:

 

That Chapter 3 of the Constitution state that the Preamble not be used to interpret the other provisions of the Constitution.

 

We now have a choice between D1, D2 and D3 as to the import of the preamble- that is, it can remain silent, we can remain uncertain about it, it can have an impact which can be taken into account in interpretation, or we can decide that the advice is that the preamble should not be used by way of interpretation of the remaining provisions the Constitution.

Delegates, if you wish that the preamble not be used by the High Court to interpret the remaining provisions of the Constitution, which would then cater for the views put by Professor O'Brien and Ms O'Shane- that is, that we can use any words- then we can use whatever words you like and you will not have to worry about them having an impact on the rest of the Constitution. I propose that that is what we should do.

 

Professor CRAVEN- I second the motion.

 

Mr GARETH EVANS- Okay, that is now clear. You are saying that `chapter 3 should state . . . `. Might I indicate, from my own perspective and that of a number of people with whom I have just canvassed it- and I never thought I would say this, Kevin- that that is a remarkably sensible suggestion and I am happy to endorse it. The reason why we were very reluctant to have language of this kind in the preamble itself was that it detracted from the literary, aspirational and inspirational character of it. But if you put it elsewhere in the Constitution you have exactly the same legal effect and it means the draftsmen of the constitutional preamble can have a much freer hand and we can all have a freer hand in expressing our aspirations in the way that we want to. It is an excellent suggestion and I, for one, would endorse it.

 

Mr CLEARY- I will be very brief. I did move an amendment to actually delete D2, Gareth, and I am disappointed that you would be leaning with the people who want to take aspirations and values. That is what the people up in that little corner will want to do. You do not actually want those things to have veracity in the Constitution. That is what Greg Craven has been arguing throughout the whole debate. I think we should be arguing that they go into the Constitution.

 

CHAIRMAN- Is there a speaker in favour of Mr Andrews's motion?

 

Mr LAVARCH- This is an important issue for us. It seems to me that, if we wish there to be specific provisions in the Constitution in relation to particular rights or other matters, then they should be argued on the merits and pursued in that way. There is no doubt that the points which Professor Craven and others have raised are perfectly legally valid ones. We need to be very conscious about this. This does seem to me to be a way to resolve the issue. It does not, as Gareth Evans has pointed out, detract from the preamble itself but does quarantine the legal effect of the preamble. So I would urge that delegates support it.

In relation to Professor O'Brien's comments earlier, sort of impugning the motives of Professor Craven, I found those to be offensive. In my observations over the last two weeks Professor Craven has been nothing but constructive and a highly valuable delegate to this Convention.

 

Senator O'BRIEN- I raise a point of order, Mr Chairman. I raise the point of order because I did not impugn Professor Craven's motives. What I said was that he is not here acting as a legal adviser to the Convention delegates; he is here as a delegate to give an opinion. I take the gravest exception to Mr Lavarch's comments because I was not impugning the motives. I request Mr Lavarch to be a gentleman and withdraw that remark.

 

CHAIRMAN- Your intention is noted.

Ms RAYNER- I wish to say something about the purpose of a preamble and to point out that the careful language used in paragraphs D1 and D2 I understand were drafted by Mr Daryl Williams QC, the Attorney-General of this country. I do not believe- and nobody in this chamber should accept- that aspirations, values and reference to status in a preamble create rights.

I have been quite misrepresented by one or two unintelligent media commentators who have suggested that I thought it was possible that a Bill of Rights could be created by reference to such matters in a preamble. The most that could happen in the interpretation of a Commonwealth Constitution and laws made under it is that a preamble might be, and very infrequently is, used to effect an interpretation of a Commonwealth law or the Commonwealth constitutional provision in a particular case. It has only been done once in recent history.

 

Mr RUXTON interjecting-

 

Ms RAYNER- Please don't interrupt me. It is very rude. I do not suggest, nor should you be frightened into thinking, that a Bill of Rights could ever be created by the words used in a preamble. It is equally well known to all the members of this Convention that I would like to see a Bill of Rights some day and that it is not going to happen today and it is not going to happen by way of an amendment to the preamble or any words used in it. In fact, when I spoke in relation to this matter of a preamble, I made it clear that my preference would be that in the ongoing constitutional reform process the Commonwealth should consider, after consultation, the enactment of a statutory Bill of Rights one day. I would like to see that now, but it is not going to happen, nor is it being sought by way of stealth.

In this particular matter, may I make it very clear that paragraphs D1 and D2 were worked upon by the Resolutions Group, and I reluctantly assented to them because in my view it has the effect of calming the unreasonable- if not almost hysterical- fears rising in the hearts of some non-lawyers who believe that is the intention.

 

Mr RUXTON interjecting-

 

Ms RAYNER- Will you stop interrupting me, Mr Ruxton.

 

CHAIRMAN- I am afraid that your time has now expired.

 

Ms RAYNER- May I have an extension to complete my remarks?

 

CHAIRMAN- No, there are no extensions of time. Finish your sentence.

 

Ms RAYNER- D2 reads that in the instructions to the parliamentary draftsmen `care should be taken to draft the preamble in such a way that it does not have implications for the interpretation of the Constitution', in order to ensure that the draftsman is fully aware- as he or she would be- that that is a possibility. Therefore, careful language should be used and it should not be a matter which is undertaken lightly or frivolously, which it would not be in any event.

 

CHAIRMAN- Thank you very much, Ms Rayner. I think you have had a reasonable extension of time. Are there any speakers in favour of Kevin Andrews's amendment?

 

Mr WILCOX- I am in favour of the amendment moved by Mr Andrews. I would like to make two comments. Firstly, it says chapter 3, and I do not know that it should be chapter 3. Lower down it says `to interpret the other provisions'. I am not sure that that is necessary.

The reason I support the amendment is that it is the most sensible one that I have heard for dealing with this problem of the preamble and the many things that are put in it. As I said yesterday, there are a great number of things that I agree with but you have to be so careful. There is no way that anyone here can say that the words in a preamble will not be interpreted by the High Court. If you get a whole lot of Bill of Rights type words in it, you are only opening the way for more and more litigation.

As I said yesterday, I sounded a warning when I said that those with experience know that so often when you change not a clause but even a word you can cause endless litigation. With today's propensity for litigation, anything could happen. That is absolutely right. The amendment is a very sensible one. It is a matter of suggesting to the Commonwealth draftsmen- if and when they deal with this- that they look at the matters that have been set out in the preamble in the earlier ones.

Mr TURNBULL- I move:

 

That the question be put.

 

Motion carried.

 

CHAIRMAN- I put the question that Chapter 3 of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.

Amendment carried.

 

CHAIRMAN- We will proceed to D1. I have an amendment of which notice has been given by Mr Phil Cleary. Do you wish to move that amendment, Mr Cleary?

 

Mr CLEARY- I withdraw my amendment.

 

Mr TURNBULL- In the light of the amendment, D1 and D2 need not be put. I move that D1 and D2 not be put.

 

CHAIRMAN- It has been agreed by the rapporteurs of the Resolutions Group. D1 and D2 therefore, with the leave of this Convention, will be withdrawn.

 

Professor WINTERTON- For the reasons expressed by Professor Craven, with all respect, I think D2 would be valuable if retained. It is not entirely covered. For more abundant caution, I suggest D2 should stay.

 

CHAIRMAN- There has been an objection to the withdrawal of D2. Is there any objection to the withdrawal of D1? There being no objection, D1 is withdrawn. Are there any delegates who wish to speak on D2.

 

Mrs MILNE- Given that it has been moved that the preamble will have no legal effect on interpretation, surely the door is now open to that preamble being a really inspirational document that is poetic, inspiring and so on. If you leave in the fact that care should be taken, et cetera, you are restricting the language and the nature of the preamble as you would have it. If it is accepted that the preamble has no legal effect, surely we should now leave it open to be written in whatever language and however inspiring and aspirational a manner we like, so I would support the view that they both should be deleted.

 

CHAIRMAN- As I understand it, Mrs Milne has spoken against D2. Is there anybody in favour of D2?

 

Professor WINTERTON- I suggest that those who doubt whether D2 should remain might study the jurisprudence of the High Court and other courts on ouster clauses. They should have a look at the Anisminic case, and they will see why I think D2 should stay.

 

CHAIRMAN- Those in favour of D2 please raise their hand. Those against please raise their hand. D2 is carried. I have an amendment from Mr Bullmore. Could please speak to your amendment, Mr Bullmore. I am not too sure what its implication is.

 

Mr BULLMORE- Mr Chairman, as D1 has now been removed, the amendment will have to take place with D3, I suppose. As the Convention has so elegantly hobbled the preamble so that it has no meaning or the meaning it has is irrelevant, I believe we should have a bill of rights inserted into the main body of the Constitution. I move:

 

Add new D3:

That a Bill of Rights be added to the main body of the Constitution to establish the people's sovereignty.

 

I have moved this amendment only because the meaning of the Preamble now has no veracity. A Bill of Rights would declare the people's sovereignty and the rights of the people. What is wrong with declaring that all people are created equal, and so forth? There is nothing wrong with that. It would not be the first time, anyway, that a convention has been convened and put to the people without a Bill of Rights being added. Way back on 12 September 1787, the American Constitution was ratified without a Bill of Rights anyway. I appeal to all those here to at least consider adding a Bill of Rights to our Constitution.

 

CHAIRMAN- Thank you, Mr Bullmore. I am afraid that, because you are now going to add it to the Constitution, it is outside the terms of this Convention. We note that the amendment would have been seconded, but I do not believe it is within the terms of this Convention. I therefore propose to rule the amendment out of order.

Item D was put as amended, and it was passed. So we now revert to where we were, which is item B3. Mr Fischer's procedural motion was lost, so we are dealing only with B3. As we have had speakers for and against, the question is that B3 be agreed to.

Motion carried.

 

CHAIRMAN- We not move to item B4.

 

Mr MACK- Mr Chairman, I would just point out to the Convention that B4 is in conflict with B3. Item B3 refers to a democratic sovereign nation. Democracy is something where every person has a right to be involved in decisions that affect them. That is something that the majority of the Australian public believe.

But representative democracy is a democracy where you have a right not to be involved in decisions that affect you but only to elect someone else to make decisions for you. That is something, of course, that the majority of this Convention believe, but it is not what the public believe- and it is in strict conflict with B3.

 

CHAIRMAN- I take that as a speaker against B4. I put the question that B4 be agreed to.

Motion carried.

 

CHAIRMAN- I put the question that item B5 be agreed to.

Motion carried.

 

CHAIRMAN- I put the question that item B6 be agreed to.

Motion carried.

 

CHAIRMAN- I put the question that item B7 be agreed to.

Motion carried.

 

CHAIRMAN- I put the question that item B8 be agreed to.

Motion carried.

 

CHAIRMAN- An amendment has been moved to B9. Is this amendment to be proceeded with?

 

Ms SCHUBERT- We have submitted an amendment to this, inserting this clause at C4. So we would deal with it then. Also, there is a slight wording change, in light of Professor Craven's illumination.

 

CHAIRMAN- Mr Waddy, you had a point of order?

 

Mr WADDY- It was just that the Labor Party meeting I was attending was preventing me from attending to the business- but it stopped, Mr Chairman.

 

CHAIRMAN- As far as I am aware, there are no other amendments to B9. Is that correct? I put the question that B9 be agreed to.

Motion carried.

 

CHAIRMAN- I think that Mr Bullmore has an amendment to B10. Do you wish to proceed with that amendment, Mr Bullmore?

Mr BULLMORE- Yes. I move:

 

That the principle expressed in B10 be included.

 

All I am looking at with B10 is that it be added to the main body of the Constitution. We have hobbled the whole preamble and it means nothing. Let us add something to the main body of the Constitution and see if we can get something out of it, at least. The power should be derived from the people and it should exist with the people.

 

CHAIRMAN- That has already been covered. I do not see that we can reopen the question. B1 specifically referred to that. You are suggesting that it be in the Constitution but it is in the preamble so you cannot deal with it twice. I rule that amendment out of order. We will proceed to B10. Are there any other amendments to B10?

 

Mr RUXTON- On a point of order: what about my amendment that I lodged at 8.45 this morning? It was received by the secretariat.

 

CHAIRMAN- Mr Ruxton, it was provided to the Resolutions Group and treated by them. But I will treat it as another amendment now. It would come in between B9 and B10.

 

Mr RUXTON- I move:

 

Insert new B9:

That English be established as the National language.

 

Mr SUTHERLAND- I second the motion.

 

Mr RUXTON- It is not so much of a joke. I have tangled with Al Grassby over the years and he has always slammed at me the fact that we do not have a national language in this country. The same thing happened in the state of California; under a citizen's initiated referendum they voted as to whether English should be the national language. They found they were getting into legal difficulties over what was a national language. I do hope that one of these days in this country, which we seem hell-bent on destroying, we are not going to get into the same situation as Canada and other bilingual countries.

 

Ms RAYNER- With due respect to Mr Ruxton, it seems to me that there is no question of Australia being a bilingual country. In view of the many expressions of concern today there is no question that you cannot legislate to establish a particular language as a national language in a preamble. Unless Mr Ruxton can identify a second language other than strine as the Australian national language competing with English I consider and suggest that the amendment be ruled out of order. It has no meaning and it is a waste of the valuable time of this meeting.

 

Mr GARETH EVANS- On a point of order: I support the proposal be ruled out of order. The proposal is that English be established as the national language; we are talking here about the preamble, which is not doing anything which has any substantive legal effect whatsoever- as we have just decided by incorporating D3, which says that it cannot be used to establish rights or be interpreted in any other way. Under those circumstances the provision here that the preamble seek to establish something is at odds with the rest of the content of the preamble and should be ruled out of order.

 

CHAIRMAN- I suggest that if it were that English `be the national language' it would be in order. Are you prepared to have it in that form?

 

Mr RUXTON- Yes.

 

Sir DAVID SMITH- We have had a great deal fed to us about the virtues of the Irish Constitution. I should like to remind the Convention that the Irish Constitution specifies that the Irish language, as the national language, is the first official language. The English language is recognised as a second official language. We have been fed the Irish Constitution all week. I do not see why our Constitution should not specify the English language.

CHAIRMAN- The question is that Mr Ruxton's amendment be agreed to.

Amendment lost.

 

CHAIRMAN- The question is that item B10 be agreed to.

Motion carried.

 

CHAIRMAN- The question is that item C1 be agreed to.

Motion carried.

 

CHAIRMAN- The question is that item C2 be agreed to.

Motion carried.

 

Professor WINTERTON- I move:

 

That item C3 be deleted.

 

I understand what motivates this. I can see the value of recognising local government but, with all respect, as I said before, the place is the state constitutions. I would urge those who want to protect state autonomy not to deprive the states of power to regulate their own affairs by including something in the Commonwealth preamble.

 

Mr MYERS- I second the motion.

 

Professor PATRICK O'BRIEN- In opposing what Professor Winterton has said, I would remind him and every delegate here that none of these motions has any meaning whatsoever, constitutionally or legally. Therefore, we may as well vote for it. It is a serious point. It was Professor Winterton, Professor Craven, Mr Michael Lavarch and others who said, `None of these things can have any meaning.' It was Mr Malcolm Turnbull who wanted to do that. Now, totally self-contradicting himself, he wants to vote it up. If it has no meaning, why vote it up? We might as well vote to put the horse's backside into the preamble.

 

CHAIRMAN- Are you in favour of Professor Winterton's amendment, Dr Flint?

 

Professor FLINT- I would like to add some information, if I may.

 

CHAIRMAN- I would like to know whether you are for or against.

 

Professor FLINT- I am for.

 

Mr RAMSAY- I rise on a point of order, Mr Chairman. I did not understand that Professor Winterton had moved an amendment. I understood that he had spoken against the motion to include those words.

 

CHAIRMAN- He has moved an amendment that C3 be deleted. We are considering that amendment.

 

Mr RAMSAY- What motion were we considering when he moved that?

 

CHAIRMAN- That recognition of local government, C3, be accepted. It is virtually the same as voting against it. I think you are right.

 

Professor FLINT- There is an assumption that the attempt to exclude any justiciability for the preamble is a comfort to us. That is a false comfort, I would suggest. First, the High Court is not always constrained by the written words of the Constitution and, indeed, finds unwritten words of the Constitution. Secondly, and more importantly, in international law, the laws of evidence and the laws of interpretation are completely different to ours. In international bodies such as those established under the International Covenant for the Protection of Civil and Political Rights, in the International Court of Justice in arbitral tribunals, for example, those in relation to the Timor Sea, an international tribunal will not in any way be constrained by an attempt to exclude the legal effect of the preamble.

CHAIRMAN- On reflection, I rule Professor Winterton's amendment out of order but I take his speech as being a vote against C3.

 

Ms BUNNELL- I am in favour of C3. The role of the federal Constitution is to define and protect our federal system, yet the Constitution currently recognises only two of the three spheres of government in Australia. This is now not an anomaly but a complete misrepresentation of the true situation. The opportunity should be taken now to put this right and many delegates have spoken on the floor of the Convention in support of local government being given constitutional recognition. I urge my fellow delegates to put this forward for consideration.

 

CHAIRMAN- Professor Winterton, I have ruled your amendment out of order. Do you wish to raise a point of order?

 

Professor WINTERTON- A point of clarification. Lest Professor O'Brien's point be taken as me contradicting the earlier resolution, we only resolved that the preamble should not be used to interpret the Commonwealth Constitution. It could still be used to interpret the state constitution.

 

CHAIRMAN- Is there a speaker against C3 being included?

 

Brigadier GARLAND- I am against this being included in the preamble because I see this as the first step to undermine the responsibilities of the states in relation to the states versus local government. I do not believe that this is a responsibility to be spelt out in a Commonwealth Constitution. It is one of those things that should be dealt with by the states. On that basis I would ask delegates to be responsible, not get in and start undermining the states but to reject this particular proposal.

 

Senator HILL- I move:

 

That the question be put.

 

Motion carried.

 

CHAIRMAN- I put the question that C3 be considered for inclusion in the preamble.

Motion lost.

 

CHAIRMAN- I put the question that C4 be carried.

Motion carried.

 

CHAIRMAN- There is now an amendment to be moved by Ms Schubert to C5.

Ms SCHUBERT- I move that we add to C the following:

 

C5 Recognition that our decisions today will affect future generations.

 

Just to briefly explain this amendment, there were initial suggestions from the working group that we did have an explicit recognition- at the risk of being self-evident- that today's decision making does have an effect for future generations. I know that some who have argued in support of a recognition of God in the preamble have jovially suggested that a reminder to politicians that they themselves are not divine might be a useful thing in our Constitution. Similarly, this decision making is consequential for future generations, particularly in the context of environmental management. I think it would be a strong statement, with no effect, in our preamble.

 

Ms HANDSHIN- I second the motion.

 

CHAIRMAN- Are there any speakers against?

 

Professor WINTERTON- I have supported a great range of civic values but, with all respect, this one is merely stating the obvious. We are going to next legislate that the sun will rise tomorrow. With all respect, this is ridiculous.

 

CHAIRMAN- The question is that the motion to include a new C5- recognition that our decisions today will affect future generations- be agreed to.

Motion lost.

 

CHAIRMAN- We now have an amendment by Father Fleming. That amendment is attached to the printed sheet on late amendments to resolutions.

 

Father JOHN FLEMING- I move:

 

Add the following resolution to (1) The Preamble:

  • E. That this Convention resolves that, in the event of the failure of the Republican model at a referendum, another referendum be put to the Australian people which would add to the Preamble a clause recognising Aboriginal peoples and Torres Strait Islanders as the original inhabitants of Australia who enjoy equally with all other Australians fundamental human rights; and

    E1. That there be wide community consultation and negotiation with ATSIC and other relevant bodies to reach an agreement on the form of words to be used in such a proposed constitutional change before it is put to the people.

 

I seek leave to change the word `Preamble' to `Constitution'. I think this motion has now achieved a greater importance after the debate we have just had on the preamble. I am accepting that I now want this to go in the Constitution. My original point was that there are many of us who are not inclined to support any republican model but who do believe passionately and strongly that Aboriginal peoples and Torres Strait Islanders ought to be recognised in our Constitution, and that the continuing omission of this historical fact is a moral issue which stands in its own right and irrespective of any view that we might have about republics or monarchies.

What concerns me is that, the way the preamble has gone and the way that it has been dealt with, which basically says that the preamble is aspirational now and has no further interpretative value for the rest of the Constitution, this is even more important. I do not want that to be just interpretative; I want it to be recognised. What I am saying is that if the republican model fails at a referendum I still want this matter to be brought back to the people. Originally the working group that I convened had it that it would come up at the same time. On advice from Councillor Tully and others, the possibility was put to me that people might be encouraged in a Vote No campaign on the republic to vote just no without thinking anything more about it. I have accepted that advice, after consultation with other members of the group, and I have now said, okay, if the republican model does not get up, we should still deal with this matter as a matter of urgency.

I feel even more strongly about this now that the preamble has been in a sense neutered in the way it has been by D3; nevertheless, that has now been achieved. I would hope that, across divisions among us here on the substantive matter of republic versus monarchy, we could find it in our hearts to support an in-principle position that it is in itself wrong for to us continue with a lie, and the lie is one of omission: that when we came to this country either there was nobody here or there was but we do not want to recognise them.

I have also said in E1 that the precise wording of such a constitutional change should be a matter of consultation and negotiation with ATSIC and other relevant bodies. Clearly it would be nonsensical to have a form of words which did not meet the legitimate desires of others.

 

CHAIRMAN- Thank you, Father Fleming. The difficulty is that, now you have deleted `preamble', it is no longer in order. It is a very important issue and one which I would suggest might well be considered for future amendment of the Constitution; but it is not one directly pertinent to the question of a change from a monarchy to a republic. I therefore rule that amendment out of order. There is another amendment, of which notice has been given, from Julian Leeser. Do you wish to proceed with that?

 

Councillor LEESER- Yes, I do. I move:

 

That the Convention recommends that-

A referendum be held in conjunction with the referendum on the republic posing a separate question to ask the Australian people if the Preamble should be amended to recognise the original occupancy and custodianship of Australia by the Aboriginal people and Torres Strait Islanders.

 

I do not wish to amend this particular amendment; I wish it to continue to go into the preamble. Basically, Father Fleming outlined the main issues in relation to the committee that we had. It was a bipartisan committee, if you like, on the issue of a republic. We had Mr Peter Grogan, from the ARM; we had representatives of ACM; we had indigenous people on the committee; we had non-indigenous people. I do not want to see the issue of recognition of indigenous people in the Constitution become subsumed by the republic debate. I want to see the possibility of keeping the Constitution the way it is, but recognising indigenous people in the preamble to the Constitution. That is why I have put that, at the same time as we have the referendum on the republic, a separate question be put to ask the Australian people whether the preamble should be amended to recognise the original occupancy and custodianship of Australia by the Aboriginal people and Torres Strait Islanders.

Father Fleming mentioned that he felt some concern, and concern was expressed to him, that in a heavily weighted `no' campaign people would vote, `No, no. No republic, no recognition of indigenous people.' Let us look at the history of referenda that have succeeded. Let us look at the 1967 referendum, which recognised the Commonwealth power to make laws in relation to indigenous people. That referendum was put and it got 90.8 per cent approval. On that same day, at that same time, a referendum looking at the nexus between the number of House of Representatives members and the number of senators was put up. It was defeated- 40.3 per cent.

The same thing happened in 1977. Four questions were asked and three questions got up. In 1946, when the question of social services was put up, there were three questions asked. The social services got up, despite the others being defeated. The same thing happened in 1910, when the taking over of state debts by the Commonwealth got up and the finance question went down. I do not think there is a fear in this. I do not believe recognition of indigenous people in the preamble to the Constitution is a matter that should be owned by the republicans. I think it is a matter that should be owned by all Australians, regardless of their view on the republic. I beg you all to support this amendment.

 

CHAIRMAN- Thank you, Mr Leeser. Because we have already taken decisions prior to your raising this matter in earlier matters regarding the preambles, particularly in B6 and in C4, I rule that amendment out of order.

 

Sir DAVID SMITH- Mr Chairman, I appeal to you: is there no way in which this Convention can support what we have just heard from my friend Julian Leeser without it being ruled out on a technicality? Please, this is not the place for a technicality on this issue. I ask you to reconsider your ruling, Mr Chairman.

 

CHAIRMAN- Sir David, I have just pointed out that we have already taken decisions not on the wording but on the principle. The principle is identified- and I understand this to be the principle that Mr Leeser was referring to- in B6 and in C4. The proposal put by Mr Leeser is that there be a referendum asking the Australian people whether the preamble should be amended to recognise original occupancy et cetera. Those matters have already been decided. It is on that basis, not on the substance of the principle, that we have already decided the proposition put by Mr Leeser. I rule that amendment out of order.

Councillor LEESER- If I may make the distinction, item B relates back to item A, which says that this Convention recommends that, `in the event that Australia becomes a republic'. This means, essentially, that you can only look at B6 in the context of Australia becoming a republic in itself. My particular amendment addresses the fact of having a separate question put at the same time as the question or questions we have on the republic that deal with the issue of recognition of indigenous people in the preamble.

 

CHAIRMAN- On that basis I am afraid it is even more out of order because we have been charged with deciding the outcome of one referendum which is to do with the republic. There is another point of order from Mr Ruxton. Do you wish to pursue it?

 

Mr RUXTON- Mr Chairman, on a point of order: I was elected to come here about the republic.

 

CHAIRMAN- I am delighted to have your endorsement, Mr Ruxton.

 

Mr RUXTON- No more extraneous issues thanks.

 

CHAIRMAN- Thank you. I am afraid that is out of order. We will now proceed to (2) Oaths and Affirmations.

 

(2) Oaths and Affirmations

Mr GARETH EVANS- I move:

  •  
    This Convention resolves that, in the event of Australia becoming a republic:

    A. The Head of State should swear or affirm an oath of allegiance and an oath of office.

    B. The oath [or affirmation] of allegiance might appropriately be modelled on that provided by the Australian Citizenship Act as follows:

    [Under God] I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect and whose laws I will uphold and obey.

    C. The oath [or affirmation] of office might appropriately be modelled on the following words:

    I swear, humbly relying on the blessing of Almighty God, [or, I do solemnly and sincerely affirm and declare] that I will give my undivided loyalty to and will well and truly serve the Commonwealth of Australia and all its people according to law in the office of the President of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia without fear or favour, affection or ill will

    or

    I swear [or affirm] that I will be loyal to and serve Australia and all its people according to law without fear or favour.

 

This reflects the recommendations of the committee. Hopefully it is quite uncontroversial. There is no provision in the existing Constitution providing specifically for an oath or affirmation of office by the head of state. Arguably, there should be. We are not here getting into a detailed drafting exercise. You will notice that the language used to introduce both B and C says that the oath might appropriately be modelled on this language. So we are not getting into a detailed drafting, we are simply explaining or identifying a way of approaching this issue which can be considered by the government and parliament, and it is recommended to delegates accordingly.

 

CHAIRMAN- I propose that we make A our resolution and the other two illustrative rather than parts of the resolution. Are there any speakers on this?

 

Mr EDWARDS- As the convenor of this working group I second the motion and again reiterate that there was consensus for the view, mainly expressed here, and I do not think it needs to be dwelt on. I just think it demands support.

 

Professor BLAINEY- It seems to me that the final sentence in that resolution has been added since it left our last meeting. I just wonder what the significance is of that last sentence because it contradicts the essence of the previous resolution that there should be undivided loyalty.

 

CHAIRMAN- I am sorry, I was only trying to get them to throw it up. I presume you mean the sentence, `I swear that I will be loyal . . . '

 

Professor BLAINEY- Yes, that is right. The last sentence seems to have crept in since we discussed it and, since it contradicts the previous paragraph, I wonder what is the purpose of its insertion.

 

CHAIRMAN- Mr Edwards, would you like to respond?

 

Mr EDWARDS- I was not involved with the group that added the words but, as I see it, it is simply an option for consideration at the stage that the matter would be considered.

 

CHAIRMAN- I must admit that was why I suggested to Professor Blainey that we treat A as the substance and the others as illustrative. In other words, B, C and the alternative are illustrative of what A is intended to cover. The final drafting would have to be left until a later occasion. Are there any speakers for or against on this proposal? Professor Blainey, did you want a further explanation?

 

Professor BLAINEY- No.

 

CHAIRMAN- Are there any speakers for or against. If not, I will put (2) as proposed by the Resolutions Group.

Motion carried.

 

(3) Miscellaneous Transitional and Consequential Issues

Mr WILLIAMS- I move:

  •  
    This Convention resolves that in the event of Australia becoming a republic:

    A. The Government and Parliament give consideration to the transitional and consequential matters which will need to be addressed, by way of constitutional amendment or other legislative or executive action, including:

    A1. The date of commencement of the new provisions;

    A2. The commencement in office of the head of state upon oath or affirmation;

    A3. Provision for an acting head of state in certain circumstances:

    A4. Provision for continuation of prerogative powers, privileges and immunities until otherwise provided;

    A5. Provision for salary and pension;

    A6. Provision for voluntary resignation;

    A7. Provision for the continued use of the term Royal, Crown or other related terms, and use of the royal insignia, by the Defence Forces or any other government body;

    A8. Provision for the continued use of the term Royal, Crown or other related term, and use of royal insignia, by non-government organisations;

    A9. Provision for notes and coins bearing the Queen's image to be progressively withdrawn from circulation; and

    A10. Provision to ensure that any change to the term Crown land, Crown lease or other related term does not affect existing rights and entitlements to land.

B. Spent or transitory provisions of the Constitution should be removed.

 

I think this should not detain us long. The Miscellaneous Transitional and Consequential Issues are listed in paragraph 4 of the principal document. They represent merely the Resolutions Group's attempt to simplify and put in brief form those issues that were raised by working groups as matters that require consideration in the preparation of any documentation relating to transition. I do not propose to say anything about the individual items. I think it is merely guidance for government.

Mr GARETH EVANS- I second the motion.

 

CHAIRMAN- As far as I can see, we have no amendments. Are there any amendments that anybody has given notice of?

 

Mr LEO McLEAY- Mr Chairman, I will chance my hand at this late hour and wake up the Generals over there by proposing that we delete A7 only on the grounds that it would look a bit bizarre if we had a provision that said we had become the republic of Australia, but we call the Mint the Royal Australian Mint or we call the air force the Royal Australian Air Force. If we are not a monarchy, it is pretty hard to say who owns the Mint if it is the Royal Australian Mint.

I have no objection to A8, which says that people can go on calling themselves the Royal Automobile Club or that sort of thing. It is a matter for them as members of that organisation to call themselves whatever they like, but I think we would look rather bizarre in practical terms by saying we are not a monarchy any more but we are going to name public institutions after those monarchies.

 

Brigadier GARLAND- Privatise them all!

 

Mr LEO McLEAY- I do not think anyone would suggest that you should privatise the military in any way, shape or form although I bet you know a lot of blokes who would probably try to buy it. Mr Chairman, on practical grounds we would look a bit silly if we were going to do that. I know the covering note says that we asked them only to have a look at it but what is the point of asking them to look at something stupid?

 

CHAIRMAN- I propose that we therefore deal with item 3, Miscellaneous Transitional and Consequential Issues. As Mr McLeay has spoken against A7, I propose we consider A1, A2, A3, A4, A5, A6 and A8, A9, A10 and B, and consider A7 separately. If people wish to speak on A7 they may do so, but we will put the other questions.

Motion carried.

 

CHAIRMAN- Mr McLeay has spoken against A7. Is there a spokesman in favour of A7?

 

Ms HEWITT- While we might be discussing a republic and the changes to our relationship to the Crown, I did not realise that we were actually rewriting the dictionary as well. Does this mean that we cannot have `royal blue' any more? I think the absurdity of this is that the word still exists and it still has meaning. Why treat this in this way? Why eliminate the word from the dictionary?

 

CHAIRMAN- Thank you, Ms Hewitt. Mr Turnbull wants to move an amendment.

 

Mr TURNBULL- In A7 I think we can resolve the concerns expressed by Mr McLeay simply by inserting after `continued use' the words `if and where appropriate'. So it would read `Provision for the continued use if and where appropriate of the term Royal, Crown or other related terms' et cetera. That can then be dealt with in an administrative fashion.

 

CHAIRMAN- Is approval given for that insertion? Approval has been given and we will consider it in that form. Is there a speaker against A7 in its amended form?

 

Councillor TULLY- On a point of clarity: could Mr Turnbull tell us if there is any occasion when he would think it was `if and when appropriate'?

 

CHAIRMAN- I think `royal blue' would be a very good indication.

 

Mr TURNBULL- I honestly cannot think of any appropriate occasion and I do not imagine that the government will be able to either, but if we put it in we save ourselves an argument.

 

CHAIRMAN- There being no further speakers on A7 I put the question that item A7, as amended, be agreed to.

Motion carried.

(4) Qualifications of the Head of State

Mr GARETH EVANS- I move:

 

This Convention resolves that in the event of Australia becoming a republic:

  • A. The head of state should be an Australian citizen;

    B. The head of state should have been an Australia citizen for at least 15 years;

    C. The head of state should have been a resident of Australia for at least 15 years;

    D. The head of state should be eligible to vote in an election for the House of Representatives at the time of nomination;

    E. A person cannot be nominated if that person has been a member of the Commonwealth Parliament, a State Parliament or Territory Assembly in the preceding 12 months;

    F. The head of state should not be a member of any political party;

    G. The head of state should be subject to the same disqualifications as set out in section 44 of the Constitution in relation to members of Parliament; and

    H. Any future amendments to section 44 of the Constitution should also apply to the head of state.

 

Because we will be addressing the question of qualifications when we consider each one of the models for a republic tomorrow, because each one of those models contains a reference to qualifications, this is an issue that we will have to take into account when we revise the language of this for Friday. There is no point in being repetitive about it. If it is addressed in the model, we will not need to come back to it again in the final tick on this on Friday.

Point A, that the head of state should be an Australian citizen, is something that is in fact spelt out in every one of the four models now before us, so we are hardly likely to need to endorse that on Friday. It will come up. However, B and C, the requirement for 15 years citizenship and residency, are addressed in none of the models before us at the moment. So this is a substantive question, which is a controversial question which we will now have to resolve effectively one way or the other.

Similarly, D, that the head of state should be eligible to vote in an election for the House of Representatives at the time of nomination, is addressed in Bill Hayden's model but none of the others. So it is one which may or not be controversial. We will have to form an opinion. Equally with E and F, they are both addressed only in the direct election model before us. So that is one that we may need to have a specific view about now. Point G is addressed in both the direct election and the bipartisan one but not in the others. Again, it is one on which we may need to have a final opinion now and indeed on Friday.

I indicate that because those are considerations which might influence delegates. Most of them would appear to be uncontroversial with the possible exception of B and C. That is a matter for individual delegates. We make no recommendation.

 

Mr WILLIAMS- I second the motion.

 

CHAIRMAN- I will explain the way I propose to deal with this. It seems to me that B, C, E and F are matters that might well be considered separately. I would therefore propose that we first deal with (4)A, that the head of state should be an Australian citizen; D, that the head of state should be eligible to vote in an election for the House of Representatives at the time of nomination; G, that the head of state should be subject to the same disqualifications as set out in section 44 of the Constitution in relation to members of parliament; and H, that any future amendments to section 44 of the Constitution should also apply to the head of state. I propose that we deal with those four together because they seem to be less contentious.

 

Brigadier GARLAND- I have a question of clarification in relation to D. It allows the head of state to vote in an election for the House of Representatives at the time of nomination but says nothing about the ability to vote for the Senate. Are we excluding him voting for the Senate or is that also included?

 

CHAIRMAN- I think we can include the words `for the House of Representatives and the Senate' and that will cover that. I put the motion that A, D, G and H be agreed to.

Motion carried.

 

CHAIRMAN- I then move to B. They are each slightly different. We will need to put B and C differently.

 

Professor BLAINEY- The wishes that the head of state should have been an Australian citizen for at least 15 years and also that the head of state should have been resident here for at least 15 years are placed here not with the idea of being harsh but with the idea of stressing that this is an important and difficult post and has to be taken seriously. By the standards of the world these are low qualifications. If any of us at the age of 20 went to Indonesia we would not be eligible, as long as we lived, to become president. If we went to Italy, we would not be eligible. These are not harsh recommendations. They are simply a way of saying that this is a difficult post and we must take it seriously.

 

CHAIRMAN- I did have notice of an amendment which I was going to exclude because voting against achieves the same result. Mr Tully gave notice of that amendment.

 

Councillor TULLY- I had circulated an amendment to exclude B and C. I will speak in opposition of the proposal. This is a simple and fundamental but very important proposition which delegates need to consider. I really think the key issue, as I said yesterday, is whether or not we wish to create two classes of Australian citizens: those who are born here and those who are naturalised. It is my view that when people take an oath of office or an oath of allegiance to Australia they should have equal rights along with all other Australians. To me, to put in an arbitrary figure of 10, 15, 20 or even 30 years or higher- figures which were suggested yesterday- does discriminate against people who have taken an oath of allegiance and should assume the full rights of all Australian citizens. I would urge all delegates to oppose this particular matter and vote it down.

Mr WADDY- Mr Chairman, I have a question. Is it the intention or effect of specifying that the person be an Australian citizen that someone who is a resident here under the residency laws before 1948- it may be a later time- such as the late Leslie Bury or former Governor-General Sir Ninian Stephen who were born in England- I have no idea if they took out citizenship- be cut out? Under the old laws they were able to come here and vote. Is it the intention and the effect to cut out those citizens- I think Mr Turnbull has estimated about half a million- or would they be eligible for this office through their residency?

 

CHAIRMAN- I take that as somebody speaking against B and in favour of C, because C refers to residency. I suggest we therefore look at C in relation to Mr Waddy's question rather than B. I put the question that B be included as a qualification for a head of state.

Motion carried.

 

CHAIRMAN- The question now is that C be included as a qualification for a head of state.

Motion lost.

 

Professor WINTERTON- I want to speak briefly in opposition to E. It seems to me that we should not deprive the Australian people of as broad a choice as possible. I think we should do nothing to denigrate those who wish to serve in public life. Therefore, I urge that E be deleted.

 

Professor PATRICK O'BRIEN- I wish to speak in favour of the motion because there has been considerable concern expressed by delegates to this Convention, particularly by republicans- by supporters of the McGarvie model and by the ACM. So it has been almost unanimous that we have to try to avoid the politicisation of the office of head of state. I think it is a reasonable requirement that there be a 12-month interim period. We are not saying that people who have served in parliament are unworthy, but to me a one-year decontamination period of party politics is a reasonable request.

 

CHAIRMAN- The resolution is that a person cannot be nominated if that person has been a member of the Commonwealth parliament, a state parliament or territory assembly in the preceding 12 months. I put the question that the resolution be agreed to.

Motion lost.

CHAIRMAN- We now move to F. I have a notice of an amendment by Ms Panopoulos.

 

Ms PANOPOULOS- I move:

 

After "not," insert "or ever have been".

 

I have moved this amendment because we have heard for the last week and a half that people want a representative president. Less than two per cent of the Australian population are, or have ever been, members of a political party. I suggest that those wanting an inclusive representative president support this amendment.

 

Councillor LEESER- I second the amendment. We could even include this as something that would benefit the current system. I think it would be great if we had governors-general who had never been members of political parties as well.

 

Mr BEATTIE- One of the great attributes of our democracy is that people have the right to join a political party. It is, in fact, one of our strengths. I have argued, as many people here have argued, that the head of state should not be a member of a political party. But, just because someone has been a member of a political party, that should not preclude them from being the president or the head of state. This amendment denies basic rights and takes away, I believe, a field of people who may well be acceptable to the whole Australian community as being great for this country- a good president and a good head of state. I urge everyone to defeat this amendment.

 

CHAIRMAN- I propose to put the amendment. Those in favour of the amendment- that is, insertion of the words moved by Ms Popadopolous-

 

DELEGATES- Ha!

 

CHAIRMAN- It is getting too late at night. The question is that the amendment be agreed to.

Amendment lost.

 

Mr GUNTER- At this point I am not sure if this is appropriate, but it is unclear whether this is intended to apply only during office rather than during the choice mechanism for finding somebody to take office. Are those from the Resolutions Group able to clarify that please?

 

CHAIRMAN- The intention of this- "in the event of Australia becoming a republic"- I took to mean at the time that he is appointed. I think we will take it as that. The question is that the resolution be agreed to.

Motion carried.

(5) Flag and Coat of Arms

Mr WILLIAMS- I move:

 

This Convention resolves that the flag and coat of arms may only be changed if approved by a majority of voters in a national vote.

 

The Resolutions Group has crafted this in the form of a broad motion with an amendment. The broad motion contemplates that the Convention would resolve that the flag and the coat of arms may only be changed if that is approved in a national vote by a majority of voters- in other words a simple majority. The amendment, which is in three parts, contemplates that there will be a constitutional provision added. This would also contemplate no change without a national vote. But, in item (ii) the majority is identified as being a majority of voters in a majority of states, so it is not a simple majority. The third leg contemplates that this amendment would only proceed after Australia became a republic.

 

Mr GARETH EVANS- I second the motion.

 

Sir DAVID SMITH- I withdraw my amendment. I was misled by the original green covered set of resolutions from the Resolutions Group. When Adam Johnson and I moved the amendment which is now on page 8 of the blue covered document, we did not have before us the resolution which the Attorney-General has just moved. We withdraw our amendment because it has now been taken up by the Resolutions Group. I thank the Attorney-General for the amended resolution from the group. I am grateful that I let off steam in your office, Chairman, and not in this chamber, after seeing the first document.

This resolution came from a working group which I had the honour to chair. We reaffirmed that the national flag and the coat of arms should require the double majority that is in section (ii) of the amendment.

 

CHAIRMAN- You will have to move that amendment. As I understand it, we have in the new amended (5) the recommendation of the council, which is the first two lines.

 

Sir DAVID SMITH- I move:

  •  
    (i) That the Constitution should be amended to provide that the Australian flag and coat of arms may not be changed without a national vote of the Australian people.

    (ii) The flag and coat of arms may only be changed if approved by a majority of voters in a majority of States.

    (iii) A proposal so to amend the Constitution should only proceed after Australia becomes a republic.

 

I think the motion is self-explanatory. You will notice that in clause (iii) it is not an attempt to put this in the referendum which this Convention has been called to consider. We make provision for this to be done at a subsequent referendum, so I am hoping you will not rule it out of order. I invite delegates to support it. It entrenches the flag and the coat of arms and, for the purposes of those delegates who have reminded us so often of the merits and virtues of the Irish Constitution, I should like to remind them that the national flag of Ireland is entrenched in that country's Constitution.

 

Mr JOHNSTON- I second the motion.

 

Professor WINTERTON- I rise on a point of order. We have clearly concluded that a bill of rights is irrelevant to the republic, even though there are many republican political theorists who would argue that you cannot talk about a republic without rights. This is completely remote, and I would make the point of order that this is irrelevant to the debate and we should not discuss it.

 

CHAIRMAN- I ruled earlier in the debate that this could be considered only if it were part of the preamble. This is no longer part of the preamble and, therefore, I do have to uphold the point of order raised by Professor Winterton. The question is that the resolution be agreed to.

Motion carried.

 

(6) Ongoing Constitutional Change

Mr GARETH EVANS- I move:

 

That this Convention resolves that:

(1) The Commonwealth should establish a broadly representative and gender balanced Constitutional Committee (numbering around 27). No more than 1/3 of the Committee should be comprised of serving members of the Commonwealth parliament, a State Parliament or Territory Assembly. The remaining members should be persons appointed by the Government as community representatives.

 

Amendment: replace (1) with

  • The Commonwealth should establish a broadly representative and gender balanced Constitutional Committee (numbering around 27). No more than 1/3 of the Committee should be comprised of serving members of the Commonwealth Parliament, a State Parliament or Territory Assembly. These members should be appointed by the Government. The remaining members should be elected by the people.
    • (2) The Constitutional Committee should oversee a three year community based consultation process about constitutional change, including the role of the three tiers of government; the rights and responsibilities of citizenship; whether the Commonwealth should have an environment power; the system of governance and proportional representation; whether the mechanism for constitutional change should be altered; constitutional aspects of indigenous reconciliation; equal representation of women and men in the Parliament; and ways to better involve the people in the political process.

      (3) This consultation process should lead to a plebiscite on concrete constitutional proposals. The results of the plebiscite should be converted into a constitutional amendment proposal and put to referendum.

      (4) The Constitutional Committee and the consultation process should be funded by the Federal Government's Federation Fund.

 

The motion before you on ongoing constitutional change is in revised form on page 7 on the blue document. It simply reflects the language coming forward from the relevant working group. It is, accordingly, now formally before the Convention for debate.

Mr BEATTIE- I want to raise one matter of clarification, if I can, with Gareth. The original proposition had a (b). It seems to have disappeared. I know that clause (ii) has been enlarged.

 

Mr GARETH EVANS- Clause (ii) has exactly the same language as (b). It just does not spread it out into multiple dot points and encourage people like you to want to debate it. The same language is there.

 

Mr BEATTIE- Heaven forbid that you should suggest I don't debate it. Mr Chairman, I just get back to that issue. Gareth, that is not (b) at all, if you have a close look at (ii). It is not the point at all. In fact, (b) is removed and (ii) does not reflect what is in (b).

 

CHAIRMAN- I intended to cover (i), (ii) and (iii), but we have to look at (i) first. We have an amendment to (i), so therefore I have to consider that before we get to (a)(iii). I think we will pursue your point indirectly.

 

Mr BRADLEY- On a point of order. Mr Chairman, you have ruled that consideration of entrenching the flag in the Constitution is out of order even though that issue was debated in the course of elections for this body. I would say on the same basis that it must be the case that discussions of establishment of some constitutional committee to look at further later changes and other issues in the Constitution must also be out of order.

 

CHAIRMAN- We have not reached that point of our consideration. Therefore, I suggest we look at what business is before us. We are now looking at `Ongoing constitutional change' and we are dealing with the proposal of the resolutions group, which is that this Convention resolves that. The first group is in 6(1). I see that there is an amendment. Before we can deal with the amendment, I need to get somebody to move it and second it. We will deal with your point of order when we reach it.

 

Mr BRADLEY- My point of order is that the entire matter of page 7 is out of order. If the flag is out of order, this is out of order.

 

CHAIRMAN- I think you are right. On that basis, we declare `Ongoing constitutional change' not a matter of this Convention.

 

Ms MARY KELLY- I would like to move dissent from that ruling, Mr Chairman. My dissent from your ruling is based on the fact that on the first day, as I recall, of this Convention we established by vote that we would have discussion on the preamble and discussion on ongoing constitutional reform and that those things would come back. We did not decide so on the flag, and that is what distinguishes this from that issue and puts it in the same camp as the preamble issue. We added it by vote to the agenda.

 

Ms RAYNER- I wish to affirm what Mary Kelly has said. It is on the agenda. In fact, it is on the order of the proceedings of the next two days- `Matters to be discussed and votes on which to be taken'. With due respect, Mr Chairman, I think you have made an error.

 

CHAIRMAN- I make many errors but I do not think I have on this occasion. I said at the very beginning that I would allow debate on a range of issues and I would allow consideration by the Convention of those issues. I did not at that stage say that I would accept resolutions on them unless they were within the overall ambit of matters that were consequential on Australia changing from a monarchy to a republic.

The point of order raised by Mr Bradley, in my view canvassed with respect to this issue, is the same basic argument as I pointed out in relation to the principle of the flag. This is not a specific constitutional change that follows from our change. On that basis, I took my decision. I will now put the motion of dissent. Those in favour of dissent? Those against? I will take a count to be sure. The result of the vote is 63 for, 64 against. I declare the motion lost. I thank the Convention for the confidence it has expressed in me.

Councillor TULLY- Mr Chairman, I formally call for a division.

 

Ms RAYNER- I second the motion.

 

CHAIRMAN- There is no such provision in our rules of debate. I therefore proceed with the next item. The next item is No. 7.

 

Ms RAYNER- Mr Chairman, I raise a point of order. In that case, can we have a roll call to ensure that no error was made?

 

CHAIRMAN- No, there is no provision. We have taken the count and the count, I am afraid, is final.

 

(1) Preamble

Sir DAVID SMITH- Mr Chairman, I raise a point of order. When Mr Adams and I withdrew the amendment which is on page 8 of the blue covered sheet, it was in the belief that the Resolutions Committee had faithfully translated into a resolution the recommendation of the working party which I chaired. The resolution which my working party came forward with proposed that a provision be added to the preamble of the Constitution. However, the Resolutions Committee has dudded us by bringing forward a resolution in which the word `preamble' has been changed by the word `constitution'. On that basis, Mr Chairman, you have ruled the amendment out of order. I now seek leave to reinstate the amendment on page 8.

 

CHAIRMAN- I do not really think at this late stage we can do so. I now how strongly people feel on the flag, as they do on the question that I have just ruled out of order. In my view, these are matters that are very important- I am not denying that- in each instance.

But I would suggest that what we do is note in our proceedings that these issues have been raised, and I would propose in our final memorandum to draw the government's attention to the fact that these matters were raised but they were not held to be within the purpose of the Convention. On that basis, both the question that you are raising and the question I have just ruled out of order will be referred to the government where I believe they would properly consider the consequences another time. I believe that is the right course to be taken.

 

Sir DAVID SMITH- Mr Chairman, this matter went to a working group on the advice of this Convention-

 

CHAIRMAN- I understand.

 

Sir DAVID SMITH- when, as to the original amendment we moved, we were told by the legal experts opposite that it had no effect. When the document with which we are dealing came out this afternoon, as we now know, item 5 in the green covered document was defective; it was incomplete. I moved, and circulated quite early, the amendment which Adam Johnson and I have proposed on page 8. This was circulated later under cover of a document which also included the expanded recommendation of the Resolutions Committee.

I reiterate that we withdrew our amendment in the mistaken belief that the resolution from the Resolutions Committee replicated the recommendation of the working group. I now wish to reinstate our amendment. It is properly worded, and it calls for an addition to the preamble. We have debated other items to be added to the preamble and, with the greatest of respect, Chairman, I submit that the recommendation of the working group should be put to this Convention.

Mr GARETH EVANS- On that point of order I submit two things. One is that there is no automatic right of transmission from the Working Group to the body of this Convention- otherwise we would not have had a Resolutions Group mandated with the task of crafting resolutions for the consideration of this particular Convention. That is the first point. The second point is that you have had your opportunity and you missed it. We debated the preamble earlier on; that was obviously the occasion to be debating any possible further amendment to the preamble. You failed to take advantage of that opportunity. You should now accept that gracefully.

 

Mr WADDY- As a member of the Resolutions Group I was approached by Sir David Smith, who was ropable when he saw the first draft which was circulated. I then went to the Resolutions Group and, in what was a very acrimonious and difficult meeting, asked that the Working Group's recommendation be reinstated in toto as it was. I pointed out that the Resolutions Group was the handmaiden of this Convention and that it was not there to alter the substance of resolutions- that was for all delegates together. I then informed Sir David that that had been done. I thought at that stage, having both the ruling of the Chairman and the agreement of Mr Evans, that a new page 6 and new page 7 to that effect would be circulated. I am astounded to think it has not been done.

 

CHAIRMAN- In the light of these various recriminations, if it is to be added to the preamble and if there is a genuine misunderstanding, I have no alternative but to allow you to move that. But there is no reason why delegates should not vote against that if they feel that is the course.

 

Mr GARETH EVANS- On a further point of order: the language in which these particular three propositions is cast is manifestly inappropriate for the terms of the preamble. They are referring to provisions determining the voting procedures that are to be followed if there is to be any change in the flag or the coat of arms. We have already decided earlier on that the preambles have no substantive effect at all; therefore, by definition, these provisions, even if enacted in these terms, would have no effect. They are manifestly inappropriate there. They could have a place elsewhere in the Constitution. That is why they were drafted in the way they were, in order to reflect what was your apparent intention, which you are incapable of executing in understandable prose.

 

CHAIRMAN- I take that as a speech against the amendment. Is there a speaker for the amendment? Mr Lavarch, do you wish to raise a point of order?

 

Mr LAVARCH- We have two separate items here. One is the resolution dealing with the flag. We also have the resolutions dealing with ongoing constitutional-

 

CHAIRMAN- That has been resolved.

 

Mr LAVARCH- Please hear me out, Mr Chairman. I am certainly not going to reopen your ruling. But in taking on your ruling that the government may well accept the work that has been done and take regard to it, may I suggest that the government may also benefit, in terms of their consideration, from there being a vote taken on the particular matters even though they are not strictly within the domain of this Convention. I wonder if there is some sort of procedural mechanism or suspension of standing orders or some other mechanism which would allow the resolution on the flag and the ongoing constitutional reform to be voted upon so that an indication of a view can be put forward.

It seems a very great shame for working groups to have been formed, for there to have been discussion at the Convention, for a morning to have been taken up by a debate on these things and for it to have gone to the Resolutions Group only to find that at the ultimate conclusion of it we are unable to express a will on it. It is an unfortunate outcome. It is technically correct but maybe it would benefit the Convention and the government if we were able to take that particular course of action.

CHAIRMAN- It had been my intention to make reference to that in the communique. As I explained before, there is obviously very strong support for the proposal for further consideration of constitutional reform, and I intend to ensure that reference is made in the final communique to the very strong view, demonstrated by the reference within that working group. Similarly, had this motion been lost, it had been my intention to refer to the fact that there was also a very strong view on the flag and the Commonwealth coat of arms. I intended that that should also be expressed in the communique. Therefore, I put to Sir David the request made by Mr Lavarch, and I ask for a response.

 

Sir DAVID SMITH- I would like to respond to my friend, Gareth Evans.

 

CHAIRMAN- I will first ask you to respond to Mr Lavarch. Mr Lavarch has put a request to you. Will you withdraw your amendment and allow it to go forward in the communique, or do you wish to proceed?

 

Sir DAVID SMITH- I wish to proceed. I move:

 

That a provision be added to the preamble to the Constitution which would ensure:

(K1a) That the Australian national flag and coat of arms of the Commonwealth of Australia may not be changed without a national vote of the Australian people:

(K1b) That 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

(K1c) That the submission of any proposal to add such a provision to the preamble be at a time to be decided by the government of the day, but subsequent to any referendum on a republic.

 

Mr JOHNSTON- I second the amendment.

 

CHAIRMAN- You wish to respond to Mr Evans?

 

Sir DAVID SMITH- Yes.

 

Mr RUXTON- I rise on a point of order. I was elected to come here to a convention on the republic. On all the information sheets that went out it was the republic versus the constitutional monarchy. I believe the flag and the coat of arms are part of that deal, but ongoing constitutional change was never mentioned in anything that went out to the people who voted. There was nothing.

I have said time and again that I believe that the whole matter of the republic has been a vehicle to get stuck into the Australian Constitution. These extraneous issues are coming up all the time. More are coming up, and more amendments are coming up. I believe that all these people who were elected were elected to debate the republic and the constitutional monarchy, and that is all. Nothing whatsoever went out in any of the pre-voting papers to say that they were going to discuss ongoing constitutional change.

 

CHAIRMAN- I think you have finished your point of order. Are you in favour of the flag and coat of arms going on?

 

Mr RUXTON- I believe that ongoing constitutional change has nothing to do with what we are talking about in this Convention, but the flag and the coat of arms are very much part of the republic debate.

 

CHAIRMAN- We are now debating the flag and the coat of arms. Sir David, you have had your say, do you wish to pursue the amendment?

 

Sir DAVID SMITH- Yes.

 

CHAIRMAN- I am afraid your time has expired, so you have no further call. Is there a speaker in favour of the proposal by Sir David Smith, seconded by Mr Adam Johnson.

 

Mr BRADLEY- It is quite important that this matter be voted on, and it is quite important that people understand why it has come before the Convention in this form. It has come this way because resolutions moved to entrench the flag and the national coat of arms in the Constitution were ruled out of order. Therefore, the only way they could be considered was if they were put in the Preamble. That was the earlier ruling of the Chairman. The only way the matter could really come before this body was in that form. It is quite ludicrous for people to now suggest that it is inappropriate to vote on this because it is to do with the Preamble, when we were forced to do it that way.

The second thing, and the most important point, I think, is that the Australian Republican Movement has been playing snakes and ladders on this issue of the flag and the national symbols. Throughout the discussion they have pretended, time and again, that they do not have an agenda to alter the Australian flag. Yet it is so transparent, from their behaviour here at this Convention, from their membership of the Ausflag organisation and from their promotion of exhibitions for other flags, that quite clearly central to their agenda is a change to the Australian flag. The more that they try to squirm out of facing that issue, the more ridiculous they look. Tonight is the time for them to stop playing snakes and ladders and to vote on the issue of whether or not they support protection of the Australian flag and national symbols in the Constitution, as is the case in the Irish constitution.

Mr TURNBULL- Mr Chairman, I have never seen more inappropriate language to be put into a preamble. Mr Bradley acknowledges that this is just a mechanism to put the Commonwealth taxpayers to the expense of a referendum to entrench a flag which is already there- to entrench a flag which I dare say every single person in this room, including every member of the ARM and every member of the major political parties agrees should not be changed without a national vote. What on earth are we wasting time over this for? Nobody here believes the flag should be changed other than by a national vote and Sir David Smith, who claims to be a supporter of the flag, wants to put it on trial. Sir David, you should recognise that there will not be a national vote until someone comes up with a good alternative. You want to put the flag you love on trial before there is even something put up against it. This is a ludicrous amendment- the most ludicrous of all we have seen.

 

CHAIRMAN- I do not think that we need any more debate. I am putting the amendment that Sir David has presented.

 

Mr WRAN- Mr Chairman, you ruled out of order yesterday a substantive motion in relation to the flag being enshrined in the Constitution.

 

CHAIRMAN- Yes.

 

Mr WRAN- If you read the words on the screen it says that the Constitution preamble be amended to ensure that these things happen. In other words, it is an effort to use the preamble of the Constitution to obtain a substantive result, that is, to ensure that the flag cannot be changed except by the methods stated, and I do not think we can have two bob each way on this. I think it is completely out of order and, consistent with your previous rulings, you should so rule it now.

 

CHAIRMAN- Mr Wran, what I am afraid is likely to happen is that, when the government considers this if it goes to them, they may well rule just as you have suggested. But, because we have been considering the preamble, I believe it is still appropriate for this Convention to consider it even though I doubt in its present form the government will accept it as something suitable for them to be able to include in the preamble- but that is an opinion like you as a lawyer, rather than me as Chair. In the circumstances, I do not accept-

 

Mr WRAN- I am happy with that, Mr Chairman. I am well aware of your influence.

 

CHAIRMAN- In the circumstances, I believe that, because it is a motion to amend the preamble, whatever the consequence, I should put it. The question is that the amendment be agreed to.

Amendment lost.

 

Mr MOLLER- I rise on a point of order. It seems to me that the only reason you entertained consideration of that motion was on Mr Ruxton's powerful argument that he had campaigned and had put out election material.

 

CHAIRMAN- No, it was not. It was because it was in the preamble. I made that quite clear. I only ruled it in order because it was on the preamble. It has been lost. I intend to move to the next motion.

 

Ms MARY KELLY- I would like to ask a question of the Chair and, depending on the answer, perhaps move something procedurally. My question is this: the ruling about ongoing constitutional change being out of order was based around a notion that it was not a requirement in a post republic situation.

 

CHAIRMAN- I did not rule it on that basis. I ruled on the basis that the decision on whether Australia should become a republic was not relevant.

 

Ms MARY KELLY- Very well. My question is: if that had been reworded in some acceptable way as relevant to the preamble, would it have been ruled out of order?

CHAIRMAN- I am afraid it is a hypothetical question. Therefore, I am not prepared to deliberate on it. We will move to the next part of the proceedings which is the second part of the report.

 

Mrs MILNE- I would like to seek the leave of this Convention to suspend so much of its standing orders as would prevent consideration of ongoing constitutional change.

 

CHAIRMAN- We have no such proceedings, I am afraid, Mrs Milne; this is not the parliament. We will proceed to the next item of the report.

 

Mr WILLIAMS- The subject `implications for the states' is on page 8 of the supplementary document.

 

Professor WINTERTON- I raise a point of order, Mr Chairman. Would you take a motion to the effect that the Preamble ought to include a provision encouraging ongoing constitutional change?

 

CHAIRMAN- Yes, I would.

 

Professor WINTERTON- I move:

 

That the Preamble contain a provision allowing ongoing constitutional change.

 

Ms THOMPSON- I second the motion.

 

CHAIRMAN- We have an amendment by Professor Winterton that the preamble include a provision for ongoing constitutional change.

 

Mr TIM FISCHER- I move:

 

That the motion be now put.

 

Motion carried.

 

CHAIRMAN- The amendment moved by Professor Winterton is that the preamble contain a provision permitting ongoing constitutional change.

Amendment carried.

 

Mr RUXTON- I move the adjournment.

 

CHAIRMAN- I am afraid you will have to wait for a while.

 

Mr RUXTON- We have been going 13 hours.

 

CHAIRMAN- I have been sitting here for a few of them, too.

 

(7) Implications for the States

Mr WILLIAMS- I move:

 

A. This Convention recommends to the Federal Government and Parliament that it extend an invitation to State Governments and Parliaments to consider:

A1. The implications for their respective Constitutions of any proposal that Australia become a republic; and

A2. The consequences to the Federation if one or more States should decline to accept republican status.

B. That this Convention is of the view that:

B1. Any move to a republic at the Commonwealth level should not impinge on State autonomy, and that the title, role, powers, appointment and dismissal of State heads of state should continue to be determined by each State.

B2. While it is desirable that the advent of the republican government occur simultaneously in the Commonwealth and all States, not all States may wish, or be able, to move to a republic within the time frame established by the Commonwealth. The Government and Parliament should accordingly consider whether specific provision needs to be made to enable States to retain their current constitutional arrangements.

 

This, I think, is the last one in the Resolutions Group's work. The subject `implications for the states' is of some significance. There are three parts that the Resolutions Group has divided the consideration into. The first part is the amendment moved by Sir James Killen. It is a process motion recommending that the government and parliament, in effect, involve state governments and parliaments in consideration of their own constitutions on the question of becoming a republic.

The second part is the distillation of the recommendations of the working group chaired by Professor Winterton. This involves the retention of, in effect, existing state powers and state roles. It contemplates that the Commonwealth might adopt a republican status and that the states might not at the same time move uniformly to that status, although obviously four would have to support a referendum. The amendment to B, the third component, is the resolution that requires the Commonwealth and every state simultaneously to become a republic or remain under the constitutional monarchy. There is more detail in that. The choice between B, which represents the existing situation, and C, which on some arguments is also supported by some constitutional provisions, is that all states have to agree. So the choice is between a majority of states agreeing and all states agreeing.

 

Mr GARETH EVANS- I second the motion.

 

CHAIRMAN- We have heard the report from the Resolutions Group. It is covered by the statement on page 8 of the blue document- `Implications for the states'. There is a series of proposals. I suggest that we might consider first A1 and A2. Are there any amendments to A1 and A2? Is there any comment on A? There being no comment, I put A to the vote.

Motion carried.

 

CHAIRMAN- There is an amendment to B.

 

Professor FLINT- I move:

 

Amendment: that resolution B be replaced by the following:

That this Convention is of the view that

(i) A decision on change to a republic should be made in such a way that either the Commonwealth and every State simultaneously become republics or all remain monarchies.

(ii) The change to republics should only occur if majorities of Australian voters and of voters in every State support the change.

(iii) The most practical and symbolically satisfying way of resolving the republic issue is by a referendum in which the change will occur only if majorities of Australian voters and of voters in every State support the change and if every State Parliament requests it.

(iv) Only successful cooperative federalism can bring about the resolution of the republic issue and Commonwealth and State governments must work together from the outset to facilitate an effective resolution.

 

Brigadier GARLAND- I second the motion.

 

CHAIRMAN- Do you wish to speak to it, Professor Flint?

 

Professor Flint- Yes. It is self-evident. There are, of course, two opinions. One opinion is that you need to move simultaneously. That is also desirable. The other opinion is that in the RAC report. We are of the view that, even if you do not accept the view that you should move simultaneously, we should do it prudently. The amendment is the correct way to go.

 

CHAIRMAN- I think we know what the alternatives are. We have had a good deal of debate on it today.

Amendment lost.

 

CHAIRMAN- I put B to the vote.

Motion carried.

 

CHAIRMAN- I think that is it. Does anybody have any further amendments?

 

DELEGATES- No!

 

CHAIRMAN- The voting rules and sample ballot papers for tomorrow's exhaustive ballots have been circulated. I urge delegates to study them for tomorrow.

 

Convention adjourned at 10.01 p.m.


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