The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Friday, 13 February 1998
Page 4

RESOLUTIONS GROUP

DEPUTY CHAIRMAN- The next matter is the determination of transitional and consequential issues. The document is headed `Resolutions Group: Resolutions on Consequential Matters', and has been circulated separately. It begins with headings on Timing and Circumstances of any Change, Title, and Membership of the Commonwealth of Nations. I make the point that a number of these issues have been discussed together. Whether it will prove to be necessary for us to deal with the issues absolutely independently is in the hands of the conference. They will be introduced by the Attorney-General, the Hon. Daryl Williams.

Mr WILLIAMS- On behalf of my joint rapporteur and me, I move:

That this Convention notes its earlier provisional and indicative votes and resolves as follows:

(1) Timing and Circumstances of Any Change

• A. That a referendum for change to a republic or for the maintenance of the status quo be held in 1999. If the referendum is in favour of a republic, that the new republic come into effect by 1 January 2001.

  B. That prior to the referendum being put to the people the Government undertake a public education program directed to the constitutional ant other issues relevant to the referendum.

(2) Title

That in the event of Australia becoming a republic, the name "Commonwealth of Australia" be retained.

(3) Membership of the Commonwealth of Nations

That in the event of Australia becoming a republic, Australia remain a member of the Commonwealth of Nations in accordance with the rules of the Commonwealth.

(4) The Preamble

In the event of Australia becoming a republic:

• A. That the Constitution itself (as distinct from the Constitution Act) include a Preamble.

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Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.

  C. That the Preamble to the Constitution should contain the following elements:

  • C1. Introductory language in the form "We the people of Australia";

    C2. Reference to "Almighty God";

    C3. Reference to the origins of the Constitution, and acknowledgment that the Commonwealth has evolved into an independent, democratic and sovereign nation under the Crown;

    C4. Recognition of our federal system of representative democracy and responsible government;

    C5. Affirmation of the rule of law;

    C6. Acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders;

    C7. Recognition of Australia's cultural diversity;

    C8. Affirmation of respect for our unique land and the environment;

    C9. Reference to the people of Australia having agreed to re-constitute our system of government as a republic;

    C10. Concluding language to the effect that "[We the people of Australia] asserting our sovereignty, commit ourselves to this Constitution";

    C11. A provision allowing ongoing consideration of constitutional change.

  D. That the following matters be considered for inclusion in the Preamble:

  • D1. Affirmation of the equality of all people before the law;

    D2. Recognition of gender equality; and

    D3. Recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia's indigenous peoples.

  E. 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.

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

(5) Oaths and Affirmations

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 Convention notes that 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 Convention notes that 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.

(6) Miscellaneous Transitional and Consequential Issues

That in the event of Australia becoming a republic:

• A. The Commonwealth Government and Commonwealth 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, if and where appropriate, 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.

(7) Qualifications of the Head of State

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 be eligible to vote in an election for the Senate or House of Representatives at the time of nomination;

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

  D. 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

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

(8) Implications for the States

• A. That the Commonwealth Government and Parliament extend an invitation to State Governments and Parliaments to consider:
  • Al. 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 timeframe 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.

SUPPLEMENTARY RESOLUTION\TOC\1

(1) Title of the head of state

That this Convention notes its earlier indicative vote and resolves that in the event of Australia becoming a republic, the title of head of state should be "president".

I indicate that, for unknown technological reasons, the supplementary resolution at the end of the motion fell out of the machinery and is on a separate piece of paper headed `Resolutions Group: Supplementary Resolution. (1) Title of the head of state'. There was an earlier provisional and indicative vote, if not a final vote, and I would suggest that the Convention is able simply to take them as a whole, subject to any contrary ruling from the chair.

The terms of the resolutions are, except in two respects, identical to the terms on which they have been previously voted. The provisions that have been altered have a line against them in the left margin. The first is in (4) The preamble, paragraph A. The substance is not changed; it is simply a shortened version. The second one is B and C in (5) on page 3. There the introductory words to the models of oath or affirmation were slightly amended to make it clear that in each case they are illustrative rather than directive. Mr Deputy Chairman, these issues have been debated at great length in the past, and I suggest the Convention will be able to deal with them relatively quickly.

Mr GARETH EVANS- I second the motion.

DEPUTY CHAIRMAN- I will go through the headings to see whether there are any questions or difficulties with them and we can take a vote on them as they come up. No. (1) Timing and Circumstances of Change; (2) Title; and (3) Membership of the Commonwealth of Nations.

Motion carried.

DEPUTY CHAIRMAN- The next is (4) the preamble, about which we talked at some length. Are there any difficulties with the preamble?

Mr RUXTON- We have a preamble that is going to take up about an A4 page in the proposed new Constitution. At present it takes about nine lines. I support what Professor Craven said yesterday. I do not believe that these extraneous issues that have been introduced into the preamble should be there.

Mr GROGAN- I simply say there has been a lot of debate on this and a lot of support. With the addition of item D3, the concerns that anyone has about the legalities should in my view fade away so that people can rightfully support these principles being there without any concerns about those issues.

Ms BUNNELL- I stand before you as a member of local government for 10 years. I realised on the floor of the Convention the other night that the issue of local government constitutional recognition was lost. I believe it was lost for various reasons, some procedural. I would like it stated in Hansard that I believe the constitutional recognition of the issue of local government should go forward. I realise it is not in the preamble.

Dame LEONIE KRAMER- I simply want to remark that this is very far from being a preamble. It is more like a compendium or a wish list. I know it is too late for me to say this, in a sense, but I want to register the view that the whole philosophy behind this is mistaken.

Mr ANDREWS- On a minor typographical matter: in item F the word `provision' should read `provisions'.

DEPUTY CHAIRMAN- Yes, that is an obvious typo. We will fix that up.

Mr CLEM JONES- I want to strongly support Ms Bunnell. Local government in Australia has long had tremendous responsibilities but no representation. I commend to all delegates that in the long term in some way local government has to be given recognition in our Constitution.

Ms ANDREWS- I rise to support the various aspects of the preamble that we have here. I think we have worked extremely hard over the last 10 days to ensure that we identify what it is we have in common rather than what we have that divides us. This new preamble to the Constitution ensures that we will be able to recognise Australia as it is today, and I urge you to support that.

Brigadier GARLAND- It seems to me that we have a bit of a nonsense here and what we are likely to see is a Constitution that will be as big as the Tax Act. These matters are all very important but to include them in the preamble means that nobody will take any notice because they will refer to F which states:

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

The only thing that is missed out of this particular list is: `I love my mother.'

Mr SUTHERLAND- I again wish to revisit the question of the recognition of local government. I think it failed primarily because the drafters just simply put up `recognition of local government' without including the word `democratic'. What we have to acknowledge is that at the time of Federation local government was not included in the Constitution because it largely did not exist in a form of democratic local government.

It is tragic that, nationally through our Constitution, we do not express a desire, a wish and a will that there be a democratic system of local government guaranteeing territorial spread of community representative government across the nation. If it is democratic, it means it guards against the system of the arbitrary dismissal of councils which, from my experience of nearly 40 years in local government, was largely done for political reasons. If there is a council removed or dismissed, it should be the same as it is in state and federal governments. There should immediately be arrangements for a fresh election. Sadly, in the state of New South Wales in Sydney, we have had an instance of the dismissal of an appointed council, Randwick City Council, and administrators were in there for nearly five years which spread across both political parties and governments.

DEPUTY CHAIRMAN- I hesitate to interrupt but, if you want to move an amendment and there are more than 10 supporters for it, you can do it.

Mr GARETH EVANS- Not `more than 10'; it has to be with leave of the Convention.

DEPUTY CHAIRMAN- I am sorry, with leave of the Convention. But I do not think we can have a substantive debate on local government unless somebody wants to move an amendment.

Mr GARETH EVANS- Don't encourage them.

DEPUTY CHAIRMAN- I am not encouraging them, Delegate Evans, but it is just as well for them to be aware of their rights.

Mr WILCOX- I only wish to repeat something that I have said before, and that is the warning about putting words into even preambles. It is sometimes thought that preambles do not matter but, as I said recently, the courts will take absolutely anything into consideration today, and there is no shortage of litigants to see that they have the opportunity to do so.

Whilst I support almost all of what is proposed as set out in the preamble, where we are asking to have the following elements contain something about them, you get all sorts of difficulties. That goes on to not only C, but D. I will just pick out a couple. There is the environment, which is as long as a piece of string, and gender equality which is even longer than a piece of string.

I conclude my remarks here by going on to E which says, very wisely- and this will cause great problems for the government and the parliamentary draftsmen- 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. The way the High Court today wants to get into the areas of the legislatures, you will have to be pretty good to stop them, but beware.

DEPUTY CHAIRMAN- I take it you will be available for consultation.

Mr WILCOX- At about the sort of fees that James Killen was going to charge to mediate between the republicans.

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