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The Foundation for National Renewal |
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The Constitutional Convention of February 1998 |
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A missed opportunity for much-needed reform. |
| Introduction | Delegates | Proceedings | Summaries |
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TRANSCRIPT OF PROCEEDINGS
Ms HOLMES a COURT- Like Kirsten Andrews, I am in favour of the essence and the philosophy of this. I would like to ask my friend, Mr Williams, the Attorney-General if, after his people have had a go at this, can we please send it off to some of our poets and writers? We need the smell of eucalyptus in this and the feel of red dust. We need to have the feel of swimming in the Australian sea, and all those things that make us feel so passionate about this country and love it so much.
Dr GALLOP- What about eating beef?
Ms HOLMES a COURT- Eating beef and no feral cats. I believe we can now do something wonderful with this preamble.
Ms RAYNER- I came to this Convention hoping for a discussion, a debate, and the working out of a new vision for Australia. Along with my fellow delegate, Tim Costello, I endorse the result of this Convention, because Australia will finally get an Australian as a president, and we have talked about the sorts of relationships that citizens should have with their government. But I am deeply disappointed at the pragmatic, prosaic and business-like way in which we have avoided making any commitment to the people of Australia, even in this preamble. What we have is a preamble which is a list of instructions to the parliamentary draftsperson. And that list of instructions, even as cursory as it is, is still attacked by those who would wish to see the Constitution, developed more than a century ago, etched in concrete forever. Though we have references to very important matters, we have managed to fudge in paragraph D: our commitment to affirmation of the equality of all people before the law; to recognition that women and men are equal; and even to any sort of recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia's indigenous peoples. We have simply left that for consideration, rather than saying we were committed to it. This is despite the fact that, after much debate and two defeated motions on the floor, we finally wimped out completely and said in paragraph F that chapter 3 of the Constitution should say that our preamble must not be used to interpret the other provisions of the Constitution. Even if we refer this preamble to our poets- Les Murray for example- for the pong of eucalyptus oil, we will still have, at the end of this brilliant, lyrical ode to the quality of Australian character, a statesmanlike phrase that `the above is inapplicable in terms of our statutory rights and responsibilities'. How bloody stupid!
DEPUTY CHAIRMAN- Don't use that language in the Convention.
Ms RAYNER- I withdraw the word `bloody'. I agree with you. That was unparliamentary language and I apologise to delegates too, but it expresses the frustration I feel that the issues I came here to debate were taken off the agenda on the first day.
Mr RUXTON- I was very offended.
Ms RAYNER- Mr Ruxton, please restrain yourself.
DEPUTY CHAIRMAN- Mr Ruxton, please contain yourself. You are not helping the deliberations.
Ms RAYNER- I believe this Constitution of ours should have a preamble. I am glad that we have at least got a list. But I wish the people of Australia to know that we have missed an opportunity to inspire this new republic of ours with a spirit of equality and fairness. Ms DELAHUNTY- I rise to support this without the pessimism of my fellow Victorian delegate Moira Rayner. I also came to this Convention imbued with a tremendous sense of possibility, Moira, as you know, for what we could do here together. Some of the possibility has been dimmed, and the preamble is one area where I feel disappointment; however, this Convention has been about the art of compromise, about crafting what we can give to the Australian people. I stand here to support this today because we have before us dot points that say what has been silent in our Constitution up until now: affirmation of the rule of law; recognition of Australia's cultural diversity; recognition of gender equality; recognition that Aboriginal and Torres Strait Islanders have continuing rights by virtue of their status as Australia's indigenous people and so on. It is true that what we have created in this list of principles is, if you like, a constitutional White Pages, but it is certainly substantially superior to what exists in the Constitution now. I urge you to support it.
Ms THOMPSON- The subject of the preamble was high in the minds of most of the delegates at the Women's Convention two weeks ago. I do not think the people who were there were any different in that than most of the people who are here and most Australians. The idea of the preamble is to give us a vision, something which we can stand up and say what we believe in. Imperfect as this list may be, imperfect as the drafting instructions may be, this is our unity document, this is our chance to come together and say, `We believe these things are true.' Please support the preamble.
DEPUTY CHAIRMAN- I now put section (4), the preamble. Would those in favour please indicate.
Mr BULLMORE- Can we put E and F of section (4) separately?
DEPUTY CHAIRMAN- I do not think so at this stage. There would have to be a motion from the floor, and we have now concluded the debate, so I do not think it would be proper to put an amendment at this stage.
Mr CLEM JONES- On a procedural point, can we take A to F seriatim? There are a number of things in here that I disagree with. I strongly want to vote for D, and I do not think it fair, with the complexity of the issues that have been listed before us, that we should be asked to vote for them as a whole.
DEPUTY CHAIRMAN- I am in the hands of the Convention, but nobody has proposed a procedural motion up until now. I said to Mr Bullmore that I thought it was too late. We have started the voting procedure.
Mr CLEM JONES- I was on my feet-
DEPUTY CHAIRMAN- I had already ruled against Mr Bullmore. I put the question that we treat section (4) as a whole. Motion carried.
DEPUTY CHAIRMAN- We now proceed to section (5), Oaths and Affirmations. Professor PATRICK O'BRIEN- In my view the oath or affirmation is not strong enough. There is a peculiar contradiction involved in B which states:
[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.
The rights that we have agreed to are very minimal ones which will be the rights that are declared under law. But they are certainly not rights as they have been traditionally known, because clearly this Convention decided very early in the piece not to even contemplate discussing a bill of rights that was proposed by Moira Rayner and me. I am being quite serious. I think it is Orwellian newspeak to put that in without actually seriously considering a bill of rights. An oath must not have Orwellian newspeak in it. The words must mean something serious. If we are going to swear to uphold rights that we do not have, it is very silly. To say `its people whose democratic beliefs I share' is alright, but there are many different perceptions of democracy. We have not agreed on that at this Convention. Moreover, it lacks the most fundamental quality of an oath to be taken in what by any reasonable measure could be called a democratic republic. Even those who wish to deny the practical sovereignty of the people on the republican side here still define a republic as a polity in which sovereignty rests with the people. That must be included in any oath. I know it is too late to make the amendment. I shall vote against it simply because it misses the key quality of what a democratic polity is.
Brigadier GARLAND- Oaths or affirmations of fealty or allegiance are for ever or until released from that oath by the entity to whom the fealty was pledged. Oaths are not just words to be mouthed. The decision by this Convention not to request the Queen to release all of those who have pledged allegiance to her, her heirs and successors will cause a great deal of angst to millions of people in Australia, who like Mr Edwards, have pledged loyalty to her, actually- not what he would like to do, but actually. I believe it is a grave omission from this particular resolution that that which was put forward by Archbishop Hollingworth and Professor Craven on this matter has not been included for people to vote on.
Mr EDWARDS- As the convener of the group that dealt with the question of the oath, I am entirely comfortable with it, and indeed it is one should be supported. When we talked about the oath in the working party, there were four people who were from the monarchist side. We gave good deliberation to this matter. There was some very straight talking and exchanges. What we came up with was indeed a consensus. The wording of this oath has passed through two votes of this chamber so far and that, too, indicates the consensus that we achieved. There was, however, in the Resolutions Group a final sentence added, but I understood that to be by way of a model for those who will eventually put this together to consider. In conclusion, I reiterate that the oaths that I have sworn at various times in Australia I am sure would have been much more meaningful to me if I had been able to swear allegiance to Australia and to its people rather than to the Queen, her heirs and successors.
Professor BLAINEY- I was a member of the working party which Mr Edwards ably chaired, and he is quite right in saying that the bulk of the proposition before us was agreed by the working party. In the debate at the Convention, likewise, there was agreement, but very late the Resolutions Group put in the last sentence, which, to my mind, contradicts the previous oath. I wonder whether the Resolutions Group could explain why they decided to put in an additional oath which removes the phrase `undivided loyalty'. To my mind, undivided loyalty is a vital phrase. It was a compromise phrase which Mr Edwards, as chairman, got agreement on. It seems to me a pity at this stage that the Resolutions Group should have added something so different.
DEPUTY CHAIRMAN- My recollection was that it was simply to say to the draftspeople that there should be an alternative between a longer, more elaborate form and a shorter form. I think it was just that.
Mr WILLIAMS- Mr Chairman, I cannot recall the detail of the discussion of the Resolutions Group now, but the reason it is in the present form is that what came forward was seen as being illustrative of the objectives rather than something that was wanted in a final draft form. Everything that has been said in the debates is able to be taken into account in the preparation of any form, so I really do not think that we need detain ourselves any longer with it.
Mr WRAN- I move:
That the question be put.
Motion carried.
DEPUTY CHAIRMAN- I put the resolution that we adopt section (5)- oaths and affirmations. Motion carried.
Ms MOORE- Mr Deputy Chairman, before we move on to (6), I did a really dumb thing in respect of the preamble. I thought you were asking us whether we wanted to consider it as a whole or not, and I voted against that. I would not like anybody to think I was voting against the preamble as listed, because I fully support it. Thank you.
DEPUTY CHAIRMAN- Are there any speakers on (6)- miscellaneous transitional and consequential issues? As there are no speakers on (6), I put the question. Motion carried.
DEPUTY CHAIRMAN- Are there any speakers on (7)- qualifications of the head of state? As there are no speakers, I put the question. Motion carried.
DEPUTY CHAIRMAN- Are there any speakers on (8)- implications for the states?
Mr FITZGERALD- I have a question for the Attorney-General, or someone who could advise us, preferably the Prime Minister: if a referendum is carried in the majority of the states that they wish to have a republic, with the other proviso, the majority of the people, will the amended Constitution override the constitutions in the states?
Mr WILLIAMS- The answer really depends upon what the formulation is that is put to the referendum. This is a subject that is extremely difficult, as was indicated in the debate at the time. There are differing views even on the effect of a 128 referendum passage in relation to some matters. I suggest that this is not really the occasion for technical legal disputes. Mr FITZGIBBON- Could a determination be made by the High Court so the people knew exactly whether 128 would override the Constitution of a state that voted no?
Sir JAMES KILLEN- They don't give advisory opinions.
Mr FITZGIBBON- They do not give advice.
DEPUTY CHAIRMAN- No. I think advice is available over in the far corner.
Mr JOHNSTON- Is it really advisable to put this sort of question if we are not sure what the answer is? We still do not know exactly what the answer is. I think Mr Fitzgerald made a very valid point. I think we should have a determination on the specifics because, first off, we do not know them. We are being asked, basically, to sign a blank legal cheque. I am certainly uncomfortable with this vote.
Mr TURNBULL- Delegates are not being asked to sign a cheque of any kind- blank, republican, legal or whatever. I draw delegates' attention to resolution 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.
This is entirely consistent with the sovereignty of the states of Australia. As to the question that Mr Fitzgerald asked about the effect of section 128, it is an interesting question but it is not pertinent to this particular resolution which deals with your substantive concern.
Mr BEATTIE- I just want to make certain that the record is very clear on this, and take off where Malcolm Turnbull left off. If you look at what (8) says, it says:
That the Commonwealth Government and Parliament extend on invitation to State Governments and Parliaments to consider:
We are not determining anything. We are giving state parliaments the opportunity to consider this, as Malcolm Turnbull points out. This is very important to an earlier contribution I made. Resolution B1 says:
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.
That is absolutely clear. There is no doubt about this at all.
Mr RUXTON- My question is to the Attorney. During the past couple of weeks, the Australia Act has been mentioned many times. If a referendum is held, do all the states have to agree? The Constitution says at present that a majority of states have to agree. But because of the Australia Act 1986 I have gathered in my own mind that all the states have to agree.
Mr WILLIAMS- For an amendment of the Constitution what is required is compliance with the provisions of section 128. I think the Australia Act is dealing with another issue that does not arise directly on the provisions of the Constitution.
Sir JAMES KILLEN- My point is a short one. The wording was worded, I trust, with appropriate felicity and certainly with courtesy. It is an invitation to the parliaments to consider it. The word `government' has been put in. I am not distressed about that. But to me it is a very important point. It is not directing the states; it is an invitation to the parliaments of the states to consider their implications. I take leave to say that is where the bogging will really start.
Mr BRUMBY- In support of Sir James's comments, I was on this working group and I want to stress the point that Peter Beattie has made. Resolution B1 says:
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 head of state should continue to be determined by each State.
This was a strongly held position that nothing in relation to this matter should impinge on state autonomy. We want to make that absolutely clear. Similarly, we went on to say earlier in the resolution that it was an invitation; it is not directing the states. We go further in B2- and this has now come through in this final recommendation- that if there are any states, for any reason, which did not wish to be part of that national republic, then that ought to be a matter for them, should they be unable or unwilling to do so. As I remarked to you two days ago, I think the likelihood of that occurring would be very remote. The likelihood that the Queen would want to remain as the Queen of a state in a national republic is extremely unlikely, if not impossible. It would be like the
events we had several years ago when imperial honours were
disbanded. Some states wished to continue with their own system
of state imperial honours and the Queen resolved at that time
that it would be inappropriate to do so because it would be in
contradiction of what was occurring at a national level. I think
there is a bit of heresy and mischief being created here. We do
not want to compel the states; no-one does. They have autonomy,
but the reality is that, if we move via referendum to a national
republic, it is inconceivable that states would wish to hold out,
particularly if the Queen said she was not interested, in those
circumstances, in remaining as the Queen in a particular state. ·=============== Last updated: 21 October 2000 | |||
