Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Standing Committee on Legal and Constitutional Affairs report Reforming the Constitution: A roundtable discussion. When I was a kid in grade 1 in 1971—that is going back a while—Australian history, as I recall it, was comprised primarily of lists of white explorers and the dates on which they encountered various parts of Australia. I still remember some of the dates that were flogged into me, I guess, by the nuns, such as when Thomas Mitchell crossed the Balonne River on St George’s Day, 23 April, and I remember Burke and Wills. So much of our history back then was about white explorers and how they encountered Australia. The other bit that I particularly remember from my childhood education was the drawing of maps, rivers and towns—particularly rivers, where it was all about drawing the river accurately. Obviously, our approach to Australian history has changed significantly since 1971 and the time that I finished school.

So how do we make sense of the modern Australia and have an inkling as to its future direction? As I said, the Australia that I grew up in during the 1970s and 1980s had a very ‘whitefella’ approach to what constituted Australian history. It was all about explorers and the like. I would like to refer to a quote by Robert Alter in a book called Commentary in 1970—it is a literary commentary, but I think it is relevant here in terms of looking at Australia’s role in the world.

People who shrilly insist on the uniqueness of their own identity are likely to be insecure about it.

Robert Alter is an American commentator and—I do not have the whole text in front of me—I assume he was talking about the US experience rather than the Australian experience. The quote is actually from A Map of Australian Verse by James McAuley, which is a history of Australian poetry.

The reason I refer to that quote is that the legal and constitutional affairs committee has spent a lot of time and resources talking about how our Constitution could be reformed. We do so in the context of being a people who do not shrilly insist on the uniqueness of our own identity. There are certainly some obvious Australian characteristics, especially when it comes to politics: we are very sceptical of our politicians; our politicians do not have the same religious affiliations that might have once been there but are certainly not present in the modern Australia; we do not have the US approach in terms of saying, ‘This is what defines an Australian culture,’ because we have always been, I guess, a multicultural community. Even when we did not write a history that reflected that multicultural community, we were a multicultural community.

That brings me to the efforts of the Standing Committee on Legal and Constitutional Affairs. The Australia that the committee is a part of is a very different Australia from the one that I experienced when I was a child. It is not so Anglocentric. We are particularly relaxed and comfortable as a nation when it comes to talking about politics. We have realised that the Australian history has many more explorers. For example, we understand that it was not just James Cook and a few other English blokes—there were the Macassans, who landed in the Darwin area long before Captain James Cook landed in Australia in the 1770s. We also know the role of the Chinese explorers and the Dutch, who more than 400 years ago had already settled in Australia. Then there are the French, the Portuguese and many other groups. I was even approached by one of my constituents who assured me that much of the gold in the Egyptian pyramids came from Gympie. I hasten to point out that I do not subscribe to this view of history, but nevertheless it is a view that is put out there by some of the more adventurous members of my electorate.

The Australia of 2008 has a much broader history. It recognises—and I say this proudly—that Aborigines and Torres Strait Islanders have played a much more significant role in our history than just some bloke called Bennelong who went off to England. Obviously we now recognise many other significant individual Aboriginal and Torres Strait Islanders, such as Jandamarra, Vincent Lingiari, Oodgeroo Noonuccal, Lowitja O’Donohue, Neville Bonner et cetera, and I have not even started on listing sports people because I thought if I started there the list would go on and on. The Australia of 2008 recognises that Aboriginal and Torres Strait Islanders played a very significant role in our country long before white men first landed here—or Macassans or Chinese et cetera.

I started this speech by talking about when I was in grade 1 in 1971. When I was in grade 5, the Racial Discrimination Act came into force. Then, if we just go forward a few years to 3 June 1992, the High Court handed down its Mabo decision, which forever changed our view of Aborigines and Torres Strait Islanders because they were no longer classified as fauna, which had been the convenient fabrication for much of Australian history. To digress, it is interesting that Torres Strait Islander Eddie Mabo’s case about individual ownership, which was all about his individual ownership of a block of dirt or some fish traps and the like, failed. Other claimants were successful, but Eddie Mabo’s case actually failed. If you look at the Queensland Supreme Court decision, he failed at first instance. Then, amazingly, the High Court was able to make that leap about individual ownership of property—which is quite common in Torres Strait Islander culture—and transfer that over to an Aboriginal collective ownership of property. From there we had the Mabo decision and moved on to the Native Title Act.

The reason that I give this lengthy introduction is that the House of Representatives Standing Committee on Legal and Constitutional Affairs is looking at what makes Australia. We are looking at our Constitution, that document which is up on level 1 and level 2 of this House and which is an act of the British parliament dated 9 July 1900, and which is pictured on the front of the report. We are looking at the future of Australia. As the report indicates, referendums that have attempted to change this very old document have not been successful. Since 1901, there have been 44 referenda proposals but only eight have been successful.

One of those was the 1967 referendum proposal about changing the way in which we approached Aborigines and Torres Strait Islanders, which was an incredible decision. It is easy to see now in the atmosphere of 2008 that it was right, but 1967 was a completely different world. It was a segregated world in many country towns—certainly where I came from was a segregated town. It was a time of freedom rides in Australia. It was a different world. But still we had an overwhelming majority of Australian people say, ‘We want fairness to come to Australia.’

We then leap forward to Mabo in 1992. In 1993 there was Paul Keating’s Native Title Act. Then there were later decisions, such as the Wik decision in the High Court and the Yorta Yorta decision. We can even look at John Howard’s 10-point plan, which I will not comment on. After all of these progressions in Australian history, we still have section 25 of the Constitution, which, according to a common-sense interpretation, despite its initial intent, is still discriminatory. This is one of the key things that the committee was looking at in its roundtable discussion.

Before I speak more about the roundtable discussion, I commend the people who turned up in Canberra to have input into the discussion. I also commend the chair, Mark Dreyfus QC, for the team that he put together. It was an edifying day for me. It was a great occasion for me to get some further understanding of this white fella document that has governed so much of Australia for so long.

One of the key topics that the committee looked at was how to amend the Constitution. Obviously, there is a school of thought that, with only eight out of 44 referenda getting up, the Australian people must be doing something wrong. I am quite comfortable with that ratio, because I believe that the Australian people always get it right. Even though I campaigned for the republic on 6 November 1999, I understand that the Australian people will only vote for something like that if we are to take the Australian people with us, even when someone is trying to shove a preamble down their throat, like John Howard tried to—with all respect to Les Murray—or bringing through a constitutional model that the Australian people have not embraced. The Australian people will change the Constitution when they see that the change is right, as they did in 1967 and as they did on one out of three occasions when Curtin and Menzies put up the idea of the dental plan. The Australian people will get it right, but it is up to politicians and leaders in the community to make sure that we move them with us.

We also looked at the disqualification provisions, especially those relating to foreign allegiance and office of profit under the crown. I particularly raise that because I represent an electorate where one in three voters was born overseas. I personally have never thought that, because she was born in Wales, someone such as Julia Gillard would somehow not be loyal to Australia if she happened to have a Welsh passport. That is ridiculous. We also looked at parliamentary terms. Coming from Queensland where we only have one house, a unicameral system, and we do not have four-year terms, I have some interesting perspectives. We also looked at federal-state relations. The Rudd government will set some new standards in terms of what can be achieved when we work cooperatively. However, it is still the role of the federal parliament to look at some of the practical functioning implications for the rest of Australia. I have already touched on Indigenous recognition and the possibility of a new preamble. We saw from the apology in February that some symbolic things have a lot of resonance and a lot of weight in the Australian community. We also looked at citizenship and a bill of rights.

From that, I will segue into my last comment, which is that, when I have talked to kids in schools as a teacher and as a politician, often kids will talk about their bill of rights or even their Constitution. This might be due to the fact that Nicholas Cage’s movie National Treasure was so popular—I am not sure. I think that there is even a sequel, National Treasure II. There has never been an Australian version of National Treasure. Kids can quote their rights, but obviously they are quoting from the US Bill of Rights and are not aware—which is why we have this cover: so that we can make the Constitution real for them—that we have a document as well. Hopefully, over the next few years we will be able to engage them with the fact that they have a document that governs their country and that they have a right and a responsibility to make sure that it is an accurate document.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in relation to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Reforming our Constitution: a roundtable discussion. I want to first pay tribute to and thank the member for Isaacs for his bipartisan nature and the way in which he chaired the meetings. Members of the committee approached his chairmanship with confidence. I thank him very much for the leadership he showed in the committee. The constitutional change that we have experienced in this country over such a long time has gone not just at a Darwinian evolutionary pace but a glacial pace. We have not seen any constitutional change by virtue of referenda since the mid to late 1970s. We have seen some change caused by judicial interpretation, if not activism, and some change in relation to intergovernmental negotiation and referral of powers. But change by way of referendum with the majority of votes being cast by Australians in a majority of states has been a cautious and a reluctant experience for the Australian community.

In the lead-up to the 2020 Summit, I conducted a number of fora—2020 summits in schools—in my electorate of Blair in south-east Queensland. Of all the topics that were looked at by the grade 12 students in the various schools, both urban and rural, the one that caused them the most angst and vexation was the future of Australian governance. What struck me was that, whilst the grade 12s were across agricultural issues, multiculturalism and economic pressures on their families, the future of Australian governance was not really to the fore. Very few of the children in the classroom understood very much about constitutional arrangements in the federal system of government, which we have experienced since the turn of the 20th century.

I note that there were five big ideas arising out of the 2020 Summit—an Australian republic; collaborative governance, through revolutionising the way government and communities interact; a modern Australian federation, through reinvigorating the federation; a bill or charter of rights for all Australians, including Indigenous Australians; and open and accountable government. These are values and aspirations which I share. The idea of a preamble in the Constitution to recognise the first people’s custodianship is also a worthy goal.

Coming from a background as a practising lawyer, the roundtable summit was perhaps the most fascinating and interesting experience that I have had since I was elected to this House. The roundtable was very interesting for me because I have read articles, essays and books from the eminent scholars who on 1 May 2008 came to this place here in Canberra. I thank them all for their participation. I was somewhat in awe of their intelligence and breadth of experience in constitutional and legal matters. I also thank all the members of the committee who participated.

There are three main ways that we change the Constitution in this country. The first is by referendum. That is the highest benchmark and probably the one that we should aspire to the most. As I said, the Australian public has shown caution and reluctance to make changes through referenda. Perhaps when it comes to this issue I am, for one of the few times in my life, to the left of the member for Moreton. I do not think we always get it right when it comes to constitutional change. I think 1946 was the last time this side of the House proposed a successful referendum to the Australian people without the support of those opposite. They have had more success. We have only had eight successful referenda out of 44, and that is very sad, in my view. We have then gone about other ways and means to effect change, perhaps of a less consultative nature, and that has not been a good thing. I have very democratic sentiments, as do most if not all of the people in this House, and I believe it is important that the Australian public be involved in this process.

The idea that somehow we can rely upon judicial interpretation and activism is not a good thing. That activism and interpretation has waxed and waned over the years. We have seen it evoke criticism from both sides of the House. When there have been liberal interpretations of the Constitution, those on the other side of the House have criticised it. But when the High Court has taken a lacklustre, legalistic, conservative approach, those on this side of the House have been critical. Resorting to the idiosyncrasies and peculiar eccentricities of legal interpretation to effect constitutional change is to me a second-best option. Relying upon intergovernmental negotiation and referral of powers without any real parliamentary oversight is not really the best way to go about constitutional change. The proliferation of many agreements without any automatic referral to a parliamentary committee is also not a good thing. I applaud the recommendation of the committee which said:

The Committee recommends that the Australian Government introduce the requirement for intergovernmental agreements to be automatically referred to a parliamentary committee for scrutiny and report to the Parliament.

I think that is a very good recommendation and I ask the government to take it up.

Section 44(i) of the Constitution lacks certainty and clarity with respect to the disqualification of people from becoming members of parliament. In this era of multiculturalism, with many people holding dual citizenship, it is really quite extraordinary that people who come to live in our country and show a degree of commitment to it cannot be elected by the people to this parliament without having to renounce their citizenship elsewhere. I think we should have a look at this again. Disqualifying many people from becoming members of parliament and causing them financial disadvantage by saying that they are exercising offices of profit under the Crown is really quite an antiquated notion. People change jobs and retrain; we have a great deal of social and vocational mobility in this country. I think section 44 needs attention. Even though I am a proud Queenslander, I have some criticism of my own state of Queensland. Queensland really ought to move to four-year parliamentary terms. The other states have moved to that, and the Commonwealth, like Queensland, also needs to play catch-up.

I have some concern about how the Australian public would consider the notion of electing senators for eight years, and that idea of a nexus. I think that we should be looking at changing the duration of time that senators serve on behalf of the people. I also think we should have a good look at the idea of four-year fixed terms as well. The timing of the Senate is really quite strange. The idea that someone like, say, Senator elect Mark Furner from Queensland could be elected on 24 November 2007 and have to wait until 1 July 2008 to take up office is quite strange and quite extraordinary. I am sure that the average person in the street would think that was an odd thing indeed. I think the climate is ready for a change in that regard. If people generally knew that that is the provision in our Constitution they would think better of us for seeking to change it.

There are very few rights in our Constitution. The founding fathers—and they were all founding fathers; not founding mothers and fathers—were nonconformist when it came to issues of religion. So we have section 116 as one of the few rights in our Constitution:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

It would really surprise a lot of people that we do not have rights as the Americans would consider them. The Americans adopted a Bill of Rights in 1791. I would like to see a bill of rights constitutionally included, although I am not confident that the Australian people would accept that. The notion of Professor George Williams, who has been an advocate for a human rights charter, is a good one. It has been adopted in Victoria—the Charter of Human Rights and Responsibilities. The UK in 1998 adopted a law of this kind. I think it could serve an educative role in our community. It is important that it is about not just rights but also responsibilities. It is important that one of those responsibilities is that we obey the law and respect the rights of others. That is crucial to the notion of a fair go for all. Victoria has done this, the ACT has done this, New Zealand has done this and the UK has done this as well. I think this would bring human rights issues to the fore when any law was passed through this parliament. It would not fetter the sovereignty of the parliament. It would not involve judges interpreting and applying laws, but I think it would bring to the attention of the Australian people where a law was being passed that was contrary to the charter of rights and responsibilities. It is a good way, as Professor Williams says, of weeding out bad laws while leaving the decision of how to fix the problem with elected representatives.

I would like to see the Constitution changed insofar as the preamble is concerned. I think it would be a wonderful idea if we recognised the special position of our Indigenous people as our first Australians and recognised their traditional custodianship of the land as well. The recognition of their identity and belonging is also important. It is important that our preamble states who we are, where we come from and what we believe. But I am also concerned about how it would look. The wording of the Australian Constitution and the preamble that we have operated under for so many years is quite archaic, turgid and Victorian in nature. It uses words which we do not often use these days. I am sure if you went out into the street and discussed with the average person things in relation to the preamble using words like ‘Lords Spiritual and Temporal’ they would find it very hard to accept. They would find that very strange indeed. It is time that we looked at the preamble, but I am concerned about how it would look juxtaposed with a constitution that uses such antiquated language. I am concerned about the beauty and the eloquence of such a preamble and how it would sit alongside the Constitution as it is constructed and operating.

It is important that we look at the principles of the Constitution and constitutionalism. I would like to see the preamble looked at in the context of looking at the Constitution as a whole. It is important in 2008 and beyond that we have a Constitution that is modern and that would reflect where we are going, where we are presently and what we believe as a people. It is time we looked at federal-state relations again. There is no way we are ever going to get rid of our state governments. I think the states serve a useful purpose and I am proud to say I come from Queensland. It is time our young people were better educated and our people more engaged in civic and public constitutional issues. I look forward to the day when we have on a regular basis constitutional conventions so that the Australian people can be involved in the process of constitutional change, and their democratic beliefs and their aspirations for the future can be reflected in a document that does not use terminology which is better suited to the 1890s.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

This report of the Standing Committee on Legal and Constitutional Affairs of the House of Representatives entitled Reforming our Constitution: a roundtable discussion is a largely bipartisan report, both as to the need for constitutional change generally and support for some particular reforms such as the removal of the section 25 of the Constitution, which is a directly racist provision, and as to possible changes to section 44, which deals with qualification for membership of this parliament. I thank the speakers who have preceded me, the members for Moreton and Blair, both of them members of the legal and constitutional affairs committee also I thank them for their participation in the roundtable and the work of the committee which has led to this report.

There is an important message in this report in the bipartisanship which is reflected in its text, and that is that there is a recognition by the Legal and Constitutional Affairs Committee that we need to learn the lessons from past experience of referendums. And those lessons are: that without bipartisan support there is unlikely to be change to the Constitution; that to get bipartisan support there needs to be support not only from parliamentarians and members of the major political parties but also from the public; and that there needs to be public involvement and a groundswell of public support.

The Aboriginals referendum of 1967 is probably the best example of the generation of public support and the building of a groundswell. There was a long and very public campaign over some 20 years, and the referendum in 1967 was supported with a resounding vote of over 90 per cent. The Senate casual vacancies referendum in 1977, which was the last occasion on which there was a successful referendum, was prompted by the events surrounding the filling of casual Senate vacancies which, on one view, led to the 1975 dismissal of the Whitlam government. And it could be said of that 1977 referendum that the changes proposed and agreed to in the referendum were well understood; certainly they were resoundingly supported, being approved in all six states and with 73 per cent of the popular vote.

The deputy chair of the committee, the member for Fisher, put the need for community involvement very well on the tabling of this report when he said that the public ‘must enjoy a sense of ownership of the process’. Indeed, this is a recurrent theme in this report. The report looks at the machinery of referendums, which of course is part of the process of constitutional change. The booklets with the yes case and the no case which we currently use are a procedure that was prescribed in 1912 and, quite probably, are a procedure which does not work any longer as a means of informing the public. One of the roundtable participants, Professor George Williams, who is a professor of constitutional law, told the committee that during the republic referendum in 1999 not one of his constitutional law students had read the booklets containing the yes and no arguments. It is apparent that information mechanisms which were appropriate for 1912 are unlikely to be appropriate for 2008 and beyond.

Very many Australians now engage in politics through the net, through television or through other means, and we need to pay attention to this if there is to be community engagement with constitutional change. It is worth recording what another of the roundtable participants, Mr Peter Black, of the Queensland University of Technology law faculty, said on this subject. He referred to a group of Australians as ‘digital natives’, saying that they:

... spend more of their recreation time each week surfing the net than they do watching television, let alone any other recreational activity. They have grown up in this environment. The ability to make the case through YouTube or Facebook applications, or through a range of other online tools, should be an important part of any education and public ownership process.

That observation is salutary because it indicates that there is a very real need to consider whether we need to move beyond pamphlets containing a yes case and a no case, a procedure that, as I said, was prescribed in 1912.

The committee in its report supported the idea of regular constitutional conventions as a means of giving opportunities to the public to engage in debate on constitutional reform. But as well, I would suggest, we need to consider forms of community consultation. The consultation in 2005 in Victoria which led to the charter of rights enacted by the Victorian parliament in 2006 shows that it is possible to engage with the community on fundamental rights and law reform issues. That process involved more than 2,500 written submissions, 55 community meetings and 75 more focused meetings with government and non-government bodies. It was conducted by a four-person consultative committee: a former Victorian Liberal Attorney-General, the Hon. Haddon Storey; an Olympic basketballer, Andrew Gaze; a community leader in disability issues, Rhonda Galbally; and Professor George Williams. This was a model of community consultation that was not in any sense top-down and that meant that the proposal for a charter, which was the focus of this extended consultation process, was not seen as just an idea of politicians. If there is to be another constitutional convention—and we have had one in each of the last three decades—it is very clear that a long period of community consultation leading up to it would make the convention much more reflective of community ideas.

Turning to the specific ideas canvassed in the report, they include the committee’s sole direct recommendation in relation to scrutiny of intergovernmental agreements. The report also sets out the debate which occurred at the roundtable on other constitutional reform ideas, including fixed four-year terms for the Commonwealth parliament and qualification for membership of this parliament, particularly section 44 of the Commonwealth Constitution and particularly the parts of that section which deal with foreign allegiance, and the office of profit under the Crown disqualification.

There were ideas concerning the constitutional recognition of Aboriginal and Torres Strait Islander people, including the possibility that that constitutional recognition might be included in a preamble. There was some discussion of, and indeed general agreement about, the need to remove section 25 of the Constitution. There was discussion about a concept of Australian citizenship in the Constitution. I suspect that many Australians would be surprised to learn that there is no definition of Australian citizenship in the Constitution. As well, there was discussion, which is set out in the report, about the possibility of either constitutional recognition of human rights in the form of some kind of constitutional bill of rights or a legislated charter of rights.

In relation to the scrutiny of intergovernmental agreements, it is probable that the difficulty of amending the constitutional provisions concerning federal-state relations and the unwieldy nature of the referral of power provision in the Commonwealth Constitution has led to the proliferation of intergovernmental agreements that we see today. As was discussed at the roundtable, there are some hundreds of these agreements between the Commonwealth and the states. Almost all of them are secret in the sense that they are not scheduled to any act of parliament, they are not readily accessible and they are not available to members of the public when they request them. As a consequence, a very important area of federal-state relations is not transparent and it makes any sense of accountability extremely difficult. Certainly it cannot be said to be consistent in any way with notions of open government that there should be these hundreds of intergovernmental agreements. It is worth noting that the legal and constitutional affairs committee of this House made a similar recommendation in 2006 in its report on harmonisation of the legal system, and it is to be hoped that the government will look seriously at this particular recommendation in the report—that is, there should be parliamentary scrutiny of intergovernmental agreements in a similar form to the way in which there is now parliamentary scrutiny of international treaties through the Joint Standing Committee on Treaties.

On four-year terms, this is a matter which would involve an amendment to at least section 28 of the Constitution, if not some other provisions. Section 28 of the Constitution is the provision which specifies three-year terms for this House. There are separate provisions which deal with the Senate. At Federation, all of the states except Western Australia had three-year terms but over time all of the states except for Queensland have moved to four-year terms, and in Queensland this is being very actively discussed. The consequence of this is that most Australians have had an opportunity to see four-year terms in operation, and that creates a good climate for considering four-year terms for the Commonwealth parliament. The report sets out some of the discussion about four-year terms and also notes that the issue of whether the terms should be fixed is itself a separate issue. Certainly, this is not a new idea. The Joint Standing Committee on Electoral Matters, in its report after the 2004 election, with apparent bipartisan support, recommended four-year terms for the House of Representatives.

If I could briefly mention section 25 of the Constitution, this is a provision which refers to the possibility of Australians being disqualified from voting on the ground of race. That is a startling provision even to mention. There is no such disqualification anywhere in Australia at the present time. It is to be sincerely hoped that there never would be again. It is an outdated provision which should be removed, and it was striking that there was very clear agreement among all the members of the committee that section 25 should be removed from the Constitution. Professor Hilary Charlesworth, an eminent professor of law at the Australian National University, said this in very direct terms at the roundtable. It is worth quoting her words. She said that section 25:

... is quite an extraordinary provision to have in a constitution. Were a Martian to pick up our Constitution, they would get quite a shocking reflection on current modern Australia.

Happily, as I said, there are no disqualifications on the ground of race, but the provision simply should not be in our Constitution.

There was a very strong call at the recent 2020 Summit for a preamble or, alternatively, some form of recognition of Aboriginal and Torres Strait Islander people in the Constitution. Again, the preamble is certainly not a new idea. The last failed referendum in 1999 put a referendum to the Australian people but it was rejected, and I would suggest that it was not so much the idea of the preamble that was the problem; it was that the proposed preamble then put to the people was seen as being imposed in a top-down way rather than being generated out of a lengthy process of consultation. It might be that recognition of Indigenous people should be provided other than through a preamble. The national reaction to the apology given by the Prime Minister on the first sitting day of this parliament suggests that there would be support for some form of recognition of Indigenous people in the Constitution. Certainly, it is clear that it would need to be achieved through consultation.

The 2020 Summit showed that there is real interest in the Constitution. There were calls for constitutional reform, not just from the governance stream but from other streams as well. This roundtable in May and the report before the House are intended to prompt further debate and to perhaps inspire Australians to engage with our Constitution, to recognise its importance as the founding document for our nation, to seek reform so it is a relevant document that reflects Australia as it is now and to debate how it might shape our nation into the next century.

Question agreed to.