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 Councillor 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, Councillor 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 Councillor 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 Councillor Leeser was referring to - in B6 and in C4. The proposal put by Councillor 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 Councillor 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 and 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, and may or not be controversial; we will have to form an opinion. Equally with E and F, both addressed only in the direct election model before us: 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, this 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. Councillor 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 lost.

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 Johnston 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.

(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 (2) has been enlarged.

Mr GARETH EVANS - Clause (2) 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 (2). It is not the point at all. In fact, B is removed and (2) does not reflect what is in B.

CHAIRMAN - I intended to cover (1), (2) and (3), but we have to look at (1) first. We have an amendment to (1), so therefore I have to consider that before we get to (2). 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 Johnston 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 to 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 know 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 Johnston 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 Johnston.

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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