Mr BRADLEY - Mr Chairman, delegates: when it comes to constitutional alterations, I think the best principle to apply is that, if it is not necessary to change something, it is necessary not to change it. This discussion, which was meant to be about putting some fairly significant matters into a preamble, whether in the Constitution or the Constitution Act - matters upon which most of us agree - now seems to have been hijacked into some sort of arcane discussion about what we ought to do with provisions in an act passed by the imperial parliament in 1900. We really ought to get on to the matters that we agree about and that we want to decide, and leave aside these entirely unnecessary suggestions which are being made at the moment.

CHAIRMAN - Is there a speaker in favour of the amendment?

Mr GUNTER - Mr Chairman, I do support Mr Turnbull on this one. It is a matter, though, of not preventing the passage of other changes to the Constitution that the Convention might agree on. I am assuming that the wording chosen by Mr Turnbull allows this matter to be put separately so that the question is not tied in inexorably to the other changes, given that there is some argument between Professor Craven and Professor Winterton as to whether the hurdle is the same as section 128 or a higher one. So, on that ground, assuming that they can be dealt with separately, I would be happy to support this.

CHAIRMAN - Is there a speaker against?

Mr RAMSAY - I do not claim to be a lawyer, but I find the drafting of this amendment completely bewildering. The Constitution itself is, in fact, clause 9 of the Constitution Act, and here we are about to provide that any provisions of the Constitution Act - including the Constitution itself, which has continuing force - should be moved into the Constitution itself. The amendment, read literally, is a nonsense and I do not see how I could support it.

Mr WRAN - It is almost as if we are dividing on this issue on ideological lines. This is a tidying up exercise in which Mr Turnbull will have no involvement, I will have no involvement and you will have no involvement. It will be left to the federal Attorney-General of Australia to carry out the wishes of the Convention. It is just extraordinary that such a simple household matter of tidying up this Constitution, which speaks of Queen Victoria et cetera, should cause this measure of debate. I move:

That the motion be put.

CHAIRMAN - Regrettably, this is not parliament and, as you have already spoken, I cannot take the motion. Is there a speaker against the motion?

Mr GIFFORD - I am concerned that we are going to be -

Mr LEO McLEAY - You can't speak against the question being put.

CHAIRMAN - I cannot put the question that the question be put. This is not parliament. Mr Wran has spoken and it is not appropriate that a delegate who has already spoken move that the question be put.

Mr GIFFORD - I am concerned at this proposition that the drafting can be left to some later stage; it cannot. Mr Turnbull giggled or laughed about the suggestion that there should be a provision saying that English has to be used. If he had looked up his relevant case law he would have found that there is a case from Wales and that case contended that people living in Wales were entitled to -

Senator FAULKNER - It was Jonah.

Mr GIFFORD - I do not find it a laughing matter. The result of the decision was that it had not been specified that documents or otherwise in Wales had to be in English. Since they did not have that, the situation is that about 20 per cent of documents and people are using Welsh and not English.

Mr TIM FISCHER - I move:

That the motion be put.

Motion carried.

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

Amendment carried.

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

Professor WINTERTON - Yes.

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

Brigadier GARLAND - I would like a count.

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

Motion carried.

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

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

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

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

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

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

Motion carried.

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

Motion carried.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That items B3 to B10 be put en bloc.

Mr ANDERSON - I second the motion.

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

Mr TIM FISCHER - Absolutely.

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

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

CHAIRMAN - You are foreshadowing it?

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

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

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

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

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

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

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

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

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

CHAIRMAN - Mr Fischer is leaving it as it is.

Motion lost.

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

Mr TURNBULL - I move:

That the Convention considers items D1 and D2 together forthwith.

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

Mr WRAN - I second the motion.

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

Mr TURNBULL - Just deal with the motion.

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

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

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

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

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

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

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

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

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

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

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

Mr WRAN - I move:

That the question be put.

Motion carried.

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

Motion carried.

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

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

Professor CRAVEN - I second the motion.

Motion carried.

Mr ANDREWS - I now move:

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

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

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

Professor CRAVEN - I second the motion.

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

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

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

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

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

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

CHAIRMAN - Your intention is noted.

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

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

Mr RUXTON interjecting -

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

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

Mr RUXTON interjecting -

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

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

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

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

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

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

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

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

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

Mr TURNBULL - I move:

That the question be put.

Motion carried.

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

Amendment carried.

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

Mr CLEARY - I withdraw my amendment.

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

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

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

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

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

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

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

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

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

Add new D3:

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

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

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

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

Motion carried.

CHAIRMAN - We now move to item B4.

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

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

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

Motion carried.

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

Motion carried.

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

Motion carried.

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

Motion carried.

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

Motion carried.

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

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

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

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

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

Motion carried.

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

Mr BULLMORE - Yes. I move:

That the principle expressed in B10 be included.

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

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

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

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

Mr RUXTON - I move:

Insert new B9:

That English be established as the National language.

Mr SUTHERLAND - I second the motion.

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

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

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

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

Mr RUXTON - Yes.

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

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

Amendment lost.

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

Motion carried.

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

Motion carried.

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

Motion carried.

Professor WINTERTON - I move:

That item C3 be deleted.

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

Mr MYERS - I second the motion.

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

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

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

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

Professor FLINT - I am for.

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

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

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

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

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

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

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

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