YOU CALL THAT A CONSITIUTION?

"G'day Mr President"

David Curtis, ATSIC Commissioner and
NT delegate to the Constitutional Convention
talks to Paul Cockram about what we got for our money.

What were you hoping for?
When I was asked to nominate and then elected it was on the platform to get a republic with a directly elected head of state. I stood for constitutional change including the preamble.

What's the preamble?
It's like the foreword to the constitution, sort of like a mission statement.
Of course we knew we could not get all these things done in a couple of weeks but we wanted to get them on the agenda. The other thing I ran on was to get for Australia a Bill of Rights or a Charter of Rights which recognises the rights of the people of this country.
In the first couple of days of the first week, we put those things up but they were rejected. I don't know why, and I'm still disappointed. We went in there and put foreward ideas for change that would include the people of the country. I thought we should take the opportunity when we change the country to a republic to have all the people included in that move.
But I found when I was at the Convention, that it was already worked out how it was going to happen; it was to arrive at the outcome that, particularly, the Prime Minister wanted. I was disappointed in the Australian Republican Movement - you could understand the monarchists wanting no change whatsoever but there was also a lot of talk about minimal change and, I believe, that's the way the republican movement was forced to go.
I believe that the Australian people have been thwarted in having a say in what sort of changes we can have.
The Australian Republican Movement has been involved in this process for six years - and of course the monarchists have had quite a long time as well - unlike myself and other republican groups that formed only months before the convention.
We're the ones they branded, at the start of the Convention, because we didn't conform with the A.R.M., they were calling us the rabble group. Once we all got together and formed a united front they started to recognise us and then they referred to us as the rebel group.
In the end of course the A.R.M. realised that they had to talk to us when they saw they weren't going to have it all their way.
The background negotiations and discussions were very intense. There was more than one model put up. We put up a model: a directly elected head of state with ongoing constitutional change.
The model that finally came out of the convention was the one that the A.R.M. put up: the head of state appointed by two-thirds majority of the parliament. Really that takes it away from the people insofar as electing this head of state.
I think that more than one model should have got up. In the final days we went through a process of elimination (exhaustive ballots) and there was a lot of number crunching going on, people pressurising other people. There were a lot of discussions going on in corridors and backrooms; at official functions it was on all the time - pressure, pressure, pressure.
I never changed my position. I went there so we could talk about becoming a republic, to directly elect our head of state, and I wanted to look at ongoing change to the constitution. I never changed my position on any of those.
In the end it was the Turnbull model that came out and I didn't vote for that - I abstained. The reason for abstaining was because the platform I went on was FOR a directly elected head of state by the people and I believe that people were denied their democratic right to do that. I've got a clear conscience and it's a matter of principle that I didn't vote for this thing, I didn't believe in that, and I didn't want that.
Do you think there was enough discussion of indigenous affairs?
Well as you know I was representing the whole of the Territory and ATSIC was representing the indigenous perspective but what I would have liked to have seen - why I went to the Convention - I would like us to talk about a completely new Constitution, a completely new Preamble. Basically start afresh with recognition of the prior ownership of this country by indigenous people and the fact that we have a multi-cultural nation - have all that written into the Constitution. Also we need to have a Bill of Rights built into the Constitution to protect the basic human rights of all Australians.
These are the the issues that people are telling me they want to see changed.
So you want to see major constitutional change?
That's right. If you're going to develop a new constitution altogether, forget about the old one, were going to go for a new one altogether - that's what we're talking about.

THE 'CATCH 22' OF CONSTITUTIONAL CHANGE

There have been very few changes to the Australian constitution since 1901.
If a proposed change does not have the support of both sides of parliament there is little chance for its success.
In the interests of protecting the less populated States, the system is heavily stacked towards a NO vote unless nearly every State agrees.
More than half the the voters* in more than half the States must vote YES ... and also ...
More than half the voters in the whole country must vote yes as well.
If either of these outcomes is not achieved the proposition fails and there is no change to the constitution.
So in effect, if Tasmania, Queensland and Western Australia (for example) don't have majorities who want change, it doesn't matter if the other three-quarters of the population of Australia want change desperately. If less than four of the six States want change it can't happen.
What say do we have in the Northern Territory?
Not much; in fact none at all. The Territories are allowed to vote in referendums but our vote only counts as part of the total Australian vote. The Northern Territory and the A.C.T. have no say in the 'majority of States' condition.
With our small population the N.T. will effectively have no say at all in the forthcoming Constitutional referendum.
*'voters' refers to the number of people who cast valid votes on election day. It has nothing to do with the number of people who are eligible to vote.
"... because we didn't conform
with the A.R.M., they were calling
us the rabble group."

The official view

OVERVIEW
The Australian Constitution has properly been described as 'the birth certificate of a nation'. It also provides the basic rules for the government of Australia. Indeed, the Constitution is the fundamental law of Australia binding everybody including the Commonwealth Parliament and the Parliament of each State. Accordingly, any action, including legislative action, is invalid if it is contrary to the Constitution.

BACKGROUND
TO THE CONSTITUTION
The Australian Constitution was passed as part of a British Act of Parliament in 1900, and took effect on 1 January 1901. A British Act was necessary because before 1900 Australia was merely a collection of self-governing British colonies and ultimate power over those colonies rested with the British Parliament.
Before the Constitution came into effect, its terms had been approved, with one small exception, by the people of the colonies of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania. During the course of this century, Australia has become an independent nation, and the character of the Constitution as the fundamental law of Australia is now seen as resting predominantly, not on its status as an Act of the British Parliament, which no longer has any power over Australia, but on the Australian people's decision to approve and be bound by the terms of the Constitution. What has been judicially described as 'the sovereignty of the Australian people' is also recognised by section 128 which provides that any change to the Constitution must be approved by the people of Australia.
The Constitution itself is contained in clause 9 of the British Act. The first eight clauses are commonly refered to as the 'covering clauses'. They contain mainly introductory, explanatory and consequential provisions. For example, covering clause 2 provides that references to 'the Queen' (meaning Queen Victoria, who was British sovereign at the time the British Act was enacted) shall include references to Queen Victoria's heirs and successors.
(Extracts from Australia's Constitution, a pocket-sized version of the Constitution published by the Government Publishing Service, Canberra)

...and this is what the Monarchists want to keep.

THE CONSTITUTION
(63 & 64 VICTORIA, CHAPTER 12)
An Act to constitute the
Commonwealth of Australia
9th July 1900]

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: etc.,

"G'day Mr President" David Curtis, ATSIC Commissioner and NT delegate to the Constitutional Convention talks to Paul Cockram about what we got for our money. What were you hoping for? When I was asked to nominate and then elected it was on the platform to get a republic with a directly elected head of state. I stood for constitutional change including the preamble. What's the preamble? It's like the foreword to the constitution, sort of like a mission statement. Of course we knew we could not get all these things done in a couple of weeks but we wanted to get them on the agenda. The other thing I ran on was to get for Australia a Bill of Rights or a Charter of Rights which recognises the rights of the people of this country. In the first couple of days of the first week, we put those things up but they were rejected. I don't know why, and I'm still disappointed. We went in there and put foreward ideas for change that would include the people of the country. I thought we should take the opportunity when we change the country to a republic to have all the people included in that move. But I found when I was at the Convention, that it was already worked out how it was going to happen; it was to arrive at the outcome that, particularly, the Prime Minister wanted. I was disappointed in the Australian Republican Movement - you could understand the monarchists wanting no change whatsoever but there was also a lot of talk about minimal change and, I believe, that's the way the republican movement was forced to go. I believe that the Australian people have been thwarted in having a say in what sort of changes we can have. The Australian Republican Movement has been involved in this process for six years - and of course the monarchists have had quite a long time as well - unlike myself and other republican groups that formed only months before the convention. We're the ones they branded, at the start of the Convention, because we didn't conform with the A.R.M., they were calling us the rabble group. Once we all got together and formed a united front they started to recognise us and then they referred to us as the rebel group. In the end of course the A.R.M. realised that they had to talk to us when they saw they weren't going to have it all their way. The background negotiations and discussions were very intense. There was more than one model put up. We put up a model: a directly elected head of state with ongoing constitutional change. The model that finally came out of the convention was the one that the A.R.M. put up: the head of state appointed by two-thirds majority of the parliament. Really that takes it away from the people insofar as electing this head of state. I think that more than one model should have got up. In the final days we went through a process of elimination (exhaustive ballots) and there was a lot of number crunching going on, people pressurising other people. There were a lot of discussions going on in corridors and backrooms; at official functions it was on all the time - pressure, pressure, pressure. I never changed my position. I went there so we could talk about becoming a republic, to directly elect our head of state, and I wanted to look at ongoing change to the constitution. I never changed my position on any of those. In the end it was the Turnbull model that came out and I didn't vote for that - I abstained. The reason for abstaining was because the platform I went on was FOR a directly elected head of state by the people and I believe that people were denied their democratic right to do that. I've got a clear conscience and it's a matter of principle that I didn't vote for this thing, I didn't believe in that, and I didn't want that. Do you think there was enough discussion of indigenous affairs? Well as you know I was representing the whole of the Territory and ATSIC was representing the indigenous perspective but what I would have liked to have seen - why I went to the Convention - I would like us to talk about a completely new Constitution, a completely new Preamble. Basically start afresh with recognition of the prior ownership of this country by indigenous people and the fact that we have a multi-cultural nation - have all that written into the Constitution. Also we need to have a Bill of Rights built into the Constitution to protect the basic human rights of all Australians. These are the the issues that people are telling me they want to see changed. So you want to see major constitutional change? That's right. If you're going to develop a new constitution altogether, forget about the old one, were going to go for a new one altogether - that's what we're talking about. THE 'CATCH 22' OF CONSTITUTIONAL CHANGE There have been very few changes to the Australian constitution since 1901. If a proposed change does not have the support of both sides of parliament there is little chance for its success. In the interests of protecting the less populated States, the system is heavily stacked towards a NO vote unless nearly every State agrees. More than half the the voters* in more than half the States must vote YES ... and also ... More than half the voters in the whole country must vote yes as well. If either of these outcomes is not achieved the proposition fails and there is no change to the constitution. So in effect, if Tasmania, Queensland and Western Australia (for example) don't have majorities who want change, it doesn't matter if the other three-quarters of the population of Australia want change desperately. If less than four of the six States want change it can't happen. What say do we have in the Northern Territory? Not much; in fact none at all. The Territories are allowed to vote in referendums but our vote only counts as part of the total Australian vote. The Northern Territory and the A.C.T. have no say in the 'majority of States' condition. With our small population the N.T. will effectively have no say at all in the forthcoming Constitutional referendum. 'voters' refers to the number of people who cast valid votes on election day. It has nothing to do with the number of people who are eligible to vote. "... because we didn't conform with the A.R.M., they were calling us the rabble group." The official view OVERVIEW* The Australian Constitution has properly been described as 'the birth certificate of a nation'. It also provides the basic rules for the government of Australia. Indeed, the Constitution is the fundamental law of Australia binding everybody including the Commonwealth Parliament and the Parliament of each State. Accordingly, any action, including legislative action, is invalid if it is contrary to the Constitution. BACKGROUND TO THE CONSTITUTION The Australian Constitution was passed as part of a British Act of Parliament in 1900, and took effect on 1 January 1901. A British Act was necessary because before 1900 Australia was merely a collection of self-governing British colonies and ultimate power over those colonies rested with the British Parliament. Before the Constitution came into effect, its terms had been approved, with one small exception, by the people of the colonies of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania. During the course of this century, Australia has become an independent nation, and the character of the Constitution as the fundamental law of Australia is now seen as resting predominantly, not on its status as an Act of the British Parliament, which no longer has any power over Australia, but on the Australian people's decision to approve and be bound by the terms of the Constitution. What has been judicially described as 'the sovereignty of the Australian people' is also recognised by section 128 which provides that any change to the Constitution must be approved by the people of Australia. The Constitution itself is contained in clause 9 of the British Act. The first eight clauses are commonly refered to as the 'covering clauses'. They contain mainly introductory, explanatory and consequential provisions. For example, covering clause 2 provides that references to 'the Queen' (meaning Queen Victoria, who was British sovereign at the time the British Act was enacted) shall include references to Queen Victoria's heirs and successors. (Extracts from Australia's Constitution, a pocket-sized version of the Constitution published by the Government Publishing Service, Canberra) ...and this is what the Monarchists want to keep. THE CONSTITUTION (63 & 64 VICTORIA, CHAPTER 12) An Act to constitute the Commonwealth of Australia 9th July 1900] WHEREAS the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: etc.,