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Constitutional Convention (Australia)

Constitutional Conventions in Australia are significant meetings that have debated the Australian Constitution. The first two gatherings debated Federation and what form of Constitution to adopt, while the following conventions debated amendments to the document.

The draft Constitution that was the final product of the first two conventions was approved at referendum in 1899 and 1900 by a 72% "Yes" vote on a 58% turnout.[1] There have been four of the latter conventions post Federation, but no constitutional proposal from these has been approved by referendum, and those put to referendum (proposals from the 1942, 1998 and 2017 conventions) were soundly defeated, reaching no more than 46% approval[2] on 90% to 96% turnout.[3]

1891 convention

The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Frame of Government for the proposed federation of the British colonies in Australia and New Zealand. There were 46 delegates at the Convention, chosen by the seven colonial parliaments. Among the delegates was Sir Henry Parkes, known as the "Father of Federation". The Convention approved a draft largely written by Andrew Inglis Clark from Tasmania and Samuel Griffith from Queensland,[4][5] but the colonial parliaments failed to act to give effect to it.

1897–1898 convention

The drafting committee at the 1897–98 convention – John Downer, Edmund Barton and Richard O'Connor

The next constitutional convention – the Australasian Federal Convention – was held in stages in 1897–98. Unlike the first convention, the delegates from New South Wales, Victoria, South Australia and Tasmania were elected by popular vote.[6] The delegates of Western Australia were chosen by its parliament. It met first in Adelaide in March 1897, then in Sydney in August, before, finally, it met again in Melbourne in January 1898. The intervals between the sessions were used for intense debate in the colonial parliaments and for public discussion of the draft constitution.

Since 1891, New Zealand had lost interest in federating with the Australian colonies, and was not represented. In Queensland, the parliament had not passed the necessary legislation, so the northern colony was also unrepresented. In the other five colonies ten delegates from each colony were elected by the people, although Western Australian attendance was sporadic. At Melbourne the convention finally produced a draft constitution which was eventually approved by the people at referendums in the colonies.[7]

1942 convention

In November 1942, the Curtin government convened a constitutional convention for the sole purpose of discussing Attorney-General's H. V. Evatt proposed addition to the constitution of section 60A. This would have made the powers of federal parliament virtually unlimited, declaring "the power of the Parliament shall extend to all measures which in the declared opinion of the Parliament will tend to achieve economic security and social justice ... notwithstanding anything contained elsewhere in this Constitution". The convention was held in Canberra and consisted of 24 members – six nominated by the federal government, six by the federal opposition, the six state premiers, and the six state leaders of the opposition. After an opening speech by Prime Minister John Curtin, Evatt announced that he was withdrawing his original draft due to public criticism and would substitute a watered-down series of proposals. The convention was immediately adjourned for 24 hours. It eventually appointed a drafting committee which produced the "14 powers" amendment that was put to a referendum in 1944.[8]

That proposal was lost at the referendum, only gaining 46% of the vote and only passing in two out of the four states required.[9]

1973 convention

The 1973 Constitutional Convention was established by the Whitlam government in 1973 to consider possible amendments to the Constitution which could be put to the people for approval at a referendum. The Convention, which was not elected but consisted of delegates chosen by the federal and state Parliaments, met through 1973–75 but achieved nothing as a result of non-support by the conservative parties.

1998 convention

The 1998 Constitutional Convention met in Canberra in February 1998. The Convention was convened by Prime Minister John Howard to fulfill a promise made by his predecessor as Liberal leader, Alexander Downer. During the Convention, Prime Minister John Howard dedicated an area of parkland to the south-east of Old Parliament House as Constitution Place, Canberra.

The Convention consisted of 152 delegates, of whom half were elected by the people and half were appointed by the federal government. This latter group included senior federal, state and territory politicians appointed by virtue of their positions.

The Convention was divided into four philosophical groups: those wanting to retain Australia's existing constitutional monarchy, those wanting Australia to become a republic with a president chosen by the Parliament ("indirect electionists"), those wanting Australia to become a republic with a president elected by the people ("direct electionists"), and those having no fixed position or seeking a compromise between the other groups.[10] In the fourth group, Republicans dominated both subgroups, but proved far from united in their views.

At the opening of the Convention, Prime Minister John Howard stated:

If this Convention does not express a clear view on a preferred republican alternative, then the people will be asked – after the next election – to vote in a preliminary plebiscite which presents them with all the reasonable alternatives. Then a formal constitutional referendum offering a choice between the present system and the republican alternative receiving most support in the preliminary plebiscite would follow.

— Prime Minister John Howard, 2 February 1998.[11]

73 delegates voted in favour of the Bi-partisan appointment model, 57 against and 22 abstained. Not one constitutional monarchist delegate voted in favour. The policy of Australians for Constitutional Monarchy (ACM) and other monarchist groups was to oppose all republican models, including the minimalist McGarvie model. In response, John Howard stated to the Convention:

The only commonsense interpretation of this Convention is, firstly, that a majority of people have voted generically in favour of a republic... Secondly, amongst the republican models, the one that has just got 73 votes is clearly preferred. When you bind those two together, it would be a travesty in commonsense terms of Australian democracy for that proposition not to be put to the Australian people. Moreover, it would represent a cynical dishonouring of my word as Prime Minister and the promises that my coalition made to the Australian people before the last election.

— Prime Minister John Howard on 13 February 1998.[12]

A number of republicans who supported direct election abstained from the vote (such as Ted Mack, Phil Cleary, and Clem Jones), thereby allowing the bi-partisan model to succeed.[10] They reasoned that the model would be defeated at a referendum, and a second referendum called with direct election as the model.[13]

2017 convention

The 2017 constitutional convention met in Yulara on 23 to 26 May 2017.[14] Called the "First Nations National Constitutional Convention", it was held over four days at Yulara Resort, Yulara near Uluru in Central Australia. The convention was held under the auspices of the bi-partisan appointed 16-member Referendum Council, established to on 7 December 2015 to advise the government on the steps needed to succeed in a referendum to recognise Indigenous Australians in the Constitution.[15] The council was made up of Indigenous and non-Indigenous members and was and co-chaired by Patrick Dodson,[16] and Mark Leibler.[17] The convention itself built on the work of the Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples.[18]

To begin with, several dialogues were held across the nation responding to the Referendum Council produced Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, released on 26 October 2016.[19] The purpose of these dialogues was to reach broad agreement on whether and, if so, how, to recognise Indigenous Australians in the Australian Constitution. The dialogues also provided an opportunity for participants to discuss the main options for recognition, understand what they mean, combine or modify existing options and rank options in order of priority.

Attendance to the dialogues was by invitation only; it was argued this was done to ensure that each dialogue was deliberative and reached a consensus on the relevant issues. Meetings were capped at 100 participants with 60% of places reserved for traditional owner groups, 20% for community organisations and 20% for other important individuals. Over this six-month period the Referendum Council travelled to 12 different locations around Australia and met with over 1,200 Aboriginal and Torres Strait Islander representatives. The First Nations Regional Dialogues were convened in the following locations:

  • Hobart, hosted by Tasmanian Aboriginal Corporation (9–11 December 2016)
  • Broome, hosted by the Kimberley Land Council (10–12 February 2017)
  • Dubbo, hosted by the New South Wales Aboriginal Land Council (17–19 February 2017)
  • Darwin, hosted by the Northern Land Council (22–24 February 2017)
  • Perth, hosted by the South West Aboriginal Land and Sea Council (3–5 March 2017)
  • Sydney, hosted by the New South Wales Aboriginal Land Council (10–12 March 2017)
  • Melbourne, hosted by the Federation of Victorian Traditional Owners Corporation (17–19 March 2017)
  • Cairns, hosted by the North Queensland Land Council (24–27 March 2017)
  • Ross River, hosted by the Central Land Council (31 March – 2 April 2017)
  • Adelaide, hosted by the Aboriginal Legal Rights Movement Inc (7–9 April 2017)
  • Brisbane (21–23 April 2017)
  • Thursday Island, hosted by Torres Shire Council and a number of Torres Strait regional organisations (5–7 May 2017).

Delegates for the Convention were selected from participants in the regional dialogues held around the country. The more than 250 delegates to the convention,[20] were mostly selected from each of the dialogues, with each of the 13 regional dialogues selecting delegates to attend the National Convention along with the convenors and working group leaders, mostly through secret ballot, with a total of 17 delegates for each dialogue.[21] The remaining members of the Convention were appointed by the Referendum Council.[21]

The First Nations National Constitutional Convention met over four days from 23 to 26 May 2017.[20] The majority approved of a document on constitutional recognition, the Uluru Statement from the Heart, with a small number of members walking out in opposition before the final resolution was passed,[20] citing the lack of prioritisation of a treaty as a critical issue.[22] The Final Report of the Referendum Council was provided to the Prime Minister and to the Leader of the Opposition on 30 June 2017 and included as its main recommendation:[23] "That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament." Its second recommendation was that a statement of recognition be passed by a vote of the federal and state parliaments. The report also called for a makarrata commission and for treaties to be entered into by the various Australian federal and state governments.

The government formally responded to the report on 30 November 2017[24] by rejecting the major recommendations of the report. The government argued that the proposal undermined the principle of one person one vote, was not clear and could not receive the required support to pass in a referendum. However, a Labor government elected in 2022 changed course, committing to implement all the recommendations of the convention in full.[25]

As a result, the government held the 2023 Australian Indigenous Voice referendum on 14 October, 2023. However, it was unsuccessful with the proposal rejected by majority nationally and in all states and territories apart from the ACT. Following the failure of the referendum, the government has not recommitted to the other recommendations of the 2017 convention.[26]

See also

References

  1. ^ "Referendum dates and results". Australian Electoral Commission. Canberra, ACT: Australian Electoral Commission. Retrieved 5 January 2024.
  2. ^ "Referendum dates and results". Australian Electoral Commission. Canberra, ACT: Australian Electoral Commission. Retrieved 5 January 2024.
  3. ^ "Voter turnout – previous events". Australian Electoral Commission. Canberra ACT: Australian Electoral Commission. 7 November 2023. Archived from the original on 4 January 2024. Retrieved 8 January 2024.
  4. ^ La Nauze, J. A. (1972). The Making of the Australian Constitution. Melbourne: Melbourne U.P.
  5. ^ Williams, John M. (2005). The Australian Constitution: a Documentary History. Melbourne: Melbourne U.P. pp. 34–458.
  6. ^ 1301.0 – Year Book Australia, 1909
  7. ^ "Federation Fact Sheet 1 – The Referendums 1898–1900". Australian Electoral Commission. Canberra, ACT: Australian Electoral Commission. 24 March 2011. Archived from the original on 7 December 2023. Retrieved 8 January 2024.
  8. ^ Louat, Frank (1943). "The Unconventional Convention". Australian Quarterly. Australian Institute of Science and Policy: 7–14. doi:10.2307/20631080. JSTOR 20631080.
  9. ^ "Referendum dates and results". Australian Electoral Commission. Canberra, ACT: Australian Electoral Commission. Retrieved 5 January 2024.
  10. ^ a b Vizard, Steve, Two Weeks in Lilliput: Bear Baiting and Backbiting At the Constitutional Convention (Penguin, 1998, ISBN 0-14-027983-0)
  11. ^ "Constitutional Convention Hansard" (PDF). Parliament of Australia. 2 February 1998. Archived from the original (PDF) on 8 January 2011. Retrieved 16 February 2011.
  12. ^ "Constitutional Convention" (PDF). Archived from the original (PDF) on 8 January 2011.
  13. ^ Malcolm Turnbull (1999). Fighting For the Republic. South Yarra: Hardie Grant Books. p. 32.
  14. ^ "Uluru - National Convention". Referendum Council. National Indigenous Australians Agency. 26 May 2017. Archived from the original on 6 March 2019. Retrieved 1 June 2023.
  15. ^ "The Council". Referendum Council. National Indigenous Australians Agency. 2 January 2019. Archived from the original on 28 February 2019. Retrieved 1 June 2023.
  16. ^ "Patrick Dodson". Referendum Council. National Indigenous Australians Agency. 2 January 2019. Retrieved 1 June 2023.
  17. ^ "Mark Leibler AC". Referendum Council. National Indigenous Australians Agency. Archived from the original on 6 March 2019. Retrieved 1 June 2023.
  18. ^ "Get the facts". Referendum Council. 2 January 2019. Retrieved 6 August 2020. Text was copied from this source, which is available under a Attribution 4.0 International (CC BY 4.0) licence. (See here.)
  19. ^ Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (PDF). Referendum Council. 26 October 2016. Archived from the original (PDF) on 17 February 2017. Retrieved 1 June 2023.
  20. ^ a b c "Uluru Statement: a quick guide". Australian Parliamentary Library. 19 June 2017. Retrieved 24 January 2020.
  21. ^ a b Referendum Council 2017, p. 113.
  22. ^ Blanco, Claudianna (25 May 2017). ""We won't sell out our mob" Delegates walk out of constitutional recognition forum in protest". Special Broadcasting Service. National Indigenous Television News. Retrieved 1 June 2023.
  23. ^ Referendum Council 2017.
  24. ^ Turnbull, Malcolm. "Response to Referendum Council's report on Constitutional Recognition". Parlinfo. Australian Parliament House. Retrieved 1 June 2023. The Government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.
  25. ^ "Indigenous Constitutional Recognition and Representation". Parliamentary Library. Australian Parliament House. 2022. Retrieved 1 June 2023. The Albanese Labor Government has made a commitment based on their election policy to implementing the Uluru Statement from the Heart in full
  26. ^ Butler, Josh (22 December 2023). "Makarrata commission in limbo after failure of Indigenous voice referendum". The Guardian. ISSN 0261-3077. Retrieved 1 January 2024.

Bibliography

Further reading

  • J. A. La Nauze, The Making of the Australian Constitution, Melbourne University Press 1972
  • Vizard, Steve, Two Weeks in Lilliput: Bear Baiting and Backbiting At the Constitutional Convention (Penguin, 1998, ISBN 0-14-027983-0)
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Constitutional Convention (Australia)
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