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On 7 August 1901, Sir Edmund Barton, Prime Minister of Australia, endorsed this statement in the course of his speech in relation to an Immigration Bill:
The day will come, and perhaps is not too far distant ... when Chinamen and the natives of Hindostan, the States of Central and South America ... and ... African nations of the Congo and the Zambesi ... are represented by fleets in European seas, invited to international conferences and welcomed as allies ... The citizens of these countries will then be taken up into the social relations of white races ... Is this not something to guard against?[1]
Happily, we have now witnessed the end of the White Australia policy and the official embrace of multicultural Australia, however bumpy, spasmodic and haphazard the path of this policy has been. The path before us is no less difficult. Finding solutions to the increasing ethnic diversity of populations in a fashion that is both fair and politically viable remains one of the greatest challenges facing nations in the next century.
My aim in this article is to offer an insight into the Constitutional Convention from the perspective of Australians from a Non-English Speaking Background (NESB). In addition, given the trite but defining characteristic of the Convention as a scrummaging contest between grouped interests exercising group voting power, I aim to briefly investigate the role of the NESB delegates within the manoeuvrings of the large groups. I aim to show what is obvious but does not appear to be seen: that involvement and representation of NESB Australians in mainstream political fora is crucial to attaining results fair and favourable to them.
The constitutional conventions of the 1890s from which our present Constitution emerged were comprised of delegates entirely of Anglo-Celtic descent. This is not surprising given the relative homogeneity of the Australian population of that day.
The composition of the 1998 Constitutional Convention tells an entirely different and more complex story. In his speech of 4 February 1998, Dr Tony Cocchiaro, an ARM delegate from South Australia, counted 12 NESB delegates at the Convention representing descents as diverse as Greek, Vietnamese, Italian, German, Chinese, Malaysian and Croatian.[2] Indeed, the Convention was popularly dubbed the "people's convention", and with an ostensible eye to fair representation, the Federal Government appointed one half of the delegates to ensure representation of groups and interests which would stand at a considerable disadvantage in an open election. Despite accusations that the Government had stacked its appointments with monarchists, eight delegates were appointed specifically to represent the youth of Australia and four delegates were appointed to represent indigenous Australians. Notably, however, no appointed positions were specifically set aside for representatives of NESB Australians. NESB Australians amount to some 30 per cent of the Australian population but remain predominantly silent in mainstream politics.[3] To have been truly representative, 30 per cent, or 46 of the 152 Convention delegates, should have been of NESB. These statistics confirm the staggering under representation of NESB Australians in positions of mainstream political office and influence.[4]
It is difficult to accurately define and attribute ethnicity within an ethnic mosaic such as exists in Australian society. I will nevertheless attempt to list Convention delegates whom I know to be of NESB descent and apologise for any misattributions or omissions. The NESB delegates at the Convention included: myself (ungrouped), Senator Nick Bolkus (parliamentary appointment), Senator Natasha Stott-Despoja (parliamentary appointment), Andrea Ang (non-parliamentary appointment), Stella Axarlis (non-parliamentary appointment), Dr Tony Cocchiaro (Australian Republican Movement (ARM)), Sophie Panopoulos (Australians for Constitutional Monarchy (ACM)), Sarina Russo (ARM), Karin Sowada (ARM), Prof Trang Thomas (non-parliamentary appointment), Anne Witheford (ARM) and Heidi Zwar (non-parliamentary appointment).
Interestingly, we, the NESB delegates, did not organise ourselves into a group to represent the specific interests of ethnic Australians. Not only, therefore, were NESB Australians under represented at the Convention, but those who could participate could only do so as scattered individuals in a group process. The crucial question is whether there was in fact a need for group representation of the interests of NESB Australians within the debate and whether, consequently, those interests suffered.
Again, it is impossible to generalise as to the interests and opinions of a group as diverse as Australians of NESB. However, I do believe that NESB Australians find common ground on four broad issues which I will term "NESB issues": (a) reasons for favouring change to a republic; (b) changes to the preamble of the constitution; (c) qualifications of the President; and (d) appointment and dismissal of the President. These issues merit separate consideration.
NESB Australians support a republic because we wish to live in a nation whose symbols do not exclude us. We have no emotional ties or allegiances to the British Crown. We wish to feel included within an Australian identity which is no longer confined to the image of the sun-bleached blonde life-saver. We wish to be perceived as equal to any other Australian, not merely in the eyes of the law, but in the eyes of any observer. For NESB Australians, becoming a republic will signify an end to Australia's kow-towing to British institutions and British superiority. It will mean that those who cling to the power and status of the former British empire will no longer find an official ally in the symbols of our nation.
However much I employ the term "symbolism", describing Australia's becoming a republic as merely a matter of symbolism does it little justice. The word "symbolism" is cold; it intellectualises something emotional. The real issue is about feeling at home in the place where we live. It is about not feeling excluded, alien, ugly and rejected in our environment. Those proud of their British heritage have every right to be so, but they cannot use that pride as a reason for preserving the Monarchy in modern multicultural Australia. Becoming a republic is about proclaiming that Australia now belongs to Australians in all their diversity.
The specific reasons why NESB Australians support a republic were not resolutions upon which delegates had to vote. They were considerations relevant to the debate about the merits of constitutional change. There was therefore no real need for a consolidated NESB vote. NESB interests were advocated strongly in the individual speeches of various NESB delegates without opposition or controversy. It is a credit to multicultural Australia that such views may, in this day, be articulated and then applauded in a public representative forum.
NESB Australians have a common interest in a preamble which recognises popular sovereignty within a united multicultural nation in which there is equality, mutual respect and tolerance for cultural and linguistic diversity.
These interests were well vindicated in the resolution adopted by the Convention in relation to the preamble, which stated that it should include, among others, the following elements:
The Convention determined, furthermore, that the following matters be considered for inclusion in the preamble:
Subgroup (i) of the Working Group on the Preamble was convened and chaired by Dr Tony Cocchiaro and attended by numerous other NESB delegates. The involvement of NESB delegates in this process guaranteed the inclusiveness of the terms of the recommendations. When reporting back to the plenary session, a further resolution on the motion of Dr Cocchiaro was passed that the Resolutions Group consider a number of themes reflecting Australian values in their formulation of the final preamble resolutions. These values included the following statements:
We are a culturally diverse but united and cohesive nation of citizens who have come from every corner of the globe to join with the indigenous inhabitants...Our nation ... respects and cherishes cultural diversity....[5]
Encouragingly, the specific terms of the final resolution on the preamble which were inclusive of NESB Australians and which heralded Australian ethnic and cultural diversity were adopted almost unanimously by the Convention in the voting on Day 6.
Concerning the qualifications of the president, the Convention agreed with the Resolutions Group (of which Stella Axarlis was the only NESB member)[6] that the head of state be an Australian citizen, but rejected resolutions requiring that the president be a citizen or a resident of Australia for the arbitrary minimum period of 15 years. [7]
The rejection of resolutions mandating that the president must be a citizen or resident for a specified minimum time period was in the interests of NESB Australians and was based on arguments that their adoption would create a lower class of Australians. Certain Australians would be excluded from being president in spite of the oaths they had taken upon attaining citizenship.[8] There was no united cry raised among NESB delegates shouting down these resolutions as discriminatory and arbitrary. Encouragingly though, the resolutions were voted down quite decisively and with little polemic.
An issue which was not thoroughly debated due to general acceptance of the present terms of s 44 of the Constitution, was whether the president could hold dual citizenship. Section 44 presently disqualifies Australian citizens holding dual citizenship from serving in federal Parliament. This, in my view, is the appropriate position.[9] I am entirely alive to arguments that there are nations which bestow citizenship as an irrevocable birth right (for example, Greece) and others which do not allow their citizens to acquire the citizenship of any other nation (for example, Malaysia). I am also aware that many persons gain dual citizenship for reasons of convenience, not allegiance. Nevertheless, I believe that it is crucial to the integrity of the office that an Australian head of state should not only be free from any actual conflict of interest, but should also be free from any appearance of having such a conflict. Freedom from bias and from any apprehension of bias is a settled principle in the common law regarding conduct of judges.[10] The principle exists to preserve the integrity of the office, of the decision making process and of the legal institution itself. Similar considerations apply in respect of the office of a largely ceremonial president, the head of state of a nation and its highest representative.
All Australians, regardless of their ethnic background, should have an equal opportunity of becoming the Australian president. This aspiration necessarily impacts upon the method of selection of the president.
Under the Bipartisan Appointment of the President Model adopted by a majority of the Convention and which will be put to the Australian people in a 1999 referendum, the process of public consultation will involve key ethnic organisations. The community consultative committee, which will screen general public nominations and make a report to the prime minister, will include ethnic leaders who are non-parliamentarians. The crucial difference in the preferred model is the guaranteed presence within the selection process of NESB leaders and representatives. These persons within the community consultative committee will be able to persuade and lobby in favour of NESB Australian candidates for the office of President. The decision will not be left to the simple majority decision of a nationwide election in which an NESB candidate will face considerable disadvantages (direct election). Nor will the decision be left to the processes of the political elite among which NESB Australians are vastly under represented and thus have no voice to argue on their behalf (McGarvie/Bipartisan appointment without public involvement).
The issue of equal opportunity for marginalised, disadvantaged and under represented groups was not adequately considered in the Convention's debate as to which model should be put in a referendum. The preferred model was chosen on the basis of other considerations. NESB delegates should have articulated their collective views as to the strengths and weaknesses of each of the republican models in relation to NESB Australians. It was purely out of happy circumstances that the model which I believe best delivers an equal opportunity to NESB Australians to be appointed President was favoured by a majority of the Convention.
The results of the Convention are a triumph, to my mind, for NESB Australians. Each of the specific interests of NESB Australians in the republic debate were achieved at the Convention. Credence, however, must be given to the fact that the results were attained not because of a planned and disciplined group effort by NESB delegates, but because equality, diversity and the value of a united multicultural Australia have become accepted and heralded icons of the Australian way of life. I believe that NESB issues (a), (b) and (c) were resolved favourably and successfully for NESB Australians for this reason. The neglect of NESB interests in the debate and manoeuvrings on NESB issue (d), however, is critical. It shows that NESB Australians must be present within group processes in political fora to recognise, draw attention to, advocate and lobby for NESB interests. They must do this as a consolidated group. As a minimum, there must be representation and involvement.
For republicans, the challenge ahead is immense. It is crucial to the success of the referendum that ethnic Australians are informed on a nation-wide basis, both in English and in a number of other widely spoken languages in the Australian community, about the details of the referendum. It is vital that they understand the basics of our system of government, what becoming a republic entails, what the Bipartisan model delivers and how it is an improvement on the status quo. Such a process of public information was not adequately engaged in preparations for the Constitutional Convention. The choice at the referendum, whether for or against a republic, must be an informed one.
[*] BA (Hons) (Syd); LLB (Hons) (Syd). Elected delegate to the Constitutional Convention. The author wishes to thank Ms Anne Rosenfeld for her editorial assistance.
[1]Australia, House of Representatives 1901, Debates, vol HR III, p 3503.
[2] Constitutional Convention, Transcript of Proceedings, 4 February 1998, p 195.
[3] See ibid; cf M Mackerras, The Mackerras 1998 Federal Election Guide, AGPS (1996) p 206, where he notes that at least 15 per cent of Australian voters are ethnic based on whether they were "born overseas in a non-English speaking country" or "using a language other than English at home". These statistics were based upon 1991 census results and did not take into account second generation Australian-born children of immigrants, nor those NESB Australians below voting age.
[4] In the 1996 general election, eight Federal Parliamentarians were born overseas in the following nations: Italy, Cyprus, Greece, Hungary, Germany, The Netherlands and Egypt. See Table 10.2 in C Bean, M Simms, S Bennett & J Warhurst (eds), The Politics of Retribution: The 1996 Federal Election, Allen & Unwin (1997) p 86.
[5]Constitutional Convention, Transcript of Proceedings, 9 February 1998, p 359.
[6] The composition of the Resolutions Groups was: Stella Axarlis, Julie Bishop, Gareth Evans, Kerrie Jones, Wendy Maichin, Pat O'Shane, George Pell, Moira Rayner, Jeff Shaw, Malcolm Turnbull, Lloyd Waddy, Daryl Williams and Barry Jones (non-voting chair).
[7] Both the Communique and the Minutes of Proceedings report that resolution 4B was negatived. The Transcript of Proceedings, however, reports that resolution 4B was carried: Constitutional Convention, Transcript of Proceedings, 11 February 1998, p 555.
[8] See comments of Paul Tully, Constitutional Convention, Transcript of Proceedings, 11 February 1998, p 554.
[9] I am aware that my views on this point are contrary to those of the Federation of Ethnic Community Councils of Australia.
[10] The general common law rule is contained in the English case: Steeples v Derbyshire County Council [1984] 3 All ER 468.
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