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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples - 13/03/2015 - Public consultation for constitutional recognition
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BENWELL, Mr Philip, MBE, National Chairman, Australian Monarchist League


CHAIR: I welcome Mr Philip Benwell from the Australian Monarchist League. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. We have your submission, which we have numbered submission 104. I now invite you to make a short opening statement. After you have spoken I will invite members of the committee to put questions to you. Thank you for presenting to us.

Mr Benwell : I open with the statement that the Australian Monarchist League recognises that the Aboriginal and Torres Strait Islander people were in this country before the British flag was raised on this soil. We respect and have the best of intentions for Australia's Indigenous people and value them as Australians equal to anyone else in this country, without fear or favour.

The Australian Monarchist League was founded before the middle of the last century as an international monarchist organisation. However, when I was asked to take over some 25 years ago, I reformed this organisation into a wholly Australian entity honed to oppose attempts to remove the Crown from the Australian Constitution. Initially our purpose was to protect the Queen from attack and not to get involved in the debate political. But our activities soon expanded into total opposition to proposals to make Australia into a republic. Our opposition was based not on our respect and love for the Queen—although that is obviously a given—but on the fact that we believe that it is only through having a non-elected head of state totally and absolutely independent from any sort of political interference that our democracy in this country can be protected.

The Australian Monarchist League is not a political organisation but we accept that we are involved in a political debate. We have no alignment with any political party and, in fact, have members from all sides of politics. We are not a conservative organisation—although it can be said that much of our ideology is conservative, in the same manner that it could be said that the ideology of traditional Labor is conservative. Members of this committee will doubtless recall the huge swathes of Labor seats that voted against a republic in 1999.

As a modern organisation most of our activities are now online and we boast a support base in excess of 20,000. However, we would point out that the greater number are now online and internet participants. Nevertheless, this does indicate the extent of our influence. Most of our members are under the age of 40 and many of our office bearers are in their 20s. We have a powerful youth movement and our organisation is continually expanding.

The Australian Monarchist League is a proactive organisation opposing any attempt to demean our Constitution and our monarchy. In this regard, we have been active and successful. For instance, we have pressured large corporations such as Toyota to offer public apologies where they have sought to make fun of the Queen. Similarly, we have caused many companies to withdraw their advertising if we have deemed it to be offensive or biased. We have also been successful in lobbying parliaments and have caused changes to be made to proposed legislation.

The league is a democratic organisation. When this committee wrote to us suggesting that we put forward a submission the matter was deliberated by our national council—which is an elected body, as are all our office-bearers—and it was decided that we should proceed with a submission. We note that the committee has called for submissions on steps that could be taken to progress towards a successful referendum. It would be unfortunate if at this stage of the process of constitutional amendment the committee and the parliament were to disregard concerns about the substance of various forms of recognition and focus only on what is likely to succeed at referendum. I would point out that the Australian Monarchist League has made a submission because the committee secretary specifically wrote to us on 8 January this year advising that the committee invited us to make a submission.

I would point out that the Australian Monarchist League is not a racist organisation and racists are not welcome at our meetings. Our membership comprises people from all continents except Antarctica. Our purpose is to support the Crown, under which all people are equal. In fact, the basis of our submission was always going to be the premise that all under the Crown are equal whatever their race, religion, social standing or preferences. I quote from our submission:

As the oldest institution in Australia, the Crown has always had a deep concern for Aboriginal and Torres Strait Islander peoples. For example, the following instruction was issued under the authority of King George III to the first NSW governor:

You are to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them. And if any of Our Subjects shall wantonly destroy them, or give them any unnecessary Interruption in the exercise of their several occupations. It is our Will and Pleasure that you do cause such offenders to be brought to punishment according to the degree of the Offence.

The Crown has always sought to give Aboriginal and Torres Strait Islander peoples the same legal rights, privileges and protections as apply to all the Crown’s subjects. There should be no legal advantage or disadvantage accruing to Aboriginal and Torres Strait Islander peoples simply on the basis of their aboriginality. The League believes the Constitution, in particular, should not give, or risk giving, favour to any persons on the basis of their race.

A draft submission was submitted to our national council and, after further discussion and redrafting, was submitted to this committee. The joint select committee has made certain recommendations with which we do not concur. In the first instance, we believe that in proposing to amend, add and replace clauses within the Australian Constitution, this committee has exceeded its mandate to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition. We believe that a statement of recognition that the Indigenous people were here before the British flag was raised on Australian soil would probably gain acceptance providing the wording does not seem to invite legal argument. However, we are of the opinion that putting forward any amendment to any clause within the Australian Constitution, particularly those directed at changing the powers of the parliament, could well lead to endless legal arguments in our courts. We believe that any such proposed amendment to the Constitution would be defeated at referendum.

The Australian Monarchist League believes that the Constitution should not identify or hold as separate any race whatsoever. In this day and age, anyone who is a citizen of this country is an Australian and should be recognised as such. We believe that all are equal under the Crown, whatever their ethnicity, religion, social standing preference, and none should be more equal than or separate from others. We are not in agreement with the inclusion of any clause in the Australian Constitution the intent of which is to enforce action against discrimination. We believe this is a matter for Commonwealth and state laws, not for the Australian Constitution. We also believe that potential legal problems could arise by requiring the states to be beholden to an anti-discrimination clause in the Commonwealth Constitution. We are pleased that the committee is not proceeding with a recognition of languages clause. The constitutional implications of such recognition—where there are some 200 existing languages not including, I understand, dialects—would be enormous.

It has been reported that monarchists support the holding of a constitutional convention to debate recognition. This is not true, as far as the Australian Monarchist League is concerned. We have never been consulted about this, and we do not believe that a constitutional convention would serve any purpose, except possibly as a talkfest. We believe that this committee would do better to put forward to the parliament a simple proposal for recognition after consultation, whether behind closed doors or otherwise, with national organisations that may play a part in an eventual referendum. We point to the 1998 Constitutional Convention on a republic, where, after the spending of countless hours and millions of dollars, the end result was the putting forward of a proposal basically drafted by the Australian republican movement along similar lines to the proposals of the Republic Advisory Committee established by Prime Minister Keating in 1993 and headed by Malcolm Turnbull.

With regard to the proposal for a declaration of recognition, we would, of course, have no opposition to a stand-alone document, but we do not agree with such a declaration being annexed to our Constitution. We are of the opinion that, if such a declaration were to be put to the Australian people, it would not succeed, as it would most probably comprise wording that would later be taken to be legally arguable. We would also point out that, in the 1999 referendum, there was support for a republic from members of all political parties represented in parliament—the Labor Party officially, and Liberal and National politicians individually. Still, the proposal was defeated by a massive landslide, which, in electoral» terms, was a loss for the republic in 72 per cent of the then electorates throughout the country. The people are very suspicious of any change to the wording of the Constitution and will generally vote against such change, whatever the polls may say beforehand.

May I close, as I opened, with a statement: the Australian Monarchist League recognises that the Aboriginal and Torres Strait Islander peoples were in this country before the British flag was raised on the soil. We respect, and have the best of intentions for, Australia's Indigenous people. We value them as Australians equal to anyone else in this country, without fear and without favour. Thank you.

Senator SIEWERT: Could you please outline what wording you would support for recognition of Aboriginal and Torres Strait Islander peoples?

Mr Benwell : We would need to see the end result of the wording of the proposal and then—

Senator SIEWERT: I am asking you: what are the words that you would support?

Mr Benwell : We have not looked into the words that we would support, because we were asked at the last minute to make a submission and we have made a submission. As I have said, we expect that a simply worded paragraph would probably gain acceptance at referendum, but it has not been our mandate to draft the wording of such.

Senator SIEWERT: What elements of wording would you support? Do you support the words of the recognition paragraphs that the expert panel recommended?

Mr Benwell : I cannot answer that at this stage.

Senator SIEWERT: But you would support some words. Is that what you are saying?

Mr Benwell : Yes.

Senator SIEWERT: Where would you put them in the Constitution?

Mr Benwell : That is another problematic matter, because, if you add one single word to the Constitution, it can have legal consequences. That is something that we would need to look at very closely before we make a decision on acceptance or otherwise.

Senator SIEWERT: Can you explain what your concerns are about legal consequences? People are taking «matters» to the High Court quite frequently around the Constitution, so why should we be fearful of potential legal ramifications?

Mr Benwell : I think we should be fearful of any change to our Constitution and the implications thereof.

Senator SIEWERT: Why? The Constitution was drafted over 100 years ago for a very different society.

Mr Benwell : And has worked to protect our democracy ever since.

Senator SIEWERT: Some people would argue that it has not worked for Aboriginal people.

Mr Benwell : Aboriginal people today, I believe, are equal Australians to everyone else.

Senator SIEWERT: You were not here earlier when we heard from Mr Dodd, who was talking about his consultation with the council of elders in South Australia, who were clearly saying that Aboriginal people consider they are not equal, consider there is great inequality—that is the elders, the people that are suffering from that inequality. Quite clearly, there is a difference between your members' opinions and Aboriginal peoples' opinions.

Mr Benwell : With respect, I would say that that is probably a matter for the parliament, not for the Constitution.

Senator SIEWERT: But just then you said they are equal, and Aboriginal people are saying they are not.

Mr Benwell : Yes, but the fact that Aboriginal people still consider themselves to be disadvantaged—they are not disadvantaged under the Constitution. They may be disadvantaged because the state and Commonwealth parliaments are not doing enough for them.

Senator SIEWERT: Explain to me why you do not think there should be inclusion of issues around discrimination in the Constitution if everybody is considered equal?

Mr Benwell : We believe that discrimination is a matter for the parliaments to decide. You may include discrimination in the Constitution today, but different people have different views of discrimination. We believe that these are «matters for the parliaments, not for the Constitution.

CHAIR: Your submission outlines your responses to each. I did want to ask about the 1967 referendum. Were you opposed to it, or did your organisation support it?

Mr Benwell : I was not involved in 1967, so I cannot answer that question.

Senator SIEWERT: But surely you have got the history of your organisation—you said it was formed in the middle of the—

Mr Benwell : 1941.

Senator SIEWERT: So surely you have got the records of your organisation?

Mr Benwell : It did not fall within our mandate.

CHAIR: But it would fall within your mandate given your strong interest in protecting the monarchy and protecting the Constitution, so at some point the organisation must have had a position.

Mr Benwell : In 1967, the Monarchist League was a different organisation than it is now. It was not so involved in protection of the Constitution as we are today.

CHAIR: I am just trying to think of your opening statement about the organisation. It has—

Mr Benwell : It was formed as an international organisation in the early years of the last century.

CHAIR: And its purpose?

Mr Benwell : Its purpose was the protection and education of monarchical systems. But 25 years ago, when I was invited to head the Australian Monarchist League, it was reformed as an Australian organisation to oppose republicanism and to protect our Constitution.

CHAIR: What did the definition of 'protecting the Constitution' encompass? I am just curious.

Mr Benwell : We believe that our Constitution protects the democracy of the Australian people. Our mandate is to look at any proposed changes to our Constitution and determine whether we believe those changes would add to or detract from the overall protection of our democracy. For instance, in 2013 we looked at the proposals to amend the Constitution to recognise local government. We heard arguments for and heard arguments against, and we decided that we would oppose Commonwealth recognition because we believed it was a state matter and would affect the powers of the states in that regard. We then held a plebiscite of all of our members to determine what the opinion of our members was, and overwhelmingly it was that we should oppose the proposed referendum, which we did. We were the largest online organisation opposing the referendum. So that is the nature of our organisation as a democratic organisation.

Senator SIEWERT: Are there any amendments to the Constitution that you have supported?

Mr Benwell : Not in the 25 years that I have been there, because there have only been two proposed—one actual referendum, which of course we opposed, and the proposed referendum on local government.

CHAIR: Yes, but the others were before.

Senator SIEWERT: Did the mandate or the change of focus of the organisation only occur when you became—

Mr Benwell : Yes.

CHAIR: Are there any further questions?

Senator SIEWERT: No.

CHAIR: I have no further questions.

Mr Benwell : I mentioned that it changed because we were faced with a move towards a republic. So that is how we became involved in the political debate. Before, the organisation was not involved in any sort of politics.

CHAIR: I have no further questions. I thank you for your submission and the evidence that you have given today and the time that you have spent with us. Thank you very much, Mr Benwell.

Mr Benwell : Thank you.