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Preamble politics: problems with the 1999 referendum and 21st century prospects.



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PREAMBLE POLITICS: PROBLEMS WITH THE 1999 REFERENDUM & 21ST CENTURY PROSPECTS

ANNE WINCKEL∗

I INTRODUCTION

Would a reference to the equality of women and men in the constitutional preamble create a legal safeguard or legal right to equality? Would a reference to the original custodianship of Australia by indigenous peoples in the preamble create any property rights in law? The Government and certain legal identities have certainly managed to raise fears about these matters in recent years. But the answer to both questions is a clear and resounding “no”; just as 100 years ago the reference to God in the original preamble did not create any legal principle or legislative power to do with religion. A preamble does not make law - but rather it introduces the laws that follow. Political agendas and fear campaigns over the last few years have managed to cloud the issues sufficiently for the national interest to be deftly sidestepped.

The constitutional preamble is the opening text that comes before the enacting clause, the introductory covering clauses and the substantive sections of the Commonwealth Constitution itself. We’ve had the current preamble since the Constitution was enacted 100 years ago, but for more than a decade now, there has been talk about getting ourselves a brand new preamble. New words for a new era. There are lots of obvious reasons why a new preamble seems like a good idea: the original preamble has historical omissions (eg failure to mention indigenous people and failure to mention Western Australia), it lacks soul, and it fails miserably to embody any aspirational national text.

Isn’t it ironic that Australians can rarely quote any words from our Constitution, but we are pretty familiar with the “We the people” of the preamble to the Constitution of the United States of America 1787 (US), and the “all … are created equal … endowed by their Creator with certain unalienable rights” of the American Declaration of Independence 1776 (US). It is not surprising that there has been a significant groundswell of

∗ BA LLB DipEd (Adel) GCLP (UniSA) LLM (Melb). Formerly a Lecturer with the Faculty of Law at the University of Melbourne. Currently a Consultant with Hamilton Jones & Koller in Melbourne, and a member of the Victorian Women Lawyers Justice Committee. This paper is based on an article published by the author: “A 21st Century Constitutional Preamble - An Opportunity for Unity rather than Partisan Politics” (2001) 24 UNSW Law Journal 636.

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support for a new aspirational preamble to be inserted into the Australian Constitution,1 including recommendations from the 1998 Women’s Constitutional Convention,2 and recommendations from the 1998 Convention itself.3 One argument is that timeless words drafted at an earlier reflective moment can impart encouragement and hope at times of national crisis or tragedy. Look at how the Australian national anthem came out of hibernation at the memorial service for those who perished in the attacks on the World Trade Center in New York. So why was the preamble referendum of 1999 so soundly defeated if the proposal had such widespread support?

II WHAT WENT WRONG WITH THE 1999 PREAMBLE REFERENDUM?

The final draft preamble and referendum proposal that was put before the people on 6 November 1999 suffered from four key problems: 1. the lack of consultation at the drafting and review stages of the process; 2. the politically partisan content of the draft preamble;

3. the misunderstood and misdirected function of the new preamble; and 4. the inappropriate inclusion of a non-justiciability clause. The first two problems are both underpinned by a failure to rise above partisan politics, and the second two are underpinned by an over-preoccupation with matters of legal significance. All four result in a failure to respect the sovereignty of the Australian people. In other words, the Government unfortunately did not treat the preamble as something to be created in a public context, to be finalised in an atmosphere of consensus, and to be applauded by the majority of Australians.

1. No Consultation The Prime Minister’s first draft preamble (apparently a joint John Howard/Les Murray production) was released as an exposure draft in March 1999.4 This initial draft was strongly criticised for its wordiness, its grammatical ambiguity, its failure to incorporate some of the key recommendations of the 1998 Constitutional Convention, and its reference to a number of divisive ideas - most prominent of which were the references to “dearly valued mateship”, and various symbols of liberal ideology. Arguably, none of these weaknesses would have been as pronounced had the Government welcomed the key stakeholders to the drafting table. Look for example at the Opposition Parties’ draft preamble which is a much sharper and more “measured” preamble resulting from collaboration between the Labor Party, the Democrats and the Greens.5

The next example of failure to consult is that the Prime Minister did not make public the subsequent 700 submissions that were received from around the nation. In addition, the final version of the proposed preamble emerged from behind closed doors in time to give the Parliament only one day to debate it before it was hastily passed.6 It was a fatal error of judgment (assuming that the Prime Minister did in fact intend that his preamble be successful) for the Government to prevent both the Opposition and the general public from having adequate time to review, critique, suggest amendments to and eventually offer support for the final draft preamble.

It seems inconceivable that a new constitutional preamble could be drafted without the involvement of the various indigenous leaders, the republican lobbyists, and the wider general community. After all, it was the indigenous community that suggested changes to the preamble more than a decade earlier. And it was the republicans who at the 1998 Convention pointed out that a move to a republic would require an amendment to the constitutional preamble. And obviously, without the support of the electors, a referendum is doomed from the outset.

1 Support for a new preamble emerged but was unsupported in 1987 (Advisory Committee to the Constitutional Commission, Individual and Democratic Rights, Report (1987) 30) and in 1993 (Republic Advisory Committee, An Australian Republic: The Options - The Report, vol 1 (1993) 139-140). Numerous other proposals have been raised since (eg see George Winterton, “A New Constitutional Preamble” (1997) 8 Public Law Review 186, 190-2; and see Constitutional Centenary Foundation, “We the people of Australia”: Ideas for a New Preamble to the Australian Constitution (1999) 3). 2 Women’s Constitutional Convention, Outcomes (1998) at 30 May 2002. 3 See “Constitutional Convention Communiqué”, in 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament

House, 2-13 February 1998 (1998) vol 1, 46-7. 4 See Appendix 1. 5 See Appendix 2. 6 The Bill - the Constitution Alteration (Preamble) 1999 (Cth) - was introduced into Parliament on 11 August 1999, and passed the next day

without amendment.

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2. Partisan Content and Style There is no question that the final preamble proposal was an improvement on the initial exposure draft.7 Nevertheless, it continued to suffer from the dissent created by a lack of consultation with key indigenous leaders, and the failure of the Government to adopt the language preferred by the Aboriginal people (and supported by the Constitutional Convention) in relation to the past “custodianship” of the land. Furthermore, while the final draft reflected a number of the recommendations of the Convention, there were still surprise inclusions that had no origin in consensus or public debate - such as the reference to the sacrifices of those who defended our country. One of the most disappointing omissions was the failure of the Government to respond to the recommendations of the Convention that there be references to representative democracy, responsible government and the sovereignty of the people. Also, it is unfortunate that there was so much opposition to a reference to both men and women in the new preamble - an element that would have at least made a start towards counteracting the masculine nature of the rest of the Constitution (where each Governor General, High Court Justice and Member of Parliament is a “he”).

I believe that one of the biggest reasons that past Governments and Conventions have consistently resisted the call for a new preamble, is because of the fear of unknown legal consequences. However, I have argued at length that much of the resistance to a new preamble is based on either an understated or an over-inflated view of the legal significance of preambles.8

An example of an over-inflated controversy in the referendum debate was the suggestion that a reference to indigenous “custodianship of land” would have implications for matters of land title and compensation. In the context of the fact that preambles are certainly “part of” the Act as a whole, but they are never a “law-making part”, it is clear that any reference to custodianship (or equality for that matter) could not have the legal implications that some have suggested. In any case, it is hard to imagine what implications suggested by a preambular reference to custodianship could compare with the common law principles of native title established by the High Court in Mabo’s Case.9

And it is also an unconvincing argument to point to the role of the preamble in assisting with the interpretation of ambiguous substantive constitutional sections,10 as this preambular role is limited by a series of qualifying principles such as: that a preamble can have little effect if it is itself ambiguous; a preamble cannot affect the substantive text if the legislature intended to legislate beyond the preamble; a preamble will not prevail over the substantive text where both have equal clarity; and the effect of a preamble will depend on whether or not it indicates a “compelling” alternative to the meaning otherwise suggested by the substantive text. Also, a statement is not automatically true just by virtue of its recital in a preamble.

Arguably, the preoccupation with matters of legality in relation to a new preamble has caused the Government to lose sight of the equally important issue of symbolism in the Constitution. Gatjil Djerrkura reminded us that it is not only the substantive clauses of the Constitution that are important, but also the “nation’s vision”.11

3. A Misdirected Purpose One of the problems plaguing the preamble referendum from the outset was the fact that the final preamble proposal lacked a couple of the core characteristics that are typical of preambles generally. While constitutional preambles are meant to be aspirational, they are also still functionally and technically preambular in essence. They introduce the law that follows and often provide background information or

7 See Appendix 3. 8 See Anne Winckel, The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future (Master of Laws thesis, University of Melbourne, 2000). 9 Mabo v Queensland [No 2] (1992) 175 CLR 1, 16-76 (Brennan J; Mason CJ and McHugh J concurring), 76-120 (Deane and Toohey JJ). 10 See my description of the contextual and constructive roles of preambles in: Anne Winckel, “The Contextual Role of a Preamble in Statutory

Interpretation” (1999) 23 Melbourne University Law Review 184. 11 Gatjil Djerrkura, “Making the Republic Important to a Majority of Australians” in John Uhr (ed), The Australian Republic: The Case For Yes (1999) 92, 96.

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reasons for the enactment. They are also often followed by an enacting clause.12 The 1999 draft preamble lacked both of these elements.

The 1999 preamble proposal has been accused of not being a “preamble” at all. P H Lane described it as a “stand-alone miscellany of facts, a credo of beliefs”.13 Indeed, the Prime Minister himself described his new preamble as “a statement about the kind of Australia that we hold dear and about the fundamental values and verities of Australian society in 1999”.14 My view is that we either have a new national “Declaration of the People” or we have a new preamble, but we should not pretend that one is the other.

There are a number of strategies we can use to avoid a new preamble having no resemblance to a legislative preamble at all. Firstly, we should wait until such a time as the constitutional text is being changed (for instance at the transition to a republic) before proposing another new preamble. This makes sure that the preamble is actually saying something about the text that follows, and it avoids the absurd possibility that Australians may have elected to become a republic, and simultaneously approved a preamble that made no mention of this landmark transition.15

Secondly, we should draft the new preamble so that it is followed by a clear enacting clause. This avoids the error of people thinking that the preamble is part of the “enacted” law. It also is a way of re-emphasising the sovereignty of the Australian people. Unfortunately the final draft preamble of 1999 had no enacting clause following, and instead it included within it a “passive” alternative that: “We the Australian people commit ourselves to this Constitution”. I call this passive, in that to “commit” ourselves to the Constitution implies a constitution being imposed from above, rather than one being authorised by the will of the people. This choice of words had the effect of symbolically diminishing the sovereignty of the Australian people. To emphasise the popular sovereignty of the Australian people, it would be more appropriate to use assertive, authoritative words such as “affirm and declare” (and to separate them out from the preamble itself).

4. An Inappropriate Non-justiciability Clause I believe that one of the key flaws of the 1999 referendum was the inclusion of a substantive non-justiciability provision. The referendum preamble proposal included the insertion into the Constitution of a new s 125A, which was to state:

The preamble to this Constitution has no legal force and shall not be considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the Commonwealth.16

This was a direct response to a recommendation of the 1998 Constitutional Convention.17

Firstly, I believe that s 125A was unnecessary. The perceived need for a non-justiciability clause is dissolved when politicians and academics consider that there is nothing to be feared in allowing a constitutional preamble to play its ordinary role (which is safeguarded by many qualifying principles) in constitutional interpretation. Unfortunately, the 1998 Constitutional Convention was the perfect venue for a theatrical climax about the doubtful role of a new preamble.18 Not surprisingly, the heated debate led to an increasing level of misunderstanding about the legal role of preambles. For example, a number of delegates took the discussion to mean that it was inappropriate for the High Court to make any reference to the preamble in interpretation. Of course, the judiciary has been referring to the preamble and using it in decisions ever since 1904.19

12 The current enacting clause that follows the original preamble is the standard text used in all Acts of the Parliament of the United Kingdom Parliament at the time: “Be it 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”. If Australia ever becomes a Republic, then that would be an ideal time to add a new enacting clause to the Constitution that reflects the fact that the revised Constitution draws its authority from the approval of the Australian People. 13 P H Lane, “Referendum of 1999” (1999) 73 Australian Law Journal 749, 749-50. 14 Commonwealth, Parliamentary Debates, House of Representatives, 11 August 1999, 6497 (John Howard, Prime Minister). 15 While this outcome was inconsistent with the initial recommendation of the 1998 Constitutional Convention, ironically it was an approach

supported, after considerable debate, by the Republican Convention that was held in early 1999. 16 Constitution Alteration (Preamble) 1999 (Cth) s 4. 17 “That Chapter 3 of the Constitution state that the Preamble not be used to interpret the other provisions of the Constitution”, Resolution D3 moved by Kevin Andrews MP: 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13

February 1998 (1998) vol 4, 803. Purported to have been drafted by the Attorney-General Daryl Williams MP. 18 Eg The words of Professor Greg Craven: 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 3, 29. 19 See, eg, Tasmania v Commonwealth (1904) 1 CLR 329, 359-60 (O’Connor J). See also Federated Amalgamated Government Railway and

Tramway Service Association v NSW Railway Traffic Employes Association (1906) 4 CLR 488, 534 (Griffith CJ) (“Railway Servants Case”); Baxter v The Commissioners of Taxation (NSW) (1907) 4 CLR 1087, 1104 (Griffith CJ, for Barton and O’Connor JJ).

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Secondly, there are a number of key policy arguments that suggest that a constitutionally entrenched non-justiciability clause is an inappropriate method of resolving the debate about preambular legal significance.

(a) Apart from the fact that the proposed s 125A had its own internal ambiguity,20 there is the obvious criticism that it is an approach not taken by any other country in the world.21

(b) Section 125A also creates a negative impression of defensiveness and insincerity (eg we have a new preamble, but we don’t really mean any of it!). It is also possible for another misleading impression to be created - the impression that a preamble standing alone without legal restraint is somehow immensely powerful and potentially dangerous - an impression that I believe to be quite erroneous.

(c) Most seriously, there is the potential detrimental impact of a non-justiciability clause on High Court judges. They already refer in their judgments to concepts such as democracy, the rule of law, and the federal nature of our nation, but clearly an edict that the preamble “shall not be considered” could potentially require judges to be involved in mental high jinks. They might be forced into the ridiculous situation where in the context of discussing some principle, they are constrained to immediately qualify their discussion with a denial that their view had any roots in the preamble. In an era when judicial transparency is valued, such a muddying of the waters is an unwelcome direction.

III 21ST CENTURY PROSPECTS

Arguably, the new preamble proposal might have gained support in 1999 if there had been: • a more transparent process and greater public consultation throughout the drafting stage (ie respect for “we the people”); • a closer attention to the recommendations of the Constitutional Convention (ie respect for “we

the people”); • a more thoroughly polished product (ie more responsible government); and • a more orthodox treatment of the preamble as a technical component of a constitutional

document (ie more responsible government).

A new preamble should be inspiring and memorable, and it should evoke unity, consensus and a resounding “yes” from the majority of Australians. The sovereignty of the Australian people should be highlighted both in the text itself, and in the consultative process that accompanies the drafting of the text. In particular, the consensus of indigenous leaders should be respected, and the new preamble should contain appropriate language recognising the original occupation and custodianship of Australia by indigenous peoples. Ideally, a new preamble should also refer to both women and men and principles of equality and justice. I am suggesting that these additions would be included as statements of historical and cultural fact, not as instruments of legal change.

It would be uplifting at times of national pride and at times of national mourning for there to be a constitutional statement or phrase that resonates with the majority of Australians as a symbol of unity. If we listen to the voices of Australians, there are a number of common themes: equality, justice, diversity and democracy are just a few. It is these and other similar themes that were echoed in the debates of the 1998 Constitutional Convention. I look forward to an occasion when bipartisanship actually means a genuine joint effort, when the Government resists the tendency to be reactionary, and the Opposition resists the tendency to undermine, and together they facilitate the creation of a statement for all Australians (be it a preamble or a declaration) that we are eager to recite and to teach to our children.

20 The reference to “The preamble to this Constitution” could prima facie apply to both the current preamble and the proposed new one: eg the Constitutional Centenary Foundation believed that this confusion was possible: Constitutional Centenary Foundation, The Preamble: Background Paper (1999) at July 1999. 21 Although there is evidence that a preambular non-justiciability provision existed in a Seychelles Constitution under an earlier socialist regime:

Constitution of the Second Republic of The Seychelles 1979 (Seychelles) sch 3 s 8, referred to in Republic v Georges [Seychelles] [1999] 4 LRC 146, 154 (Alleear CJ).

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IV APPENDICES

Appendix 1: John Howard’s Initial Exposure Draft (25 March 1999)

With hope in God, the Commonwealth of Australia is constituted by the equal sovereignty of all its citizens.

The Australian nation is woven together of people from many ancestries and arrivals. Our vast island continent has helped to shape the destiny of our Commonwealth and the spirit of its people.

Since time immemorial our land has been inhabited by Aborigines and Torres Strait Islanders, who are honoured for their ancient and continuing cultures.

In every generation immigrants have brought great enrichment to our nation’s life.

Australians are free to be proud of their country and heritage, free to realise themselves as individuals, and free to pursue their hopes and ideals. We value excellence as well as fairness, independence as dearly as mateship.

Australia’s democratic and federal system of government exists under law to preserve and protect all Australians in an equal dignity which may never be infringed by prejudice or fashion or ideology nor invoked against achievement.

In this spirit we, the Australian people, commit ourselves to this Constitution.22

Appendix 2: Draft by Opposition Parties: Australian Labor Party, Australian Democrats and Australian Greens (29 April 1999)

Having come together in 1901, relying on God, as a Federation under the Crown;

And the Commonwealth of Australia being now a sovereign democracy, our people drawn from many nations,

We the people of Australia

Proud of our diversity

Celebrating our unity

Loving our unique and ancient land

Recognising Indigenous Australians as the original occupants and custodians of our land

Believing in freedom and equality, and

Embracing democracy and the rule of law

Commit ourselves to this our Constitution.23

22 Constitution Alteration (Preamble) 1999 (Cth) Exposure Draft, released 25 March 1999. This exposure draft was written primarily by Prime Minister John Howard and poet Les Murray: see Gervase Greene, “Mateship Raises Ire, Custodianship the Big Issue: Outcry on Preamble”, The Age (Melbourne), 24 March 1999, 1.

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Appendix 3: 1999 Referendum Proposal (6 November 1999)

With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good.

We the Australian people commit ourselves to this Constitution:

proud that our national unity has been forged by Australians from many ancestries;

never forgetting the sacrifices of all who defended our country and our liberty in time of war;

upholding freedom, tolerance, individual dignity and the rule of law;

honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;

recognising the nation-building contribution of generations of immigrants;

mindful of our responsibility to protect our unique natural environment;

supportive of achievement as well as equality of opportunity for all;

and valuing independence as dearly as the national spirit which binds us together in both adversity and success.24

23 As cited in Gervase Greene, “PM’s Preamble Doomed: The Latest Preamble”, The Age (Melbourne), 29 April 1999, 1: based on an initial draft by Gareth Evans (see “Labor’s Proposed Preamble”, The Australian, 24 March 1999, 4). 24 Redrafted by Prime Minister John Howard: Constitution Alteration (Preamble) 1999 (Cth); passed by the Commonwealth Parliament on 12 August 1999, and put to the people at a referendum on 6 November 1999.