If it was hoped that the Constitutional Convention of 1998 would produce acceptable recommendations for the reform of the Constitution, those hopes will have been dashed by the outcome of the Convention. The Australian Constitution has worked fairly well for nearly a century , and has indeed proved to be more effective and stable than most others, but it does require reform in certain respects, notably in the area of Federal and State relations. The resolutions of the Convention did not touch upon any of the areas in which the Constitution is defective.
In substance, the Convention recommended two changes to the Constitution. First, it was recommended that a model for a republican form of government should be put to the people in a referendum. That model has many serious deficiencies; even committed supporters of a republic recognise that it is significantly flawed.1 Secondly, it was resolved that the Constitution should include a Preamble which would refer to some matters that I am about to mention, but should not be used in interpreting the Constitution. It is this latter resolution with which I am now concerned.
Controversy has raged concerning the contents of the Preamble which the electors should be asked to approve. The Exposure Draft of a Bill - Constitution Alteration {preamble) 1999 contained one form of a proposed Preamble,2 but the Bill itself contains a preamble in quite a different form.3
In considering whether there should be a new Preamble, and if so what it should contain, one should not overlook the fact that the nature and functions of a preamble are well understood for legal purposes. The Privy Council has described a preamble as "an introduction to and in a sense a prefatory or explanatory note in regard to the sections which are to follow". 4 Quick and Garran, in their early and authoritative commentary on the Constitution, said:
"The proper function of a preamble is to explain and recite certain facts which are necessary to be explained and recited before the enactments contained in an Act of Parliament are to be understood. A preamble may be used for other purposes: to limit the scope of certain expressions or to explain facts or introduce definitions" .5
Modem statutes usually do not contain a preamble; when one is used, its purpose is to show the reasons for passing the Act, and to explain matters which may enable the enactments in the statute to be better understood.6 The majority of delegates at the Constitutional Convention acted on the view that the preamble to a Constitution may have a more extensive operation, namely that it may set out the beliefs and values which are accepted by the people in adopting the Constitution.
It was accordingly resolved that the Constitution should have a Preamble which should begin with the words, "We the people of Australia", and should refer to the following: Almighty God; the origins of the Constitution; the evolution of the Commonwealth into an independent democratic and sovereign nation under the Crown; the federal system, representative democracy and responsible government; the rule of law; the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders; Australia's cultural diversity; respect for the unique land and environment; the agreement of Australians to reconstitute their system of government as a republic; and a reference to ongoing consideration of constitutional change. It was resolved that the Preamble should conclude with the statement that the people of Australia, "asserting our sovereignty , commit ourselves to this Constitution" .
It was additionally resolved that the following further matters should be considered for inclusion in the Preamble: affirmation of the equality of all people before the law; recognition of gender equality; and recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia's indigenous peoples.
This wide view, that the preamble to a Constitution may have a symbolic effect, and should reflect what some delegates to the Convention apparently regarded as contemporary beliefs, values and aspirations, has been supported by reliance on the precedent said to be provided by the Constitution of the United States, and by other more modem Constitutions, including those of Ireland and South Africa.7 Those preambles stated the purposes for which a new and independent nation was being created (as in the U .S. and Ireland) or an entirely new order of society was being brought into existence (as in South Africa) . This, of course, is not the situation in Australia. We are, and have long been, an independent nation.
The proposed changes involved in the creation of a republic are said, by their proponents, to be minimal in effect. Indeed, it has been claimed by the present Attorney-General that the changes would not have significant consequences for the day to day workings of Parliament and Government,8 and although one may doubt the correctness of this confident prediction, there is no reason to suppose that the changes would create an entirely new order in society . The circumstances that may have made it appropriate to include a statement of beliefs and values in other Constitutions do not exist in Australia.
In any case, one may wonder why Australia should take as a model Constitutions which have not endured so long, or proved to be as successful, as ours. That last remark, of course, does not apply to the United States' Constitution, but that Constitution was considered closely by the framers of our Constitution in the 19th Century , and the Preamble which it contains was not followed by them as a precedent. In any case, the Preamble to the Constitution of the United States does no more than state (eloquently) the purposes for which that Constitution was ordained and established.9 The Preamble suggested by the Convention would go much further than that.
The Constitutional Convention recommended that the Preamble to the Commonwealth of Australia Constitution Act should be kept. Apparently it was suggested in the course of discussion that the existing Preamble should be put in an attachment to the Constitutional 10 and also that the new Preamble should be built on the old.11 Suggestions of this kind ignore the fact that the existing Preamble forms part of an Act of the Parliament of the United Kingdom passed in 1900; it would be absurd to amend that Preamble by an Australian law passed in 1999. However, what is now proposed is to insert a new Preamble in the Constitution itself, after the title.
The new Preamble was intended by the Convention to be an introduction to the Constitution when it was amended to convert Australia to a republic. The Government has since decided that the Australian people should have an opportunity to adopt a Preamble whether or not Australia becomes a republic.12 If the referendum to make the changes necessary to bring about a republic fails, it would seem incongruous to enact a new Preamble to explain or introduce, retrospectively, a long established Constitution.
It was argued by supporters of the Australian Republican Movement that the proposed law to insert a Preamble should be considered separately from the other proposals for constitutional change. They appear to have thought that consideration of the Preamble might distract attention from, or weaken support for, the republican case. A Preamble cannot exist in isolation; if a new Preamble is to be considered at all, it should be considered in relation to the provisions of the constitutional amendments which it is intended to introduce. It is difficult to find any justification for having a new Preamble if the referendum to convert Australia to a republic should fail. On the other hand, if that referendum should, unfortunately, succeed, there would be no point in inserting a Preamble of the kind now proposed by the Government, since it makes no mention of a republic.
The Constitution does not, in its present form, and would not if amended in accordance with the proposals to be put to a referendum, refer to a number of the matters which the Preamble contains. For example, there is nothing in the existing Constitution, and would be nothing in the amended Constitution, to refer to the kinship of the Aboriginal peoples and Torres Strait Islanders with their lands; or to the continuing cultures of those people; or to our responsibility to protect our environment. Reference to these matters in a Preamble would not explain or introduce anything in the Constitution. They would be irrelevant to the provisions of the Constitution and out of place in it.
There are reasons, besides those of form and style, why a preamble should not include a statement of values or beliefs not reflected in the existing words of the Constitution. In the absence of a provision prohibiting the use of the Preamble in the interpretation of the Constitution, it would be permissible to refer to the Preamble to resolve an ambiguity or uncertainty in the enacting words of the Constitution; and the words of the Preamble itself may, together with the enacting words, create the ambiguity or uncertainty .13
It should be obvious to anyone familiar with the course of constitutional development in Australia that an activist High Court might have used a preamble of the kind suggested by the Convention as the basis for an interpretation leading to extensive constitutional change, unless effectively prohibited from doing so, and it appears that at one stage of the Convention some delegates hoped that the Preamble might in effect introduce a Bill of Rights into the Constitution by a back door .14 Some delegates may still cling to those hopes, but the Preamble proposed in the Bill is more circumspect than that suggested by the Convention.
However, as I have already mentioned, the Convention resolved to exclude the use of the Preamble for the purposes of the interpretation of the Constitution. The Constitutional Alteration (Preamble) 1999 Bill goes a little further; section 125(A), if inserted in the Constitution, would provide:
"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" .
It is obvious that a provision of this kind would detract from any symbolic force that the Preamble might otherwise have had. Those hoping to find comfort in the Preamble would be entitled to regard it as no more than empty words - as the Romans would have scornfully said, vox et praeterea nihil. ("Nothing but words!"). Indeed, some may regard it as ambivalent or even insulting to express fine sentiments and in the same breath to insist that they should have no legal effect. That is not to deny the practical value of the section in preventing the Preamble from having undesired legal consequences; however, the protection which it is designed to afford may prove to be to some extent illusory .
The Courts have held that a preamble may have wider effects than as an aid to interpretation. A reference in a preamble to a matter has been held to make evidence of that matter admissible.15 Recitals in a preamble are prima facie evidence of the facts recited.16 It would be arguable that these rules are not excluded by a provision that the Preamble has no legal force.
For example, it might be held that there is a presumption of fact that the recitals are prima facie correct, because, as was said more than 300 years ago, it cannot be thought that a statute made by the authority of the whole realm will recite a thing against the truth. 17 One can only conjecture, for example, what effect might have been given in legal proceedings to the presumption that Aboriginal peoples were the original occupiers and custodians of Australia if, as the Convention suggested, those words had been inserted in the Preamble, since those words import that the Aboriginal peoples had possession of the land of Australia and the power to direct what should be done with it.18 Similarly, the reference to "their lands" in the proposed Preamble might serve as the basis for an argument in support of indigenous title.
Quite apart from these matters, however, a Preamble, even if devoid of legal force, could significantly affect ministers and other executive officers in the exercise of their discretionary powers. The decision in Minister for Immigration and Ethnic Affairs 'v. Teoh19 seems to provide authority for holding that there would be a legitimate expectation that a decision maker would act in conformity with the statements in the preamble, whenever they were relevant to the decision proposed to be made. If a minister or other officer proposed to make a decision inconsistent with that legitimate expectation, procedural fairness would require him or her to give the person affected notice and an adequate opportunity to present a case against the making of such a decision. A decision which was made without allowing procedural fairness to the person affected could be set aside. The fact that the Preamble had no legal force would not matter: to use some words from Teoh's Case,20 the Preamble would exist as a matter of fact and could not be dismissed as a "merely platitudinous or ineffectual act" .
Apart from possible consequences of this kind, the existence of a Preamble could have political consequences. Reliance could be placed on the words of the Preamble by interested groups seeking, for example, to establish Aboriginal rights, or to prevent mining or development which it is claimed may damage the environment. And no one can doubt that those organisations of the United Nations21 which our governments have unwisely allowed to intrude into our affairs, in derogation of our national sovereignty , would be entitled to regard the Preamble as stating values which Australia was obliged to respect and observe.
For all these reasons it would, in my opinion, be inappropriate and unsafe to include in a Preamble to our Constitution a statement of beliefs, values and aspirations.
Let it be assumed that all that I have said so far is rejected, and that it is decided that there should be a Preamble which sets out the beliefs, values or aspirations which the Australian people accept, or promote. It must then surely be agreed that only those things should be said which would meet with the general approval of the Australian community . There are some matters in particular in the Preamble proposed by the Bill as to which it may be doubtful whether there is general agreement throughout the community . Do people generally honour the indigenous peoples for their deep kinship with their lands? One might think that most Australians would have only a vague and imprecise notion of the nature of the relation of the indigenous peoples to the land, and whether that relationship could be described as kinship is a question which might provoke controversy.
Is it generally accepted that the cultures of the indigenous peoples have enriched the life of our country? One may doubt it. Is it generally agreed that there should be a reference to God? Although the devout may press for its inclusion, it would not be acceptable to all Australians, many of whom profess religions in which that expression would not be appropriate, and some of whom profess no religion at all. Delegates at the Convention justified the inclusion of the reference by attributing to the word "God" a wide and imprecise meaning. The reference to God was one of the few matters in the Preamble to the Commonwealth of Australia Constitution Act that excited discussion in the Constitutional Conventions of the 19th Century, and the fact that the reference was to be made influenced the framers of the Constitution in inserting s.116, which protects religious freedom.22
There is obvious disagreement as to the extent to which we should protect the natural environment from the effects of mining, forestry and development. Even if one presumes to think that all right minded citizens should agree on such matters, it by no means follows that the Preamble should mention them, if in fact they are sources of contention. The very fact that the Preamble to the Bill is different from that in the Exposure Draft shows how little agreement there is on the nature of a statement of values and beliefs if one is to be made.
Moreover, if beliefs, values or aspirations are to be mentioned in the Preamble, they should not only be generally acceptable today, but also should be likely to be generally acceptable during the whole life of the Constitution. The present Constitution has endured for nearly one hundred years, and during that time there have been vast changes in popular sentiment. To take, as examples, matters which the 1998 Convention suggested should be considered for inclusion in the Preamble, few Australians in 1901, when the Constitution was enacted, would have subscribed to a belief in gender equality or to the continuing rights of Aboriginal people. It would be unwise to incorporate in a Preamble ideas which may be in favour today, but out of favour tomorrow, thus attempting to force future generations to accept notions current at present.
The Preamble in the schedule to the Exposure Draft of the Bill was criticised for reasons of style. The new Preamble is regarded as an improvement. There is little advantage to be gained by debating questions of that kind. A substantive issue that has been seized upon for political purposes is whether a Preamble should contain a reference to the original occupancy and custodianship of the Aboriginal people. I have already indicated why I consider that it would be unwise to include that expression. Indeed, it would seem futile to seek for any other word or compendious expression that would accurately describe, in a way generally acceptable, the relationship of the indigenous peoples to the land. In any case, there is no logical reason for mentioning in a Preamble that matter, which has no bearing whatever on constitutional development in Australia.
If a Bill for a Preamble is presented, and is placed before the electors at a referendum, the following questions would arise:
1. Is there a need for any Preamble if the referendum for a republic fails?
2. If the referendum for a republic succeeds, should a Preamble contain anything more than a brief account of the development from a constitutional monarchy to a republic?
3. If either of these questions is answered "Yes", should a Preamble incorporate any expression of opinions or values, however firmly held by those who may claim to be an elite, unless it is certain that those opinions and -values are generally accepted by Australian society as a whole, and are likely to continue to command general acceptance?
My own answer to all three questions would be "No".
Endnotes:
1. See University of New South Wales Law Journal Forum at p.7 (Professor Winterton) and p.11 (Professor Saunders).
2. The Preamble in the Schedule to the Exposure Draft of the Bill was as follows:
"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".
3. The Preamble in the Schedule to the Bill itself is as follows: "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" .
4. Olivier v. Buttigieg [1967] 1 AC 115, 128.
5. Quick and Garran: Annotated Constitution of the Australian Commonwealth (1901) at p.284.
6. Craies, Statute Law, 7th ed. (1971), at pp.199-203; Pearce, Statutory Interpretation Australia, 2nd ed. (1981) par.11; Bennion, Statutory Interpretation, 2nd ed. (1992) at p.499.
7. See University of New South Wales Law Journal Forum, at pp.25, 27 (note 1) and Constitutional Centenary Foundation, Quest for a Preamble, in Round Table (No 2,1998) at p.3.
8. See video address to Local Constitutional Conventions Forum, 29 April, 1999, by the Attorney-General (Hon Daryl Williams, AM, QC), paras.18-20.
9. The original draft of the Preamble to the United States' Constitution read:
"We the people of the states of (13 named States) do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity" . This was thought to be unsatisfactory since not all of the named States might ratify the Constitution. The delegates accordingly appointed a Committee on Style and Arrangement, which submitted a new Preamble which was accepted without dissent. It reads:
"We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity , provide for the common Defence, promote the general Welfare, and secure the Blessings of Liberty to Ourselves and our Posterity , do ordain and establish this Constitution for the United States of America" .
10. See Constitutional Centenary Foundation, What Kind of Republic?, under heading "Issues to be Considered".
11. See University of New South Wales Law Journal Forum at p.25.
12. Explanatory Statement to Exposure Draft of Constitutional Alteration {preamble) 1999, para. 1.5.
13. AG v. Prince Ernest Augustus of Hanover (1957) AC 436, 461; Wacondo v. the Commonwealth (1981) 148 CLR 1,23.
14. See University of New South Wales Law Journal Forum at p.19 (Professor Craven).
15. Deputy Federal Commissioner of Taxation (NSW) v. WR Moran Pty Ltd (1939) 61 CLR 735, 754, 767, 796.
16. Dawson v. the Commonwealth (1946) 73 CLR 157, 175; Australian Communist Party v. the Commonwealth (1951) 83 CLR 1, 224, 263-4; Craies, op.cit., at p.199; Bennion, op.cit., at p.500.
17. Co. Litt., 19b.
18. See Warner v. Metropolitan Police Commissioner [1969] 2 AC 256.
19. (1995) 183 CLR 273.
20. Ibid., at 291.
21. For example, by the Optional Protocol to the International Covenant on Civil and Political Rights.
22. Official Record of the Debates of the Australasian Federal Convention (1986 reprint), Volume III, pp. 1184-9; Volume IV , pp. 1732-1741, 1769-1779.
