Bills Digest No. 32  1999-2000 Constitution Alteration (Preamble) 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Constitution Alteration (Preamble) 1999

Date Introduced: 11 August 1999

House: House of Representatives

Portfolio: Prime Minister

Commencement: 1 January 2001

Purpose

To insert a new Preamble into the Australian Constitution.

Background

Recent history

On 6 November 1999 the Government proposes to hold a referendum on whether Australia should become a republic. At the referendum, two questions will be put to the electorate. The first is a proposal for a republic-see Constitutional Alteration (Establishment of Republic) 1999. The second is a new Preamble for the Constitution.

In February 1998, the Constitutional Convention issued a Communique addressing the three primary questions which were put to it. These were:

  • whether or not Australia should become a republic
  • which republican model should be submitted to the electors, and
  • the timing and the circumstances in which any change be should considered.

The Convention supported Australia becoming a republic by 1 January 2001 and endorsed the Bipartisan Appointment of the President Model. Its Communique also dealt with a number of other issues-including a new Preamble. In this regard it resolved that the existing Preamble to the Constitution should remain intact. The Constitutional Convention also said:

Any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.

The Preamble to the Constitution should contain the following elements:

Introductory language in the form "We the people of Australia";

Reference to "Almighty God";

Reference to the origins of the Constitution, and acknowledgment that the Commonwealth has evolved into an independent, democratic and sovereign nation under the Crown;

Recognition of our federal system of representative democracy and responsible government;

Affirmation of the rule of law;

Acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders;

Recognition of Australia's cultural diversity;

Affirmation of respect for our unique land and the environment;

Reference to the people of Australia having agreed to re-constitute our system of government as a republic;

Concluding language to the effect that "[We the people of Australia] asserting our sovereignty, commit ourselves to this Constitution"; and

A provision allowing ongoing consideration of constitutional change.

The following matters 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.

Care should be taken to draft the Preamble in such a way that it does not have implications for the interpretation of the Constitution.

Chapter 3 of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.(1)

Since the Constitutional Convention was held there have been a number of other proposals made for a new constitutional Preamble. Some of these are mentioned briefly below.

In February 1999, the Constitutional Centenary Foundation reported on its Preamble Quest which had invited Australians to send their views about what the Preamble should say.

On 11 March 1999, the ALP's proposed Preamble was forwarded to the Prime Minister, Hon. John Howard, in a letter from the Leader of the Opposition, Hon. Kim Beazley.

On 23 March 1999 the Prime Minister's Preamble was released.

On 25 March 1999 an exposure draft of the Constitution Alteration (Preamble) 1999 and an explanatory statement were released for public comment and suggestion until the end of April 1999. The Preamble contained in this draft 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.

On 27 March 1999, the Australian newspaper published a selection of suggested preambles by some notable Australians including Tom Kenneally, David Williamson, Donald Horne and Phillip Adams.

On 14 April 1999, Victorian Premier, Hon. Jeff Kennett, released his 'Declaration of the People of Australia' as a suggested Preamble to the Constitution.

On 28 April 1999, a Working Draft Preamble was released by Hon. Gareth Evans (ALP), Senator Natasha Stott Despoja (Australian Democrats) and Senator Bob Brown (Greens).

On 19 July 1999, the Australian Democrats issued a statement calling for wider community consultation on the Prime Minister's draft preamble.

On 11 August 1999, agreement was reached between the Government and the Australian Democrats on a new form of words for the Preamble. These words are set out in the Schedule to the Bill.

The previous draft Preamble and the Preamble in this Bill

Some of the expressions which have been removed from the original Preamble drafted by the Prime Minister are:

  • mateship
  • sovereignty of citizens
  • vast island continent
  • destiny of our Commonwealth
  • time immemorial
  • freedom to be proud
  • excellence as well as fairness
  • equal dignity, and
  • prejudice or fashion or ideology.

New expressions or concepts include:

  • national unity
  • remembrance of sacrifice in war
  • tolerance
  • individual dignity
  • deep kinship with lands (in relation to Indigenous peoples)
  • nation building (in relation to migrants)
  • responsibility to protect the environment
  • equality of opportunity for all
  • a national spirit binding us, and
  • adversity and success.

Further reading

Bills Digest No.207 1998-99, Constitution Alteration (Establishment of Republic) 1999.

Constitutional Centenary Foundation, The Preamble,

http://www.centenary/org.au/preamble.

Joanna Longley, 'The Australian Constitution: a time line', Reform, Issue 74, Autumn 1999, pp 55-8.

Mark McKenna, The Need for a New Preamble to the Australian Constitution and/or a Bill of Rights, Department of the Parliamentary Library, Research Paper No.12 1996-97.

Cheryl Saunders, 'The Preamble Quest,' Reform, Issue 74, Autumn 1999, pp 11-14.

John Warhurst, From Constitutional Convention to Republic Referendum: A Guide to the Processes, the Issues and the Participants, Department of the Parliamentary Library, Research Paper No. 25 1998-99.

George Williams, The 1998 Constitutional Convention-First Impressions, Department of the Parliamentary Library, Current Issues Brief, No.11 1997-98.

Anne Winckel, 'The contextual role of a preamble in statutory interpretation,' Melbourne University Law Review, vo.23, 1999, pp 184-210.

George Winterton, 'A new constitutional preamble,' Public Law Review, 8(3), September 1997, pp 186-9.

Main Provisions

Clause 3 states that the Constitution is altered by inserting after its Title the Preamble contained in the Schedule to the Bill.

Clause 4 inserts new section 125A into the Constitution. New section 125A provides that the preamble has no legal force and cannot be used to interpret either the Constitution or any statute.

The Schedule contains the new Preamble.

Concluding Comments

The short title of the Bill

In accordance with tradition, the short title of the Bill-Constitution Alteration (Preamble) 1999 does not contain the word 'Bill'. This reflects the fact that it is a proposal for constitutional alteration rather than an ordinary Bill.

The purpose and effect of a Preamble

A constitutional Preamble can fulfil many functions. These include stating the source of authority for the Constitution, setting out the history of the Constitution and describing its main features, setting out the principles or values which the Constitution is designed to promote or making statements designed:

to overcome divisions and to encourage joint commitment to the Constitution. ... There is no one particular way to design a preamble. Each preamble depends on the nature and circumstances of the country concerned.(2)

The Bill asserts that the Preamble has no legal force and cannot be used in constitutional or statutory interpretation. Quick and Garran say of the present constitutional Preamble:

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 can be understood. A preamble may be used for other reasons: to limit the scope of certain expressions or to explain facts or introduce definitions. The preamble has been said to be a good means to find out the instention of a statute, and, as it were, a key to the understanding of it. It usually states or professes to state, the general object and meaning of the Legislature in passing the measure. Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the connotation of words which may possibly have more than one meaning, or determining the scope or limiting the effect of the Act, whenever the enacting parts are, in any of these respects, open to doubt. But the preamble cannot either restrict or extend the legislative words, when the language is plain and not open to doubt, either as to its meaning or scope.(3)

To a limited extent, however, some High Court judges have made use of the present Preamble the Constitution together with substantive constitutional provisions in making their decisions.(4) In an advice to the Turnbull Committee in 1993, then Acting Solicitor-General, Dennis Rose QC said the following:

Unless [an additional] ... recital stated that it was not intended to have any legal significance, it could conceivably become relevant in legal proceedings. I note, for example, the reliance placed by several Justices in Leeth v. Commonwealth (1992) 174 CLR 455 (at 475 Brennan J, 486 Deane and Toohey JJ) on certain words in the present preamble - i.e. 'the people ... have agreed to untie in one indissoluble Federal Commonwealth' - as the basis for holding that the Commonwealth Parliament cannot enact laws that distinguish between persons in different areas on grounds that are not relevant and sufficient in the opinion of the Court. Although, in my respectful opinion, that reliance on the preamble was unjustified, it illustrates the potential legal significance of preambular declarations.(5)

Endnotes

  1. Quoted in George Williams, The 1998 Constitutional Convention-First Impressions, Department of the Parliamentary Library, Current Issues Brief, No.11 1997-98, pp 24-25.
  2. Constitutional Centenary Foundation, The Preamble, http://www.centenary/org.au/preamble

  3. John Quick & RR Garran, The Annotated Constitution of the Australian Commonwealth, 1901 ed, Legal Books, Sydney, 1976, p 284.

  4. Constitutional Centenary Foundation, op.cit.

  5. Republic Advisory Committee, An Australian Republic. The Options-The Report, Commonwealth Government Printer, Canberra, 1993, p 136.

Contact Officer and Copyright Details

Jennifer Norberry and Rosemary Bell
12 August 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

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