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Constitution Alteration (Preamble)
Date Introduced: 11 August 1999
House: House of Representatives
Portfolio: Prime Minister
Commencement: 1 January 2001
To insert a new Preamble into the Australian
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
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,
- the timing and the circumstances in which any change be should
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do not should be repealed.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
Introductory language in the form "We the people of
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
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
A provision allowing ongoing consideration of constitutional
The following matters be considered for inclusion in the
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
Care should be taken to draft the Preamble in such a way that it
does not have implications for the interpretation of the
Chapter 3 of the Constitution should state that the Preamble not
be used to interpret the other provisions of the
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
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
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
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
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
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:
- 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
- individual dignity
- deep kinship with lands (in relation to Indigenous
- 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.
Bills Digest No.207 1998-99,
Constitution Alteration (Establishment of Republic) 1999.
Constitutional Centenary Foundation, The
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
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
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
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
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
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
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
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)
- 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.
- Constitutional Centenary Foundation, The Preamble,
- John Quick & RR Garran, The Annotated Constitution of
the Australian Commonwealth, 1901 ed, Legal Books, Sydney,
1976, p 284.
- Constitutional Centenary Foundation, op.cit.
- Republic Advisory Committee, An Australian Republic. The
Options-The Report, Commonwealth Government Printer, Canberra,
1993, p 136.
Jennifer Norberry and Rosemary Bell
12 August 1999
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