Mark McKenna, Consultant
Politics and Public Administration Group
4 April 2000
Contents
Introduction
The Historical and Political Origins of the
Current Preamble
The Legal Status of the Current
Preamble
Calls for a New Preamble 1988-1998
The 1998 Constitutional Convention and the
Preamble
February 1999: Prime Minister Howard Proposes a
Referendum on the Preamble
August 1999: A Final Draft is Submitted to
Parliament by Prime Minister Howard
The 1999 Preamble Referendum Campaign
The Aftermath of the Referendum
Looking to the Future
Endnotes
Appendix 1: Selected Constitutional
Preambles
The Constitution of the United States (1788)
The Constitution of India (1950)
The Constitution of South Africa (1996)
Appendix 2: Draft Australian Constitutional
Preambles
Constitutional Commission's Advisory Committee on Individual and
Democratic Rights (1987)
Aboriginal and Torres Strait Islander Commission (1993)
John Hirst (1994)
Council for Aboriginal Reconciliation (1995)
Joan Kirner (1995)
Lowitja O'Donoghue (1996)
Malcolm Turnbull (1996)
George Winterton (1996)
Malcolm Fraser (1996)
Marian Sawer (1999)
Australian Labor Party (1999)
Non-Government Parties(1999)
Mark McKenna (1999)
Bibliography
Introduction
Author's Note:
'Preamble' refers to the relevant part of the Australian
Constitution.
'preamble' refers to the proposed addition to the Australian
Constitution.
The idea of inserting a new constitutional
preamble emerged gradually as a significant issue in the republic
debate of the 1990s, culminating in the Constitutional Convention
held in Canberra in February 1998. Within two years of the
Constitutional Convention, a new preamble was put to the people in
a national referendum by the Howard government. The history of the
preamble debate from 1991 to 1999 is a story which holds many
valuable lessons for the future of constitutional reform in
Australia.
This paper attempts to tell that story and aims
to provide a valuable resource on the preamble. It explains the
historical and political origins of the present Preamble and refers
to the question of its legal effect. It outlines the main events
which led to the referendum in November 1999, including the 1998
Constitutional Convention's recommendations on the preamble, the
first preamble drafted by Prime Minister John Howard and poet Les
Murray, and the second and final version drafted with the
assistance of Senator Aden Ridgeway and Senator Meg Lees.
The paper also examines the referendum debate on
the preamble and seeks to answer some crucial questions-why was
there so little focus on the preamble during the referendum
campaign, and why did the preamble manage to receive such a
drubbing on 6 November, when approximately 60 per cent of
Australian voters chose to reject it?
In the final section of the paper, the author
asks what we might learn from the referendum experience and how
relevant the preamble will be in the future to constitutional
reform in Australia.
The conclusion is that there is ground for
optimism. Despite the referendum loss, the extensive public debate
on the principles and values of Australian democracy which the
preamble question has encouraged over the last two years, has
contributed greatly to our civic culture.
This is not the end of the story, but the
beginning of what will no doubt be a continuing debate.
The
Historical and Political Origins of the Current
Preamble
On 9 July 1900, the Act of British Parliament
which brought the Australian Commonwealth into existence-the
Commonwealth of Australia Constitution Act-received the Royal
Assent. The Preamble to the Constitution, and the eight covering
clauses which follow, form part of this Act, rather than the
Constitution itself. They are not formally part of the
Constitution. From one perspective, the Preamble is a constant
reminder of Australia's colonial origins:
Whereas the people of New South Wales, Victoria,
South Australia, Queensland, and Tasmania, humbly relying on the
blessing of Almighty God, have agreed to unite in one indissoluble
Federal Commonwealth under the Crown of the United Kingdom of Great
Britain and Ireland, and under the Constitution hereby
established:
And whereas it is expedient to provide for the
admission into the Commonwealth of other Australian Colonies and
possessions of the Queen:
Be it therefore 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 ...
This Preamble had its origins in the National
Australasian Convention of 1891, and was included, with revision,
at the Australasian Federal Convention of 1897-98. Further changes
were made in 1899, after colonial legislatures and petitioners
successfully insisted on the inclusion of the blessing of Almighty
God.(1) As Quick and Garran remind us, the Preamble does not depart
from the basic structure laid down for preambles in late nineteenth
century books on statutory interpretation.(2)
The founding fathers devoted little time to
debate on the issues surrounding the framing of the Preamble-with
two notable exceptions. Concern over the word 'Commonwealth'
stemmed from its allegedly republican connotations-some delegates
believing that it evoked memories of the protectorate of Oliver
Cromwell. One of the interesting ironies of this debate is the
manner in which the word 'Commonwealth' has survived. In the 1890s
it was feared by some as the harbinger of republicanism; in the
1990s it was preferred by republicans as the most appropriate title
for an Australian republic. Yet there is still a sense of
continuity-Australians have never been particularly enamoured of
the word republic.(3)
Secondly, one of the few human freedoms
guaranteed in the Australian Constitution-the free exercise of
religion (s.116)-owes its existence in part to the insertion of the
phrase 'humbly relying on the blessing of Almighty God' in the
Preamble. Both were added at the Federation Convention in Melbourne
in 1898, s.116 largely at the behest of the Victorian, Henry
Bournes Higgins, while the inclusion of God's blessing in the
Preamble was due to the efforts of the South Australian, Patrick
McMahon Glynn. According to Glynn, Higgins wished to ensure that
the insertion of the phrase in the Preamble could not be read as a
de facto authorisation of Christianity as 'the law of the
land'. Glynn's public justification for reference to the Almighty
in the Preamble referred to the 'great central fact of faith' and
the 'spirit of reverence for the unseen' which pervaded civil life
in Australia.(4)
Quick and Garran's elucidation of the eight
'separate and distinct affirmations or declarations in the
Preamble' is the most concise analysis of the rationale which
prevailed in the minds of the founding fathers in 1901.(5) They
believed the purpose of the Preamble was to declare:
-
- The agreement of the people of Australia
- Their reliance on the blessing of Almighty God
- The purpose to unite
- The character of the union-indissoluble
- The form of the union-a Federal Commonwealth
- The dependence of the union-under the Crown
- The government of the union under the Constitution, and
- The expediency of provision for admission of other colonies as
States.
As Quick and Garran observed, of the above
affirmations, only the third, fifth, seventh, and eighth are found
elsewhere in the Constitution. The remaining four 'have therefore
to be regarded as promulgating principles, ideas or sentiments
operating at the time of the formation of the instrument, in the
minds of the framers, and by them imparted to and approved by the
people to whom it was submitted'. If we accept Quick and Garran's
description of the remaining four affirmations as philosophical
principles which represented the broad sentiment of the people in
1901, it is not difficult to appreciate why some Australians
believe they are no longer an accurate representation of the
principles which might unite the Australian federation in the
twenty-first century.
Many preambles, by their very nature, articulate
and give legitimacy to profound political change. They provide
purpose and rationale, elucidate intention, and potentially serve
as the declaration of belief for a political community. They are
often the first words of 'the people', their raison d'etre
and their cri de coeur. For this reason, unlike many other
sections of the Constitution, their import is not confined strictly
to the political arena. Culturally specific, their simple but
direct language permeates the social and cultural fabric, a
potential totem for state, community and individual.(6)
In the Constitution of the Irish Republic for
example, the preamble reads like a Papal decree, invoking 'the name
of the Most Holy Trinity, from whom is all authority and to Whom,
as our final end, all actions both of men and States must be
referred'. This preamble is entirely consistent with the historical
significance of Catholicism in the definition of Irish Republican
identity. In the Japanese and German Constitutions, the desire for
'world peace' is expressed in their respective preambles. While
some preambles serve as 'manifestoes of nationalism', others, such
as those of Germany and Japan, turn their back on recent historical
experience, acknowledging the past in the hope that it will be
different in the future.(7)
The preamble to the recently proclaimed
Constitution of the Republic of South Africa (1996), demonstrates
the potential of constitutional preambles to serve as a means of
healing past divisions and to serve as an instrument of
reconciliation (see Appendix 1 for a selection of modern
preambles).
The historical traditions of Australian
political culture, however, influenced heavily by Britain, tend to
be sceptical of constitutional or political declarations of
democratic values. We have no 'Fourth of July', and no
'independence day' to serve as our founding moment. The very
concept of a preamble as a definitive statement of a people's
aspirations has its origins in the politics of the French and
American revolutions in the late eighteenth century. Because
Australia lacks a similar historical experience, such as the
revolutionary overthrow of monarchy or a colonial overlord, we have
not defined our national identity in a specific declaration of
political principle.
The Legal Status of the Current Preamble
The legal impact of the Australian Preamble has
been relatively minor, but there are some interesting aspects
surrounding its legal status. The founding fathers intended that it
be available for interpretation by the High Court. As Quick and
Garran remarked, sections of the Preamble:
may be of valuable service and potent effect in
the Courts of the Commonwealth, aiding in the interpretation of
words and phrases which may now appear comparatively clear, but
which, in time to come, may be obscured by the raising of
unexpected issues and by the conflict of newly emerging
opinions.(8)
Despite the 1988 Constitutional Commission's
claim that the Preamble has been referred to on a handful of
occasions in High Court judgements with little if any legal impact,
the legal status of the Preamble has been the subject of some legal
debate.(9) The Republic Advisory Committee, for example, reported
that 'a minor [constitutional] role for the preamble cannot be
assumed'.(10) It referred to an opinion provided by the Acting
Commonwealth Solicitor-General about the possible implications of
some of the judgments in the High Court case of Leeth v
Commonwealth.(11)
In Leeth, the plaintiff contested the
validity of the Commonwealth Prisoners Act 1967 (Cwlth)
arguing that it impermissibly allowed Commonwealth prisoners to be
treated in a discriminatory fashion because the minimum terms of
their imprisonment were fixed by different State and Territory
laws.(12)
Three judges in Leeth referred to the
Preamble. (13)Brennan J remarked in passing that if the law being
challenged had allowed different maximum penalties to be prescribed
for the same offence then the plaintiff's arguments would have had
'much force'.(14) This, he said, was because of the 'constitutional
unity of the Australian people ''in one indissoluble Federal
Commonwealth'', recited in the first preamble to the
Commonwealth of Australia Constitution Act
1900'.(15)
Deane and Toohey JJ concluded that the
Commonwealth law was invalid because it offended the doctrine of
legal equality.(16) They held that the Preamble was one of a number
of indicia which showed that the Constitution contained such a
doctrine. They said that the conceptual basis of the Constitution,
evidenced by the Preamble and covering clause 3, made it plain that
the people had freely agreed to unite in a federal Commonwealth and
that '[i]mplicit in that free agreement was the notion of the
inherent equality of the people as the parties to the
compact'.(17)
Deane and Toohey JJ's doctrine of legal equality
was rejected by a majority of the High Court in Kruger v
Commonwealth.(18)
Calls for a New Preamble 1988-1998
During the past decade, there has been some
discussion of the issues surrounding the insertion of a new
preamble into the Australian Constitution (see Appendix 2 for a
selection of draft Australian preambles).
A number of submissions to the Constitutional
Commission (1985-88) registered strong interest in the
constitutional expression of democratic values rights and freedoms.
Despite this, in its final report (1988), the Commission refused to
support the alteration of the present Preamble on three main
grounds:
-
- the difficulty of isolating the fundamental sentiments which
Australians of all origins hold in common
-
- the difficulty of reaching agreement on an appropriate form of
words with regard to recognition of Australia's indigenous people,
and
-
- writing a new Preamble would only make sense if the
Constitution was to be rewritten.(19)
In light of the public debate concerning the
proposed preamble in 1999, the Commission's reservations are
prescient.
In 1993, the report of the Republic Advisory
Committee found that the issue of a possible new preamble was
'relevant to the overall objective of achieving a viable federal
republic of Australia', and set out the options for preambulatory
change.(20) The inquiries by the Civics Expert Group (1994) and the
Centenary of Federation Advisory Committee (1994) attracted
submissions which pointed to the need for a 'restatement' of the
values of Australian citizenship and the constitutional recognition
of Aboriginal and Torres Strait Islanders. Throughout the 1990s,
similar prominence was given to the importance of a new preamble in
the policy documents of the Aboriginal and Torres Strait Islander
Commission (ATSIC), the Council for Aboriginal Reconciliation, the
National Multicultural Advisory Council and the published material
and public activities of the Constitutional Centenary Foundation.
In addition, the growing activism of Australian women in the
republic debate, which culminated in the Women's Constitutional
Convention held in Canberra in January 1998, also resulted in
demands for a more inclusive preamble to the Constitution.(21)
After the Mabo (No. 2)
decision of 1992,(22) discussion relating to the introduction of a
new preamble tended to focus on the form of words which might be
used to recognise indigenous Australians in the Constitution.(23)
This focus was accompanied by the reticence of both the Keating
government and the Australian Republican Movement (ARM) to include
a new preamble in the outline of the 'minimalist' republic.(24)
Both had been unwilling to include a preamble as
a key element in the achievement of the republic, believing that
the risks associated with a broader republican platform would
attract more opposition, consequently ensuring the defeat of the
referendum. As a result of this policy, from 1991 to 1998, a new
preamble was not claimed by the republican movement as a key
element of their vision for the future. It can thus be seen that
apart from the interest shown by the various statutory authorities
representing the interests of indigenous Australians, the question
of a preamble was an emerging issue in search of a prominent
advocate. The Constitutional Convention in February 1998 was the
first step in creating the perception that the preamble issue was
an integral part of the republic debate.
The
1998 Constitutional Convention and the Preamble
At the Constitutional Convention held in
Canberra during the first two weeks of February 1998, a significant
shift occurred in the debate surrounding the prospect of an
Australian republic. The Convention achieved broad consensus on the
need for a new preamble to the Australian Constitution.
On the first day of the Convention, ARM
chairperson Malcolm Turnbull asserted:
We believe that the preamble should be amended.
If it is to remain a statement of history, then it should pay
appropriate regard and respect to Aboriginal history ... The
preamble should also affirm our commitment to those core political
values which define our nation.(25)
In the days that followed, this sentiment
received almost unanimous support, while debate surrounding the
preamble attracted some of the most inspiring and unusual speeches
of the Convention. For many delegates, the preamble had become an
essential and defining element of the future republic. Delegates in
favour of writing a new preamble employed language which, only a
decade earlier, would have been applied rarely to the Australian
Constitution. A list of phrases used by Convention delegates as
metaphors for the preamble proves revealing:
-
- 'a new beginning'
-
- 'a euphonic useful and uniting statement of fact'
-
- 'a moral imperative'
-
- 'a moral charter'
-
- 'a mission statement'
-
- 'a vision statement'
-
- something to 'tell us who we are'
-
- something to 'believe in'
-
- a document to 'reinvigorate the national narrative'
-
- 'the things we hold dear'
-
- 'a welcome mat', and
-
- 'the lymph gland'.
This catalogue of sometimes clumsy poetic images
also included words such as 'truth', 'meaning', 'origins',
'values', 'aspirations', 'hopes', 'ownership', 'inclusion',
'heritage', 'spirituality', 'desires', 'feelings', 'justice',
'equality', 'cohesion' and 'settlement'. For the first time,
Australians were imagining their constitution as a civic creed.
Much was being asked of a preamble at the
Convention. Some wanted a creation myth, some a myth of nationhood.
Others wanted a statement of historical truths or a democratic
covenant, some kind of antidote to the breakdown of traditional
systems of belief and traditional institutions, an alternative to
'crass materialism', a document in which the people would 'belong'.
Unlike the flawed and grimy world of day-to-day partisan politics,
many delegates hoped that a new preamble would be a means of
lifting politics above cynicism and corruption. It should be
something to revere-a tablet of stone to cherish. At times, it
seemed as if the Convention was witnessing a profound change in the
republic debate-a shift from pragmatism to poetry. Although many
delegates who spoke in favour of a new preamble believed the
preamble should be justiciable, they mentioned this rarely,
preferring instead to couch their arguments in emotive
language.
Of course, there were still delegates who were
highly suspicious of the call for a new preamble, those who wanted
to condemn such a call as an adolescent 'wish list' (Professor Dame
Leonie Kramer) or a 'time bomb' to be set off by the High Court
(Professor Greg Craven, Notre Dame University). Despite the
many calls for a more uplifting preamble, the traditional
Australian concern for practicalities was still in evidence. Bruce
Ruxton (Returned Services League) reminded the Convention that a
preamble should fit onto an A4 sheet of paper.(26)
There was also broad agreement that God's
blessing be included in any new preamble. Like the Crown one
hundred years earlier, God provided a unifying bond. Abstract
enough to be multicultural and non-denominational, God was an
uplifting and visionary symbol. Delegates seemed to agree that the
acknowledgment of a higher power in the Constitution lent the
document gravitas, humility and some sense of spirituality.
Including God was one means of imagining the Constitution as more
than a legal document and one less obstacle to the success of the
preamble question at the referendum.(27) (see box p. 9).
On 5 February 1998, the Convention set up four
working groups on the preamble. In broad terms, the working groups
laid the foundation for the final Convention Communique on the
preamble, perhaps the most crucial contribution being that of
Working Group Three, which included Gatjil Djerrkura (then ATSIC
Chairperson) and Lowitja O'Donoghue (a former ATSIC Chairperson).
This group resolved that a separate referendum question be put on a
new preamble at the same time as the referendum on the republic,
and that such a preamble recognise 'Aboriginal peoples and Torres
Strait Islanders as the original inhabitants of Australia who enjoy
with all other Australians fundamental human rights'.(28)
In March 1998 the ATSIC-organised Indigenous
National Constitutional Convention supported 'a Constitutional
preamble recognising Indigenous Australians and the fact of their
original occupation.(29)
Given the comments of the Constitutional
Commission ten years earlier, the Convention's final communique on
the preamble was achieved with a remarkable spirit of unanimity.
(see box p. 9).
The Final Communique on the
Preamble
|
The Convention also resolved that the
Constitution include a Preamble, noting that the existing Preamble
before the Covering Clauses of the Imperial Act which enacted the
Australian Constitution 'and which is not itself part of our
Constitution' would remain intact.
|
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;
|
Reference to the people of Australia having
agreed to reconstitute 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'.
|
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 three of the Constitution should state
that the Preamble not be used to interpret other provisions of the
Constitution.(30)
|
In the Convention's final moments, Prime
Minister Howard committed his government to holding a referendum on
the republic but made no commitment on the preamble. In terms of
the federal political agenda, the Convention's final resolution on
the preamble was to be the last word until February 1999, when the
preamble suddenly took centre stage on the federal political
agenda. (31)
February 1999: Prime Minister Howard Proposes a Referendum on
the Preamble
Prime Minister John Howard spoke of the need to
recognise Australia's indigenous people in a new preamble shortly
after his re-election in October 1998. Howard also
suggested-perhaps naively-that it would be relatively easy to
achieve agreement on the content of any new preamble.(32)
Despite this, from the re-election of the Howard
Government until the first anniversary of the Constitutional
Convention in February 1999, there was little public debate on a
preamble.(33) In fact, in January 1999 both the ARM and the
Australian Labor Party (ALP) were pressing for the preamble
question not to be put to the people. At this time, they were
concerned the preamble would distract attention from the republic
and concerned that a preamble without bipartisan support would
attract a race based scare campaign which might derail both the
republic and the preamble.(34)
At the Convention, there had been considerable
support for the preamble to be put as a separate question,
especially from indigenous leaders such as Gatjil Djerrkura, and
prominent republicans, Father Frank Brennan and Reverend Tim
Costello. After much indecision, Malcolm Turnbull, no doubt fearful
that he would lose the backing of these republicans if he did not
agree to the preamble question being put, temporarily changed tack,
and agreed on including the preamble as a separate question, on the
condition it received bipartisan support. Turnbull was also
persuaded by Prime Minister Howard's decision to support a preamble
referendum.(35) On Monday 8 February 1999 the Prime Minister told
the House of Representatives:
I think that as we approach the Centenary of
Federation there are a growing number of Australians-Liberal and
Labor, republican and anti-republican alike-who would like to see
embedded in the basic document of this country some recognition of
the prior occupation of the landmass of Australia by the indigenous
people. That is my view. As I go round Australia, I find a greater
unanimity of support for that than I do on the issue of a
republic.(36)
The Prime Minister's support for a new preamble
came at a time when the ALP and republicans were still divided over
the issue, and was significant for two reasons.(37)
The Constitutional Convention of February 1998
had viewed the preamble in the context of possible constitutional
changes in the advent of a republic. The issue of the preamble had
grown out of the republic debate. Nobody could have imagined before
February 1999, that the chief advocate of a new preamble would be
such a prominent supporter of the monarchy as the Prime Minister.
Howard suggested that the preamble should be 'republic neutral'. In
February 1999, the claiming of the preamble issue by the Prime
Minister was a political masterstroke. It allowed him to be seen as
the advocate of change, not merely as the opponent of the republic,
and it virtually ensured that the republic would not be the only
question being put to the people, thereby adding another layer of
complexity to referendum politics of the time.
The second issue at this early stage was the
manner in which a new preamble was discussed-almost always in the
context of the reconciliation process and the constitutional
recognition of indigenous Australians-and rarely in the broader
context of democratic values and aspirations. Although the
Convention had listed many of these values in its final communique,
the political debate was still fixed solely on the issue of framing
an acceptable paragraph on indigenous Australians in the existing
Preamble. Mr Howard later stated that he did not envisage the
recognition of indigenous Australians going beyond acknowledgment
of prior occupation to include words such as custodianship.(38)
On 16 February, Prime Minister Howard received
the support of the joint party room to draw up two separate
constitutional amendment questions: one on the matter of Australia
becoming a republic, and the other on the insertion of a new
preamble. The party room also asked for the inclusion in the
proposed preamble of references to God, democracy, the prior
occupation of Aborigines, and the equality of men and women before
the law, so long as it would not be justiciable.(39) On the
following day, Mr. Howard announced that he would write the new
preamble, 'in consultation with others'.(40)
Even at this early stage, the drafting of the
preamble was proceeding without bipartisan support, or yet the
involvement of the Australian Democrats, who would hold the balance
of power in the Senate from July 1999. Disagreement centred on the
possible use of the word custodianship in the proposed reference to
indigenous Australians, and the decision to include reference to
God.(41) The Opposition pre-empted the Prime Minister by releasing
its own preamble, penned largely by Labor front-bencher (and former
academic lawyer) Gareth Evans, on 13 March (see Appendix 2). This
preamble was concise, and recognised indigenous Australians as 'the
original occupants and custodians of our land'. A draft replicating
this preamble was released on 28 April 1999 by Gareth Evans,
Natasha Stott Despoja and Bob Brown.
Different perspectives on a new preamble were
emanating from a report commissioned by the Constitutional
Centenary Foundation, presented at the National Press Club on
24 February. The Foundation received more than 400 public
submissions, which included draft preambles from schoolchildren,
professionals, tradespeople and academics. The report found that
there was widespread support for an acknowledgment of Aborigines
that went beyond historical fact.(42) Public interest in the
preamble was also stimulated by various newspaper competitions
encouraging readers and celebrities to submit drafts.(43)
At the same time as popular interest in the
preamble was growing, Prime Minister Howard announced in early
March that he would 'have a chat' to poet Les Murray, and that he
would seek Murray's assistance in drafting a preamble.(44) The
sight of Les Murray arriving in his mud-splattered vehicle at
Parliament House-the bush poet come to distil the nation's
soul-aroused considerable comment and criticism.(45) But this was
insignificant when compared to the reaction after the release of
the Prime Minister's draft on 23 March 1999. (see box p.
12).
The Howard-Murray Preamble
|
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 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.
|
The Howard-Murray preamble was to be inserted
into the Constitution proper and was intended to have no legal
effect. At a press conference on 23 March, in the Prime Minister's
courtyard at Parliament House, John Howard described this draft as
one produced 'in cooperation with a great wordsmith ... and one or
two other people'. It was an attempt, said Mr Howard, to embrace in
'ageless language', 'a sense of who we are, a sense of what we
believe in, and a sense of what we aspire to achieve in the
future'. One of the 'other' people consulted by Howard was
conservative historian Professor Geoffrey Blainey. The Prime
Minister also consulted two of his staff-Catherine Murphy and
Michael L'Estrange.(46) Howard also announced that the Coalition
Joint Party Room had endorsed a proposal to submit the draft to the
people at the same time as the republic referendum.
The draft preamble was immediately opposed by
the non-government parties.(47) In addition, republican chair,
Malcolm Turnbull, was not enthusiastic, warning that the ARM would
most likely remain 'indifferent to the Preamble', a stance the
group eventually adopted.(48)
Although support came from radio announcer John
Laws, political commentator Christopher Pearson and South
Australian Premier John Olsen,(49) it is fair to say that the
response to the Prime Minister's draft preamble was largely
critical. Criticism could be summarised under the following
categories:
-
- objection to the indigenous reference, in particular its
failure to go beyond the recognition of prior occupation and
include reference to Aboriginal 'custodianship'. Indigenous leaders
roundly criticised the draft(50)
-
- objection to the word 'mateship', especially from women's
groups, on the grounds that it was an exclusively male term. As
another poet, Judith Wright, observed, 'we are all men from Snowy
River it seems. I hope women stamp on this'(51)
-
- objection to Mr Howard's attempt to insert what he called 'a
gentle rebuke to political correctness', by including the phrases,
'never be infringed by prejudice or fashion or ideology', and 'free
to be proud of their country and heritage'. Critics maintained that
these were phrases which seemed to ensure that the preamble would
not be 'ageless', but would be seen as located firmly in the
politics of the 1980s and 1990s(52)
-
- objections to style, grammar or length. For example, frequent
attention was drawn to the tautology 'woven together', or the
language of phrases such as 'time immemorial'(53)
-
- objections to the preamble being presented as 'republic
neutral', the intended legal impotence of the preamble and the
government's intention to leave the current Preamble and covering
clauses unamended, while inserting a second preamble in the
Constitution(54)
-
- objections to the process of drafting the preamble, mainly on
the grounds that the preamble, if it were to be representative of a
people's aspirations, would need to be drafted by more than two
people(55)
-
- objections to the Prime Minister's dismissal of the
Constitutional Convention's recommendations on the preamble. Items
mentioned by the Convention as worthy of consideration, which were
not included in Mr Howard's draft, included Aboriginal
custodianship, a reference to the republic, reference to the
environment and explicit mention of cultural diversity and gender
equality. In addition, much of the Prime Minister's preamble bore
little relation to the Convention's Communique,(56) and
-
- objections from quite unexpected quarters. For example,
Tasmanian Labor Premier, Jim Bacon, took issue with the reference
to 'our island continent', because it seemed to exclude
Tasmania.(57)
With such a volume of criticism, the first draft
of the Howard-Murray preamble was inevitably destined for
substantial revision if it was to survive. The government had
received almost 700 submissions on the draft but by the time
submissions closed on 30 April, the preamble had become a
partisan issue. When the non-government parties endorsed an
alternative draft, Mr Howard threatened to abandon the plan to put
any preamble to the people. Between May and August 1999, there was
considerable speculation as to whether the Prime Minister would
persist with his preamble, but in a revised form. The political
stand-off, and the changed balance of power in the Senate after
July, meant that the only chance for the government's preamble to
survive was for it to secure the support of the Democrats. But it
was not until early August that the Howard Government signalled the
precise nature of its plans.
August 1999: A Final Draft is Submitted to Parliament by
Prime Minister Howard
The pessimism which, during April-July, had
surrounded the prospects of any preamble draft reaching the
referendum stage, was suddenly broken by the new configuration in
the Senate. From 1 July the balance of power was held by the
Australian Democrats, led by Senator Meg Lees, a politician keen to
see her party influential in the legislative process. For example,
a compromise was soon forged on the Goods and Services Tax
legislation. In addition, the new Democrat spokesperson on
reconciliation was Aden Ridgeway, an indigenous Australian who
quickly became immersed in the negotiations over the preamble
Bill.(58)
During the first two weeks of August, the ARM
and the ALP lobbied for the preamble to be dropped entirely, while
the government and the Australian Democrats worked on achieving
agreement on a revised version of the Howard-Murray preamble.(59)
Eventually they managed to do what few had thought possible-reach
an agreement on the difficult issues of indigenous recognition,
mateship and the environment. On 11 August, one day before the
legislation was due to be passed by Parliament, but in time for the
referendum in November, the final version of the second preamble
was released with the introduction in the House of Representatives
of the Constitution Alteration (Preamble) Bill 1999. (see box p.
14).
The Final Proposed Preamble
|
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.
|
At a press conference, Prime Minister expressed
regret that he had been forced to remove the word 'mateship', but
that he was proud of the result, especially the 'honourable'
reference to indigenous Australians. It was, he said, 'an historic
achievement'.(60) But unlike the process on the republic question,
there was to be no parliamentary inquiry or committee process which
would examine the proposed preamble and receive public
submissions.(61)
Mr Howard insisted that the preamble could not
be changed: 'we need to pass the legislation this week'. That it
had been a last minute rush was indicated by the Prime Minister's
response to a question regarding the reference to servicemen.
'Well, we decided last night ... to put that in'. When asked if he
had spoken to other indigenous leaders, the Prime Minister replied,
'No'. When asked whether the preamble would advance reconciliation,
Mr Howard replied, 'Yes, [the proposed preamble includes] an
appropriate, generous and very positive reference to Aborigines and
Torres Strait Islanders.'(62) The argument from Howard and Ridgeway
was that the proposed preamble at least made positive mention of
indigenous Australians, something that could only be an improvement
on the existing situation. Since the removal of two negative
references by constitutional amendment in 1967, the current
document makes no reference at all to indigenous people.
With the support of the Democrats, the preamble
legislation's passage through the Senate was now certain, despite
amendments proposed by the ALP and the Greens. But while there was
considerable agreement that the new version was a substantial
improvement on the earlier draft, the reference to indigenous
Australians came under fire from the ALP and indigenous leaders.
They were angered by their exclusion from the negotiation process,
and the failure to refer to Aboriginal custodianship in this
alteration of the Constitution. Senator Aden Ridgeway, in
particular, was subjected to sharp criticism by indigenous leaders,
who insisted that although they would not campaign against the
preamble, they remained 'unmoved' by its content, and were unhappy
with the word 'kinship', and the general wording of the reference
to indigenous Australians.(63)
Despite the ALP's dislike of the preamble, and
its vehement opposition in voting against it in Parliament, at a
subsequent Caucus meeting it agreed not to oppose the amendment,
fearing it would harm the more important question on the
republic.(64) By withdrawing its political opposition, the ALP
thereby escaped involvement in drafting the NO Case for the
referendum question. Under Section 11 of the Referendum
(Machinery Provisions) Act 1984, the negative case in a
referendum can be authorised 'by a majority of those members of the
Parliament who voted against the proposed law and desire to forward
such an argument'.(65) The crucial word in this particular
provision is 'desire'. The ALP's strategic withdrawal left only one
member of Parliament who still opposed the preamble, Peter Andren,
Independent MP for Calare. Andren therefore had sole responsibility
for writing the formal NO Case.(66)
Less than three months from the referendum on 9
November, the preamble now had a degree of bipartisan support
though the ALP decided only to distribute how-to-vote cards
advocating a YES vote. This, plus the fact that from late August
until early November the issue received scant coverage in the
national media, made its passage unlikely.
The
1999 Preamble Referendum Campaign
One of the most remarkable features of the 1999
referendum campaign on the preamble was how little of it there was.
Any attempt to analyse the campaign of both the YES and NO cases on
the preamble needs to speculate on the reasons for the low profile
of the preamble question.
At the time of the preamble's release, the Prime
Minister had announced no decision concerning the intensity of his
own role in campaigning for the preamble or whether there would be
government funding for the YES and NO cases. On 10 October 1999,
the Prime Minister wrote to Andren, as the author of the NO case,
explaining his decision not to fund YES and NO cases in the
preamble referendum:
The government considers that the measures
already in place [the formal YES and NO cases sent to all voters by
the Australian Electoral Commission] will provide ample opportunity
for Australians to cast an informed vote on the Preamble.(67)
Because the text of the preamble did not appear
on the ballot paper in November, Mr Howard was therefore
relying solely on voters reading the Electoral Commission's 'Yes/No
Referendum '99' pamphlet, or on descriptions in the press.
The Government's claim in the pamphlet that
there was 'currently no Preamble to the Constitution itself', while
technically correct, only appeared to encourage misunderstanding.
Anyone purchasing a copy of the Constitution would have seen the
present Preamble on the first page. They could be forgiven for
thinking that the Government was intending to replace this Preamble
with a new one. The Government's advertising material did not make
clear that the intention was not to replace the existing Preamble
with the Howard draft, but to leave the existing Preamble intact,
thereby creating a Constitution with two preambles, one
non-justiciable and formally part of the Constitution, the other
justiciable and part of the British Act of Parliament which brought
our Constitution into being.
Between 10 October and 1 November, there was
little public debate on the preamble, so that the Electoral
Commission pamphlet was the most important source of information
for voters.(68) When Andren addressed Parliament on 11 August, he
stated that he was primarily concerned about the lack of
consultation surrounding the drafting of the preamble:
At first, when this Preamble bill appeared in
the House today, I looked at it and I thought it looked fairly
good. It was well written and contained some great sentiments. I
was prepared to consider it, perhaps even to support it. Then I
thought I had better check just how it had emerged. I am not in the
loop around this place, and I don't mind that, but today's events
certainly show how far the people of Australia are out of the loop.
They know nothing about this Preamble that has been presented to
the Parliament today. What did I find when I made a few phone calls
and checked with Gatjil Djerkurra and the Democrats and so on?
There had been no consultation, apart from with the Democrats, on
this. Aden Ridgeway, fine gentleman that he is, was the only
Aboriginal input into this Preamble. I have found out from Gatjil
Djerkurra that there has been no consultation. As he pointed out in
the media release that was read earlier today, he is desperately
disappointed about the word `custodianship' and it is the only one
that should be included in such a Preamble. This has all been done
in unholy haste ... the preamble should be a product of the
people.(69)
The man who had been 'out of the loop' on 11
August, and who thought the preamble 'read well', was by late
September virtually the only national spokesperson for the NO case
on the Preamble.
In the Electoral Commission pamphlet, Andren
focused on exposing the rushed process of drafting, the minimal
public consultation, defective content, uncertain legal effect, and
poor logic of a preamble which asked Australians to commit
themselves to a Constitution which a separate referendum question
was asking them to change.(70) It also recycled, with minor
variations, some of the most effective slogans of the republic NO
case, such as 'don't know vote No!', 'No say-No Way!', and 'It's a
Politicians' Preamble.' The only public supporters of Andren's
case, albeit with little visibility and with different emphases,
were Greens Senator Bob Brown, monarchist Sir Harry Gibbs, sections
of the National Party organisation, and the right wing Pauline
Hanson's One Nation Party.(71)
Thinly veiled criticism of the proposed preamble
also came from the normally circumspect Constitutional Centenary
Foundation, in its official information leaflet on the preamble
question. The majority of the Foundation's comments on the preamble
were questioning and critical, highlighting differences between the
Howard draft and the recommendations of the Constitutional
Convention, the absence of a republican amendment in the preamble,
and the possibility of unintended consequences relating to Section
125A, the new section in the Constitution which would attempt to
ensure the Preamble was non-justiciable.(72)
The formal YES campaign for the Preamble, which
emanated from the Prime Minister's office, stressed the benefit of
highlighting 'values and aspirations', and contributing to the
reconciliation process at the 'end of our first century of
Federation'.(73) The Prime Minister also drew attention to the
proposal in his formal letter to the constituents of Bennelong,
which outlined his opposition to the republic bipartisan
appointment model. The only additional argument in this letter was
the somewhat optimistic claim that a new preamble would 'unite
republicans and anti-republicans behind commonly held Australian
values', something which it had manifestly failed to do by the time
the Prime Minister distributed his letter on 26 October. More than
80 per cent of the Prime Minister's letter was actually devoted to
his arguments against the republic. The preamble, by comparison,
appeared to be far less important.(74) In a similar way, Democrat
campaigning disappeared from view for a time.
It was not until the last week of the referendum
campaign, beginning 1 November, that any serious attempt was made
to advocate a YES vote on the preamble by the Greens or by the
Democrats. As if preparing the ground for defeat, Mr Howard stated
that if the preamble was lost, it would be because people were not
'aware of the words', rather than 'being opposed to the concept or
what those words stand for'.(75)
Evidence indicates that it was when polls began
to show the previously positive reaction to the preamble was in
sharp decline, that Prime Minister Howard and Senator Ridgeway
decided to wage a last ditch effort to save it. A joint press
conference was held by the two men on 3 November, where Senator
Ridgeway emphasised the historic opportunity presented by the
preamble, and the positive international signal a YES vote would
send, particularly on race relations in Australia.(76) The only
other significant support came from Minister for Employment, Tony
Abbott, and Council for Reconciliation Chair Evelyn Scott.(77)
Otherwise, John Howard, Aden Ridgeway and Meg Lees, were on their
own. On 4 November, the Prime Minister authorised last minute
television advertisements encouraging a YES vote on the
Preamble.(78)
In mid-September, Newspoll had registered
support for the preamble at above 50 per cent nationally, yet by
early November support was down to 38 per cent.(79) This suggests
that as soon as the extremely negative campaign of the NO case on
the republic question began to bite, the preamble suffered as
well.(80) By 6 November, there appeared little chance of the
preamble being approved by the Australian people.
The Aftermath of the Referendum
The result of the referendum question on the
preamble was a resounding NO vote in every State and Territory. The
national NO vote was 60.7 per cent, with Queensland (67.2 per cent)
and Western Australia (65.3 per cent) recording the highest NO
Votes. The electorate with the highest YES vote was the Prime
Minister's seat of Bennelong (NSW), which registered an affirmative
vote of 52 per cent.(81) The highest YES votes for the preamble
were located in safe Labor and Liberal seats in the cities,
especially those with large Asian populations, no doubt attracted
to the preamble's recognition of cultural diversity.(82) The high
YES vote in the inner cities which was a feature of the republic
vote, was generally not repeated with the preamble vote. Nor did
the preamble fare well in seats with a high indigenous population,
a fact which probably reflects the significant opposition to the
preamble of many indigenous leaders.(83)
When asked to explain the preamble's defeat,
Prime Minister Howard claimed it was 'probably defeated by apathy
or ignorance, not by hostility'.(84) But the preamble appears to
have been defeated for several reasons. Neither its advocates nor
its opponents campaigned with much enthusiasm. To some extent, it
was lost in a sea of indifference, or submerged beneath the
republic question, and frequently tarnished by partisan political
posturing. There was no substantial public focus on the preamble
after August 1999.
The high NO vote on the preamble, approximately
five per cent higher than the NO vote on the republic question,
reflected the low profile the preamble had received during the
campaign. Many YES voters on the republic question may have voted
NO to the preamble simply because John Howard had opposed the
republic. Voters opposed to the republic may have voted NO to the
preamble because they saw little point in saying YES to 'the
politicians' preamble' after having voted NO to 'the politicians'
republic'.
The main proponent, the Prime Minister, did
little to push the preamble into the public eye during the
referendum campaign. Howard's insistence that the 'current system'
worked well, and that there was no need to move to a republic,
certainly undercut his arguments for a new preamble. Perhaps after
being forced to trade away many of the words he had been so
enthusiastic about in February, especially 'mateship', Howard felt
he had less of a personal stake in the preamble, and consequently
became less passionate about its success at the referendum.
Opposition to the preamble from sections of the National Party
organisation may have muted the Prime Minister's support for the
preamble, but this factor alone cannot explain Mr Howard's
reticence. In addition, the preamble had little if any support from
prominent indigenous or church leaders. The overwhelming response
to the preamble during the referendum campaign was one of
silence.
Howard's political opponents had offered no
assistance. The ALP and the republican movement had run dead on the
issue, preferring instead to concentrate on the republic.(85) The
official NO case how-to-vote cards had also ignored the preamble,
offering no guidance to voters.
The same man who had driven from his rural
retreat in northern NSW to Canberra in March, to help a then
enthusiastic Prime Minister draft his first preamble, now exclaimed
his joy on hearing of the preamble's defeat. Poet Les Murray joked
that the Australian people had mercifully taken it out the back and
shot it. He was annoyed that so many of his original words had been
deleted or bowdlerised in a political compromise, and convinced he
would never undertake a similar task again. 'The [Preamble]', said
Murray, 'was slowly taken apart and turned into mush in a process
of political compromise'.(86)
On Monday 8 November, after suffering an
enormous defeat, the future for the preamble appeared bleak. Many
'noble' aspirations had come to nought. But there are still
positive lessons we might learn from the result in November 1999,
lessons which might help guide future attempts to draft a new
preamble.
Despite its failure at the referendum, the
question of a new preamble had earlier generated a prolonged public
debate on issues of vital importance to our civic culture. It
increased public awareness of the Constitution and our democracy.
Thousands of people across the nation took up their pens and
drafted preambles. These are encouraging and healthy signs of a
vibrant democracy which is keen for engagement and participation.
The real tragedy would be to lose much of the spirit and momentum
we seemed to have gained in 1999, despite the fact that in the few
days of media analysis after the referendum result on
6 November, not one person could be found suggesting the
preamble debate would be revitalised in the near future.
Looking to the Future
With the benefit of hindsight, it is possible to
identify the most important lessons from the 1999 'preamble
experience'.
-
- if a new preamble is to provide the Australian people with a
declaration of their values and aspirations, a process of lengthy
and genuine public consultation needs to be set in place. Preambles
written by those outside Parliament must be considered for
adoption. A national preamble competition and a plebiscite on
several winning entries is one possible process
-
- if it is to be an inclusive and unifying document, a preamble
should not become the plaything of partisan politics. No preamble
can claim democratic legitimacy if it is drafted by two or three
individuals, or just a single political party
-
- if a preamble is to serve as one step towards reconciliation
with indigenous Australians, then a broad cross section of
indigenous leaders must be consulted and involved in drafting the
reference to indigenous Australians
-
- so long as Australia remains a constitutional monarchy, the
need for a new preamble is unlikely to arise. In
the context of change to a republic, a preamble occupies a position
of crucial symbolic importance. It makes sense to introduce a new
preamble after a republic has been achieved. This is the time
debate on a preamble is most likely to resurface. If the
sovereignty of the Crown is to be removed, there is then a clear
case for articulating the sovereignty of the people and writing a
new preamble
-
- insisting that a new preamble be non-justiciable is of
questionable political utility in a referendum context, and opens
any preamble up to the charge of being little more than window
dressing. Legal opinion on the possible effect of the Howard
Government's proposed constitutional provision to ensure the legal
impotence of the preamble was, in any case, divided,(87) and
-
- although Prime Minister Howard appeared to be committed to the
concept of a new preamble, he underestimated the difficulty of
achieving consensus on its content. Naturally, there will be those
who remain sceptical of any attempt to articulate the shared
democratic principles of 19 million people from over 140 different
cultures. As Jeremy Webber has argued, in seeking to define a
society's values, a preamble can miss much of the subtlety and
ambiguity evident in a political culture.(88) But there may be a
higher price to be paid for remaining silent. We share the same
continent, the same institutions, and the same citizenship and
perhaps it is in the area of citizenship that the preamble can play
a positive and educative role.
Despite the rejection of the preamble at the
referendum, there are building blocks already in place for
consensus on the values of Australian democracy. In 1989, the
National Agenda for a Multicultural Australia included an official
statement of core values, as did the Keating government's response
to the Civics Expert Group in 1995, and the Women's Constitutional
Convention in 1998.(89) Based on a reading of the above, the
Republic Advisory Committee report, the report of the 1988
Constitutional Commission, the extraordinary bi-partisan
declaration made in the Commonwealth Parliament in October 1996,
which affirmed Australia's commitment to the 'equal rights' of
citizens, regardless of 'race, colour, creed, or origin', and the
recommendations of the Constitutional Convention in 1998, it is
possible to distil the essence of those principles which have been
most frequently mentioned as the core values of Australian
democracy.
These fall into seven broad categories-the
sovereignty of the people, the equality of all Australians under
the law, tolerance of difference and cultural diversity, the
equality of men and women, equality of opportunity, respect for the
Constitution and the rule of law, and respect for the
environment.(90)
In addition to these seven categories, and in
light of the Communique of the 1998 Constitutional Convention, it
is clear that there is now a broad consensus that any new preamble
should also include a statement of historical fact-the recognition
of Aboriginal and Torres Strait Islanders as Australia's indigenous
people.(91) After the referendum debate on the preamble, it is also
evident that there is considerable support for the 1998
Constitutional Convention's reference to indigenous Australians as
'custodians' of the land.
To be overly pessimistic concerning the prospect
of a new constitutional preamble would be to overlook the distance
we have travelled since 1991. Much has been learned and many things
have been discussed openly for the first time. This is something
new in the history of our democracy.
Beneath the disappointment for its supporters of
the 1999 referendum, however, appear to lie the seeds of consensus
in the future. Having embarked on the difficult process of
constitutional renewal in the 1990s, we are only at the beginning
of an ongoing national discussion which will recast the image of
the Australian people and their parliaments in the twenty-first
century.
Endnotes
-
- Final Report of the Constitutional Commission, vol.
1, AGPS, Canberra, 1988, p. 102. Also see note 6 for
references to Convention Debates. For further discussion of the
1890s debate surrounding the inclusion of God's blessing in the
Preamble see M. McKenna, 'Maker of Miracles' in D. Headon and J.
Williams, eds, Makers of Miracles, MUP, Melbourne, 1998.
- J. Quick and R. Garran, The Annotated Constitution of the
Australian Commonwealth, Angus and Robertson, Sydney, 1901, p.
284.
- M. McKenna, The Captive Republic. A History of
Republicanism in Australia 1788-1996, CUP, Melbourne, 1996,
pp. 191-5.
- Official Record of the Debates of the Australasian
Convention, vol. I-V, Legal Books, Sydney, 1986. See e.g.
Higgins at Melbourne Convention 1898, p. 656. Also see pp. 1740-1,
Glynn at the Adelaide Convention in 1897, pp. 1184-5. Glynn's
private reflections in his diary were quite different. After
ensuring God's inclusion in Melbourne, Glynn wrote in a matter of
fact style-'Today I succeeded in getting the words humbly relying
on the blessing of Almighty God in the Preamble. It was chiefly
intended to secure greater support from a large number of voters',
Patrick Glynn, diaries, Mortlock Library, State Library of South
Australia, 2 March 1898.
- Quick and Garran, op. cit., p. 286.
- George Winterton, 'A New Constitutional Preamble', Public
Law Review, vol. 8, September 1997, pp. 186-94.
- Ivo D. Duchacek, Power Maps: Comparative Politics of
Constitutions, ABC-Clio, Santa Barbara, 1973, pp. 17-26.
- Quick and Garran, op. cit., p. 286.
- Final Report of the Constitutional Commission 1998,
vol. 1, p. 102.
- Republic Advisory Committee, An Australian Republic. The
Options-The Report, Commonwealth Government Printer, Canberra,
1993, p 136.
- (1992) 174 CLR 455.
- ibid, p. 474.
- A majority of the High Court in Leeth, including
Brennan J, upheld the validity of the Commonwealth Prisoners
Act 1967. The other majority judges were Mason CJ, Dawson and
McHugh JJ.
- (1992) 174 CLR 455, p. 475.
- loc. cit.
- Gaudron J also concluded that the Commonwealth Prisoners
Act 1967 was invalid but took a different approach to that of
Deane and Toohey JJ.
- (1992) 174 CLR 455, p. 486. Other bases for their conclusion
were the separation of federal judicial power and the existence of
a number of constitutional provisions which, they said, reflected
the doctrine of legal equality-these included sections 86, 88, 90,
99, 92 and 116. Deane and Toohey JJ also referred to the common
law, see (1992) 174 CLR 455, pp. 486-8.
- (1997) 190 CLR 1.
- Final Report of the Constitutional Commission 1998,
vol. 1, pp. 109-10.
- An Australian Republic: The Options, p. 137.
- Final Report of the Constitutional Commission 1988,
vol. 1, pp. 20-4, 445-637 and 101-9; Whereas the People,
Report of the Civics Expert Group, AGPS, 1994, p. 13; 2001: A
Report from Australia, Centenary of Federation Advisory
Committee, AGPS, 1994, p. 50; Federation Centenary
Convention, Adelaide, 20-23 April 1997, Communique;
Constitutional Centenary Foundation 1997. See also Marian Sawer,
Core Values, seminar delivered in the Research School of
Social Sciences, 1995, and Marian Sawer, Women's Constitutional
Activism in Australia and Canada, unpublished paper, 1998.
- Mabo v Queensland (1992) 175 CLR 1.
- Debra Jopson, 'Call to Note Blacks in Constitution', Sydney
Morning Herald, 13 August 1997.
- See e.g. Australian Republican Movement Platform 1991, and
An Australian Republic-The Way Forward Questions and
Answers, unpublished document, Office of the Prime Minister, 7
June 1995, p. 19-20. The Australian attempted to stimulate
interest in the preamble by inviting leading figures to pen their
own preambles, see Australian, 27-28 January 1996, p. 7.
Also see an earlier attempt to stimulate interest in Sydney
Morning Herald, 27 March 1995, p. 13.
- Report of the Constitutional Convention, Old Parliament
House, Canberra, 2-3 February 1998, transcript proceedings,
vol. 3, p.10.
- All words in quotation marks are taken from the 1998
Constitutional Convention, Friday 6 February and Monday 9
February 1998.
- loc. cit.
- Constitutional Convention, Reports from Working Groups
2, 3 and 6, February 1998. Also see Australian, 6 February
1999, and Eureka Street, vol. 8, no. 2, March 1998,
pp 29-33.
- ATSIC News, May 1998.
- Constitutional Convention, Final Communique, pp. 46-7.
- Between August and November 1998 the Constitutional Centenary
Foundation conducted a Preamble Quest, the result of which was
published in February 1999.
- See article by Paul Kelly, Australian,14 October 1998,
p. 19.
- There was one attempt to provoke debate, Sydney Morning
Herald, 18 January 1999, p. 1.
- Malcolm Turnbull, Fighting for the Republic, Hardie
Grant Books, Melbourne, 1999,
pp. 87-8. Remarkably, in this not too self critical diary, Turnbull
manages to pass the preamble off as an initiative of the ARM. See
also Richard McGregor and Ian Henderson on the ALP's opposition to
the preamble, Australian, 28 January 1999.
- On support for preamble see The Age and Sydney
Morning Herald, 8 February 1999, letters page in
Australian, 12 February 1999, Canberra Times
editorial, 10 February 1999. For reports of the Convention, see
Michelle Grattan, Sydney Morning Herald, 8 and 9 February
1999, Mike Steketee, Australian, 8 February 1999. For
Turnbull's change of heart, see Gervase Green, The Age,
8 February 1999.
- House of Representatives, Debates, 8 February 1999.
- On ALP and ARM division see Mercury, 10 February 1999,
Australian, 10 February 1999 and
Michelle Grattan in Sydney Morning Herald, 10 February
1999.
- Australian, 10 February 1999, p. 1-2, 'ALP response',
Robert Garran in Australian, 15 February 1999.
- Richard McGregor, Australian, 17 February 1999.
- Gervase Green, The Age, 18 February 1999.
- On ALP and Democrats on 'custodianship' see Dennis Shanahan,
Australian, 20-21 March 1999, p. 1. On 'God', see Toni
O'Loughlin, Sydney Morning Herald, 11 February 1999,
Michelle Grattan, Sydney Morning Herald, 15 February
1999 and Chris McGillion, Sydney Morning Herald,
1 March 1999.
- 'We the people of Australia...' Ideas for a new Preamble to
the Australian Constitution, Constitutional Centenary
Foundation, 1999, and Gervase Green, Age, 25 February
1999. Also see Stefanie Balogh, Australian, 25 February
1999 on schoolchildren and Norman Abjorensen, Canberra
Times, 25 February 1999.
- Canberra Times, 27 February 1999, Sunday Age,
7 March 1999, p. 17.
- Luke Slattery, Australian, 4 March 1999 and Stephanie
Peatling, Sydney Morning Herald, 4 March 1999.
Murray's own recollections on the experience can be found in Les
Murray, The Quality of Sprawl: Thoughts about Australia,
Duffy and Snellgrove, Sydney, 1999,
pp. 213-35.
- Age, 11 March 1999.
- Transcript of Prime Minister's press conference, 23 March 1999.
- Financial Review, 24 March 1999 and Sydney Morning
Herald, 25 March 1999.
- Australian, 23 March 1999.
- John Laws program transcript, 24 March 1999, Pearson,
Financial Review, 29 March 1999, Olsen reported in
Sydney Morning Herald, 25 March 1999.
- See e.g. Michael Mansell, letter to Sydney Morning
Herald, 12 February 1999, Peter Yu, letter to
Australian, 19 February 1999, Lowitja O'Donoghue,
'Preamble pathetic' Sydney Morning Herald, 16 April 1999,
Gatjil Djerrkura in Michelle Grattan and Margo Kingston's report
'Preamble angers blacks' Sydney Morning Herald, 23 March
1999. See also Age editorial, 24 March 1999 and Bain
Attwood, Australian, 25 March 1999.
- Stephanie Peatling, 'Mateship an insult say angry feminists',
Sydney Morning Herald, 24 March 1999. Stuart Rintoul,
'Blokey concept no mate to women,' Australian, 24 March
1999, includes the quote from Judith Wright. See also Sydney
Morning Herald, 24 March 1999. 'Mateship unites critics in
tones of derision', which includes comments from Jocelyn Scutt, Eva
Cox and Bruce Ruxton.
- Sydney Morning Herald, 25 March 1999. See also
Age editorial, 30 April 1999, which provides a tidy
summary of the major criticisms of the Howard-Murray Preamble.
- Age, 30 April 1999, especially Wojciech Sadurski,
'Sorry but your draft is daft'. See also Australian,
24 March 1999, for a variety of perspectives.
- Paul Kelly, 'A Preamble too bad to be true',
Australian, 23 March 1999, and George Winterton, 'Two
Preambles is stretching the Mateship', Australian, 22
April 1999.
- See e.g. editorial calling for wider consultation,
Australian, 24 March 1999, and a range of criticisms in
Dennis Shanahan, 'Premiers doom PM's Preamble',
Australian, 13 April 1999.
- Marian Sawer, 'Visible at Last? Women and the Preamble', in J
Uhr, ed., The Case for Yes, Federation Press, Sydney,
1999, pp. 143-53.
- Australian, 13 April 1999. For other criticisms, e.g.
from conservative Andrew Robb, see Canberra Times, 30
March 1999.
- Weekend Australian, 7-8 August 1999.
- Australian, Sydney Morning Herald, 5 August
1999, 11 August 1999.
- Transcript of Prime Minister's press conference, Parliament
House, Canberra, 11 August 1999.
- A Joint Select Committee on the Republic Referendum was
established on 10 June 1999 to enquire into the Constitution
Alteration (Republic) Bill 1999 and the Presidential
Nominations Committee Bill 1999. The Committee received 122
original written submissions, exhibits and other correspondence,
and held public hearings in major cities. It reported on 9 August
1999. The Committee's terms of reference did not enable it to
consider proposed Constitutional preambles-Advisory Report of the
Joint Select Committee on the Republic Referendum, August 1999,
p.2.
- loc. cit.
- Damien Murphy, 'Aborigines and Hanson attack the latest
wording', Sydney Morning Herald, 12 August 1999, see also
editorial. Lauren Martin, 'Ridgeway criticised ...', Sydney
Morning Herald, 13 August 1999.
- House of Representatives, Debates, 11 August 1999, and
Senate, Debates, 12 August 1999.
- Referendum (Machinery Provisions) Act 1984, section
11.
- Sydney Morning Herald, 12 August 1999, and Peter
Andren, 'Preamble Left in the Shade', Canberra Times,
5 November 1999.
- loc. cit
- See George Williams' attempt to ignite debate on 'the forgotten
question', Australian, 1 November 1999. See also
Australian, 10 August 1999.
- House of Representatives, Debates, 11 August 1999.
- 'The Case for Voting No to the Preamble', in Yes/No
Referendum '99, Australian Electoral Commission, 1999, p. 27.
See also Gerard Henderson, 'The Odd Politics of Illogicality',
Sydney Morning Herald, 26 October 1999.
- Michelle Grattan, 'Defining Virtues', Sydney Morning
Herald, 23 October 1999. Also Greg Roberts, 'Preamble's Native
Title Jeopardy', Sydney Morning Herald, 31 August 1999.
- Constitutional Centenary Foundation, 1999 Referendum A New
Preamble, Melbourne, 1999.
- Yes/No Referendum '99, p. 26.
- John Howard, 'Nothing to Gain everything to Lose',
Australian, 27 October 1999, p. 15.
- George Megalogenis, 'Preamble Driver ...', Australian,
5 November 1999.
- Michelle Grattan, 'PM and Partner plead for a Yes on Preamble',
Sydney Morning Herald, 4 November 1999, and Grattan
in Sydney Morning Herald, 6 November, on Meg Lees' last
attempts to salvage the preamble.
- Margo Kingston, 'ALP Predicts Preamble Doom', Sydney
Morning Herald, 1 November 1999. See also Canberra
Times, 5 November 1999.
- Margo Kingston, Sydney Morning Herald, 5 November
1999.
- Richard McGregor, 'Ridgeway leaves it too late on Preamble',
Australian, 3 November 1999.
- Gerard Henderson, Sydney Morning Herald, 26 October
1999.
- loc. cit.
- loc. cit.
- David Nason, 'Preamble defeat blow to Howard,
Australian, 8 November 1999.
- Margo Kingston, 'Ignorance killed Preamble', Sydney Morning
Herald, November 8 1999, and Australian, 8 November
1999.
- Turnbull, Fighting for the Republic, pp. 130-1.
- Margo Kingston, 'Howard Keen to Reconcile', Sydney Morning
Herald, 7 November 1999.
- This was a point well made by the formal No Case on the
Preamble, see Yes/No Referendum '99. See also note 72.
- Jeremy Weber, 'Constitutional Poetry: The tension between
symbolic and functional aims in constitutional reform', Sydney
Law Review, vol. 21, 1999.
- See Sawer, Core Values. See also Women's
Constitutional Convention, 29-30 January, 1998 Outcomes.
- An Australian Republic: The Options, vol. 1. pp.
139-41 and Final Report of the Constitutional Commission
1988, vol.1, pp. 104-9.
- 1998 Constitutional Convention, Final Communique.
Appendix 1: Selected Constitutional
Preambles
The Constitution of the United
States (1788)
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.
The Constitution of India (1950)
We, the People of India, having solemnly
resolved to constitute India into a Sovereign Socialist Secular
Democratic Republic and to secure to all its citizens:
Justice, social, economic and political;
Liberty of thought, expression, belief, faith
and worship;
Equality of status and of opportunity; and to
promote among them all
Fraternity assuring the dignity of the
individual and the unity and integrity of the Nation;
In Our Constituent Assembly this twenty-sixth
day of November, 1949, do Hereby Adopt, Enact and Give to Ourselves
this Constitution.
The Constitution of South Africa
(1996)
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and
freedom in our land;
Respect those who have worked to build and
develop our country; and
Believe that South Africa belongs to all who
live in it, united in our diversity.
We therefore, through our freely elected
representatives, adopt this Constitution as the supreme law of the
Republic so as to
Heal the divisions of the past and establish a
society based on democratic values, social justice and fundamental
human rights;
Lay the foundations for a democratic and open
society in which government is based on the will of the people and
every citizen is equally protected by law;
Improve the quality of life of all citizens and
free the potential of each person; and
Build a united and democratic South Africa able
to take its rightful place as a sovereign state in the family of
nations.
May God protect our people.
Nkosi Sikelel iAfrika. Morena boloka setjhaba sa
heso.
God seën Suid-Afrika. God bless South
Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa
Afrika.
Appendix 2: Draft Australian Constitutional
Preambles
Constitutional Commission's Advisory
Committee on Individual and Democratic Rights (1987)
-
- Whereas the People are drawn from a rich diversity of cultures
yet are one in their devotion to the Australian traditions of
equality, the freedom of the person and the dignity of the
individual;
-
- Whereas Australia is an ancient land previously occupied by
Aboriginal peoples who never ceded ownership;
-
- Whereas the Australian people look to share fairly in the
plenty of our Commonwealth;
-
- Whereas Australia is a continent of immense extent and unique
in the world demanding as our homeland our respect, devotion and
wise management.
Aboriginal and Torres Strait Islander
Commission (1993)
Whereas the territory of Australia has long been
occupied by Aboriginal peoples and Torres Strait Islanders whose
ancestors inhabited Australia and maintained traditional titles to
the land for thousands of years before British settlement;
And whereas many Aboriginal peoples and Torres
Strait Islanders suffered dispossession and dispersal upon
exclusion from their traditional lands by the authority of the
Crown;
And whereas Aboriginal peoples and Torres Strait
Islanders, whose traditional laws, customs and ways of life have
evolved over thousands of years, have a distinct cultural status as
indigenous peoples;
And whereas the people of Australia now include
Aboriginal people, Torres Strait Islanders, migrants and refugees
from many nations, and their descendants seeking peace, freedom,
equality and good government for all citizens under law;
And whereas the people of Australia drawn from
diverse cultures and races have agreed to live under one
indissoluble federal Commonwealth under the Constitution
established a century ago and approved with amendment by the will
of the people of Australia;
Be it therefore enacted ...
John Hirst (1994)
Whereas the people of New South Wales, Victoria,
South Australia, Queensland, Tasmania and Western Australia, humbly
relying on the blessing of Almighty God, agreed to unite in one
indissoluble Federal Commonwealth under the Crown of the United
Kingdom of Great Britain and Ireland, and under the Constitution
established on 1 January 1901:
And whereas that Federal Commonwealth, the
Commonwealth of Australia, evolved into an independent nation under
the Crown of Australia:
We, the people of Australia, have decided to
constitute the Commonwealth of Australia as an independent
democratic republic.
Council for Aboriginal Reconciliation
(1995)
Whereas the territory of Australia has long been
occupied by Aboriginal and Torres Strait Islander peoples whose
ancestors inhabited Australia for thousands of years before British
settlement:
And whereas many Aboriginal and Torres Strait
Islander peoples suffered dispossession and dispersal upon
exclusion from their traditional lands by the authority of the
Crown:
And whereas the peoples of Australia now include
indigenous Australians, migrants and refugees from many nations,
and their descendants seeking peace, freedom, equality and good
government for all citizens under the law:
And whereas the peoples of Australia drawn from
diverse cultures and races have agreed to live in one indissoluble
Federal Commonwealth under the Constitution established a century
ago and approved with amendment by the will of the people of
Australia:
Be it therefore enacted:
Joan Kirner (1995)
Whereas the people of New South Wales, Victoria,
South Australia, Queensland, Tasmania and Western Australia, humbly
relying on the blessing of Almighty God, agreed to unite in one
indissoluble Federal Commonwealth under the Crown of the United
Kingdom of Great Britain and Ireland, and under the Constitution
hereby established:
And whereas that Federal Commonwealth, the
Commonwealth of Australia, has evolved into an independent nation
under the Crown of Australia: We, the people of Australia, now a
Commonwealth of states, acknowledge: the prior ownership of this
land by its indigenous people and respect the spirit of this
land:
The equality of all before the law, regardless
of colour, race, gender or belief and the right to freedom of
speech and association. The right of all to food, employment,
education, housing, and transport and freedom from fear and
violence. And we declare ourselves to be free, sovereign and
independent and bound by the provisions of this Constitution.
Lowitja O'Donoghue (1996)
Australians affirm their Constitution as the
foundation of their commitment to, and their aspirations for,
constitutional government.
Our nation dedicates itself to a responsible and
representative system of government that is inclusive of all its
peoples, upholds fundamental human rights, respects and cherishes
diversity, and ensures full participation in its social, cultural
and economic life.
Australia recognises the Aboriginal peoples and
Torres Strait Islanders as its indigenous peoples with continuous
rights by virtue of that status.
We seek a united Australia that respects and
protects the land and the indigenous heritage, values the cultures
of its peoples, and provides justice and equity for all. The
authority for this Constitution derives from all Australians.
Malcolm Turnbull (1996)
Whereas the people of New South Wales, Victoria,
South Australia, Queensland, Tasmania and Western Australia, humbly
relying on the blessing of Almighty God agreed to unite in one
indissoluble Federal Commonwealth under the Crown of Great Britain
and Ireland and under the Constitution hereby established: And
whereas that Federal Commonwealth, the Commonwealth of Australia,
evolved into an independent nation under the Crown of Australia:
We, the people of Australia, united in an indissoluble Commonwealth
of States, acknowledging the equality of all under the law
regardless of colour, race, sex or creed declaring ourselves to be
free, sovereign and independent, agree to be bound by these
principles of equality and by the provision of this
Constitution.
George Winterton (1996)
Whereas the original, indigenous Australians
held in trust this continent of which all Australians are now
trustees:
And whereas the people of New South Wales,
Victoria, South Australia, Queensland, Tasmania and Western
Australia, humbly relying on the blessing of Almighty God, agreed
to unite in one indissoluble Federal Commonwealth under the Crown
of the United Kingdom of Great Britain and Ireland, and under the
Constitution hereby established:
And whereas that Federal Commonwealth, the
Commonwealth of Australia, evolved into an independent nation under
the Crown of Australia:
And whereas the people of Australia have decided
to constitute the Commonwealth of Australia as an independent
federal republic founded upon democratic government, the rule of
law and the equality of all citizens before the law, and dedicated
to the principle of the equal worth and dignity of every human
being:
We, the people of Australia, do hereby enact and
give to ourselves this Constitution.
Malcolm Fraser (1996)
Australians freely enter this solemn covenant to
establish democratic government for the advancement of all
citizens, and for the protection of the State.
This covenant guarantees basic freedoms
essential to a civilised society, in particular it guarantees
freedom of association, freedom of religion and freedom of
speech.
This covenant establishes abiding rules which
can only be changed by the decision of all Australians through the
defined process of referendum.
The High Court of Australia will be the
custodian of this covenant and the ultimate authority for the
resolution of disputes. Stability and clarity of interpretation of
this covenant and of laws established in accordance with its
provisions will be the court's full responsibility.
Accordingly, the parliament, alone, with the
executive government is established to protect and advance the
purposes of this covenant, and to make laws for the safety and well
being of all Australians.
The fundamental principles of such laws shall
embrace universality and non-discrimination. Laws may be made to
relieve hardship, to address adversity. Indeed a basic objective of
this covenant is to advance an egalitarian society where all people
are equal before the law, with equal access to the law.
This covenant recognises that Australia is
irreversibly multicultural, containing citizens from many diverse
countries representing all creeds. Laws based on race or religion
are essentially discriminatory and are thus forbidden by this
covenant.
Through this covenant Australians unite, to
establish both government and judiciary, recognising that the good
order and conduct of society requires laws applicable to all with
just and humane administration.
This covenant is based on sovereignty residing
irrevocably with each citizen. Institutions established by citizens
freely joining together, exist by the will of the people with whose
government they are entrusted.
Government established by the rules of this
covenant is to be representative of the people, responsible at all
times through the Parliament to the people.
Marian Sawer (1999)
We the people of Australia affirm our
Constitution as the foundation of our democracy. We dedicate
ourselves to a responsible and representative system of government
that upholds fundamental rights and freedoms and the rule of
law.
We respect and cherish our ancient land and
recognise Indigenous Australians as its original occupants and
custodians. We seek an Australia that is proud of its diversity,
promotes the equality of men and women and provides justice for
all.
Australian Labor Party (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.
Non-Government Parties (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
Mark McKenna (1999)
We, the people of Australia, have decided to
constitute the Federal Commonwealth of Australia as an independent
democratic republic.
In a spirit of reconciliation, we acknowledge
Aboriginal peoples and Torres Strait Islanders, Australia's
indigenous people, as the original occupants and custodians of our
land.
As a people of many cultures, customs, and
beliefs, we now declare the principles which bind us as a sovereign
and free people.
We will uphold the Constitution and the rule of
law.
We will respect the dignity of the human person,
the equality of men and women, and the equality of all persons
under the law, regardless of colour, race, gender or creed.
We will promote the liberty and welfare of all
Australians, and we will respect the land and environment which we
share.
To these principles, and to this Constitution,
we, the people of Australia, agree to be bound.
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