Research Paper 16 1999-2000

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

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:

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:

2. The agreement of the people of Australia

3. Their reliance on the blessing of Almighty God

4. The purpose to unite

5. The character of the union-indissoluble

6. The form of the union-a Federal Commonwealth

7. The dependence of the union-under the Crown

8. The government of the union under the Constitution, and

9. 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:

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:

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:

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:

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:

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

2. 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.

3. J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth, Angus and Robertson, Sydney, 1901, p. 284.

4. M. McKenna, The Captive Republic. A History of Republicanism in Australia 1788-1996, CUP, Melbourne, 1996, pp. 191-5.

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.

6. Quick and Garran, op. cit., p. 286.

7. George Winterton, 'A New Constitutional Preamble', Public Law Review, vol. 8, September 1997, pp. 186-94.

8. Ivo D. Duchacek, Power Maps: Comparative Politics of Constitutions, ABC-Clio, Santa Barbara, 1973, pp. 17-26.

9. Quick and Garran, op. cit., p. 286.

10. Final Report of the Constitutional Commission 1998, vol. 1, p. 102.

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

12. (1992) 174 CLR 455.

13. ibid, p. 474.

14. 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.

15. (1992) 174 CLR 455, p. 475.

16. loc. cit.

17. Gaudron J also concluded that the Commonwealth Prisoners Act 1967 was invalid but took a different approach to that of Deane and Toohey JJ.

18. (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.

19. (1997) 190 CLR 1.

20. Final Report of the Constitutional Commission 1998, vol. 1, pp. 109-10.

21. An Australian Republic: The Options, p. 137.

22. 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.

23. Mabo v Queensland (1992) 175 CLR 1.

24. Debra Jopson, 'Call to Note Blacks in Constitution', Sydney Morning Herald, 13 August 1997.

25. 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.

26. Report of the Constitutional Convention, Old Parliament House, Canberra, 2-3 February 1998, transcript proceedings, vol. 3, p.10.

27. All words in quotation marks are taken from the 1998 Constitutional Convention, Friday 6 February and Monday 9 February 1998.

28. loc. cit.

29. 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.

30. ATSIC News, May 1998.

31. Constitutional Convention, Final Communique, pp. 46-7.

32. Between August and November 1998 the Constitutional Centenary Foundation conducted a Preamble Quest, the result of which was published in February 1999.

33. See article by Paul Kelly, Australian,14 October 1998, p. 19.

34. There was one attempt to provoke debate, Sydney Morning Herald, 18 January 1999, p. 1.

35. 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.

36. 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.

37. House of Representatives, Debates, 8 February 1999.

38. On ALP and ARM division see Mercury, 10 February 1999, Australian, 10 February 1999 and Michelle Grattan in Sydney Morning Herald, 10 February 1999.

39. Australian, 10 February 1999, p. 1-2, 'ALP response', Robert Garran in Australian, 15 February 1999.

40. Richard McGregor, Australian, 17 February 1999.

41. Gervase Green, The Age, 18 February 1999.

42. 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.

43. '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.

44. Canberra Times, 27 February 1999, Sunday Age, 7 March 1999, p. 17.

45. 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.

46. Age, 11 March 1999.

47. Transcript of Prime Minister's press conference, 23 March 1999.

48. Financial Review, 24 March 1999 and Sydney Morning Herald, 25 March 1999.

49. Australian, 23 March 1999.

50. John Laws program transcript, 24 March 1999, Pearson, Financial Review, 29 March 1999, Olsen reported in Sydney Morning Herald, 25 March 1999.

51. 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.

52. 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.

53. 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.

54. Age, 30 April 1999, especially Wojciech Sadurski, 'Sorry but your draft is daft'. See also Australian, 24 March 1999, for a variety of perspectives.

55. 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.

56. 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.

57. Marian Sawer, 'Visible at Last? Women and the Preamble', in J Uhr, ed., The Case for Yes, Federation Press, Sydney, 1999, pp. 143-53.

58. Australian, 13 April 1999. For other criticisms, e.g. from conservative Andrew Robb, see Canberra Times, 30 March 1999.

59. Weekend Australian, 7-8 August 1999.

60. Australian, Sydney Morning Herald, 5 August 1999, 11 August 1999.

61. Transcript of Prime Minister's press conference, Parliament House, Canberra, 11 August 1999.

62. 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.

63. loc. cit.

64. 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.

65. House of Representatives, Debates, 11 August 1999, and Senate, Debates, 12 August 1999.

66. Referendum (Machinery Provisions) Act 1984, section 11.

67. Sydney Morning Herald, 12 August 1999, and Peter Andren, 'Preamble Left in the Shade', Canberra Times, 5 November 1999.

68. loc. cit

69. See George Williams' attempt to ignite debate on 'the forgotten question', Australian, 1 November 1999. See also Australian, 10 August 1999.

70. House of Representatives, Debates, 11 August 1999.

71. '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.

72. Michelle Grattan, 'Defining Virtues', Sydney Morning Herald, 23 October 1999. Also Greg Roberts, 'Preamble's Native Title Jeopardy', Sydney Morning Herald, 31 August 1999.

73. Constitutional Centenary Foundation, 1999 Referendum A New Preamble, Melbourne, 1999.

74. Yes/No Referendum '99, p. 26.

75. John Howard, 'Nothing to Gain everything to Lose', Australian, 27 October 1999, p. 15.

76. George Megalogenis, 'Preamble Driver ...', Australian, 5 November 1999.

77. 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.

78. Margo Kingston, 'ALP Predicts Preamble Doom', Sydney Morning Herald, 1 November 1999. See also Canberra Times, 5 November 1999.

79. Margo Kingston, Sydney Morning Herald, 5 November 1999.

80. Richard McGregor, 'Ridgeway leaves it too late on Preamble', Australian, 3 November 1999.

81. Gerard Henderson, Sydney Morning Herald, 26 October 1999.

82. loc. cit.

83. loc. cit.

84. David Nason, 'Preamble defeat blow to Howard, Australian, 8 November 1999.

85. Margo Kingston, 'Ignorance killed Preamble', Sydney Morning Herald, November 8 1999, and Australian, 8 November 1999.

86. Turnbull, Fighting for the Republic, pp. 130-1.

87. Margo Kingston, 'Howard Keen to Reconcile', Sydney Morning Herald, 7 November 1999.

88. This was a point well made by the formal No Case on the Preamble, see Yes/No Referendum '99. See also note 72.

89. Jeremy Weber, 'Constitutional Poetry: The tension between symbolic and functional aims in constitutional reform', Sydney Law Review, vol. 21, 1999.

90. See Sawer, Core Values. See also Women's Constitutional Convention, 29-30 January, 1998 Outcomes.

91. An Australian Republic: The Options, vol. 1. pp. 139-41 and Final Report of the Constitutional Commission 1988, vol.1, pp. 104-9.

92. 1998 Constitutional Convention, Final Communique.

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)

• 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

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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