Poetry and politics do not mix. So found John Howard in 1999 when he and the poet Les Murray assembled a first draft of a new preamble for the Constitution. That tragic effort included the following incomprehensible declaration:
Australia’s democratic and federal system of government exists under law to preserve and protect all Australians in an equal dignity which may never be infringed by prejudice or fashion or ideology nor invoked against achievement.
Imagine schoolchildren reciting this every morning. Might not a six-year-old student rightly ask why ‘equal dignity’ may never be ‘invoked against achievement’, and what on earth is this supposed to mean? How, indeed, are Australians to be ‘preserved’? In a barrel of French brandy, perhaps, like the body of Nelson?
The idea of a constitutional preamble is again preying on political minds, this time to secure a place for the recognition of Aboriginal and Torres Strait Islander people. It is claimed to be a simple alternative to the complex provisions recommended by the Expert Panel on the Recognition of Indigenous Australians. But it is not simple at all.
The Commonwealth Constitution was enacted as section 9 of a British Act of Parliament. It is the British Act which has a preamble, not the Constitution itself. It states that 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’.
Several issues arise in relation to changing this preamble. For one thing, there are doubts as to whether a referendum, which can be used to amend the Constitution itself, can also be used to amend the British Act in which it is contained. There is also the question of whether it is appropriate to change it. Recognition of Aboriginal people in the preamble to a British Act would still exclude them from the text of the Constitution.
Second, the preamble is a historical statement. One cannot reverse history
or change the intentions of those who enacted the Constitution by amending the preamble. The role of a preamble is to introduce and explain what is intended by the substantive provisions which follow. An addition to the preamble would make sense if it were to introduce and explain amendments to the text of the Constitution, but not if the body of the Constitution were to remain the same.
Third, if the preamble were to be updated by including matters important to Australians today, what about the rest of the preamble? If Aboriginal people are to be recognised, shouldn’t we also recognise Western Australia? Should the reference to the Crown of the United Kingdom of Great Britain and Ireland, which no longer exists, be changed to the Crown of Australia or removed altogether to facilitate a future republic? Should the reference to God remain, or, as Edmund Barton thought, would it be more reverent to leave the Deity out of it? (Barton, lacking confidence that those voting on Federation would actually be humbly invoking the blessing of God, preferred not to start the Constitution with dissemblance.)
Finally, if we had a preamble that was a dog’s breakfast of historical statements and modern sentiments, how would it be used in the interpretation of the Constitution, especially if the text remained the same?
In 1999 the Howard government tried to avoid some of these problems by proposing to insert a new preamble in the Constitution itself. This gave rise to other problems. First, there would be two preambles, and it is unknown how a court would interpret them both, particularly if they clashed. Second, the placement of the preamble might lead to it being treated differently by courts. Normally, a preamble is placed before the words of enactment, so it precedes the text and therefore has no substantive effect on its own. It can only be used to aid the interpretation of the text where there is ambiguity. A new ‘preamble’ placed in the text of the Constitution, after the words of enactment, could conceivably be given a substantive effect.
Next, one must decide what else should be included in the preamble. Do we really want an unseemly and divisive political auction for constitutional recognition by groups (such as war veterans and ethnic groups), causes (the environment) and institutions (local government)?
The inclusion of statements of values, beliefs and aspirations adds to the risks. Attempts to ‘define the nation’ and declare our common beliefs and aspirations have a tendency to descend into platitudes. Freezing the aspirations of the moment in a Constitution, which is difficult to change at the best of times, will inevitably render them anachronistic and embarrassing for future generations. As the late George Winterton remarked, ‘the preamble should not read like a catalogue of political correctness.’
Finally, one must consider what the courts will make of a new preamble — especially one that goes beyond stating historical facts to include statements of values or fundamental principles such as ‘equality’ or ‘the rule of law’. Experience in the US, Canada, India and France gives credence to concerns that an expansive preamble might be used to support constitutional implications or unanticipated reinterpretations of existing legislative powers.
In the US, the inclusion in the preamble of a large number of aspirational objectives, many of which conflict, has given judges a constitutional smorgasbord from which to choose whichever constitutional objective suits their own view in a particular case. In Canada, the Supreme Court has used fundamental principles discerned from the preamble to ‘fill in the gaps’ in the written Constitution. In India, a statute or constitutional amendment that conflicts with the ‘basic structure’ of the Constitution, as set out in the preamble, may be held invalid. In France, the originally non-binding preamble has become, by judicial interpretation, a positive source of legal rights. The international trend is for courts to make increasingly substantive use of preambles.
So the Expert Panel was wise to avoid the preamble traps and instead propose substantive amendments to the Constitution. While the merits of those amendments may be the subject of separate debate, their focus is contained and they mercifully do not stray into the constitutional twilight zone where ‘equal dignity may never be infringed by prejudice or fashion or ideology nor invoked against achievement’.
Anne Twomey is professor of constitutional law at the University of Sydney. Analyses of preambles and the Expert Panel’s recommendations are at: http://sydney.edu.au/law/cru/publications.shtml.