jpyke

BY JOHN PYKE

The suggestion that the Commonwealth Constitution should be given a new ‘preamble’ by referendum has surfaced a couple of times in the last two decades – in connection with the republic and now as part of the process of Indigenous Recognition – and has been criticised on technical grounds both times.  I argue here that the criticism is ill-founded, and that the Constitution does need a new ‘preamble’ (using the word in a wider sense than its technical one), and that it should be added either as part of the Recognition process or simply as part of a program of honestly asserting our national identity.

In the Discussion Paper produced in May 2011 by the Expert Panel on Constitutional Recognition of Indigenous Australians, ‘Idea 1’ was a Statement of Recognition in a preamble.  However, by the time the Expert Panel produced its Report in early 2012 it had dropped the idea, although it did suggest that a new section to replace s 51(xxvi) should have some ‘preambular or introductory language’ – a kind of middle-amble.

The Panel seems to have had several reasons for its rejection of a new ‘preamble’, though it is hard to discern which one, or which combination of them, was the motivating reason.  One very relevant issue they discussed was that Indigenous opinion was divided about it – while some thought that ‘the power of symbolism ought not to be dismissed’, others said ‘we have to go beyond symbolism’.  Immediately after that, they conceded that it would be possible to include both a symbolic preamble and some more substantive provisions, but then they moved on  to discuss the alleged ‘structural’ problem of having two preambles, and the ‘uncertainty about the use that might be made of it in interpreting other provisions of the Constitution’ without ever returning to the idea of inserting a preamble and making other amendments.

Today, the new Referendum Council is currently consulting with Indigenous people as to what sort of constitutional recognition, if any, they want.  If it reveals that the majority of Indigenous Australians do not want a new preamble, then it would be inappropriate to offer it as part of a recognition or reconciliation package.  But if Indigenous Australians do want a new preamble (with or without more substantive changes), the Panel’s Report would still seem to suggest that there are two other reasons for not adding one to the Constitution.  I argue below that both of the reasons are flawed, and that in any case there are good reasons other than Indigenous recognition for adding a new preamble.

Alleged ‘structural issues’ and clashes between preambles

In expressing its fear that the introduction of a new preamble would create ‘structural issues’, the Panel mainly relied on a submission from Anne Twomey, who raised the spectre of ‘two preambles’. She claimed that ‘preambles are commonly placed before enacting clauses’ and that a new preamble, not preceding the words of enactment, ‘could not be “truly preambular” because it would be placed after the table of contents and before Chapter I’.  She claimed that this

anomaly would be made worse if the existing Preamble remained intact, placed prior to the words of enactment while a separate preamble was then placed after the words of enactment. This might suggest a different status for the second preamble as it is located within the substantive part of the Act.

In saying this, she referred back to criticisms made of the new preamble, proposed in 1998-99 as part of the move to a republic, by George Winterton and Mark McKenna. Similar criticisms were made by George Williams, Mark McKenna and Amelia Simpson.  These points are valid only if one makes two assumptions:

  • that the Constitution has an existing preamble; and
  • that the proposals that we should add a new one are assuming that we would simply be adding something called a preamble that did not precede some new, local, words of enactment.

I suggest that the first assumption is based on a ‘colonial’ way of reading the Commonwealth of Australia Constitution Act 1900 (UK), and the second one shows that the experts’ knowledge is getting in the way of understanding what ordinary people have been talking about when they refer to a new ‘preamble’.

As to the idea that the Constitution already has a preamble (with which another one would clash) I suggest that it is time to look at the Constitution Act and the Constitution with modern eyes – just read what it says, without assuming like good colonials that the whole thing is ‘our Constitution’.  Looked at this way, the Constitution itself does not have a preamble.  The Constitution Act has a preamble, which basically translates as ‘We in the UK Parliament are enacting this Act because the people in the Australian colonies have asked us to’. The words of enactment – the sonorous stuff about the Lords temporal and spiritual and Commons – are, likewise the words of enactment of a UK Act.  The words that enact the Constitution itself are the combination of ‘covering clause’ 4 (‘The Constitution of the Commonwealth shall take effect on … the day … appointed’) and the introductory words of clause 9 (‘The Constitution of the Commonwealth shall be as follows:’).  An even better description of these words would in fact be words of grant.  In common-law conveyancing, and in modern Acts granting independence to colonies, once a grant is executed, title has been transferred.  This may not have been the way it was seen in 1900-01, when it was still assumed that the ‘Imperial’ Parliament could undo the whole business by repealing the Act, but times have changed. Since the 1940s, when the UK Parliament has endorsed new constitutions for former colonies, it has done so by way of Independence Acts.  We are entitled to apply a sort of doctrine of relation back to read the Constitution Act in a similar way.  If it had not quite given us permission to read things that way before, the High Court certainly did so Attorney-General (WA) v Marquet, in which the joint majority judgment said that ‘constitutional norms, whatever may be their historical origins, are now to be traced to Australian sources’.

There is indeed a small complication in that to fully understand the meaning and effect of the Constitution we have to read the definitions of some terms in covering clauses 2 (‘the Queen’) and 6 (the States, etc), and the supreme law provision in clause 5, but then one often has to read a conveyance to see exactly what was granted.  This does not affect my main conclusion – the Constitution that was granted to us in 1901 does not contain a preamble.  It just starts abruptly by creating the legislative power of the new Commonwealth in s 1. It needs a preamble – and it needs some words of local enactment as well.

As to that, Twomey was of course correct when she said that a preamble that does not come before some words of enactment would not be truly preambular.  It would in fact be pointless waffle.  But I suspect that what most non-experts expect when we start to talk of a ‘new preamble’ is something like the US ‘preamble’, which is commonly quoted as comprising all of the words from ‘we the people’ to ‘do ordain and establish this Constitution for the United States of America’.

The delegates to the Australian Republican Constitutional Convention in 1998 passed a resolution which reflected this understanding of ‘preamble’ as including more than a true preamble. The recommendation was that the constitution for a republic should have a new preamble, while ‘the existing Preamble before the Covering Clauses … would remain intact’.  And our new ‘preamble’ was then to end by saying that we ‘committed ourselves’ to the Constitution.  So the ‘preamble’ was to include, not quite an enacting clause as generally used, but a sort of, kind of, somewhat passive, confirmation clause.

In the end, of course, the proposed new preamble was rejected because of the dreadful drafting of the preamble itself rather than because of any doubts about the effect of the words of commitment.  But if it had been adopted, it seems to me that it might have eventually been accepted as achieving some sort of new constitutional settlement.

The Constitutional Convention had also recommended that the provisions of the Constitution Act which had continuing force (ie the supreme law clause and the definitions) should be moved into the Constitution itself.  If this had been passed, it would have been possible to read the Constitution as a self-contained document with no need to refer to the preliminaries in the ‘Imperial’ Constitution Act at all.

Just a few years after the referendum, a majority of the High Court made the statement in Marquet, quoted above.  I can hardly imagine that the court which was capable of writing that statement would have had much trouble in resolving the ‘clumsiness and confusion’ by holding that the new preamble, even with its feeble words of ‘commitment’, was now the source of authority of the Constitution and that the old recitals and enacting words were mere history – very important history, but merely history.

When the idea of a new ‘preamble’ was raised again in the context of Indigenous recognition, I suspect that again most people were thinking of a preamble that would come – properly – before some words of local enactment/endorsement.  I suggest that Twomey and the Panel were taking the idea of a preamble too literally when they accepted the argument of ‘constitutional confusion’. Instead of dismissing the idea of a preamble the Panel should have considered how to insert a new preamble and avoid the confusion, by putting a preamble before some new, and Australian, enacting words.

The allegedly-possible (mis)use of a preamble in interpreting a Constitution

The Panel’s final, and possibly conclusive, reason for rejecting a new preamble was that there could be ‘uncertainty about the use that might be made of it in interpreting other provisions of the Constitution’.  Much of the discussion in the Report was taken up with fears that if the preamble said something apologetic to the Indigenous people it would set up a conflict with s 51(xxvi).  This was to suppose two things –

  • that there would be no change to the ‘people of any race’ power at the same time as the insertion of a preamble; and
  • that any conflict which resulted from that would be a Bad Thing.

The Panel itself had noted that 61.5 per cent of people surveyed were in favour of both adding a preamble and making substantive changes, but then they shied away from recommending what the majority wanted.

Paradoxically, having shied away from recognition via preamble, the Panel managed to recommend the inclusion of a new s 116A prohibiting racial discrimination, which would have implemented a far more radical change than anything the High Court could do by manipulating the meaning of other sections under the influence of a preamble.  The Panel presented them as alternatives, but if both were to be done together, then hardly anything we could say in a preamble would either broaden or limit the interpretation of a well-drafted anti-discrimination clause.

And then, towards the end, the Panel cited an international study by Liav Orgad.  There are several things to say about this.  The first is that the traditional approach to statutory interpretation in the common-law world gives relatively little weight to general principles in a preamble as against specific provisions in the sections of an Act.  In the leading cases (Bowtell v Goldsborough, Mort & Co Ltd, A-G v Prince Ernest Augustus, Wacando v Commonwealth) the same three principles tend to get recited over and over:

  • first, the court observes that no provision of an Act can be interpreted without considering the context of the whole Act including its purpose, and indeed the preamble is part of the Act and often includes a statement (or a hint) of its purpose so it must be considered;
  • second, if the words of the provision are clear they cannot be limited or extended by the preamble; and
  • third, if (but only if) there is ambiguity in the drafting of the provision, then the preamble may be used to interpret it.

Since preambles tend to be written in more general language than the specific provisions of an Act, it is rare that a court gets past the second principle. As Anne Winckel has pointed out (in an article that is particularly relevant, having been written in the context of the earlier debate about a Constitutional preamble):

We are frequently reminded that an enactment should not be automatically limited by virtue of the fact that the preamble is narrower.  More often than not it is obvious that the parliament intended to legislate beyond the preamble. Likewise, a wide preamble ought not to automatically suggest an enlarged enactment, for the legislature may have desired to be more specific in that area.

Indeed, in the first two of the cases listed above the court held that it could construe the provision at issue perfectly well without resorting to the preamble.  In Wacando, the High Court divided over the use of the preamble to one of the two Acts at issue; Mason J emphasised the first of the 3 principles above and used the object of the Act to limit the meaning of a provision, whereas Gibbs J emphasised the second principle. In any case, the Court unanimously held that the plaintiff’s claim (that Darnley Island was not part of Queensland) was defeated by a different Act.  The precedents hardly support a fear that the courts are going to use preambles as excuses for ‘interventionist’ or ‘adventurous’ decisions.

It must be conceded that the above cases are about preambles to ordinary statutes, and indeed most of the reported cases are about the interpretation of quite old statutes from a time when statutory drafting was less professional and even verging on the slapdash.  The current preamble to the Constitution Act is, like those in the cases above, lacking in specific guidance as to what the substantive sections might mean and has had no real effect on the interpretation of the Constitution. It might indeed be true that a preamble added to the Constitution after due public debate and a vote of the people could expected to have a stronger effect. Indeed the thing that seems to have finally scared the Expert Panel off the idea of a preamble was Orgad’s conclusion, in the article cited above, that ‘the courts rely, more and more, on preambles as sources of law’.  However, this was a selective quote and needs to be taken in context.

In his discussion of common-law countries, Orgad in fact cites the standard approach that ‘in a case of conflict between the preamble and the body of the act, the body of the act prevails’.  He notes a few cases in US constitutional law that ‘provide the preamble with some constitutional weight’ but concludes that in the US the preamble ‘is not, by and large, a decisive factor in constitutional interpretation’.  Then he notes the recent cases, common-law and civil law, in which this approach is not followed – but they all turn out to involve deliberately ‘interpretive’ preambles which expressly declare some values seen to be basic to the nation. It is hardly surprising that these have all been used to either confirm the validity of statutes that comply with the stated aims or to invalidate contrary statutes.  These are the cases that Orgad relies upon when stating that ‘the courts rely, more and more, on preambles’.

The moral from Orgad’s study, surely, is that if the politicians want to draft sweeping idealistic statements in a preamble without matching them with substantive amendments, and we the people decide to approve them, then we are inviting the courts to use the preamble in ‘adventurous’ ways.  If we do the more cautious thing, and match what we say in a preamble with the principles already stated or implied in the Constitution and with possible new substantive sections, there is no problem.  So, let us consider what sort of drafting would fit the bill.

It is possible to draft a new preamble and enacting words that do not conflict with the text of the Constitution

The Panel was so concerned about the effects of a preamble that it presented only abstract arguments against preambles in general, without really considering any specific things that might be said in a preamble.  How could one avoid those negative arguments? Well, easily enough:

  • by adopting a new enactment formula along with the preamble so that the preamble is truly a preamble, and
  • by only saying things in the preamble that are not inconsistent with the substantive sections of the Constitution and which confirm principles that are already established as principles of Australian law.

I submit an example here for consideration:

Whereas the six British colonies which federated in 1901 to form the Commonwealth of Australia were established on lands that had been occupied by indigenous Australian people for tens of thousands of years,

We the People of Australia

Express our pride in our fundamental principles of government, including parliamentary democracy, the rule of law, and the independence of the judiciary, which have their origins in the legal and political system brought to Australia by the British colonisers,

But acknowledge that the process of colonisation occurred in total disregard of the rights of the people already indigenous to Australia, and that for many years their descendants’ rights to equal citizenship and title to their land were not recognised,

And therefore now –

Declare that we acknowledge and honour the indigenous people as the descendants of Australia’s first people, acknowledge their continuing relationship with their traditional lands and waters, and celebrate their contributions to national life and culture, as we also celebrate the contributions made by successive waves of migrants, from the early colonists to those most recently arrived,

Commit ourselves to living under a democratic system in which all citizens have equal political rights, regardless of their ancestry, and all our differences are resolved peacefully, fairly, and with mutual respect, and

Affirm that this Constitution continues to have force as the supreme law of the land simply because its original text and all subsequent amendments have been approved by majorities of the people, and that it is therefore binding on all legislatures, executive governments, courts, judges and people within Australia and in all places where Australian law applies.

Contrary to Twomey’s assumption that a new preamble would come after the Table of Parts and Divisions, let me make it clear that I am suggesting this would come before it, or replace it – that is, it would be at the head of the Constitution proper.  The preambular paragraphs about our history and basic principles are truly a preamble because they come before some strong new words of affirmation or re-enactment as a document of our own.  I have made them deliberately as strong as possible by wrapping the supreme law provision, currently in covering clause 5, into the affirmation and by reinforcing this with the reasons why the Constitution is a supreme law.  There would be no ‘conflict’ with the preamble to the Constitution Act, because it would now be clear that we are saying that the Constitution gets its force from the words of affirmation, not from the Imperial enactment upon which it once depended (and which contained those historic recitals as to why the UK Parliament was enacting it).

As to the fear that the courts might use, or misuse, it when interpreting the substantive sections of the Constitution, it states no principles that have not already been recognised as principles of our legal system.  Parliamentary democracy is spelled out in many sections of the Constitution, and the sections mentioning direct choice by the people have been recently held to limit the ways in which a Parliamentary majority can fiddle the system (Roach and Rowe).  The rule of law was said by Dixon J in the Communist Party case to be one of the great unwritten principles of our system, and was applied sternly to limit executive power in A v Hayden.  As to the independence of the judiciary, there is case after case after case, and the principle has recently been extended to the State and Territory courts by Kable and later cases.  Indigenous people have been here for tens of thousand of years and their rights to equal citizenship and title to their land have, relatively recently, been recognised – the first and third paragraphs (not counting the single lines as paragraphs) are just reciting history.  The celebration of everyone’s contributions to our culture may still have its grumpy detractors, but it is an increasingly prominent part of all our public ceremonies, and it is hardly new – consider the 1982 Australia Day stamp.  The commitment in the fourth paragraph is not to some ‘levelling’ principle of absolute equality or some sort of one-line Bill of Rights, but a commitment to equal political rights, which we have had to a degree ever since the universal franchise was established, and have now been reinforced in the Unions NSW case.  The commitment to resolve our differences peacefully and fairly is the whole point of having a legal system and a system of representative democracy, and I can imagine no parliament passing a law that encourages mutual disrespect, which would thereby tempt the courts to ‘enforce’ the reference to mutual respect.  It is an idealistic preamble, but it is a strictly conservative preamble.

I admit that there is a small inconsistency in the ‘voice’ of the above draft. In some places the ‘we’ who are speaking are the non-Indigenous people, and the Indigenous people become ‘them’, and in other places the ‘we’ are all of us.  But there are some things that the non-Indigenous ‘us’ really ought to say, after all this time, to the Indigenous ‘you’ or ‘them’.  If Indigenous Australians would like to read ‘their descendants’ rights’ as the rest of us saying ‘your rights’ and ‘their continuing relationship’ and ‘their contributions’ as the majority saying ‘your continuing relationship’ and ‘your contributions’, that would be perfectly consistent with the intention behind the words.

In any case, this is just an example, to show that a preamble can be done without fulfilling the Panel’s fears about ‘inconsistency’, and ‘uncertainty’ in interpretation.  I would of course be thrilled if my words were adopted, and if I became the single-handed drafter of the preamble, but what I really want to see is the adoption of some preamble and local words of enactment that, in Orgad’s words, ‘define the constitutional identity and … define who the “we” is’.  Amendments or alternatives are welcome, as long as they also seek to avoid the Panel’s fears by being a true preamble to some (re-)enacting words and by expressing principles that are already embodied in our legal system.

This preamble, or something like it, would fit perfectly well with the Constitution as it is, if it were the only amendment to be proposed.  It would also fit perfectly well with any of the other proposals for amendment such as a redrafted s 51(xxvi) and/or a new s 116A.  Whether offered by itself or as part of a package, there is no reason to be scared of a new preamble that follows the principles I have suggested.

We still need a new preamble and enacting words, even if they are not done as part of Indigenous recognition

I have said above that if the consultation with Indigenous Australians shows that they do not want recognition by way of a ‘preamble’, then we should not add a new preamble as part of the recognition project.  But I suggest that there are still very good reasons, once we have agreed on something else that is acceptable as recognition (eg, repeal of s 25, amendments to s 51(xxvi), the addition of the suggested s 116A, the creation of a constitutional Indigenous legislative advisory body, constitutional incorporation of Mabo principles, or whatever else seems appropriate), for adding a new preamble and local enacting words as a separate reform.  Here we are in 2016, in a country that has clearly been independent since 1931 or 1942, and in which constitutional norms are to be traced to Australian sources, still with a Constitution that appears to be, on a literal reading, part of an Imperial Act. It is true that the Act was enacted, as its preamble recites, at the request of the people of the then colonies but it lacks the statement that so many other national constitutions have, that it has its force by the authority of the people.

That is, the first imperative, on this argument, is to insert some new and local enacting words that basically assert that the Constitution is our Constitution because we the people have said so.  This was considered as a necessary part of the republic project 16 years ago, though the Convention’s feeble recommendation was only that we should ‘commit’ ourselves to the Constitution rather than any stronger assertion.  However, the argument for it is independent of any argument for a republic – even monarchists (with maybe some exceptions in their extreme fringes) recognise that we are not a British colony and should assert our national identity. The US precedent – ‘we the people … do ordain and establish this Constitution’ – is a good starting point, but our Constitution has been established for some time, so that is why I suggested that we should confirm, or affirm, the Constitution in my draft above.

And once one considers a new start with local enacting words, the situation seems to naturally call for a preamble to be added. As Orgad notes:

preambles are the national consciousness; they define the constitutional identity and, as such, they define who the “we” is.

And here the argument, though starting from a different point, has come full circle – surely if we are to say anything about who ‘we’ are, we have to say something about the fact that some of us are descended from people who have arrived since 1788 and others are descended from people who arrived much earlier than that, and the latter group was pushed aside in the process of colonisation.  Even if this is not seen primarily as part of the reconciliation project, this has to be said in the name of simple honesty in any introductory words to our Constitution – it is part of a project of honestly asserting our national identity.  So whether a new preamble is seen as part of reconciliation or as an independent project, something like the text suggested above would be appropriate.

Either way, there is no reason to be scared of a new preamble.

John Pyke retired from the QUT School of Law a couple of years ago, but still continues to write about constitutional law and to campaign for constitutional reform and other law reform.

Suggested citation: John Pyke, ‘Reasons not to be scared of a new constitutional preamble’ on AUSPUBLAW (18 May 2016) <https://auspublaw.org/2016/05/reasons-not-to-be-scared/>