Saunders, Cheryl --- "The Preamble Quest" [1999] ALRCRefJl 3; (1999) 74 Australian Law Reform Commission Reform Journal 11

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Reform Issue 74 Autumn 1999

This article appeared on pages 11 – 13 of the original journal.

The Preamble Quest

With many Australians arguing it is time to write a new preamble for the Australian Constitution, the Constitutional Centenary Foundation launched its Preamble Quest.

Professor Cheryl Saunders* reports on the results of that quest and explains what the preamble is, and why it is so important.

An Act of parliament sometimes begins with an introductory statement or ‘preamble’, to set out facts which will help people to understand the Act better.

A preamble to a Constitution plays a similar role, once you allow for the difference between a Constitution and an ordinary Act of parliament. A Constitution is a country’s most basic law. It provides the most important rules for the system of government. Like all laws a Constitution has to be a practical working document. But a Constitution is a national symbol as well, like a flag, an anthem or a coat of arms, and the preamble is the most symbolic part of it. It is usually the first part of the Constitution which people read. Because it has limited legal effect it can be written clearly and simply, and, if Australians want, in a way which is memorable and inspiring. It can be a good place to make important statements about a country or its people or its system of government.

Most preambles are largely symbolic. A preamble does not usually lay down legal rules. But if the meaning of another part of the Constitution is not clear, a court may look at the whole Constitution, including the preamble, before deciding what it means.

A preamble to a Constitution therefore may do a number of things. Preambles usually state the source of authority for the Constitution. The Constitution is the authority for all other laws. But what makes the Constitution law? These days most Constitutions say that they draw their authority from the people of the country. So, for example, the Constitutions of the United States, Ireland, India and South Africa all begin with the words “We, the people ...”.

Preambles sometimes set out the history of how the Constitution was written and agreed. So, for example, the preamble to the South African Constitution says that South Africans adopted the Constitution “through their freely elected representatives”. In the same way, the preamble to the Commonwealth of Australia Constitution Act, in which the Australian Constitution is found, says that the people of New South Wales, Victoria, South Australia, Queensland and Tasmania “have agreed to unite”. This was literally true when the Act was passed by the British parliament because the voters in Western Australia had not yet agreed.

Preambles also may describe the main purposes of the Constitution or of the system of government which the Constitution creates. This can be done in many different ways to suit the needs of the country concerned.

• Some preambles describe the purposes of the Constitution very briefly. For example, the preamble to the Australian Constitution Act says that the people had agreed to unite “in an indissoluble federal Commonwealth”.

• Some preambles describe the system of government more fully. Other preambles set out the main principles or values which the Constitution is designed to promote.

A preamble may include other agreed statements designed to overcome previous divisions and to promote a sense of joint commitment to the Constitution and the system of government. The South African Constitution gives an example:

“... The people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.”

The preambles to some Constitutions also refer to God. The preamble to the Commonwealth of Australia Constitution Act, for example, says that the people of the different parts of Australia have agreed to unite in a federation “humbly relying on the blessing of Almighty God”. The South African preamble ends with two references to God: “May God protect our people”; and “God bless South Africa”. The new Polish preamble refers both to Polish citizens “... who believe in God as the source of truth, justice, good and beauty” as well as those not sharing such faith, but accepting those universal values as arising from other sources. In contrast, there is no reference to God in the Canadian preamble. And the Indian preamble specifically says that India is to be a secular state.

There is no single right way to design a preamble. Each preamble depends on the nature and circumstances of the country concerned.

Con Con and the Preamble Quest

The Constitutional Convention (Con Con) held in February 1998 made some recommendations about the preamble to the Australian Constitution.

Con Con’s main task was to draw up a model for an Australian republic to be put to referendum. The preamble was relevant to this in two ways. Firstly, there is an existing preamble to the British Constitution Act 1900 (of which the Australian Constitution is a part) which says that Australia originally became a federation “under the Crown of the United Kingdom of Great Britain and Ireland”.

Secondly, a move to a republic was considered by Con Con as an opportunity to write a new preamble for the Constitution itself, which could refer to the republic and make other statements appropriate for Australia at the beginning of a new century and a new millennium.

The recommendations about the preamble that emerged from Con Con were not in final form. Before they are put to a referendum they must be drafted as an amendment to the Constitution and approved by the parliament. The parliament will consider these issues in the first part of 1999 and a referendum will be held in November.

Before parliament considers the precise referendum questions, however, there is an important opportunity for Australians to actively contribute their own ideas. The Constitutional Centenary Foundation (CCF), therefore, organised a public Preamble Quest to assist this to happen.

The purpose of the quest was to give Australians an opportunity to say what they would like in the preamble to their own Constitution and how that should be expressed. Three hundred and eighty three responses were received. The quest culminated in the release in February, of a report by the CCF entitled ‘We the people of Australia...’

A clear indication of the kind of constitutional preamble Australians would like emerged from responses to the quest. Most of the Australians who sent in their ideas on the preamble agreed that it should recognise that authority for the Constitution and system of government comes from the people themselves. They wanted the preamble to acknowledge the Indigenous peoples of Australia, in a way which advances reconciliation; to express pride in Australia as a country to which people have come from many different places to live in peace and freedom; and to refer to equality as a value which is characteristically Australian. In addition there was strong support for a statement of the love which all Australians share for their “unique and ancient land”.

By and large, participants in the quest were comfortable with a reference to God in the preamble, preferably in a form which is not exclusive to a particular religion. They were prepared to accept, but without marked enthusiasm, statements about key elements of the system of government, federalism, representative democracy, responsible government and the rule of law. They did not want to include matters in the preamble which would more appropriately be put in the body of the Constitution. And they suggested some items for inclusion in the preamble which had not been included in the Con Con resolution, including tolerance; fairness or a ‘fair go’; and an acknowledgment of the responsibility of present generations to those which will come later. Above all, the quest showed that Australians want their preamble written in a way which is clear, simple, inspirational and free from jargon and technical language. To use the words of the participants themselves: the preamble should “make an impact on people” and have “power to inspire by its dignity and immediacy”. It should use “understandable words that are for people”. “Half the nation is bored with long words they don’t understand”. It should be “written so a child can understand it and (be) taught in schools”. It should be “uniquely Australian”.

As the results of the quest were being finalised the preamble became a major public issue. One of the key questions canvassed was what it should say about Indigenous Australians. Con Con said that the preamble should refer to “recognition of the original occupancy and custodianship of Australia by Aboriginal and Torres Strait Islander peoples”. It also said that the federal parliament should consider whether the preamble should recognise “that Aboriginal and Torres Strait Islander peoples have continuing rights by virtue of their status as Australia’s Indigenous peoples”.

While the results of the quest were not always easy to interpret on this point, a fair summary is as follows.

There was overwhelming support for Con Con’s first recommendation, and significantly less support for the second. Some participants also said that the preamble should refer to past injustices; a matter noted by Con Con, but with which it did not have time to deal. The precise implications of these results for the current debate on wording is complicated by the fact that in endorsing the first recommendation some participants did not use Con Con’s exact words, employing instead an ingenious variety of different expressions. This reflects the general sentiment that the preamble should be written in terms which everyone can understand. If Con Con’s recommendations are not adopted further thought will need to be given to finding a form of words which is meaningful to Indigenous and non-Indigenous Australians alike.

No single, polished preamble emerged from the hundreds of responses to the quest and nor was that expected to happen. The responses were extraordinarily valuable, however, for what they said about the style of the preamble; for the general indications which they gave about content; and for a host of wonderful ideas about particular phrases.

* Professor Cheryl Saunders is the Deputy Chair of the Constitutional Centenary Foundation. The CCF was established to promote open, informed and public debate on the Australian system of government over the decade leading to the centenary of Federation.

Professor Saunders holds a personal chair in law at the University of Melbourne. She is an Associate Dean, Research and Graduate Studies and Director of the Law School’s Centre of Comparative Constitutional Studies.