08 October 2011

Constitutional Preamble

The 69 page 'Constitutional Recognition of Indigenous Australians in a Preamble' (Constitutional Reform Unit, Sydney Law School, Report No. 2, 2011) by Anne Twomey notes that in 2010 the Rudd Government promised to hold a referendum on ‘indigenous constitutional recognition’ at or before the next election. The nature of such recognition in the Constitution is being considered by an expert Panel appointed by the Commonwealth

The Panel is to be guided by four principles -
• It must contribute to a more unified and reconciled nation.
• It must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples.
• It must be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums.
• It must be technically and legally sound.
Its Discussion Paper sets out seven ideas, including a statement of recognition in the body of the Constitution, a statement of recognition and values in the body of the Constitution, the amendment or repeal of the race power in s 51(xxvi) of the Constitution, the repeal of s 25 of the Constitution and the insertion of an agreement-making power in the Constitution, recognition of Indigenous Australians in the existing Preamble to the Commonwealth of Australia Constitution Act 1901 (UK) or a new preamble to be inserted in the Constitution, and through a statement of values be included in a new preamble.

Twomey's Report addresses the Preamble proposals. It has the following structure -
Chapter 2 deals with the background and history of the existing Preamble in the Commonwealth of Australia Constitution Act, including the references to God, the Crown and the indissoluble federation. It considers the various proposals that have been made in the past for Indigenous recognition in the Preamble, and discusses how this has been achieved in three State Constitutions.

Chapter 3 provides a close analysis of preambles – their different purposes and how they have been used in statutory interpretation. A preamble, for example, may simply set out introductory facts. It may explain the objectives of those who passed the Act. It may be intended to persuade people to obey the law or explain how it should be enforced. It may have a political or symbolic role to fill. Chapter 3 then discusses the role of a preamble in a Constitution and the risks involved in extending beyond introductory facts to statements of values, beliefs and fundamental principles. Can a preamble that incorporates values and beliefs reach beyond platitudes? Can it really define the nation and our common values or beliefs, or is a quest for shared values and beliefs futile and bound to exclude or reject the values of minorities? Do we want to freeze existing values in a preamble and will they stand the test of time?

The critical issue with a preamble, however, is how the High Court might use it in the future in interpreting the Commonwealth Constitution. Australian precedents are not very helpful here, because the current Preamble doesn’t address values and beliefs and is the Preamble to a British Act of Parliament passed over a century ago, leaving its relevance limited. A new preamble, inserted in the Constitution, which contained broad values, beliefs or fundamental principles, might be used in quite different ways. Chapter 3 notes the international trend in courts to giving constitutional preambles a substantive effect. It provides four case studies of how the courts have used and developed the preambles of the United States, Canada, India and France.

Chapter 4 analyses the legal issues concerning the amendment of the existing Preamble and the insertion of a new preamble in the Constitution itself. It considers the source of power to amend the existing Preamble. While there are doubts as to whether a constitutional referendum under s 128 of the Constitution could amend the existing Preamble, it could certainly be amended by legislation passed by the Commonwealth at the request of all the State Parliaments. This route, however, would confound the expectations of the people for a referendum and breach the Prime Minister’s promise, so a referendum would appear to remain a political requirement, even though it might not in itself be effective. Amending the existing Preamble would also make little sense unless it was intended to explain substantive changes made in the text of the Constitution. It is not possible to change the original intent of the framers of the Constitution by making a later change to the Preamble. To what extent should an amended Preamble be used to change the interpretation of provisions in the text of the Constitution that have not been expressly amended?

Different issues arise if a new preamble is to be inserted in the text of the Constitution. From a structural point of view, it would be placed after the words of enactment, within the substantive text of the Constitution, with the possible result that it would be held to be legally enforceable unless it was made clear otherwise. An issue also arises as to whether the two preambles could co-exist and which ought to take priority. The greatest difficulty, however, would be in settling the text of a new preamble, as there will be great pressure to include recognition of numerous groups (eg war veterans), causes (eg the environment) and institutions (eg local government). It could result in an unseemly and divisive political auction for constitutional recognition

Chapter 5 examines more closely the potential implications of a new or amended preamble and how they might be limited, either through careful wording or the inclusion of a clause that limits the use of the preamble in constitutional interpretation. On the one hand there are genuine concerns about how a preamble might be used by the courts, especially if it includes rights or broad principles such as equality or human dignity. On the other hand, a clause limiting the effect of a preamble is likely to be regarded as undermining the purpose and standing of the preamble. The challenge is to balance both of these concerns, so that the preamble is not perceived as a Trojan Horse intended to smuggle substantive rights into the Constitution that would not be approved by the people if expressly asked, or as an empty gesture devoid of meaning or substance.

Chapter 6, in conclusion, asks what is intended to be achieved by recognition of Indigenous Australians in the Constitution. If substantive rights are sought, they should be included in the text of the Constitution and the preamble should then be used to explain and introduce them. The preamble should not be disconnected from the text of the Constitution and promise more than it can legitimately deliver. What is critical to any constitutional reform proposal is that there be transparency in intent and clarity in meaning.