Winckel, Anne --- "Constitutional law: So what exactly is a preamble?" [2000] AltLawJl 33; (2000) 25(2) Alternative Law Journal 85

• Constitutional law: So what exactly IS a preamble?
• ANNE WINCKEL* reflects on the confusion surrounding the definition of a preamble.

Constitutional law: So what exactly IS a preamble?

ANNE WINCKEL^[*] reflects on the confusion surrounding the definition of a preamble.

Before the 1999 Referendum, the Australian Electoral Commission information hotline told Siobhán McCann that the existing Constitutional preamble is ‘not a preamble at all’.^[1] That is absolutely incorrect. A pamphlet issued by the Commonwealth government claimed: ‘There is currently no preamble in the Australian Constitution itself’.^[2] This claim was emphasised repeatedly by the Prime Minister and is enormously misleading, relying solely on a technicality for its accuracy. Doreen Barrie described the Charlottetown Accord’s proposed insertion of the ‘Canada Clause’ in the Canadian Constitution as the insertion of a ‘preamble’.^[3] The Canada Clause was not a preamble at all, but rather a new s.2 to be inserted within the actual Constitution setting out some guiding principles for constitutional interpretation.

Such confusion requires a clarification of the actual nature of a constitutional preamble. It is understandable that members of the general public and even lawyers would know little about preambles. After all, preambles to statutes have fallen into disuse over the last 100 years, despite having widespread use in earlier centuries. However, it is inexcusable for the government or the Electoral Commission to not inform themselves, and so correctly inform the public, about matters central to constitutional change and the preamble.

The first clarification is that a preamble to a statute or constitution has a technical meaning and status, whereas the word ‘preamble’ in general usage can be likened to an introduction, foreword or preface. Legal commentators clearly define a preamble (in its technical legal context) as the component of a statute that comes after the long title of the Act and before the enacting words and substantive sections of the Act. (This is why the proposed new s.2 for the Canadian Constitution was not a preamble, but part of the Constitution itself.) Case law also explains that the preamble precedes the substantive sections, is still part of the Act, but is not an enacted law-making part.

The preamble is in essence introductory — but its traditional purpose is to reflect the intentions of the drafters, and to explain the reasons, purpose, object or scope of the Act, and to recite any facts that may be relevant.^[4] As a result, the traditional wording of a preamble always began with ‘Whereas’. Basically a preamble said: because of this that and the other reason … the following laws are enacted. Contrary to the view of the Australian Electoral Commission hotline, the existing preamble to the Constitution Act is exactly such a traditional preamble.

So how is it that the official ‘Yes’ case to the referendum described the preamble as aiming to ‘reflect the unique spirit, traditions and sentiments which underpin our commitment to our Constitution’?^[5] And why did it add: ‘A preamble to our Constitution would seek to highlight in a broad and descriptive way the values and hopes that unite us as a people …’? This seems far from the traditional legal definition of a preamble.

There are three main explanations for this new focus on the preamble being a national statement, rather than a recital of reasons for the passage of an Act. First, the existing preamble to the Constitution Act is pretty dry and technical. The 1998 Constitutional Convention (Con Con) recommended that it was time that the Constitution had a new preamble which made reference, amongst other things, to shared national values, as is common in the constitutional preambles of many other countries around the world.

Secondly, the new preamble proposal became severed from the republic debate. Rather than a new preamble introducing the new amended Republican Constitution (as recommended by the 1998 Con Con), the new preamble proposal was drafted to stand alone. Any connection with the intention of the legislature regarding the actual constitutional text was lost.

Finally, the new preamble proposal was accompanied by a non-justiciability clause (the new s.125A) which declared the preamble was to have no legal force. The drafting of the new preamble seemed to be conducted with unrestrained fervour due to this perception of legal impotence. The presence of the non-justiciability clause contributed to the ‘unpreambular’ tone of the new preamble. In his first draft preamble, the Prime Minister introduced the fated ‘mateship’ reference which bore no resemblance to the recommendations of the Con Con. The final preamble proposal was criticised for sounding too much like a ‘mission statement’.

This 1999 evolution away from a traditional preamble to a general statement of national values contributed to confusion within the community (and apparently also within the Electoral Commission) about what a preamble actually was. The association of a preamble with the idea of a mission statement or a statement of rights is evidenced by the full page Telstra Big Pond advertisement in the Age on 1 November 1999 entitled ‘Our Preamble’, which detailed the rights of consumers. A preamble should never be confused with a Bill of Rights. The latter is intended to provide real rights, whereas the content of a preamble is not legally enforceable. There is some debate over the legal significance of a preamble, but ordinarily preambles can be read as part of the context of the whole Act, and they may assist in interpreting the meaning of ambiguous parts of the substantive text.

So does the Constitution already have a preamble or not? The Prime Minister was technically correct to make a distinction between the British Act of Parliament called the Commonwealth of Australia Constitution Act (which begins with the existing preamble), and the Constitution proper (which has no preamble of its own) commencing at s.9 (or covering cl.9) of the Constitution Act. But such emphasis only caused confusion. Many people remembered the long debate at the 1998 Con Con about whether to amend the current preamble or to insert a new preamble. Others were aware that one objection to mentioning God in the new preamble was that the existing preamble already included the words ‘humbly relying on the blessing of Almighty God’.

To produce an information brochure with the unexplained statement ‘There is currently no preamble in the Australian Constitution itself’ was misleading and irresponsible. Such lack of care produced suspicion in the public, and did little to educate or inform. This suspicion was fuelled by the lack of preamble-education exhibited on the Prime Minister’s referendum webpage. The webpage provided a link to a version of the Constitution that seemed to hide or bypass the existing preamble; and despite an assurance that the situation would be rectified, nothing changed even after my numerous inquiries.

If the government were truly committed to the ‘Yes’ case for the new preamble, it is difficult to understand why it did not take more seriously its pre-Referendum guarantee of community education. Legislators ought to know best the technical legal definition of a preamble — and such information should have been readily available to the public (and the Electoral Commission spokespeople). The existing preamble is a traditional statutory preamble; whereas the new proposal was a combination of a more modern constitutional preamble and a completely dissimilar Declaration of the People of Australia.^[6]

References

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^[*]

Anne Winckel lectures in legal studies at the University of Melbourne, and is writing a thesis on the legal significance of the preamble to the Constitution.

^[1] McCann, Siobhán, ‘Reflections on the Preamble’[2000] AltLawJl 12; , (2000) 25(1) Alternative Law Journal 35, at 35.

^[2] ‘Referendum 6 November 1999: Make sure you know the facts before you have your say’, green, white and black fold-out pamphlet, Commonwealth government, 1999.

^[3] Barrie, Doreen, ‘Reshaping the Highest Law of the Land’[1998] AltLawJl 49; , (1998) 23(3) Alternative Law Journal 133, at 134.

^[4] Winckel, Anne, ‘The Contextual Role of a Preamble in Statutory Interpretation’ [1999] MelbULawRw 7; (1999) 23(1) Melbourne University Law Review 184, at 185.

^[5] Australian Electoral Commission, ‘YES/NO Referendum ’99: Your official Referendum pamphlet’, 1999, p.26.

^[6] Jeff Kennett’s draft preamble was actually entitled ‘Declaration of the People of Australia’.