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«Constitutional Reform Unit Sydney Law School Report No 2, 2011 Constitutional Recognition of Indigenous Australians in a Preamble By Anne Twomey∗ ...»

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Constitutional Reform Unit

Sydney Law School

Report No 2, 2011

Constitutional Recognition of Indigenous

Australians in a Preamble

By Anne Twomey∗

September 2011

Associate Professor, Director, Constitutional Reform Unit, Sydney Law School, University of Sydney.

This report is for general information and does not represent any view of the University..

Table of Contents

EXECUTIVE SUMMARY

CHAPTER 1 – INTRODUCTION

CHAPTER 2 – HISTORY AND BACKGROUND

History of the Preamble to the Commonwealth of Australia Constitution Act...............7 History of Proposals to Recognise Indigenous Australians in the Preamble.................11 Recognition of Indigenous Australians in State Constitutions

CHAPTER 3 – THE ROLE OF A PREAMBLE AND ITS INTERPRETATION...16 The role of a preamble in ordinary legislation

The interpretative use of a statutory preamble

The role of a preamble in a Constitution

Interpretation of the Preamble to the United States Constitution

Interpretation of the Preamble to the Canadian Constitution

Interpretation of the Preamble to the Indian Constitution

Interpretation of the Preamble of the Constitution of France

Interpretation of the Preamble of the Commonwealth of Australia Constitution Act...42

CHAPTER 4 - AMENDING THE EXISTING PREAMBLE OR INSERTING A

NEW PREAMBLE

Amending the existing Preamble

Power to amend the Preamble and the required method

Inserting a new Preamble in the Commonwealth Constitution

Structural issues

The appropriateness of having two preambles

The content of a new preamble

Disconnection between the preamble and the text of the Constitution

CHAPTER 5 – IMPLICATIONS OF A NEW OR AMENDED PREAMBLE AND

ATTEMPTS TO LIMIT THEM

Limitation of the scope of the preamble through limited wording

Inclusion of a clause limiting the use of the Preamble

Would an expansively worded preamble or a limitation clause affect the High Court’s constitutional interpretation?

CHAPTER 6 – WHAT IS RECOGNITION IN A PREAMBLE INTENDED TO

ACHIEVE?

EXECUTIVE SUMMARY

In 2010 the Commonwealth Government promised to hold a referendum on ‘indigenous constitutional recognition’ at or before the next election. How such recognition should be given in the Constitution is a matter under consideration by an expert Panel appointed by the Commonwealth. One proposal is that Indigenous Australians be recognised in the existing Preamble to the Commonwealth of Australia Constitution Act 1901 (UK) or a new preamble to be inserted in the Constitution. Another proposal is that a statement of values be included in a new preamble. This Report addresses these options.

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.

CHAPTER 1 – INTRODUCTION

During negotiations on the formation of a new government from the hung Parliament in 2010, the Prime Minister, Julia Gillard, entered into agreements with the Greens and the independent, Andrew Wilkie, that included a promise that a Gillard Government would work collaboratively with others towards holding a referendum during the 43rd Parliament on ‘indigenous constitutional recognition’.1 If that promise is to be met, a referendum will be held before or at the next election, which is due to be held by 30 November 2013 at the latest.2 The Commonwealth Government has established an ‘expert panel’ to lead community consultation and report to the Government in December 2011 on possible options for constitutional change to give effect to Indigenous constitutional recognition. 3 The Panel is required to have regard, amongst other things, to the form of constitutional change, the implications of any proposed changes and advice from constitutional law experts. The Panel issued a Discussion Paper in May 2011. It set out the four principles that the Panel

has adopted to guide its assessment of any proposal:

• 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.4 There are many ways in which Indigenous Australians could be recognised in the Constitution. The expert panel’s 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.5 Agreement between the Australian Greens and the ALP, 1 September 2010, para. 3(f); and Agreement between the Hon Julia Gillard and Mr Wilkie, 2 September 2010, para. 3.2(f). The Coalition had also earlier promised a referendum on Indigenous recognition at the 2013 election: P Karvelas and L Hall, ‘Coalition to put Aboriginal Recognition to a Referendum’, The Australian, 10 August 2010.

This is the latest possible date for a general election. The earliest possible date for a joint Senate and House election is 3 August 2013: http://www.aec.gov.au/FAQs/Elections.htm#dates [viewed 23 August 2011]. Normally an election would be held at some time between these dates. However, there is also a significant possibility of an earlier election, given the Government’s minority status and the possibility of a loss of confidence in the Government or the House becoming unmanageable.

Commonwealth, ‘Constitutional Recognition of Indigenous Australians – Expert Panel Terms of

Reference’:

http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Documents/Constitutional_recognition6.pdf [viewed 23 August 2011].

A National Conversation About Aboriginal and Torres Strait Islander Constitutional Recognition, Discussion Paper, May 2011, p 16.

This paper, however, is confined in its scope to the proposal to recognise Indigenous Australians in a preamble to the Constitution. The expert panel separated this kind of recognition into two separate ‘ideas’. The first was the inclusion of a new preamble in the Commonwealth Constitution ‘that recognises Aboriginal and Torres Strait Islander peoples’ distinct cultural identities, prior ownership and custodianship of their lands and waters.’6 The other idea was to include a ‘Statement of Values’ in a new preamble to the Constitution, which ‘incorporates recognition of Aboriginal and Torres Strait Islander peoples alongside a description of the Australian people’s fundamental values, such as a commitment to democratic beliefs, the rule of law, gender equality, and acknowledgement of freedoms, rights and responsibilities.’7 In exploring proposals for Indigenous constitutional recognition in a preamble, this paper does not deal with the political, social and philosophical issues concerning whether Indigenous Australians should be recognised in the Constitution. Rather, it deals with the legal issues involved from a number of different perspectives. It is therefore directed primarily at the Panel’s fourth principle – that the proposal be legally sound.

Chapter 2 of this report considers the history of the Preamble to the Commonwealth of Australia Constitution Act, the history of proposals to recognise Indigenous Australians in the Constitution and the history of the recognition of Indigenous Australians in State Constitutions.

Chapter 3 examines the role of preambles in statutes and Constitutions and the use made of them by the courts. It includes comparative material, examining how constitutional preambles have been used in the United States, Canada, India and France as well as Australia.

Chapter 4 deals with the legal, structural and technical issues concerning the amendment of the existing Preamble or the insertion of a new preamble, including the power to make these changes and the method of its exercise.

Chapter 5 deals with the potential implications of an amendment to the existing Preamble or the insertion of a new one, including the much disputed issues about the extent to which a preamble might be used by the High Court in constitutional interpretation and whether it is appropriate or necessary to include a clause that prohibits the courts from making such use of a constitutional preamble.

A National Conversation About Aboriginal and Torres Strait Islander Constitutional Recognition, Discussion Paper, May 2011, pp 17-20.

A National Conversation About Aboriginal and Torres Strait Islander Constitutional Recognition, Discussion Paper, May 2011, p 17.

A National Conversation About Aboriginal and Torres Strait Islander Constitutional Recognition, Discussion Paper, May 2011, p 17.

–  –  –



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