Reilly, Alex --- "Preparing a Preamble: The Timorous Approach of the Convention to the Inclusion of Civic Values" [1998] UNSWLawJl 8; (1998) 21(3) University of New South Wales Law Journal 903

Preparing A Preamble: The Timorous Approach Of The Convention To The Inclusion Of Civic Values

ALEX REILLY [*]

I. INTRODUCTION

At the Constitutional Convention the shape and texture of an Australian republic was considered through the dichotomies of nationhood and Empire, presidents and Governors-General, progress and tradition, independence and interrelationship, and flags new and old. Of all the Working Groups at the Convention, one in particular, on the preamble to the new Constitution, hinted at the potential to revitalise a tired and overworked document and to provide a new foundation for Australian constitutional law.

The Working Group on the preamble recommended that the new preamble build on the old by incorporating the following: a recognition of Aboriginal connection to the land prior to settlement; a statement of republicanism; and, by a majority but with a strong dissent, the recognition of the civic values of equality, democracy and the rule of law. The proposed preamble was notable for its intention to modernise the Constitution, and to bring it in line with the Constitutions of other countries proclaimed since the Second World War.[1]

The proposal of the Working Group was debated by delegates on day six of the Convention. In speaking of the preamble, many delegates spoke earnestly of the need for a statement for the future, and of visions, dreams and aspirations.[2] Mary Delahunty talked of the preamble being the "welcoming mat of the Constitution". It offers, she said, "an opportunity to tarry for a minute, to reflect on the story of Australia, the continuing narrative of our nation".[3] Others were more cautious, speaking of the preamble in pejorative terms. Constitutional lawyer Greg Craven described preambles as being "like lymph glands - they can pump values through constitutions ... they can sit ticking like time bombs until eventually they explode".[4]

At the end of the day, the Convention endorsed a new preamble along the lines of that recommended by the Working Group, but made two resolutions as to its relationship with, and influence upon, the Constitution. It resolved:

1. That care should be taken to draft the Preamble in such a way that it does not have implications for the interpretation of the Constitution.

2. That Chapter 3 of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.[5]

It would seem that these resolutions were made in deference to the view that the preamble might be used by the High Court in its interpretation of the Constitution and that this is undesirable and even dangerous.[6]

The resolutions are misconceived for a number of reasons. First, it is illogical to support the expression of core values in a preamble, and then to ensure that they are not constitutionally enforceable. Second, the fear of incorporating values in the preamble is based on a misunderstanding of the inevitable role of values, whether express or implied, in the process of constitutional interpretation.

II. THE NEW PREAMBLE: A DANGEROUS COMPROMISE

A preamble is an assertion by the people of values they aspire to. It demonstrates the determination of the people to be governed according to particular principles. Law-making is the means by which governments can constitutionally affect the lives of the people beneficially or adversely. According to the resolutions, in one breath the preamble pronounces values to aspire to, and in the next it ensures that those values are unenforceable in the interpretation of the Constitution. The resolutions render the proposed preamble hollow and hypocritical.

Values and principles exist in their absence as well as in their presence. If the principles of equality or democracy are omitted from the preamble, the Court must still consider their application in relevant cases. Under the current Constitution, silence on principles of equality and representative democracy has been variously interpreted by the Court; some judges finding the principles of equality and democracy implied in the framework of the Constitution,[7] other judges finding that these values have no place in the Constitution.[8] Expressing values in a preamble while at the same time abrogating their use as tools for constitutional interpretation may have the effect of further confusing the role of equality and democracy in the Constitution.

Furthermore, the resolutions might even lead to the withdrawal of rights and freedoms which the High Court has previously found to be contained in the Constitution. Given an express direction not to apply values contained in the preamble, if the High Court is faced with a law which clearly infringes a principle of representative democracy, it might feel compelled not to draw implications from such a principle, such as freedom of political speech. Paradoxically, the progressive new preamble might be regressive in result.

III. THE PROCESS OF INTERPRETATION

The determination of the resolutions of the Convention not to give the Court more textually based values on which to base its decisions reveals a deep suspicion of the High Court's role of interpreting the Constitution. In 1992, the Court caused a great deal of controversy when it displayed a willingness to imply in the Constitution principles of representative democracy[9] and equality.[10] Much of the criticism of the Court might have been avoided if it had in its armoury the use of popularly endorsed core values such as `representative democracy' and `equality' as interpretative tools. In attributing meaning to the words of the Constitution judges must draw principles from somewhere to direct the process. Since the Constitution contains few express principles or values to guide interpretation,[11] the High Court has implied such values from the text and structure of the Constitution.

In Nationwide News v Commonwealth some members of the Court used the principle of representative democracy to invalidate a Commonwealth law which gave extensive protection to the Industrial Relations Commission, and received a good deal of criticism for doing so. Less attention was drawn to the fact that the Court was unanimous in striking down s 299(1)(d)(ii) of the Industrial Relations Act. And within that unanimity, a number of the judges used more conventional methods of interpretation to reach the same result.

Dawson J reached the result by using the well recognised test of whether there was a `sufficient connexion' between the law prohibiting any adverse criticism of the Industrial Relations Commission and s 51(xxxv) which empowers the Commonwealth to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes". Dawson J was at pains to apply this test without resorting to extrinsic principles or to examining the purpose behind the legislative scheme. And yet Dawson J finds it `instructive' that the protection offered the Commission is more extensive than the protection offered the Courts, and beyond what is necessary for the Commission to carry out its functions. Why is this a concern to Justice Dawson? If the Parliament can validly make laws to protect the Commission, why is a law which protects the Commission more than Courts not sufficiently connected to the head of power? The answer can only be that Dawson J does rely on a principle of freedom of speech. Justice Dawson ultimately characterises the law by resorting to principles very similar to those explicitly relied on by the majority, though in his judgment they are hidden behind well established interpretative platitudes.

The point of this analysis is that judges of the High Court always have and always will resort to underlying principles such as freedom of expression to interpret the extent of legislative power in the Constitution. This will continue to occur whether such principles are clearly explicated or hidden in phrases such as `sufficient connexion'. The fact that some judges find it necessary to creatively interpret the words of the Constitution to explicate the principles underlying their judgments, and that others simply do not express the principles they rely on in reaching judgment, suggests that the Constitution gives inadequate guidance as to the principles which underlie the grants of legislative power.

Furthermore, the fact that the original drafters of the Constitution were less than explicit about the values with which they infused the Constitution has enabled certain values to survive beyond their time. Section 51(xxvi), the power to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws", is directly inconsistent with the current understanding of equality. In Kartinyeri v The Commonwealth, the Court was divided over the extent to which the section granted to the Commonwealth Parliament the power to make laws which discriminated against Aboriginal people to their detriment.[12] Two judges were prepared to limit the scope of the power which is widely acknowledged to be abhorrent in the late twentieth century. To do so, Kirby J went so far as to invoke an `interpretative principle' which states that "where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights".[13]

At the time s 51(xxvi) was placed in the Constitution it was not considered highly offensive to discriminate against people on the basis of their race. The problem we face in the late twentieth century is that such a value was expressly embodied within the Constitution. Is there not a danger that in another hundred years principles of democracy, freedom and equality will no longer be considered core values in society, and that Courts will again face the dilemma of how to read down or circumvent what are considered to be abhorrent values? There are two responses to this. First, there is a fundamental difference between the value expressed in s 51(xxvi) and the more general values of freedom, equality and democracy. Section 51(xxvi) embodies a policy of racial discrimination which was tolerated as an exception to the principle of equality.[14] If a more general principle of equality had been embodied in the Constitution it could now be used to read down such a policy which is no longer tolerated under the core value of equality. Second, it is not to the point that core principles change. If they represent our current state of development then there is every reason to constitutionally entrench those principles. Section 128 of the Constitution provides a mechanism for amending the Constitution should these values later be unacceptable. The real question is the extent to which they should be allowed to impinge on the sovereignty of Parliament; a question not expressly considered at the Convention.

In the absence of clearly expressed principles, there is a risk that judges will resort to values which the society would not want to entrench in their Constitution. Representative democracy may be a principle that the Australian people are happy to have entrenched in their Constitution, and freedom of political speech a concomitant implication equally accepted. However, there is considerable uncertainty as to what other principles or implications might be drawn from these words.[15] For example, perhaps representative democracy requires not only freedom of political speech, but a right to bear arms. The argument might run as follows. Since the Executive branch of the government controls the armed forces, it is in a position to forcibly prevent the legislature from being "directly chosen by the people" as required by sections 7 and 24 of the Constitution. Unless the people have the freedom to protect their constitutional right to directly elect parliament through force of arms, their right might be significantly undermined.[16]

Given the uncertain nature of constitutional interpretation, a society should consider carefully what principles it wishes the Court to rely on to inform its interpretation of the Constitution. The expression of fundamental rights and freedoms in the preamble does not guarantee certainty of interpretation: there is the question of how such principles will be interpreted in a given case. Also, it might be that principles of interpretation are better incorporated within the text of the Constitution and not simply in a preamble where their constitutional authority remains unclear. Nevertheless, at the very least, the existence of rights and freedoms in the preamble indicates to the High Court a framework in which interpretation of the Constitution ought to take place. By making explicit core values such as representative democracy and equality, which of themselves are well accepted, and around which has developed a sophisticated international jurisprudence, the process of Constitutional interpretation can only be enhanced.

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[*]LLB (Adel); LLM (British Columbia); Lecturer in Law, Murdoch University, Perth.

[1] See for example the Preambles to the Constitutions of Japan, France, Canada (the preamble to the Charter of Rights and Freedoms, 1982), Germany, India and most recently, South Africa and the Czech Republic.

[2] Hansard, Monday, 9 February 1998 at 323.

[3] Hansard, Monday, 9 February 1998 at 321.

[4] Hansard, Monday, 9 February 1998 at 322.

[5] Constitution Convention, Resolutions Passed on the Preamble, Consequential Matters and Implications for the States, 11 February 1998, http//www.dpmc.gov.au/convention/ speak_note/resols8c.html.

[6] "The insertion of vague terms like `equality', `democracy' and `freedom' in a preamble would almost certainly encourage the courts to take those values throughout the Constitution as if they were substantive and controlling values." Hansard, Monday, 9 February 1998 at 322.

[7] See for example Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 in which Deane and Toohey JJ found a constitutionally implied right to equality, and in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 46; (1992) 177 CLR 106 in which Mason CJ, Deane and Toohey JJ, Brennan J, and Gaudron J all found that the Constitution incorporated a concept of representative democracy which required freedom of political communication.

[8] See for example Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126 in which the majority rejected an implied right to equality within the Constitution, and McGinty v Commonwealth (1996) 186 CLR 140 and Langer v Commonwealth (1996)186 CLR 302 in which Dawson, McHugh and Gummow JJ expressed opposition to an implied freedom based on the concept of representative democracy.

[9] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth, note 7 supra.

[10] Leeth v Commonwealth, note 7 supra at 483.

[11] The only principles found to be contained in the Constitution are those implied from its textual structure. The doctrine of the implied immunities of instrumentalities is derived from the federal nature of the Constitution; the doctrine of the separation of judicial power is derived from the fact that the Constitution contains a separate Chapter on the Judicature.

[12] Kartinyeri v The Commonwealth (unreported, High Court of Australia, 1 April 1998).

[13] Ibid at [166].

[14] For an analysis of this distinction see R Dworkin, Taking Rights Seriously, Duckworth (1977).

[15] See generally J Kirk, "Constitutional Implications from Representative Democracy" (1995) 23 Federal Law Review 37.

[16] The reasoning is similar to that entrenching a right to bear arms in the United States Constitution.