Winckel, Anne --- "A 21st Century Constitutional Preamble - An Opportunity for Unity rather than Partisan Politics" [2001] UNSWLawJl 51; (2001) 24(3) UNSW Law Journal 636
[*] BA LLB DipEd (Adel), GCLP
(UniSA), LLM (Melb); Barrister and Solicitor of the Supreme Court of SA; Visitor
(previously Lecturer)
with the Faculty of Law, University of Melbourne.
Currently a Consultant with Hamilton Jones & Koller in
Melbourne.
[1] The list of Colonies in the preamble omits Western Australia, as this Colony only voted to join the new Commonwealth on 31 July 1900. The Parliament of the United Kingdom had passed the final Commonwealth of Australia Constitution Act 1900 (UK) on 5 July 1900, and the Queen gave assent on 9 July.
[2] Advisory Committee to the Constitutional Commission, Individual and Democratic Rights, Report (1987) 30.
[3] Constitutional Commission, Final Report (1988) vol 1, 2, 101.
[4] See, eg, Republic Advisory Committee, An Australian Republic: The Options, Report (1993) vol 1, 139-40.
[5] See the various examples presented by George Winterton, ‘A New Constitutional Preamble’ (1997) 8 Public Law Review 186, 190-2.
[6] ‘Constitutional Convention Communiqué’ in 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 1, 46-7.
[7] Women’s Constitutional Convention, Outcomes (1998) at 11 October
2001.
[8] Constitutional Centenary Foundation, ‘We the People of Australia’: Ideas for a New Preamble to the Australian Constitution (1999) 3.
[9] See Appendix 1.
[10] Cf the Opposition Parties’ Draft Preamble (Appendix 2), which is a much sharper and more ‘measured’ draft preamble resulting from collaboration between the Australian Labor Party, the Australian Democrats and the Australian Greens.
[11] See Anne Winckel, ‘Almighty God in the Preamble’ (1999) 4 The New Federalist 78.
[12] See Appendix 3.
[13] See Anne Winckel, The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future (Master of Laws thesis, University of Melbourne, 2000).
[14] See my description of the contextual and constructive roles of preambles in: Anne Winckel, ‘The Contextual Role of a Preamble in Statutory Interpretation’ [1999] MelbULawRw 7; (1999) 23 Melbourne University Law Review 184.
[15] Gervase Greene, ‘Preamble Mateship Call by PM’, The Age (Melbourne), 23 March 1999, 1; Richard McGregor, ‘Preamble a War of Words’, The Australian, 30 April 1999, 1.
[16] See, eg, Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 361-8 (Gaudron J), 381-3 (Gummow and Hayne JJ), 411-19 (Kirby J, dissenting) (‘Hindmarsh Island Bridge Case’).
[17] Ibid 411 (Kirby J, dissenting).
[18] Patrick Dodson, ‘Until the Chains are Broken: The Fourth Annual Vincent Lingiari Memorial Lecture 1999’ (1999) 10 Public Law Review 248, 249.
[19] [1992] HCA 23; (1992) 175 CLR 1, 16-76 (Brennan J; Mason CJ and McHugh J concurring), 76-120 (Deane and Toohey JJ).
[20] Gatjil Djerrkura, ‘Making the Republic Important to a Majority of Australians’ in John Uhr (ed), The Australian Republic: The Case For Yes (1999) 92, 96.
[21] Adelaide, Official Report of the National Australasian Convention Debates 22 March - 5 May 1897, 22 April 1897, 1184 (Alfred Deakin). Deakin was arguing that the words ‘agreed to form’ be replaced with ‘agreed to unite’.
[22] Melbourne, Official Record of the Debates of the Australasian Federal Convention 20 January - 17 March 1898, 2 March 1898, 1733 (Patrick McMahon Glynn).
[23] P H Lane, ‘Referendum of 1999’ (1999) 73 Australian Law Journal 749, 749-50.
[24] Commonwealth, Parliamentary Debates, House of Representatives, 11 August 1999, 6497 (John Howard, Prime Minister).
[25] While this outcome was inconsistent with the initial recommendation of the 1998 Constitutional Convention, ironically it was an approach supported, after considerable debate, by the Republican Convention that was held in early 1999.
[26] 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 3, 422 (Dr Cocchiaro, reporting for Subgroup (i)).
[27] Ibid.
[28] Constitution Alteration (Preamble) 1999 (Cth) s 4.
[29] Resolution D3 moved by Kevin Andrews MP: 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 4, 803. Purported to have been drafted by the Attorney-General Daryl Williams MP.
[30] 1998 Constitutional Convention, above n 26, 29.
[31] Ibid.
[32] Ibid 30, alluding to Leeth v Commonwealth (1992) 174 CLR 455.
[33] Ibid 425.
[34] 1998 Constitutional Convention, above n 29, 472.
[35] See, eg, the comments of Marguerite Scott: ibid 476.
[36] 1998 Constitutional Convention, above n 29, 804.
[37] Ibid 493.
[38] See, eg, Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 359-60 (O’Connor J). See also Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488, 534 (Griffith CJ) (‘Railway Servants Case’); Baxter v The Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1104 (Griffith CJ, for Barton and O’Connor JJ).
[39] 1998 Constitutional Convention, above n 29, 496.
[40] Ibid 497.
[41] [1997] HCA 27; (1997) 190 CLR 1.
[42] Ibid 44-5 (Brennan CJ), 63-8 (Dawson J), 142 (McHugh J), 153-5 (Gummow J); reflecting on Leeth (1992) 174 CLR 455, 486 (Deane and Toohey JJ).
[43] See ‘Current Views on the Interpretive Role of the Preamble’ in Winckel, above n 13, ch 3, 98-102.
[44] Although there is evidence that a preambular non-justiciability provision existed in a Seychelles Constitution under an earlier socialist regime: Constitution of the Second Republic of The Seychelles sch 3, s 8, referred to in Republic v Georges [Seychelles] [1999] 4 LRC 146, 154 (Alleear CJ).
[45] See, eg, the comments of Peter Grogan, 1998 Constitutional Convention, above n 29, 475.
[46] Proposed s 125A, Constitution Alteration (Preamble) 1999 (Cth) s 4.
[47] Certainly the Constitutional Centenary Foundation believed that this confusion was possible: Constitutional Centenary Foundation, The Preamble: Background Paper (1999)
at July
1999.
[48] For instance, the closing sentence of John Howard’s first draft preamble was grammatically ambiguous, leading to confusion over what exactly was never to be ‘infringed by prejudice or fashion or ideology nor invoked against achievement’.
[49] George Winterton, ‘The 1998 Convention: A Reprise of 1898?’ (1998) 21 University of New South Wales Law Journal 856, 863.
[50] Jeremy Webber, ‘Constitutional Poetry: The Tension Between Symbolic and Functional Aims in Constitutional Reform’ [1999] SydLawRw 10; (1999) 21 Sydney Law Review 260, 269.
[51] Ibid. See also Jeremy Webber, ‘Constitutional Poetry’ (1999) 74 Reform 17, 20.
[52] Constitution Alteration (Preamble) 1999 (Cth) Exposure Draft, released 25 March 1999. This exposure draft was written primarily by Prime Minister John Howard and poet Les Murray: see Gervase Greene, ‘Mateship Raises Ire, Custodianship the Big Issue: Outcry on Preamble’, The Age (Melbourne), 24 March 1999, 1.
[53] As cited in Gervase Greene, ‘PM’s Preamble Doomed: The Latest Preamble’, The Age (Melbourne), 29 April 1999, 1; based on an initial draft by Gareth Evans (see ‘Labor’s Proposed Preamble’, The Australian, 24 March 1999, 4).
[54] Redrafted by Prime Minister John Howard: Constitution Alteration (Preamble) 1999 (Cth); passed by the Commonwealth Parliament on 12 August 1999, and put to the people at a referendum on 6 November 1999.
[1] The list of Colonies in the preamble omits Western Australia, as this Colony only voted to join the new Commonwealth on 31 July 1900. The Parliament of the United Kingdom had passed the final Commonwealth of Australia Constitution Act 1900 (UK) on 5 July 1900, and the Queen gave assent on 9 July.
[2] Advisory Committee to the Constitutional Commission, Individual and Democratic Rights, Report (1987) 30.
[3] Constitutional Commission, Final Report (1988) vol 1, 2, 101.
[4] See, eg, Republic Advisory Committee, An Australian Republic: The Options, Report (1993) vol 1, 139-40.
[5] See the various examples presented by George Winterton, ‘A New Constitutional Preamble’ (1997) 8 Public Law Review 186, 190-2.
[6] ‘Constitutional Convention Communiqué’ in 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 1, 46-7.
[7] Women’s Constitutional Convention, Outcomes (1998)
[8] Constitutional Centenary Foundation, ‘We the People of Australia’: Ideas for a New Preamble to the Australian Constitution (1999) 3.
[9] See Appendix 1.
[10] Cf the Opposition Parties’ Draft Preamble (Appendix 2), which is a much sharper and more ‘measured’ draft preamble resulting from collaboration between the Australian Labor Party, the Australian Democrats and the Australian Greens.
[11] See Anne Winckel, ‘Almighty God in the Preamble’ (1999) 4 The New Federalist 78.
[12] See Appendix 3.
[13] See Anne Winckel, The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future (Master of Laws thesis, University of Melbourne, 2000).
[14] See my description of the contextual and constructive roles of preambles in: Anne Winckel, ‘The Contextual Role of a Preamble in Statutory Interpretation’ [1999] MelbULawRw 7; (1999) 23 Melbourne University Law Review 184.
[15] Gervase Greene, ‘Preamble Mateship Call by PM’, The Age (Melbourne), 23 March 1999, 1; Richard McGregor, ‘Preamble a War of Words’, The Australian, 30 April 1999, 1.
[16] See, eg, Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 361-8 (Gaudron J), 381-3 (Gummow and Hayne JJ), 411-19 (Kirby J, dissenting) (‘Hindmarsh Island Bridge Case’).
[17] Ibid 411 (Kirby J, dissenting).
[18] Patrick Dodson, ‘Until the Chains are Broken: The Fourth Annual Vincent Lingiari Memorial Lecture 1999’ (1999) 10 Public Law Review 248, 249.
[19] [1992] HCA 23; (1992) 175 CLR 1, 16-76 (Brennan J; Mason CJ and McHugh J concurring), 76-120 (Deane and Toohey JJ).
[20] Gatjil Djerrkura, ‘Making the Republic Important to a Majority of Australians’ in John Uhr (ed), The Australian Republic: The Case For Yes (1999) 92, 96.
[21] Adelaide, Official Report of the National Australasian Convention Debates 22 March - 5 May 1897, 22 April 1897, 1184 (Alfred Deakin). Deakin was arguing that the words ‘agreed to form’ be replaced with ‘agreed to unite’.
[22] Melbourne, Official Record of the Debates of the Australasian Federal Convention 20 January - 17 March 1898, 2 March 1898, 1733 (Patrick McMahon Glynn).
[23] P H Lane, ‘Referendum of 1999’ (1999) 73 Australian Law Journal 749, 749-50.
[24] Commonwealth, Parliamentary Debates, House of Representatives, 11 August 1999, 6497 (John Howard, Prime Minister).
[25] While this outcome was inconsistent with the initial recommendation of the 1998 Constitutional Convention, ironically it was an approach supported, after considerable debate, by the Republican Convention that was held in early 1999.
[26] 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 3, 422 (Dr Cocchiaro, reporting for Subgroup (i)).
[27] Ibid.
[28] Constitution Alteration (Preamble) 1999 (Cth) s 4.
[29] Resolution D3 moved by Kevin Andrews MP: 1998 Constitutional Convention, Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998 (1998) vol 4, 803. Purported to have been drafted by the Attorney-General Daryl Williams MP.
[30] 1998 Constitutional Convention, above n 26, 29.
[31] Ibid.
[32] Ibid 30, alluding to Leeth v Commonwealth (1992) 174 CLR 455.
[33] Ibid 425.
[34] 1998 Constitutional Convention, above n 29, 472.
[35] See, eg, the comments of Marguerite Scott: ibid 476.
[36] 1998 Constitutional Convention, above n 29, 804.
[37] Ibid 493.
[38] See, eg, Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 359-60 (O’Connor J). See also Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488, 534 (Griffith CJ) (‘Railway Servants Case’); Baxter v The Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1104 (Griffith CJ, for Barton and O’Connor JJ).
[39] 1998 Constitutional Convention, above n 29, 496.
[40] Ibid 497.
[41] [1997] HCA 27; (1997) 190 CLR 1.
[42] Ibid 44-5 (Brennan CJ), 63-8 (Dawson J), 142 (McHugh J), 153-5 (Gummow J); reflecting on Leeth (1992) 174 CLR 455, 486 (Deane and Toohey JJ).
[43] See ‘Current Views on the Interpretive Role of the Preamble’ in Winckel, above n 13, ch 3, 98-102.
[44] Although there is evidence that a preambular non-justiciability provision existed in a Seychelles Constitution under an earlier socialist regime: Constitution of the Second Republic of The Seychelles sch 3, s 8, referred to in Republic v Georges [Seychelles] [1999] 4 LRC 146, 154 (Alleear CJ).
[45] See, eg, the comments of Peter Grogan, 1998 Constitutional Convention, above n 29, 475.
[46] Proposed s 125A, Constitution Alteration (Preamble) 1999 (Cth) s 4.
[47] Certainly the Constitutional Centenary Foundation believed that this confusion was possible: Constitutional Centenary Foundation, The Preamble: Background Paper (1999)
[48] For instance, the closing sentence of John Howard’s first draft preamble was grammatically ambiguous, leading to confusion over what exactly was never to be ‘infringed by prejudice or fashion or ideology nor invoked against achievement’.
[49] George Winterton, ‘The 1998 Convention: A Reprise of 1898?’ (1998) 21 University of New South Wales Law Journal 856, 863.
[50] Jeremy Webber, ‘Constitutional Poetry: The Tension Between Symbolic and Functional Aims in Constitutional Reform’ [1999] SydLawRw 10; (1999) 21 Sydney Law Review 260, 269.
[51] Ibid. See also Jeremy Webber, ‘Constitutional Poetry’ (1999) 74 Reform 17, 20.
[52] Constitution Alteration (Preamble) 1999 (Cth) Exposure Draft, released 25 March 1999. This exposure draft was written primarily by Prime Minister John Howard and poet Les Murray: see Gervase Greene, ‘Mateship Raises Ire, Custodianship the Big Issue: Outcry on Preamble’, The Age (Melbourne), 24 March 1999, 1.
[53] As cited in Gervase Greene, ‘PM’s Preamble Doomed: The Latest Preamble’, The Age (Melbourne), 29 April 1999, 1; based on an initial draft by Gareth Evans (see ‘Labor’s Proposed Preamble’, The Australian, 24 March 1999, 4).
[54] Redrafted by Prime Minister John Howard: Constitution Alteration (Preamble) 1999 (Cth); passed by the Commonwealth Parliament on 12 August 1999, and put to the people at a referendum on 6 November 1999.