University of New South Wales Law Journal
 It is consistent with this need for
unifying national statements that over the past two decades there has been a
of support for a new aspirational preamble to be
inserted into the Australian
Constitution (‘Constitution’). Despite
such support for this proposal, the preamble referendum of 1999 was soundly
defeated. This 1999 defeat does not
mean that a new preamble will never enter
the lexicon of Australian constitutional law. However, there are a series of
to be learned from the late 20th century attempt to
insert a new preamble. My hope is that the 21st century will conceive
and inspiring national statement of some sort – be it a
constitutional preamble or a separate ‘Declaration of the Australian
People’. If the outcome is to be a new constitutional preamble, then I
hope its success is assured by close attention to the
lessons of the 1999
referendum, and commensurate attention to excellence in content, style and
 In 1987, the Individual
and Democratic Rights Advisory Committee recommended to the Constitutional
Commission that ‘the
preamble of the Constitution should
embody the fundamental sentiments which Australians of all origins hold in
Constitutional Commission did not accept this suggestion, recommending against
altering or repealing the preamble, or adding
preamble. Submissions to
the Republic Advisory Committee in 1993 ranged from proposals for simple
amendments to the current preamble, to lengthy
preambles. The Republic
Advisory Committee did not adopt any of the submissions. Since 1993, there have
been numerous other preamble
proposals, and the
Constitutional Convention of 1998 included considerable debate about the need
for and content of a new preamble. This 1998
Convention was the first such
convention to actually support the idea of a new preamble. Perhaps more
significantly, it was the first
time that official support was given to the
incorporation of a reference to Indigenous peoples in the Constitution. It is useful to
remember that half of the delegates to the 1998 Constitutional Convention were
popularly elected delegates. However,
it was both elected and appointed
delegates alike who acknowledged that the Constitution did not
appropriately give recognition to the place in Australia of the original
inhabitants. After considerable discussion and debate,
recommended that a new preamble contain the following
 The monopolisation of the process continued: the Prime Minister did not make public the subsequent 700 submissions that were received from around the nation, and the final version of the proposed preamble emerged from behind closed doors in time to give the Parliament only one day to debate it before it was hastily passed. The Bill – the Constitution Alteration (Preamble) 1999 (Cth) – was introduced into Parliament on 11 August 1999, and passed the next day without amendment. It was a fatal error for the Government to prevent both the Opposition and the general public from having adequate time to review, critique, suggest amendments to and eventually offer support for the final draft preamble.
 It seems inconceivable that a new
constitutional preamble could be drafted without the involvement of the various
leaders, the republican lobbyists, and the wider general community.
After all, it was the Indigenous community that suggested changes
preamble more than a decade earlier. And it was the republicans who at the 1998
Convention pointed out that a move to a republic
would require an amendment to
the constitutional preamble. Finally, without the support of the electors, a
referendum is doomed from
the outset. It is worth noting that the
19th century founding fathers only reluctantly included the words
‘humbly relying on
the blessing of Almighty God’ in the original
preamble because they were fearful that the electors would reject the Federation
Bill if a reference to God was not incorporated as demanded by over 35 000
petitions. It is a
pity that the drafters of the 1999 preamble did not listen and respond to the
electors more prudently. In essence, the proposed
preamble engendered little
sense of public ownership.
 Past Governments and Conventions have consistently resisted the call for a new preamble, often articulating the fear of unknown legal consequences. I have argued at length that much of the resistance to a new preamble is based on either an understated or an over-inflated view of the legal significance of preambles. While constitutional preambles certainly have differences from ordinary statutory preambles, nevertheless, it is evident from a review of the early drafters, commentators and courts that the ordinary principles governing statutory preambles were intended to be applied to the Constitution. A review of 20th century High Court of Australia (‘High Court’) decisions is not inconsistent with this conclusion. However, to overcome many of the misconceptions that have plagued the discussion of the legal significance of preambles, it would be useful for the High Court to follow the example of many overseas courts and clearly articulate the ordinary principles governing preambles.
 Preambles are certainly ‘part of’ the Act as a whole, but they are never a ‘law-making part’. The extent to which preambles can be used to assist in the interpretation of substantive sections is limited by a series of qualifying principles such as: that a preamble can have little effect if it is itself ambiguous; a preamble cannot affect the substantive text if the legislature intended to legislate beyond the preamble; a preamble will not prevail over the substantive text where both have equal clarity; and the effect of a preamble will depend on whether or not it indicates a ‘compelling’ alternative to the meaning otherwise suggested by the substantive text. Also, a statement is not automatically true just by virtue of its recital in a preamble.
 Many of the historical warnings about the possible legal consequences of a new constitutional preamble have focussed on a potential reference to Indigenous peoples in the preamble. For instance, Prime Minister John Howard frequently expressed concern about the consequences of using, in a new preamble, the word ‘custodianship’ in relation to the original occupation of Australia by Aboriginal peoples. However, no matter what radically progressive approach to constitutional interpretation is adopted by constitutional courts around the world, there is no doubt that under all approaches, a preamble is still considered to be a non law-making part of the instrument. Thus, a reference to ‘custodianship’ would not be a declaration of law, just as a statement about ownership of land would not establish legal title in property law. Consistent with this non law-making status of a preamble, there is therefore a commensurate argument that it is important to avoid using the word ‘rights’ in a new preamble, as the appropriate place for such language is in a Bill of Rights or in the substantive law-making provisions of the Constitution.
 Just as a preambular reference to Indigenous people can never be a law-making provision, so too is it doubtful that it could ever have a significant interpretive influence. Certainly, if the traditional principles governing statutory preambles were applied to a new constitutional preamble, then it is arguable that any reference to Indigenous peoples could make no difference to the current constitutional situation. Similarly, even if a more progressive approach were taken by the High Court, it is still arguable that a new preamble would have little effect. Take for example the traditional role of a preamble in shedding light on ambiguous constitutional provisions combined with the more progressive role of a preamble in confirming the existence of various underlying constitutional principles. The race power (s 51(xxvi) of the Constitution which includes the statement, ‘for whom it is deemed necessary to make special laws’) has already been the subject of debate because of the ambiguity associated with whether laws created under the power can be detrimental to Aboriginal people, or must be only beneficial to them.
 A progressive argument might be to suggest that a new preamble was confirmation of a constitutional principle already evident in the amended s 51(xxvi). If the minority view of Kirby J were adopted with respect to the nature of the race power, it is conceivable that a new preamble might be hailed as supporting an interpretation that the race power is limited to laws that are ‘beneficial’ and not detrimental. However, the general nature of the preamble weakens this argument. For instance, if a new preamble also included references to democracy and representative government, it could be argued that such principles require that s 51 should be interpreted liberally, so as to allow the elected representatives in the legislature to implement the views of the electorate. This potential arbitrary use of a preamble in constitutional interpretation highlights why it is inadvisable to progressively accord a preamble any more than the traditional interpretive role with its attendant qualifying principles, as developed by the common law courts.
 The most controversial issue in the recent referendum debate was the implications for matters of native title and compensation if a reference to ‘ownership’ of land was included. However, despite the recommendation of the 1998 Constitutional Convention, the final referendum proposal did not even use the word ‘custodianship’ – a word that arguably only speaks of stewardship and care of land, and not ownership. Patrick Dodson considered the referendum proposal offensive in that it denied the ‘true status of indigenous Australians as the custodians and owners of the land, and suggest[ed] that we are nothing more than gardeners at the station homestead’. In any case, even if a new preamble did refer to custodianship or ownership of land, there is still a persuasive argument to suggest that the implications are insignificant in comparison with the common law principles established in Mabo v Queensland [No 2] (‘Mabo’).
the preoccupation with matters of legality in relation to a new preamble has
caused the Government to lose sight of
the equally important issue of symbolism
in the Constitution.
Gatjil Djerrkura reminded us that it is not only the substantive clauses of
the Constitution that
are important, but also the ‘nation’s
 Compare the 1999 draft preamble with the original preamble, which is a good example of a ‘technical’ preamble. It is followed by a clear enacting clause, and it recites facts that are relevant to the passage of the Act (such as the agreement to unite), and it indicates the intention of Parliament with respect to the purpose of the enactment (such as the need to provide for the admission of new States). Having said that, the founding fathers also understood the need for a constitutional preamble to rise above the functional role. They recognised that the introductory words of the Constitution needed to be more ‘stately’ and ‘expressive’ so as to appeal to the understanding of the layperson. Similarly, many of the arguments in support of a reference to God in the original preamble also focussed on the need for the Constitution to include aspirational words which ‘remind us of ideals ... and of hopes that lift us higher than the vulgar realities of the day’.
 Unlike the original preamble, the 1999 proposal has been accused of not being a ‘preamble’ at all. P H Lane described it as a ‘stand-alone miscellany of facts, a credo of beliefs’. Indeed, the Prime Minister himself described his new preamble as ‘a statement about the kind of Australia that we hold dear and about the fundamental values and verities of Australian society in 1999’. My view is that a declaration of values is valuable in itself, but it should not be mistaken for a preamble.
 There are a couple of reasons why the final preamble proposal bore little resemblance to a traditional preamble. Firstly, the new preamble was proposed independently of the republic referendum. This meant that the new preamble was not followed by new constitutional text needing an introduction. In other words, the draft preamble included no reference to a proposed republic and the associated reasons for the change, which of course led to the absurd possibility that Australians may have elected to become a republic, and simultaneously approved a preamble that made no mention of this landmark transition.
 Secondly, the new preamble proposal was not followed by a clear enacting clause. Instead it included the passive language that ‘We the Australian people commit ourselves to this Constitution’. I call this passive in that to ‘commit’ ourselves to the Constitution is indicative of a constitution being imposed from above, rather than one being authorised by the will of the people. Indeed, this choice of words had the effect of symbolically diminishing the sovereignty of the Australian people. To emphasise the popular sovereignty of the Australian people, it would be more appropriate to use assertive, authoritative words such as ‘affirm and declare’.
 It is interesting to note that the version of enacting words initially proposed by the relevant Working Group at the 1998 Constitutional Convention recommended that a new preamble should conclude with ‘an enactment clause recognising the sovereignty of the Australian people’. This resolution was one of the few unanimous decisions of the group. The Subgroup report included an example of such concluding words: ‘We, the people of Australia, do hereby enact and give to ourselves this Constitution’. However the final choice of words that emerged from the subsequent Resolutions Group had been reduced to a phrase that used the word ‘commit’.
 In order to avoid proposing a preamble that is
really nothing more than a ‘Declaration of the People’, it is
appropriate to wait until such a time as the constitutional text is
being changed (for instance at the transition to a republic)
another new preamble. A constitutional preamble is inherently connected to the
text that follows. It is not a detachable
‘soft top’. Similarly, it
is not a law-making part of the vehicle, and a following clear enacting clause
in making that distinction.
The preamble to this Constitution has no legal force and shall not be considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the Commonwealth.
 The non-justiciability clause proposal was basically the result of persistent warnings with respect to the legal significance of a new preamble, and it sought to prevent the realisation of fears about the future judicial use (or misuse) of the preamble. The clause also had a secondary purpose, in that its existence allowed for a more liberal approach to the drafting of the preambular text. However, a review of the debates at the 1998 Constitutional Convention suggests that the final decision to recommend a non-justiciability clause was due partly to a successful fear-campaign, and also to the perpetuation of certain legal misconceptions about preambles. I believe that s 125A was unnecessary; and furthermore, that there are a number of policy arguments that suggest that a constitutionally entrenched non-justiciability clause is an inappropriate means by which to resolve the debate about preambular legal significance.
1998 Constitutional Convention was the perfect venue for a theatrical climax
about the doubtful role of a new preamble. A
combination of politicians,
academics, lawyers and laypeople set the stage for a number of extreme
conclusions to be reached about
the role of preambles. Professor Greg Craven
initiated the fears that slowly gained support, with the following
It is being suggested that the preamble is the place to put the values that we are not prepared to debate here and put in the Constitution proper and that we will be able to go and harmlessly put away any number of rag bags of values and declarations of faith in that particular place. That will have a disastrous effect for this reason: the preamble is effectively the lymph gland of the Constitution. It pumps things throughout the whole Constitution.
[T]he 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.
these warnings led to an increasing level of misunderstanding about the legal
role of preambles. A number of delegates
took these warnings to mean that it was
inappropriate for the High Court to make any reference to the preamble in
For instance, Denver Beanland commented that:
[I]f we are going to spell out details in the preamble, certainly we will have to spell out in the Constitution that the judiciary cannot be referring to the preamble and start using it in judicial decisions.
 With academic, legal and political weight behind the fears about the preamble, the Constitutional Convention delegates were left with no clear explanation of either the ordinary role of a preamble, or the usual treatment of the current preamble by the High Court. It is not then surprising that the Convention approved the resolution that a non-justiciability clause be inserted into Chapter III of the Constitution.
 Despite the fears that drove the 1998 Constitutional Convention to the point of recommending a non-justiciability clause, there is still little evidence to support the suggestion that the High Court would make unorthodox use of a new preamble. Apart from this fact that a non-justiciability clause can be considered legally unnecessary (and so be accused of being an inelegant example of ‘over-kill’), there are also various other policy arguments that overwhelmingly suggest the inappropriateness of a clause like the proposed s 125A.
 Firstly, there is the obvious criticism that the proposed s 125A represented a direction in constitutional drafting not taken by other countries in the world.
 Secondly, there is the issue of the negative impression given by a non-justiciability clause. To draft a new preamble that is immediately qualified by a non-justiciability clause such as the proposed section 125A is to create an impression of defensiveness and insincerity. It is not surprising that the public might find distasteful a clause that appears to make a mockery of the sentiments expressed in the preamble. It is also possible for another misleading impression to be created – the impression that a preamble standing alone without legal restraint is somehow immensely powerful and potentially dangerous. In effect, the non-justiciability clause is giving credibility to fears and arguments about the use of the preamble that are by no means conclusive; including the unsubstantiated implication that a constitutional preamble can have a legal effect on ‘the law in force in the Commonwealth or any part of the Commonwealth’. This latter part of s 125A is an example of where the final referendum proposal went much further than the recommendation of the Constitutional Convention, which was confined to a non-justiciability clause in relation to the interpretation of the Constitution alone.
 Thirdly, one of the weaknesses of s 125A was the presence of an internal ambiguity in the section. The reference to ‘The preamble to this Constitution’ could prima facie apply to both the current preamble and the proposed new one. A purposive approach to interpretation would have guided us back to the fact that the clause was intended to apply to ‘the’ new preamble being inserted, but nevertheless, the ambiguity may have given cause for dispute. However, there was no simple remedy for the subsequent lack of care and rigour with respect to the drafting of the new preamble itself. It is almost as if the perception of legal impotence resulted in the Prime Minister exercising creative fervour in the drafting process, with the preamble’s content accordingly straying from the recommendations of the Constitutional Convention.
 There is of course an argument that a non-justiciability clause improves the drafting of the preamble. George Winterton argued that a non-justiciability clause was a ‘small price to pay’ for a preamble that rightly would have ‘moral, educational and socially unifying function[s]’. However, history now reveals that even with the apparent safeguard of s 125A, the Government still failed to draft a preamble that was socially unifying.
 Fourthly, and most seriously, is the potential detrimental impact of a non-justiciability clause on judicial reasoning. Since High Court judges already refer to concepts such as democracy, the rule of law, and the federal nature of our nation, it would appear that an edict that the preamble ‘shall not be considered’ could potentially require judges to be involved in mental high jinks. They might be forced into the unenviable situation where in the context of discussing some principle, they are constrained to immediately qualify their discussion with a denial that their view had any roots in the preamble. In an era when judicial transparency is valued, such a muddying of the waters is an unwelcome direction. Jeremy Webber has argued for judicial transparency, and suggested that the non-justiciability proposal relied on the mistaken belief that constitutional interpretation can be separated from broader interests and concerns. He warned against trying to ‘chase the chimera of trying to exclude constitutional interpretation’ and advocated a return of focus to what should actually be written into the preamble.
are sound legal and policy arguments which refute the non-justiciability
approach to a new preamble. Arguably, the situation
can be resolved through good
drafting of the preamble, and through greater parliamentary and judicial clarity
about the ordinary
 The whole debate surrounding the creation of a new preamble would be greatly assisted in the future if the commentators and the courts take a more active role in correcting the misconceptions about preambles that have been perpetuated in recent years, and in clearly confirming the principles that govern the status and interpretive role of preambles. The fact that the constitutional preamble is governed by the ordinary principles associated with preambles could be reinforced by a consistent reflection of this message in the second reading speech, the explanatory memorandum, and the ‘yes case’ associated with a new preamble proposal. The preamble to the amending legislation could also reflect this intention.
 Once the confusion about the legal significance of the preamble has been dissipated, then the preoccupation with matters of legality can be replaced with more constructive debate about the nature of the preambular text itself. The perceived need for a non-justiciability clause will also be dissolved when politicians and academics consider that there is nothing to be feared in allowing a constitutional preamble to play its ordinary role (which is attended by many safeguards in the form of qualifying principles) in constitutional interpretation.
 A new preamble should be inspiring and memorable, and it should evoke unity, consensus and a resounding ‘yes’ from the majority of Australians. The sovereignty of the Australian people should be highlighted both in the text itself, and in the consultative process that accompanies the drafting of the text. In particular, the consensus of Indigenous leaders should be respected, and the new preamble should contain appropriate language recognising the original occupation and custodianship of Australia by Indigenous peoples. This would be added as a statement of historical fact, not as an instrument of legal change.
 It would be uplifting at times of
national pride and at times of national mourning for there to be a
or phrase that resonates with the majority of
Australians as a symbol of unity. If we listen to the voices of Australians,
are a number of common themes: equality, justice, diversity and democracy
are just a few. It is these and other similar themes that
were echoed in the
debates of the 1998 Constitutional Convention. I look forward to an occasion
when bipartisanship actually means
a genuine joint effort, when the Government
resists the tendency to be reactionary, and the Opposition resists the tendency
and together they facilitate the creation of a statement for all
Australians (be it a preamble or a declaration) that we are eager
to recite and
to teach to our children.