It would probably be widely agreed that the preamble is no longer fully representative of the views or the sentiments of the majority of the Australian people. The language is arcane, the preamble neither expresses the absolute sovereignty of the Australian people as an independent nation nor refers to democratic values and aspirations, and the process of reconciliation with the original inhabitants of the continent is ignored. Many supporters of an Australian Republic would argue that a new preamble is not only essential but could also provide symbolic support for other important initiatives such as the adoption of a Bill of Rights.
There is a strong case to support the argument that the moral and political legitimacy of the Australian presidency would be enhanced by the introduction of a new preamble that was a concise, lucid and memorable articulation of the democratic aspirations and common values of the Australian people. Such a preamble would help to elevate the role of the President and the new republic above the shallow slogan of 'one of us', as well as serving as a check on presidential power.
The argument for a new preamble would not, however, go uncontested, and just what course is followed will in turn depend on other changes that are contemplated. One of those changes is the inclusion of a Bill of Rights. In the event of Australia continuing without a Bill of Rights, the legal ramifications of a new preamble while not carrying the same legal weight as a Bill of Rights may be more considerable.
In the event of Australia adopting a Bill of Rights which restates the legally enforceable democratic rights and freedoms held by the Australian people some of which may appear in the form of more generalised aspirations in the preamble , the potential legal effect of the preamble may be diminished. However, this will be affected not only by its content but by considerations such as whether or not the Bill of Rights is constitutionally entrenched and possible limitations on its application.
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If the Bill of Rights refers only to civil and political rights while the preamble makes reference however obtuse to economic and social aspirations, the preamble may be referred to for guidance in those areas not covered by the Bill of Rights. Responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights. Except for our inheritance of British institutions and the principles of the Common Law, we have not felt the need of formality and definition. I would say, without hesitation, that the rights of individuals in Australia are as adequately protected as they are in any other country in the world.
Menzies' views are a fair reflection of the dominant thinking of that era. Thirty years later, and notwithstanding a number of failed attempts to enact an Australian Bill of Rights, faith in the common law as a guarantor of fundamental rights or of legal certainty has diminished. This shift in thinking has been accompanied by a more broadly defined interest worldwide in human rights, reinforced by the burgeoning influence of international law. In Australia, common law protections have been bolstered by a patchwork of laws protecting defined rights in prescribed circumstances for example, the various anti-discrimination laws , and by the incorporation or adoption of standards established under international treaties and conventions.
On the other hand, the courts have continued to develop the common law and the High Court has added a new dimension to the debate by implying the existence of certain basic political rights from the democratic and representative nature of the Australian Constitution. Allied to these developments has been the interest in re-examining the Constitution itself as the new millennium and the hundredth anniversary of federalism approach. The cases for and against a Bill of Rights have been argued in Australia and overseas, with the overwhelming majority of independent countries now having a Bill of Rights in terms of the rights enunciated in the International Covenant on Civil and Political Rights.
Recent overseas experience may be of value in exploring where the balance of argument for and against rests in contemporary Australia. In examining relevant overseas experience, Canada, New Zealand and South Africa provide useful models in asking:. What would be effect of a Bill of Rights on the judiciary? Would it add to the courts' costs and therefore actually reduce the rights of some potential litigants? These questions, together with the associated issues raised by the introduction of a new preample, are likely to be the focus of considerable attention at the Constitutional Convention later this year.
Any discussion surrounding the constitutional alterations necessary to achieve a republic will undoubtedly raise the issue of rights and values. This paper focuses on the relevance of rights and values to Australia's 'republican' constitution. With a view to identifying values and overcoming objections to a Bill of Rights, some commentators have suggested that the preamble to the Constitution might be amended to recite a set of values. In light of the approaching Constitutional Convention in , it is timely to consider these issues, not only in relation to the republic debate, but also in the wake of recent constitutional and legal developments.
This paper has a threefold purpose. First, to provide an accessible and concise chronology of events relating to the post discussion in Australia on the questions of a Bill of Rights and alteration of the preamble to the Constitution; secondly, to outline the arguments for and against the alteration of the preamble and a Bill of Rights; and finally, to convey the complexity of the issues associated with these two key and related areas.
Thinking about “General Welfare” in the Preamble
The paper draws heavily on the final Report of the Constitutional Commission of and the report of the Republic Advisory Committee. It also refers to the extensive academic literature on a Bill of Rights as well as the recent initiatives of State and Territory governments. In addition, it seeks to explore the relevance of the Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act to future Australian initiatives concerned with the protection of individual rights and freedoms.
The declaration calls for both Federal and State Parliaments to pass Acts providing for civil liberties. Murphy invokes the French and American Revolutions:. Our goal is to rearrange our society in such a way that every person will have the opportunity to attain the utmost fulfilment of his own personality, that is the goal of democratic socialism.
It was the aim of those who wrote the Declaration of the Rights of Man and the Citizen in , it was the aim of those who wrote the Universal Declaration of Human Rights and it is our aim. The Bill arouses considerable opposition, primarily characterised by 'States rights' concerns and the associated fear of Commonwealth centralisation of power.
The Bill lapses and, despite minor amendments, fails to be placed before Parliament again. The Act incorporates the principles of the International Covenant on the Elimination of all Forms of Racial Discrimination , ratified by the Whitlam government on 30 September. Given responsibility for the Racial Discrimination Act, the HRC has limited powers to investigate complaints and possesses no mandate over the States.
Evans' Bill suffers the same fate as Lionel Murphy's Bill, and is defeated on States Rights grounds without even being placed before Parliament. The Act is not binding on the States. Unlike the earlier attempts by Murphy and Evans, Bowen's Bill does not attempt to bind the States and includes a five-year cooling off period before existing Commonwealth law can become inoperative.
Bowen's Bill follows the fate of its predecessors, lost in partisan debate and community concern over centralisation of power. Declarations by the Commission are not legally enforceable and, with minor exceptions, do not affect State laws. Bowen proposes constitutional amendments to guarantee 'four-year terms' and 'fair and democratic elections', to 'recognise local government', 'extend the right to trial by jury' and 'freedom of religion' and 'ensure fair terms for persons whose property is acquired by government'.
The Commission recommends against altering or repealing the preamble to the Australian Constitution. The convention's final declaration strongly supports the constitutional entrenchment of basic democratic rights. This effectively enables Australian citizens who have exhausted all available domestic remedies to take human rights complaints to the United Nations Human Rights Committe in Geneva and New York.
The Committee's findings are not automatically incorporated into Australian law but may be the focus of serious legal attention in the case of adverse findings.
Significantly, the judgment of Sir Gerard Brennan insists that 'international law is a legitimate and important influence on the development of the Common Law, especially when international law declares the existence of universal human rights In the same year a majority of the High Court in the decision in Australian Capital Television v The Commonwealth which rejects the Labor government's attempts to ban political advertising in the electronic media during federal elections finds that there is an implied right in the Australian Constitution of freedom of speech, or at the very least, freedom of political speech.
In April , the Human Rights Committee upholds Mr Toonen's complaint against the Tasmanian law which criminalises homosexual acts between consenting adults in private. The case arguably provides further evidence that the tide of globalisation and international law could force de facto Bill of Rights on both Federal and State governments, if Australian governments do not themselves introduce domestic rights legislation.
This decision is in keeping with the Keating government's 'minimalist' approach to the republican issue. And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:. The debate on the issue of an Australian republic was invigorated by the launch of the Australian Republican Movement in July , following the centenary constitutional convention held in April of that year.
Since then there has been little discussion of the relevance of the preamble to the republican discussion. The preamble has been ignored or curtly dismissed as a distraction from the central focus of minimalist republicanism-the need for a non-monarchical Australian Head of State. Public apathy and ignorance concerning the Constitution is the most significant obstacle facing those who wish to extend the republican debate beyond the narrow confines of nationalist rhetoric.
Nonetheless, among those Australians who do carry the burden of constitutional knowledge, there is considerable support for the introduction of a new preamble see Appendix 4.
At meetings convened by the Republic Advisory Committee in , and in the many submissions received by the Committee, members of the public expressed strong interest in alteration of the preamble. The preamble to the Australian Constitution is an appropriate reflection of the values and priorities which were prevalent at the time of federation. Instead, in dry, measured and calculated prose, it embodies the three unifying features of federation Australia: loyalty to the Crown, belief in God and the shared need to provide national unity for white Australians through the introduction of a federal government.
The preamble had its origins in the National Australian Convention of and was further revised at the Australasian Federal Convention of before finally being accepted in , after colonial legislatures and petitioners successfully insisted on the inclusion of the blessing of 'Almighty God'. Both the Final Report of the Constitutional Commission and the report of the Republic Advisory Committee in referred to Quick and Garran's elucidation of the eight 'separate and distinct affirmations or declarations in the preamble': As Quick and Garran pointed out, of the above only the third, fifth, seventh and eighth are found elsewhere in the Constitution.
The remaining four 'have therefore to be regarded as promulgating principles, ideas or sentiments operating at the time of the formation of the instrument, in the minds of its framers, and by them imparted to and approved by the people to whom it was submitted'. If we accept Quick and Garran's description of the remaining four affirmations as philosophical principles which represented the broad sentiment of the people in , then it is clear that these principles are no longer fully representative of the sentiment of the Australian people one hundred years later.
Indeed, it is now possible to acknowledge that one principle is historically inaccurate. The preamble indicates the agreement of the people of Australia to federation. Yet as we now know, Aboriginal and Torres Strait Islander people were not consulted and did not give their consent to federation. Furthermore, except for the colonies of South Australia and Western Australia, Australian women were unable to vote in the federation referendums.
On a more practical level, the preamble might also include reference to Western Australia and the territories. There is no good reason to exclude from formal recognition in the preamble the more than two million Australian citizens who reside in these areas. For republicans, there is the added incongruity of the current preamble's expression of the dependence of the union 'under the Crown of the United Kingdom of Great Britain and Ireland'. Although it would not be necessary to alter the preamble in the case of the declaration of an Australian republic, it would hardly be appropriate to remove the British monarch as Australian Head of State while retaining the language of monarchical deference contained in the preamble.
The majority of the arguments which can be mounted in support of altering the preamble revolve around three issues-the republic, Aboriginal reconciliation and the need to make the Constitution more accurately reflect the language, values and democratic aspirations of contemporary Australia. They can be summarised as follows. For over two centuries, the British monarchy has provided the central symbolic force of colonial, state and federal Constitutions in Australia.
Preamble - Wikipedia
In addition, the monarchy has served as the legitimising symbol of our legal and public institutions as well as providing an important bond in Australia's social fabric. In the event of Australia becoming a republic, the symbolic role of the British monarchy in Australia's public culture would cease or at very least be severely curtailed. The question therefore arises: what would replace it? Is it sufficient to replace the power mystique and pageantry of the monarchy merely with 'one of us', an Australian Head of State?