I. Introduction
In Australia there has been a debate in recent times about how Aboriginal people and Torres Strait Islanders should be recognized in the Australian Constitution. The two main options include the use of preambles in the Constitution and hinge upon the effect of a preamble upon constitutional interpretation. On the one hand there are those, including some members of the Federal Opposition, who advocate symbolic recognition of Aboriginal people and Torres Strait Islanders in a constitutional preamble along with the inclusion of a clause stating that the preamble cannot be used in the interpretation of the Constitution. The intention is to avoid unintended consequences and secure constitutional reform by providing certainty. On the other hand, an Expert Panel has recommended substantive constitutional change, including a provision in the text of the Constitution, which confers a power on the Australian Parliament to enact laws ‘with respect to Aboriginal and Torres Strait Islander peoples’. This provision is to have its own preamble that amongst other things, acknowledges the need to secure the ‘advancement’ of Aboriginal and Torres Strait Islander peoples. The intention is that these preambular words will operate as a limitation on the grant of power so that the Parliament may only make laws for the ‘advancement’ of Aboriginal and Torres Strait Islander peoples and not to their detriment.Footnote 1
Both proposals are based upon assumptions about how a preamble might affect the interpretation and application of the Constitution. This article draws upon the experience of other common law countries in the application of preambles, particularly the United Kingdom, the United States, Canada and India,Footnote 2 in examining the two Australian proposals and assessing whether the assumptions upon which they are based are correctly made.
II. The Australian Preamble Debate
A. The Existing Preamble
The Australian Constitution does not have its own preamble. When the Australian federation was established in 1901, its Constitution was enacted as s 9 of a British Act of Parliament, the Commonwealth of Australia Constitution Act 1900 (UK). It is that British Act that contains a preamble and eight other sections, known as the ‘covering clauses’. Even though Australia has become a sovereign nation and terminated its constitutional ties with the United Kingdom,Footnote 3 the Australian Constitution remains formally part of a British Act. Unlike the Canadian Constitution, however, the Australian Constitution has always been capable of amendment by Australians. It is a fully entrenched Constitution that can only be amended by way of a bill passed by the Australian Parliament and approved in a referendum by the Australian people, both nationally and in a majority of States (being four out of six States).Footnote 4
The preamble to the Commonwealth of Australia Constitution Act provides:
Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established … .
It does not give great scope for drawing implications or affecting the interpretation of the Constitution. References to the Crown and to the federal system can be found elsewhere in the substantive text of the Constitution. The reference to an ‘indissoluble’ Federal CommonwealthFootnote 5 became important when Western Australia tried to secede from the Commonwealth in the 1930s, but its attempt failed in practice and was therefore never brought before a court. The reference to ‘God’ in the preamble was of such concern to the framers of the Constitution (who were largely against including it, but submitted to public petitionsFootnote 6 for its inclusion) that an express clause was included in the Constitution to prohibit the making of any law for establishing a religion or imposing religious observances or for prohibiting the free exercise of any religion or imposing any religious test for any office under the Commonwealth.Footnote 7 No use, however, has so far been made by the courts of the reference to ‘God’ in the preamble.
The preamble does not mention Aboriginal people. It merely mentions the people of the different Australian colonies, which would presumably include Aboriginal people along with everyone else. Aboriginal people were only mentioned in two places in the Australian Constitution, in both cases by reference to exclusion. Section 127 provided that in reckoning the numbers of the people of the Commonwealth or a State, ‘aboriginal natives shall not be counted’.Footnote 8 Section 51(xxvi) of the Constitution, known as the ‘race power’, gave the Australian Parliament power to make laws with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. The exclusion meant that Aboriginal affairs were left to the States to manage. In 1967 the Constitution was amended by referendum to repeal s 127 and remove from s 51(xxvi) the words ‘other than the aboriginal race in any State’, so that the Australian Parliament could make laws with respect to Aboriginal people. This left, however, no reference at all to Aboriginal people in the Australian Constitution.
B. A New Preamble and a Non-Justiciability Clause
In the mid-1990s pressure grew for the recognition of Indigenous AustraliansFootnote 9 in the Constitution.Footnote 10 This coalesced with proposals for a republic and the insertion of a preamble in the Constitution itself (rather than the Commonwealth of Australia Constitution Act 1900 (UK)) which would introduce this change. In 1998 a Constitutional Convention, part-elected and part-appointed, was convened to deliberate upon proposals for an Australian republic. It recommended, amongst other things, the amendment of the Constitution to insert a preamble which would include ‘acknowledgement of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders’. It also recommended that certain matters be further considered for inclusion in the preamble, including ‘recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia's Indigenous peoples’.Footnote 11
In terms of the effect of this proposed preamble, a committee of the Constitutional Convention initially resolved that the ‘Preamble should remain silent on the extent to which it may be used to interpret the provisions of the Constitution’ but 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.’Footnote 12 However, this gave rise to a concern that the language of the preamble would be hobbled and its role as an inspirational statement would be neutered. Instead, it was resolved to include a clause elsewhere in the Constitution limiting the preamble's effect by preventing it from being used to interpret the text of the Constitution.Footnote 13 This was intended to support the use of broad and aspirational language in the preamble without incurring the risk that it might lead to excessive litigation and unanticipated and unwanted constitutional outcomes. It was also intended to avoid the loss of public support for the referendum which might arise due to uncertainty about the potential impact of the new preamble.Footnote 14
The Constitutional Convention resolved in favour of a republic and opted for a model under which the Head of State would be chosen by a special majority of Parliament. The Prime Minister, John Howard, agreed to put this republic proposal to a referendum, despite the fact that he did not support it. Before the 1999 republic referendum was held, the Prime Minister proposed a second referendum question on a preamble. This referendum, although to be held on the same day as the republic one, was to be separate from the issue of the republic and to have effect regardless of whether the republic referendum succeeded or failed. It would have inserted a new preamble at the beginning of the text of the Constitution, which mentioned neither the Crown nor a republic.
The proposed preamble was initially drafted by the Prime Minister in cooperation with an Australian poet, Les Murray.Footnote 15 It included the declaration that ‘[s]ince time immemorial our land has been inhabited by Aborigines and Torres Strait Islanders, who are honoured for their ancient and continuing cultures’. This was heavily criticized by Aboriginal people for referring only to inhabitation and not to ‘custodianship’ or any recognition of a closer relationship to the lands and waters of the nation.Footnote 16 After negotiations with an Aboriginal Senator, whose party held the balance of power in the Senate, the proposed preamble was changed so that it instead declared that the Australian people honoured ‘Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’. This compromise was not enough to satisfy Aboriginal groups, who largely opposed the preamble.Footnote 17 Overall, the proposed preamble received little support. The referendum failed nationally and in all States, with only 39.34% of people voting in favour of it.Footnote 18
Apart from the content of the proposed preamble, the other most controversial issue concerning this referendum question was the clause dealing with its potential effect. The referendum would also have inserted a new section 125A in the text of the Constitution which stated:
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.
This ‘non-justiciability clause’ was intended to calm fears that the preamble would have unknown judicial consequences. It raised the hackles of others, however, because it made the preamble appear to be disingenuous, hollow and hypocritical.Footnote 19 It was argued that such a clause would perpetuate the exclusion of Aboriginal people to the fringes of political society.Footnote 20
Others, such as Anne Winckel, argued that a clause of this kind was unnecessary because there was ‘little evidence to support the suggestion that the High Court would make unorthodox use of a new preamble’. She contended that a non-justiciability clause would ‘create an impression of defensiveness and insincerity’, making a ‘mockery of the sentiments expressed in the preamble’.Footnote 21
The non-justiciability clause did have its defenders. George Winterton recognized that a preamble could have ‘unintended and indeed unwelcome consequences’.Footnote 22 He noted, for example, that recognition of Aboriginal dispossession might have the consequence that native title rights are denied because the Constitution has declared broken any common law link of continuous occupation. He also noted that constitutional recognition of Indigenous traditions and customary rights might limit the power of the Parliament to interfere with them when they breach internationally recognized human rights.Footnote 23 Winterton supported a non-justiciability clause on pragmatic grounds. He argued:
The Preamble addresses the entire Australian community – not just the High Court – and indeed the world community beyond it. If one believes, as the present writer does, that a preambular statement of fundamental civic values serves a useful moral, educational and socially unifying function, the [non-justiciability] provision is surely a small price to pay for it.Footnote 24
Another argument made to a Queensland Committee that was considering inserting a preamble into the Queensland Constitution was that making a preamble justiciable would risk altering and detracting from any aspirational or inspirational content of it by codifying its terms and imposing a legal interpretation on them.Footnote 25
Although the 1999 preamble referendum failed, the proposed non-justiciability clause later became relevant at the state level. In recent years the Victorian, New South Wales and Queensland Constitutions have all been amended to provide for recognition of Indigenous Australians.Footnote 26 This task has proved easier than at the national level because state constitutions are only partially entrenched. In all three cases the amendments concerning Indigenous recognition were passed by ordinary legislation, rather than having to run the gauntlet of popular approval in a referendum.
The Victorian Constitution Act 1975 already had an existing preamble which outlined the history of the enactment of the Constitution, but made no reference to Aboriginal people. It was left unchanged, on the basis that it was a statement of history, but subsection 1A(1) was inserted in the Victorian Constitution Act in 2004 to acknowledge that the events set out in the Preamble ‘occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria’. Subsection 1A(2) then gives the Parliament's recognition to Aboriginal people as original custodians of the land as well as their unique status, their relationship with their traditional lands and waters and their contribution to the identity and wellbeing of Victoria.
The New South Wales Constitution does not have a preamble at all. Hence the recognition of Aboriginal people was inserted as a substantive provision in section 2 of the Constitution Act 1902 (NSW) in 2010.Footnote 27 It provides that ‘Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State's first people and nations’. It also recognizes their role as traditional custodians and occupants of the land, their relationship with it and their unique and lasting contribution to the identity of the state.
The Queensland Constitution also did not include a preamble, but in 2010 it was amended to insert one in the Constitution of Queensland 2001.Footnote 28 Amongst other things, the preamble provides that the people of Queensland ‘honour the Aboriginal peoples and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures, which deepen and enrich the life of our community’.
In all three cases, a provision was included in the state constitution to the effect that: the Parliament does not in the preamble/section: (a) create in any person any legal right or give rise to any civil cause of action; or (b) affect in any way the interpretation of this Act or of any other law in force in the State.Footnote 29 New South Wales has also included in that list of exclusions, any right to review an administrative action.Footnote 30 As none of these provisions were put to a referendum, there was little public debate about them, including whether or not these ‘non-justiciability’ clauses were advisable or appropriate.
The Federal Opposition has had a policy since 2007 that it will seek to achieve recognition of Indigenous Australians in the Constitution by way of the insertion of a new preamble.Footnote 31 It is likely that if it were elected to government and pursued this aim, it would also propose the inclusion of a ‘non-justiciability’ clause as the Howard Government did in 1999.
C. Preamble That Is Intended to Limit Power
In 2010 an ‘Expert Panel on Constitutional Recognition of Indigenous Australians’ was appointed to make recommendations on how Indigenous Australians should be recognized in the Constitution. It rejected the idea of inserting a new preamble at the start of the Australian Constitution, contending that it would open up too many other issues about what ought to be included or excluded.Footnote 32 There was also a concern that recognition in a preamble, rather than the body of the Constitution, would be ‘tokenistic’.Footnote 33
The Panel also rejected the inclusion of a ‘non-justiciability’ clause. It concluded:
The Panel does not consider that it would be appropriate to include some form of recognition of Aboriginal and Torres Strait Islander peoples in the Constitution, and simultaneously to state that such recognition has no legal effect. Such an approach would amount to a giving and taking at the same time, and suggest that the statement of recognition was ‘an empty gesture’ or even tokenistic.Footnote 34
Instead the Panel recommended that a statement of recognition be included as a preamble to a new provision which would make a substantive change to the text of the Constitution. This would confine the interpretation of the preamble to the application of the substantive provision to which it was attached, with the effect of limiting any unforeseen consequences.Footnote 35
The Panel therefore proposed to repeal the ‘race power’ in section 51(xxvi) of the Australian Constitution and insert a new section 51A which would contain preambular words and a substantive power, as follows:
Recognisingthat the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledgingthe continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respectingthe continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledgingthe need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.Footnote 36
The Panel did not include a non-justiciability clause. Instead, it overtly intended that the preambular words would be used to interpret the substantive grant of power.Footnote 37 It said:
There is clearly strong support for qualifying any new power to make laws for Aboriginal and Torres Strait Islander peoples so that its beneficial purpose is clear. Inevitably, to confine the power in this way may require a court to make judgments as to the purpose or effect of a law. Based on the Panel's legal advice, the preambular language proposed by the Panel for ‘section 51A’ would make it clear that a law passed pursuant to that power would be assessed according to whether, taken as a whole, it would operate broadly for the benefit of the group of people concerned, rather than whether each and every provision was beneficial or whether each and every member of the group benefited. The Panel does not believe that this would create any particular difficulty or uncertainty for Parliament, or create any real risk of excessive court challenges.
The Panel proposes use of the word ‘advancement’ in the preambular or introductory words to the new substantive power in ‘section 51A’, rather than in the power itself. This approach should ensure that the purpose of the power is apparent and would, as a matter of interpretation, be relevant to the scope given to the substantive power. The Panel considers that this approach would achieve a satisfactory balance between making the purpose of a law justiciable, and at the same time allowing a court to defer to legislative judgment. It should not enable individual provisions in a broad scheme to be attacked as not beneficial if the law as a whole were able to be judged beneficial.Footnote 38
The Panel was therefore relying on the interpretative use of the preamble to cut down the general grant of legislative powerFootnote 39 so that it could only be exercised for the ‘advancement’ of Aboriginal and Torres Strait Islander peoples. Moreover, the Panel assumed that the preamble would be interpreted in a very specific way—giving some deference to Parliament but still requiring the courts to assess the validity of laws by reference to whether, overall, a law can be characterized as ‘beneficial’ (which seems to be a substitute for ‘advancement’ in the minds of the Panel) for the group as a whole. These assumptions are certainly contestable.Footnote 40 For present purposes, however, the question for consideration is whether the Panel is correct in its assumption that the scope of a plenary legislative power would be interpreted as cut down by the terms or ‘intent’ of a preamble in a Constitution.
III. The Role and Effect of a Preamble
A. The Role of a Preamble
The primary role of a preamble is to introduce and give some explanation of, or context to, the text which follows.Footnote 41 This may involve the recitation of facts,Footnote 42 such as an historic account of how the text came to be enacted. It may also involve an explanation of the purpose of a statute or the intention of Parliament in enacting it.Footnote 43 To this extent, a preamble has been commonly regarded as the ‘key to open the minds of the makers of the Act and the mischiefs which they intended to redress’.Footnote 44
Secondary roles of preambles may include persuading people to obey the law,Footnote 45 educating the public,Footnote 46 or fulfilling a political purpose such as justifying the enactment of a law as implementing a political promise or supporting a larger public policy.Footnote 47
Finally, a preamble, particularly to a Constitution, may have a symbolic role. It may be used to give recognition to a group or to attempt to satisfy the concerns of groups that they have been previously overlooked or badly treated, without making any substantive changes to the law. The intention is to redress grievances and ‘create social capital and a sense of belonging’.Footnote 48 A constitutional preamble may also seek to capture the aspirations of the people and create unity through common interests and purpose.
The varying roles of preambles account for some of the confusion as to how they should be interpreted and applied. The use that a court makes of facts set out in a preamble may, and should, be quite different from its use of preambular statements of ‘intention’ or purpose, which in turn should be different from the way a court deals with aspirational statements or symbolic declarations in a constitutional preamble.
Hence, courts have held that the mere recitation of a fact in a preamble only amounts to prima facie evidence of that fact, not conclusive evidence.Footnote 49 References to meetings or conferences or other events in a preamble to an Act will, however, make evidence of that event admissible.Footnote 50 The way in which courts have dealt with preambles that identify ‘purpose’ on the one hand, and broad principles or aspirations, on the other, has been quite different. For the purposes of analysing the two main arguments in Australia about the interpretation of a constitutional preamble, as noted above, it is now proposed to assess the soundness of:
(a) the argument that in interpreting the scope of a general power in the Constitution, a court will limit it by reference to the intention or purpose set out in a constitutional preamble; and
(b) the argument that any preamble which includes statements of principle or aspirations is likely to be applied broadly by the courts to support constitutional implications, unless accompanied by a non-justiciability clause.
B. The Use of Preambles to Establish Purpose
The rules of statutory interpretation concerning preambles, although generally accepted across the common law world, remain the subject of contentious and quite fine distinctions. The primary rule is that where there is ambiguity in the text of a statute, resort may be had to the preamble to clarify how the ambiguous provision should be interpreted. This is because the preamble can act as the ‘key to open the minds of the makers of the Act and the mischiefs which they intended to redress’.Footnote 51 Where, however, there is no ambiguity, because the text is plain and clear, use cannot be made of the preamble in construing provisions.Footnote 52 The rule is set out clearly in the Sussex Peerage Case, where Lord Tindal CJ said:
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean[s] of collecting the intention, to call in aid the ground and cause of the making of the statute, and to have recourse to the preamble.Footnote 53
Contention arises, however, as to whether a preamble can be resorted to in order to ascertain whether there is an ambiguity or to establish doubt, especially where the statutory provision contains general words that might be read more narrowly in the light of a preamble that revealed a particular parliamentary purpose. There are competing views on this point. Some have taken the view that no recourse can be had to the preamble at all where the words of the statute are plain and clear.Footnote 54 They stress that it is not legitimate to ‘create or imagine an ambiguity in order to bring in the aid of the preamble or recital’.Footnote 55 As the Earl of Halsbury has stated, ‘if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment’.Footnote 56 The specific terms of a preamble cannot restrict the general terms of a provision in the text of the statute.Footnote 57 The words chosen by Parliament in the text of the Act take primacy over those in a preamble.Footnote 58 This is because the words in the text, being of substantive effect, have usually been given far greater parliamentary scrutiny than a scene-setting preamble.
Others have taken the view that the preamble is part of a statute and that the statute should be read as a whole to determine its purpose.Footnote 59 Crabbe, for example, has argued that ‘the object of a statute and the circumstances that led to its enactment are always relevant – not just in cases of doubt’.Footnote 60 Viscount Simonds has also observed that it is difficult to conclude that words are clear and unambiguous unless they have been considered in their context, which includes the preamble as part of the whole Act.Footnote 61 Purpose and context may therefore be used to interpret words of generality and identify ambiguity.Footnote 62 This approach involves a two-stage process. The preamble is first used to identify the purpose of the statute and in doing so, to identify any possible ambiguity in the words of the provision which might arise through a conflict between general words and the particular purpose. Once that ambiguity has been identified in stage one, then in stage two the orthodox rule, which allows the ambiguity to be clarified by reference to the preamble, is employed.Footnote 63
These conflicting approaches are illustrated in Australia by the judgments of Gibbs CJ and Mason J in Wacando v Commonwealth. Footnote 64 Gibbs CJ stated that although the preamble to an Act suggested that the section in question was intended to have a narrower meaning, ‘if the words of the section are plain and unambiguous their meaning cannot be cut down by reference to the preamble’.Footnote 65
In contrast Mason J argued:
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.Footnote 66
One of the critical distinctions between these two approaches is how one deals with a provision in the text which is general in nature when the preamble reveals a more narrow purpose that could be used to cut down the scope of the general words. As noted above, the strict view is that a preamble cannot be used to cut down the words of an enactment.Footnote 67 However, some judges have qualified this rule. Viscount Simonds, for example, was open to the possibility that the general words in the text could be read down by reference to the preamble, but only if there was a ‘compelling reason’ to do so. The mere fact that the text goes further than the preamble was insufficient, he thought, to provide a compelling reason. Something more would be required.Footnote 68 In Ryall v Rolle, Parker CB noted the rule that a preamble may not restrain the enacting clause but observed that if this would result in inconvenience, the preamble could restrain the generality of the text of a statute. In Ryall ‘great danger and great difficulty’ would have been caused to merchants if the text was not to be interpreted as constrained by the preamble.Footnote 69
Winckel has gone a step further from ‘compelling reason’ and ‘inconvenience’, concluding:
Where a substantive section of an Act includes ‘general’ words, even though they are plain, clear and could be applied in their ordinary meaning, nevertheless they may be given a restricted interpretation by the court. It must, however, be clear that the words were intended to be limited. In such a situation where general words are used, reference to the preamble is relevant to the question of whether the words were intended to be limited, and what construction is therefore appropriate.Footnote 70
The dilemma, as pointed to by Lord Evershed MR, is that on the one hand one must interpret a statutory provision by reference to its context and parliamentary intention, as revealed by the whole Act, including the preamble, which may involve cutting down the meaning of words of general import, whereas on the other hand, ‘Parliament must at least be assumed also to intend what it expressly enacts’.Footnote 71
C. The Likely Interpretation of the Preamble to Proposed Section 51A
Other propositions of relevance to the interpretative role of a preamble include the proposition that a ‘preamble is not … of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act’.Footnote 72 Hence, in reading the statute as a whole in order to ascertain its purpose, greater weight must be placed on the significance of provisions in the text than the terms of a preamble. Further, if the preamble is itself ambiguous, then it is of no aid in resolving an ambiguity in the text. As Lord Normand noted in Attorney-General v HRH Prince Ernest Augustus of Hanover, a preamble will only be of use ‘when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words’.Footnote 73
In the case of the preambular recitals to proposed s 51A of the Australian Constitution, two distinctions arise from the above cases. First, it is the interpretation of a Constitution which is at issue, rather than an ordinary statute. Do the same rules of interpretation apply? Second, the preamble would form part of the text of the Constitution, rather than preceding the words of enactment. Would this change the manner in which it would be interpreted?
In relation to the first question, the principles regarding the use of preambles in statutory interpretation tend also to apply with respect to Constitutions,Footnote 74 although greater weight may be granted to a preamble to a Constitution given that it is a solemn enactment of fundamental importance. For example, Lord Hoffmann said with respect to the preamble to the Constitution of Trinidad and Tobago:
We attach significance to the principles upon which, as declared in the preamble to the 1976 (as to the 1962) Constitution, the people of Trinidad and Tobago resolved that their state should be founded. This declaration, solemnly made, is not to be disregarded as meaningless verbiage or empty rhetoric. Of course, the preamble to a statute cannot override the clear provisions of the statute. But it is legitimate to have regard to it when seeking to interpret those provisions (see Bennion, Statutory Interpretation, 4th ed (2002), Section 246) and any interpretation which conflicts with the preamble must be suspect.Footnote 75
Where a constitutional preamble sets out fundamental principles or the basic structure of the constitution, different principles of interpretation may apply, as discussed in the next section of this article.
In relation to the second question, it would appear that the above rules of statutory interpretation would apply equally to preambular recitalsFootnote 76 in the text of a statute (or Constitution) as those that precede the words of enactment. It has been noted in Craies on Statute Law that when recitals preface particular sections, the cannon of construction with regard to them ‘is the same as in the case of the preamble proper, viz., that they may not be referred to for purposes of construction if the enacting part is clear and unambiguous.’Footnote 77 Further, when ‘objects clauses’ have been included within the text of a statute, the same rules have been applied to them as preambles that precede the words of enactment. Hence, an objects clause ‘cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear’.Footnote 78 It may be, however, that the courts will place more weight on an objects clause that is contained within the body of the statute or Constitution.Footnote 79
Given all of the above, is the Expert Panel correct in its assumption that a general grant of power to the Australian Parliament to make laws with respect to Aboriginal and Torres Strait Islander peoples would be interpreted by the courts as cut down so that it only permits the making of laws for the ‘advancement’ of Aboriginal and Torres Strait Islander peoples? There does not appear to be any ambiguity on the face of the terms of the grant of power. Hence, if judges were to apply the strict approach, no resort could be had to the preambular words to cut down the scope of the general words that grant the power. Further, it might well be argued that if it had been intended that the power be limited to the making of laws for the advancement of Aboriginal and Torres Strait Islander peoples, then words to that effect could easily have been placed in the grant of power. The fact that such a qualification was not included in the words of grant speaks much louder than the reference to the need for ‘advancement’ in the preamble.
If a court, however, were to take a purposive approach and to read the grant of power in the context of the preambular recitals, it is far from clear that these recitals are intended to restrict the scope of the power. The fourth recital simply acknowledges the ‘need to secure the advancement of Aboriginal and Torres Strait Islander peoples’. It does not expressly or (arguably) impliedly purport to impose a positive obligation on the Parliament to enact laws for their advancement or require that the only laws it can enact in relation to Aboriginal and Torres Strait Islander people must be for their advancement. Further, it would be difficult to take one word from one recital as amounting to a condition that limits the generality of a grant of legislative power, while ignoring the rest of the recitals. What other limitations might they impose upon the generality of the grant? Would the second and third recitals restrict the legislative power to the enactment of laws on the subjects of land, water, culture, languages and heritage?
A court may well regard the preambular recitals as ambiguous and therefore incapable of affecting or limiting the scope of the grant of legislative power. Alternatively, as discussed below, a court could regard these preambular recitals as giving rise to ‘fundamental principles’ that determine how the Constitution shall be interpreted. However, it would seem unlikely that recitals expressed in such limited and specific terms (unlike a general preambular reference to ‘equality’ or the ‘rule of law’) could be regarded as giving rise to fundamental principles or establishing the ‘basic structure’ of the Constitution. Accordingly, considerable doubt must be expressed about whether proposed section 51A would be interpreted in the way that the Expert Panel appeared to expect.
D. The Use of Constitutional Preambles That Express Principles and Aspirations
While the rules, discussed above, with respect to the use of preambles to identify purpose in order to resolve ambiguity in the text of a statute or Constitution have been relatively uniform across a range of common law countries, including the United Kingdom, the United States, Canada, Australia and India,Footnote 80 the approach to dealing with constitutional preambles which contain aspirations, values or fundamental principles has been much more diverse.
1. United Kingdom
Although the United Kingdom has no written Constitution and therefore no formal constitutional preamble to interpret, it has been wary of making much use of preambles in statutes of constitutional status, such as the Parliament Act 1911 (UK). For example, in Regina (Jackson) v Attorney-General, Lord Bingham referred briefly to the preamble to the Parliament Act 1911, but added the caveat ‘if it be permissible to resort to the preamble’.Footnote 81 Lord Steyn dismissed an argument that relied on the preamble, noting that ‘arguments based on the Preamble cannot possibly prevail against the clear language of the substantive provisions’.Footnote 82 Only Lord Hope found a substantive use for a preamble, regarding it as rendering the matter in question justiciable.Footnote 83
The British Government has also been reluctant to include preambles in its constitutional statutes. In 1999 it opposed the insertion of a preamble in the House of Lords Act, even though the Act amounted to constitutional legislation which fundamentally reformed the House of Lords by removing most hereditary peers. Lord Lucas, who moved the insertion of a preamble, contended that the preamble would have ‘no legal effect’ and could ‘not affect the interpretation of any parts of the Bill’. He described it as ‘utterly anodyne so far as the Government are concerned’.Footnote 84 However, Baroness Jay, on behalf of the Government, contended that ‘Acts of Parliament are legislative vehicles that are supposed to do something. They are not places for uttering aspirations … We rely on the operative words of an Act to tell us what the legislation means … Words that do not mean anything have no place in modern legislation …’.Footnote 85 The proposed preamble was withdrawn.
Underlying this argument is the democratic concern that it is a matter for Parliament, through direct enactment, to determine the content of the law. To set out aspirations and principles in a preamble, which might or might not be used by a court in the subsequent interpretation of an Act in vastly different ways, is to cede to the judiciary a very broad interpretative law-making capacity and to abdicate Parliament's responsibility to determine the law.
2. United States
The preamble to the United States Constitution contains a list of overlapping and potentially contradictory aspirations, such as establishing justice, ensuring domestic tranquillity, providing for the common defence, promoting the general welfare and securing the blessings of liberty. It provides enormous scope for creative interpretation and the drawing of implications. Nonetheless, the United States Supreme Court has been largely restrained in its use of the Preamble to the United States Constitution.Footnote 86 The primary authority is Jacobson v Commonwealth of Massachusetts Footnote 87 where Harlan J observed:
Although that preamble indicates the general purposes for which the people obtained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom.Footnote 88
This much-cited passage has been used as authority for the proposition that the Preamble is not itself the source of substantive rights. Its use has primarily been confined to rhetoric or the interpretation of ambiguous provisions in the text of the Constitution.Footnote 89 The difficulty with using these aspirations in constitutional interpretation is that they are so broad and ambiguous in themselves that they can support practically any argument. For example, the object of securing ‘the blessings of liberty for ourselves and our posterity’ has been drawn upon to support the right to an abortionFootnote 90 on the one hand and the right to lifeFootnote 91 on the other. Moreover, these aspirations may also conflict. For example, the blessings of liberty may conflict with the common defence when it comes to anti-terrorism laws.
After undertaking a close analysis of the Supreme Court's use of the preamble, Himmelfarb has concluded:
The preamble, in short, can be used to support both sides of almost any constitutional issue. This is so not only because the preamble's language is so abstract and open-ended, and hence susceptible of more than one plausible interpretation, but also because the six objects of government enumerated in the preamble are often in conflict. Thus in addition to the problem of determining with any degree of confidence the precise meaning of ‘Justice’ or ‘general Welfare,’ there is the problem of deciding whether to uphold a law because the ‘common defence’ requires it or to invalidate the law because it is inconsistent with the ‘Blessings of Liberty.’Footnote 92
Nonetheless, despite these interpretative issues (which might have been better dealt with by adopting the rule that resort may not be had to an ambiguous preamble) the preamble has been used relatively sparingly in the United States and is not regarded as a decisive factor in American constitutional interpretation.Footnote 93 This may be because the Bill of Rights gives much greater and more legitimate scope for broad interpretation, so that there is no perceived need to use the Preamble in this manner.
3. Canada
The position is quite different in Canada. The Canadian courts have been more inclined than the United States Supreme Court to find substantive constitutional measures in their constitutional preambles, including what some have regarded as an ‘implied bill of rights’.Footnote 94 This was particularly so prior to the enactment of the Canadian Bill of Rights and its successor, the Canadian Charter of Rights and Freedoms. The preamble to the Constitution Act 1867Footnote 95 refers to the Canadian Provinces agreeing to unite in a Dominion with a ‘Constitution similar in Principle to that of the United Kingdom’. This phrase has been used to import into the Canadian Constitution ‘rights’ such as those found in British constitutional statutes which then override contrary legislation of the Canadian Parliament.Footnote 96 An example is Rex v Hess (No 2),Footnote 97 where O'Halloran JA observed that the Preamble to the Canadian Constitution adopted the constitutional principles in the written constitution of the United Kingdom reflected in Magna Carta, the Petition of Right, the Bill of Rights and the Act of Settlement. As a consequence he held that a criminal law concerning the grant of bail was ‘beyond the competence of Parliament or any provincial Legislature to enact’.Footnote 98 In this case the Preamble, by impliedly importing ‘constitutional principles’ from British legislation, was used to strike down an ordinary law (despite the fact that the primary British constitutional principle is parliamentary sovereignty).
In Reference Re Alberta Statutes, three Justices of the Canadian Supreme Court used the Preamble to support a form of implied freedom of political communication. Duff CJ, with whom Davis J agreed, noted that the Preamble ‘shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom’ and that it ‘contemplates a parliament working under the influence of public opinion and public discussion’.Footnote 99 Duff CJ concluded that if any attempt were made by a province ‘to abrogate [the] right of public debate or to suppress the traditional forms of exercise of the right’ it would be incompetent as it would be repugnant to the British North America Act. Footnote 100 The enactment of the Canadian Bill of Rights and later the Canadian Charter of Rights and Freedoms made this use of the Preamble redundant. However, the Canadian courts have still relied on the Preamble to ‘fill gaps’ in the constitutional structure of Canada.
One example is New Brunswick Broadcasting Co v Nova Scotia, where McLachlin J, for the majority, used the Preamble to support the proposition that the rules of parliamentary privilege form part of the Constitution of Canada.Footnote 101 Another prominent example is Reference re Remuneration of Judges where Lamer CJ held that the 1867 Preamble supported a principle of judicial independence which rendered invalid a law reducing the pay of judges of inferior courts (as part of a public service austerity measure).Footnote 102 His Honour observed that ‘the existence of many of the unwritten rules of the Canadian Constitution can be explained by reference to the preamble of the Constitution Act, 1867.’Footnote 103 He then stated:
Under normal circumstances preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language. The preamble to the Constitution Act, 1867, certainly operates in this fashion. However, in my view, it goes even further. In the words of Rand J., the preamble articulates ‘the political theory which the Act embodies’. It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law.Footnote 104
His Honour then explained how a number of constitutional doctrines, including the doctrine of full faith and credit, the doctrine of paramountcy of federal laws and the doctrine of the rule of law, as identified by the Supreme Court, could all be characterized as deriving from the preamble.Footnote 105 His Honour also derived a constitutional requirement of parliamentary government from the preamble, which requires that Members of Parliament be elected by the people. He regarded the requirements of parliamentary government as supporting a constitutional principle of freedom of political speech that Parliament is incompetent to abrogate.Footnote 106 Lamer CJ noted that the preamble had been used ‘by some members of the Court to fashion an implied bill of rights, in the absence of any express indication of this effect in the constitutional text’.Footnote 107
Lamer CJ concluded:
These examples – the doctrines of full faith and credit and paramountcy, the remedial innovation of suspended declarations of invalidity, the recognition of the constitutional status of the privileges of provincial legislatures, the vesting of the power to regulate political speech within federal jurisdiction, and the inferral of implied limits on legislative sovereignty with respect to political speech – illustrate the special legal effect of the preamble. The preamble identifies the organizing principles of the Constitution Act, 1867, and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text.Footnote 108
The 1867 Preamble, therefore, while not a source of positive law, establishes the principles upon which the Constitution is based and those principles, according to Lamer CJ, can be used to fill gaps in the constitutional scheme and invalidate laws enacted by Canadian legislatures, both federal and provincial. This approach has been the subject of sustained criticism.Footnote 109
The Preamble to the Constitution Act 1982 (Canada) is much shorter and more confined than the 1867 preamble. It contains two propositions, however, which are pregnant with interpretative possibilities—being the ‘supremacy of God’ and the ‘rule of law’. Sossin has described this preamble as a paradox, as it recognizes the sovereignty of both God and law.Footnote 110
While the ‘supremacy of God’ has been largely neglected by the Canadian Supreme Court, it has been the subject of academic arguments that it recognizes inalienable rights derived from sources beyond the state, which cannot be completely abrogated or removed, no matter how pressing the government objective might be.Footnote 111 The courts have shown a greater inclination to give substance to the reference to the ‘rule of law’, striking down legislationFootnote 112 or suspending a declaration of invalidity for a period to prevent the chaos that would result if laws were immediately held invalid.Footnote 113
Overall, the Canadian courts have made much greater use of constitutional preambles than the United States courts. The Canadian courts have used references in these preambles to ‘fill gaps’ in the Constitution and impose constitutional principles in such a manner as to render conflicting laws invalid.
4. India
The Indian courts have taken different approaches to the use of the preamble, depending upon whether it is being used in the traditional legal manner of identifying purpose to aid in the resolution of textual ambiguity,Footnote 114 or whether it is being used to identify the fundamental principles and basic structure of the Constitution. Shetty and Sanyal have observed:
When the Preamble to the Constitution is perceived in strictly legal terms, the Court's use of the Preamble is limited by natural rules of statutory interpretation. This implies that the Court does not resort to the Preamble in the normal process of interpreting the Constitution, but takes its aid only in those cases where uncertainties and ambiguities arise. When, however, the Preamble is not seen within a legal paradigm, but as a document evidencing certain core ideological commitments, the Court has the liberty to make wide use of the Preamble.Footnote 115
That wide use of the preamble was first evidenced in 1973 when the Supreme Court of India held in Kesavananda Bharati v State of Kerala,Footnote 116 that clauses in the preamble to the Indian Constitution form part of the ‘basic structure or framework’ of the Constitution. The ‘basic structure’ of the Constitution cannot be changed by constitutional amendment (unless it is built upon)Footnote 117 and any law that is inconsistent with the basic structure, as set out in the text and preamble of the Constitution, is invalid. This gave the Court enormous power in identifying and interpreting the application of the ‘basic structure’ as not even a constitutional amendment could change it, leaving the Court all-powerful.
The basic structure of the Constitution includes matters such as: the supremacy of the Constitution; the sovereign, democratic, republican and secular nature of the state; the separation of powers; and the federal system.Footnote 118 The list of features of the basic structure has expanded over time.Footnote 119 Many of the features of the basic structure are to be found in the constitutional preamble, but some, such as federalism and the separation of powers, are instead found in the text of the Constitution.Footnote 120
One of the problems with this approach is that it appears to be a one-way street. Once something is built into the basic structure of the Constitution through inclusion in the preamble, it cannot be removed in the future—it may only be augmented. For example, Datar has expressed concern that if a future government had the political support to remove the word ‘socialist’ from the preamble,Footnote 121 it might be prevented from doing so to the extent that the courts regard socialism as forming part of the ‘basic structure’ of the Constitution.Footnote 122 Seervai has also criticized the inclusion of terms such as ‘socialist’ and ‘secular’ in the preamble to the Indian Constitution on the ground that they are ambiguous and potentially inconsistent with provisions in the text of the Constitution.Footnote 123
5. International trends and their relevance to Australia
Lest the approach of the courts in Canada and India to the substantive use of preambles be considered aberrations, other examples could be called in aid, such as France where the Constitutional Council has turned a previously non-justiciable preamble into one that sets out ‘fundamental principles’ which override statutes.Footnote 124 As Orgad has observed the judicial trend is for courts to make increasingly substantive use of preambles:
A global survey of the function of preambles shows a growing trend toward its having greater binding force – either independently, as a substantive source of rights, or combined with other constitutional provisions, or as a guide for constitutional interpretation. The courts rely, more and more, on preambles as sources of law.Footnote 125
Goldsworthy has noted, commenting on the Canadian position, that there are no limits on unwritten principles that can be divined from a constitutional preamble and that they ‘can be held to expand or mutate according to the judges’ confidence in their ability to divine ‘contemporary values’—which in practice means their own values.’Footnote 126
Are there then legitimate grounds to be concerned that a new preamble, inserted in the Australian Constitution, which not only recognized Indigenous Australians but also included fundamental principles or values, might be given a substantive status by the courts? So far the Australian courts have been very restrained in their use of the existing preamble in the Commonwealth of Australia Constitution Act. On only one occasion has an attempt been made to draw from it a binding constitutional implication, being an implication of legal equality,Footnote 127 but it was not accepted by a majority of the Court.Footnote 128 The existing preamble has primarily been used to support arguments with respect to federalism,Footnote 129 representative governmentFootnote 130 and nationhoodFootnote 131 but only where they find their primary source in the text and structure of the Constitution itself.
This reticence may be due to a number of factors. First, the existing preamble is sparse in content and those aspects which might otherwise give rise to broader interpretation, such as the references to federalism and the Crown, may be found in the text of the Constitution anyway. Second, the existing preamble is situated in the Commonwealth of Australia Constitution Act, rather than the Constitution itself. Third, it is over 100 years old and somewhat outdated. The High Court has not shown itself reluctant to draw implications from the meagre offerings in the Constitution. For example, it has drawn from the words ‘directly chosen by the people’ in sections 7 and 24 of the Constitution an implied freedom of political communicationFootnote 132 and a guaranteed universal franchise.Footnote 133 What more could it make of broadly worded principles and aspirations set out in a preamble? If a new preamble, containing fundamental principles, such as the ‘rule of law’ or ‘equality’, were to be inserted in the Constitution itself, with the approval of the Australian people exhibited through a successful referendum, it is highly likely that the courts would make active use of it and draw implications from it.
Many would no doubt applaud such an outcome, but others remain wary of transferring such powers away from Parliament and the people to the courts. Two democratic concerns arise. The first, deriving from the doctrine of separation of powers, is that legislative power should be exercised by the Parliament in enacting the text of statutes, not by the judiciary through the discretionary interpretation of broad-ranging principles in a preamble that might be applied in any number of imaginable ways. The second arises from the fact that it is a Constitution that is being interpreted. If judges use broad constitutional principles or vague aspirations to ‘fill gaps’ in a Constitution or to establish constitutional implications that confer or limit legislative power, this cannot be undone by legislation. Such a change could be regarded as evidencing a partial shift from popular sovereignty towards a form of judicial sovereignty, where the people give judges greater power to change the meaning of the Constitution through the discretionary interpretation of broad principles and aspirations in a preamble, rather than deciding for themselves through express amendment how such principles and aspirations ought to be implemented.
In terms of practical politics, the mere existence of uncertainty as to how a preamble might be interpreted by courts in the future has the potential to undermine popular confidence in the proposal, resulting in its defeat at a referendum. There are two main approaches to mitigating this risk. The first is the use of a ‘non-justiciability’ clause which clarifies the use to which a preamble may be put. This is a brutal instrument, however, and may undermine the value of a preamble, by indicating that it should not be taken seriously or that it is an effort in tokenism. This would be particularly damaging to the extent that one of the main purposes of a preamble was the constitutional recognition of Indigenous Australians. The other approach is to confine a preamble to statements of fact and to exclude fundamental principles, values or aspirations. This avoids uncertainty concerning its future interpretation, but still permits respectful recognition of Australia's Indigenous peoples.
IV Conclusion
While all major political parties support the constitutional recognition of Indigenous Australians, the current debate concerns how this is achieved. Both of the main proposals concern the use, in different ways, of a constitutional preamble and include assumptions about how it would be interpreted. Jurisprudence across the common law world, including the United Kingdom, Australia, Canada, India and the United States, shows that while some common principles extend to the interpretation of preambles, there is still significant uncertainty as to how they will be applied. This is particularly the case where a preamble is relied upon to cut down the scope of general words in a substantive provision that is, on its face, not ambiguous. It is also the case where a constitutional preamble sets out the fundamental principles that underlie the Constitution.
Given the uncertainties involved in the use of a preamble, consideration might be given instead to being explicit about what a constitutional amendment is intended to achieve and then using express words to make this clear in the text of the Constitution, rather than relying on preambles and gambling on how courts might apply the preamble in constitutional interpretation. This would return the constitution-making power to the hands of those who frame amendments and those who approve them in referenda, rather than abdicating such power to the discretion of judges. It would also have the added attraction of transparency, allowing voters in a referendum to be clear about what they are approving, rather than having to rely on opinions of those proposing reforms about how a court might apply proposed preambular recitals.
