A new preamble to the Australian Constitution is one appropriate way to recognize Aboriginal
and Torres Strait Islander people. Recognition may come in many forms, and what exactly is
being recognized will vary greatly depending on the medium through which the recognition is
demonstrated. Rights recognition is an important goal to strive towards, as it is in line with the
United Nations Declaration on the Rights of Indigenous Peoples which calls for states to
“respect and promote the inherent rights of indigenous peoples.”1 However, this kind of
recognition is not the only kind which is relevant to reconciliation in an Australian context. The
insertion of a preamble would be an appropriate way to recognize the custodianship, continuing
spiritual connection to the land, and unique place of Aboriginal and Torres Strait Islander
peoples in Australia. Rights recognition ought to still be achieved, though separately through a
substantive provision inserted into the body of the Constitution. These forms of recognition are
not mutually exclusive, and so the inclusion of one will not detract from the appropriateness of
the other. A preamble may even be useful as a stepping stone to a substantive provision. This
discussion will first consider why constitutional recognition is important, why it is distinct from
other forms of symbolic and legal recognition, and the appropriateness of a preamble
specifically. Various opposing views will be considered, and then the mechanics of how such a
preamble may operate will be addressed.
Why is Recognition in a Preamble Appropriate?
The preamble of any constitution has symbolic importance, by virtue of its position at the head
of the document. Anne Wicknel views this aspect of as “equally important”2 as the substantive
clauses in the Constitution, and Gatjil Djerrkura has linked the preamble to the “nation’s
vision.”3 In a similar vein, George Winterton has suggested that preambles may act as “a
potential totem for state, community and individual.”4 Though these statements may be
somewhat ambitious, the power of symbolism in relation to the reconciliation movement ought
not to be dismissed. The National Apology was an entirely symbolic statement, having no impact
on Aboriginal and Torres Strait Islander rights or entitlements. Yet according to FaCHSIA this
apology has “helped to begin to build a bridge of respect between Indigenous and nonIndigenous people. It helped to generate the trust needed to help close the gap.” 5 This statement
demonstrates that even purely symbolic statement of recognition have value. This respect may be
furthered by preambular recognition as such recognition would truly come from the Australian
people, not merely their elected representative.
Preambular recognition has the advantage of support from a diverse cross section of the
community. Currently this approach to recognizing Aboriginal and Torres Strait Islander peoples
in the Constitution had bipartisan support, which is historically a vital factor to any chance of
United Nations “Declaration on the Rights of Indigenous Peoples” (March 2008) via
http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en [accessed 20 September 2011].
2
Winckel, A “The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution: Past,
Present and Future” University of Melbourne (December 2000) Masters Thesis, p221.
3
Cited in Winckel, A “The Constitutional and Legal Significance of the Preamble to the Commonwealth
Constitution: Past, Present and Future” University of Melbourne (December 2000) Masters Thesis , p222.
4
Winterton, G “A New Constitutional Preamble” (1997) 8 Public Law Review 186, 187.
5
FaHCSIA– “Strengthening Relations between Indigenous and Non-Indigenous Australia” via
http://www.youmeunity.org.au/downloads/c6fcbd6e605aa813d4e1 [accessed 20 September 2011]
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succeeding with a referendum proposal.6 The National Congress of Australia’s First Peoples
released a Statement on 2 September 2011, reporting on the outcome of a meeting of the Expert
Panel on the proposed referendum. This statement reported that almost 92% of the Congress’
Members supported the introduction of a preamble which “appropriately recognized Aboriginal
and Torres Strait Islander peoples as Australia’s ‘First Peoples.’”7 Many others have echoed this
support, with political commentator Keith Windschuttle likening the level of support to that of
the 1967 referendum.8 This widespread support is clearly a relevant factor to the realistic
appropriateness of actually getting this form of recognition through the referendum process.
The use of a preamble may also be desirable from the perspective of potentially motivating
further change. McKenna et al. have attributed preambles with the ability to “articulate and give
legitimacy to profound political change.”9 If Australia shies away from substantive recognition
in the body of the Constitution in the current referendum, the recognition in a preamble may act
as a stepping stone towards rights based recognition. While acknowledging that half-measures
may be frustrating, the question of whether such a step should be necessary is entirely separate
from the question of whether realistically it may be necessary. A related issue is that as a nonlaw making part of an Act, preambles also enjoy the advantage of being less restricted than
substantive recognition in terms of wording and legal effect, and as such may potentially be
easier for the Australian public to accept.
Limitations of Preambular Recognition
While the introduction of a preamble “is widely seen as an appropriate mechanism”10 to
recognize Aboriginal and Torres Strait Islander peoples, the insertion of a preamble should not
come at the expense of more substantive amendment. The Statement issued by National
Congress of Australia’s First Peoples noted that there were other recognition options which
received greater support, or were preferred in lieu of preambular recognition. These included a
guarantee of equality or non-discrimination, and a substantive clause “protecting First People’s
rights… was much more strongly supported (26%) than a new preamble.” However, as noted by
the Statement, this statistic does not necessarily work against the introduction of a preamble.
Recognition in the Constitution may take several forms, and the introduction of a preamble
would not preclude other amendments to the Constitution, such as the introduction of substantive
measures or the repeal of s51(xxvi).
Indeed, it is illogical to have a preamble espousing Aboriginal and Torres Strait Islander
custodianship or rights, yet have the power of s51(xxvi) remain unchanged and thus continue to
McKenna et al. “With Hope in God, the Prime Minster and the Poet: Lessons from the 1999 Referendum on the
Preamble” UNSW Law Journal (2001) Vol 24(2).
7
Statement to the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait islander Peoples:
National Congress of Australia’s First Peoples, 7 September 2011, p6, accessed via
http://nationalcongress.com.au/wp-content/uploads/2011/09/CompiledSubmission.pdf.
8
Windschuttle, K “A Depressing New Agenda for Aboriginal Politics” Quadrant (June 2008) p49.
9
McKenna et. al “First Words: the Preamble to the Australian Constitution” UNSW Law Journal (2001) Vol 24(2),
p382.
10
Davis M, Lemezine Z “Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or
Entrenching Marginalisation?” UNSW Law Journal (2010) Vol 33(2) p250.
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permit racial discrimination. As Megan Davis has noted, “the failure of contemporary politics to
relocate the preamble in its boarder context demonstrates a flawed, simplistic and insensitive
concept of constitutional recognition.”11 Certainly, preambular recognition will not fix
everything that discriminatory and wrong about the Constitution. Yet while this may be true, this
argument does not point to the inappropriateness of preambular recognition for the purpose of
symbolic recognition, it only illuminates the fact that this kind of recognition alone will only
address one aspect of the issue.
Creation of New Rights?
There has also been some concern that a preamble recognizing the unique position of Aboriginal
and Torres Strait Islander peoples may have an unforeseen legal flow-on effect via the High
Court. Greg Craven in particular espouses the view that the insertion of a preamble would be
“disastrous” and that a preamble could “drive interpretations [that] would be unacceptable and
not properly referable.”12 Essentially, this argument rests on the premise that the drafters of the
preamble would be unable to accurately predict the circumstances in which future courts might
“rely on the values and principles expressed [therein],”13 and so preambular recognition should
be avoided. A related concern is that any expression of rights, both Aboriginal and Torres Strait
Islander specific rights and more universal rights such as equality and democracy, in a preamble
would result in the creation of a Bill of Rights “by the back door.” 14 Given that the Constitution
is deliberately silent on rights generally, it seems out of step with the remainder of the document
to have rights incorporated into a preamble. If a rights based approach to recognition is desired it
should be achieved through the insertion of provisions in the body of the Constitution, not
through an ambiguous preamble.
These concerns are largely the result of hysteria and misunderstanding of the legal nature of
preambles. Quick and Garran noted that the preamble may aid
in the interpretation of words and phrases which may now appear comparatively clear, but
which… may be obscured the raising of unexpected issues and by the conflict of newly emerging
opinion.15
This interpretative role for the preamble has been supported by more recent literature.
Essentially, preambles are “part of the Act as a whole, but never a lawmaking part.” 16 Preambles
may act in limited circumstances to resolve ambiguities, but there is no situation where a
Davis M, Lemezine Z “Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or
Entrenching Marginalisation?” UNSW Law Journal (2010) Vol 33(2) p258.
12
House of Representatives Standing Committee on Legal and Constitutional Affairs, Reforming our Constitution:
A Roundtable Discussion, (June 2008) p56.
13
McKenna et. al “First Words: the Preamble to the Australian Constitution” UNSW Law Journal (2001) Vol 24(2),
p396.
14
Ibid, p397.
15
Quick J & Garran R (1901) The Annotated Constitution of the Australian Commonwealth, Angus and Robertson,
286.
16
Winckel, A “The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution: Past,
Present and Future” University of Melbourne (December 2000) Masters Thesis, 90.
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preamble would of its own accord create a substantive right or set aside a substantive power.17
Thus the fear that the High Court would utilize a statement of recognition to create Aboriginal
and Torres Strait Islander rights is unfounded.
That the court may use a preamble to resolve an ambiguity is not a new concept. The High Court
has used the existing preamble in this manner in the past, though always in a limited fashion and
never to create a new right or overrule an express power.18 Leeth v Commonwealth19 is perhaps
the most notable of these cases. In Leeth Brennan J found that principle of equality was implied
in the Constitution, citing in his judgment the phrase found in the current preamble, “in one
indissoluble Federal Commonwealth.”20 Though the reasoning in that case has been subsequently
overturned by Kruger v Commonwealth,21 the court’s use of the preamble in support of its
conclusion was not at issue. The court in Leeth merely identified an implication that the later
court did not recognize.
Though a statement of recognition in the preamble could not create new rights, it may assist to
reduce the discriminatory effect of s51(xxvi). Prior to the Hindmarsh Island Bridge Case,22 it
was ambiguous whether the term ‘special laws’ covered discriminatory laws. Though the High
Court in that case determined that the power did extend to discriminatory laws, a statement of
recognition in the preamble may have been persuasive in helping the court arrive at a decision in
the opposite direction. Whether this would be a desirable outcome depends entirely on
perspective, though it is submitted that this conclusion would have been more in the interests of
Aboriginal and Torres Strait Islander peoples than the outcome which was reached by the court.
Conclusion
Preamblular recognition is unlikely to resolve all of the legal and substantive issues that currently
exist with regards to Aboriginal and Torres Strait Islander people. Yet this fact alone should not
preclude the insertion of an appropriately worded preamble into the Constitution. A suitable
preamble would be a significant step in the right direction, and has value in its own right. The
road to recognition for Aboriginal and Torres Strait Islander peoples has been rocky and plagued
by either active denial or silence behalf of the government and the Australian nation. The
symbolism involved with constitutional recognition is vital if reconciliation is to be achieved in
the future, and is “an essential step towards inclusive and productive socio-political
communication”23 between Australia as a whole and Aboriginal and Torres Strait Islander
peoples.
Winckel, A “A 21st Century Constitutional Preamble- An Opportunity for Unity Rather than Partisan Politics”
UNSW Law Journal (2001) Vol 24(3) p640.
18
Winckel, A “The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution: Past,
Present and Future” University of Melbourne (December 2000) Masters Thesis, 90.
19
Leeth v Commonwealth (1992) 177 CLR 455 “Leeth”.
20
Leeth v Commonwealth (1992) 177 CLR 455 [475].
21
Kruger v Commonwealth (1997) 190 CLR 1.
22
Kartinyeri v The Commonwealth [1998] HCA 22.
23
Davis M, Lemezine Z “Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or
Entrenching Marginalisation?” UNSW Law Journal (2010) Vol 33(2) p249.
17
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