A serious version by John Pyke, with commentary.
Why Our Constitution Needs a Preamble - And Something More
Since the release of the proposed new Constitutional preamble drafted by the Prime Minister and Les Murray, jokes and satires about the preamble have probably out-numbered serious contributions to debate about the form of our national Constitution. But there is a serious issue of national pride at stake. Though Australia has been an independent nation - a full member of the world's community of nations - for some time, we do not have the Constitution of an independent nation.
If foreigners, or Australian school pupils, look at our Constitution to try to understand our system of government, what do they find? They find an Act of the United Kingdom, or British, Parliament - see "Original Preliminaries". There is quite a lot of it before you start to read the Commonwealth Constitution. Though all of these preliminary things are often lumped together as "the preamble", in the language used to describe Acts of Parliament only the two clauses starting with "whereas" are properly called the preamble - they amble along before the enactment. Then the words starting with "now therefore be it enacted..." are, logically enough "words of enactment" - and who is it enacted by? Not us, the people of Australia, but Queen Victoria with the advice and consent of the (British) House of (hereditary) Lords and the (British) House of Commons. Then there are eight sections of the British Act, known to lawyers as the "covering clauses". Many of them were important only in 1900 and have no further effect, but two of them include such crucial things as the definition of some terms used in the Constitution and the fact that the Constitution is binding throughout the Commonwealth.
Compare this with the Constitution of the United States of America, in which it is proclaimed that "We the people... ordain and establish this Constitution...". Within the document itself, the people declare that their Constitution is "the supreme law of the land (Art 6, sec 2). That is the constitution of an independent and democratic nation. Ours, in appearance, is the constitution of a colony, in which democracy occurs only because the colonising power permits it. It is true that this does not stop us actually acting like an independent State, but a Constitution has some importance as a symbol - it should reflect what a nation is, and what is aspires to be, not what it was a century ago. Whether or not we choose to become a republic later this year, it is time we changed our constitution to look like the constitution of an independent nation.
To do this we need rather more than a new preamble, using that word in the technical sense used above. Some introductory words declaring our shared values would be nice, but they are in fact less important than the addition of our own enacting words (or re-enacting words, since the Constitution has been in force for nearly a century) and our own statement that the Constitution is binding and supreme law. As the Constitutional Convention ("ConCon") recommended, this should go into the Constitution proper, before section 1. However, we need something stronger than the ConCon's recommendation that the new preamble should include "concluding language" to the effect that "We the people... commit ourselves to this Constitution". To all commit ourselves is all warm and friendly, like a big collective hug, but a Constitution should have a sterner tone, directed towards the government. It should say "We the people are your boss, and here is the rule book. You are bound to obey it." This is what I have done in somewhat more formal language in the re-enacting words in the draft shown below.
I have also added a fairly minimal preamble which includes in a few words some reference to most of the things recommended by the Constitutional Convention. Some enthusiasts for particular causes may think that the words do not go far enough, but if the preamble makes too many claims for specific interests and values then other Australians will not feel able to support it. We are a diverse mob, and while it may be true that a Constitution should refer to that diversity, it should also respect it by not pushing the claims of specific groups too hard. The words may be legalistic compared to those written by some lay persons, but a constitution is, after all, a legal document. We have seen what sort of preamble you get when the job of drafting is given to a poet, and many Australians are not impressed!
This preamble-plus-enacting-words would, I suggest, be appropriate whether or not we decide to change from constitutional monarchy to republican government. To talk about the "sovereign people" while retaining a monarchy may seem contradictory, but they are sovereigns in two different senses. If we retained the monarchy, some provision about the succession, like the second covering clause, should re inserted in the Constitution proper. In either case, the definitions section, redrafted, should be in the Constitution proper. Then all the relevant parts of the Constitution would be self-contained as an Act of the People. It would look like the Constitution of an independent nation.
I present my draft to the sovereign people for their consideration.
(63 & 64 VICTORIA, CHAPTER 12)
An Act to constitute the Commonwealth of Australia.
[9th July 1900]
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:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
1. This Act may be cited as the Commonwealth of Australia Constitution Act.
Act to extend to the Queen's successors.
2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.
Proclamation of Commonwealth
3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.
Commencement of Act.
4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.
Operation of the constitution and laws.
5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British shops, the Queen's ships of war excepted, whose first port of clearance and whose port destination are in the Commonwealth.
6. "The Commonwealth" shall mean the Commonwealth of Australia as
established under this Act.
"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State." "Original States" shall mean such States as are parts of the Commonwealth at its establishment.
Repeal of Federal Council Act. 48 & 49 Vict. c. 60
7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.
Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.
Application of Colonial Boundaries Act 58 & 59 Vict. c. 34.
8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.
9. The Constitution of the Commonwealth shall be as follows:-
A New Preamble-Plus
Whereas the Constitution of the Commonwealth of Australia, though approved by the people of the colonies which became the States of Australia, originally had legal force because of its enactment by the Parliament of the United Kingdom,
And whereas Australia has evolved since that time into a fully independent nation under a sovereign people,
Now We the People of Australia -
Recognise that we received many valued principles of government, including the rule of law, from our colonisation under the control of the United Kingdom,
Recognise that the rights of the prior occupants of Australia were in many ways ignored during the process of colonisation,
Commit ourselves to a democratic system in which the rights of all people, regardless of their ancestry, are respected in return for their commitment to democratic principles, and
Declare that this Constitution continues to have force as the supreme law of the land, binding on the courts, judges, legislatures, executive governments and people of the Commonwealth, and of every State and every part of the Commonwealth, by virtue of its approval by ourselves, the people of Australia.