The new preamble to the Queensland’s Constitution reflects Queenslanders' republican aspirations, writes Glenn Davies.
ON 23 FEBRUARY 2010, the Queensland Parliament passed a Bill to give a Preamble to the Constitution of Queensland, which begins with reference to “the people of Queensland” and adopts “the principle of the sovereignty of the people”. Aspirational statements in a preamble may set the spirit of a Constitution but are not necessarily accessible to interpret a Constitution. So why bother? Because our Constitution is a statement to ourselves and the world about who we are and how our state works.
The preamble to the Australian Constitution does not contain any aspirational statements or fundamental foundations, other than that the union of the Federal Commonwealth is to be indefeasible. It states:
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 indefeasible 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 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:.
The other Australian jurisdictions which have a constitutional preamble, (Tasmania, Victoria, and Western Australia) have formal preambles which recite procedural information and do not contain aspirational statements like Queensland.
As far back as February 2000 the Queensland Constitutional Review Commission recommended a preamble “to emphasise the new foundation of the state’s constitutional regime” and that it should “affirm certain widely-held values”. Since then conservative minds have fled in horror from this ghastly radical prospect, muttering much nonsense about the sanctity of the Constitution and the need for a referendum, even though Queensland, unlike the federally-based Commonwealth, does not need a referendum to amend its Constitution. The Queensland Parliament can simply do so, as it did in 2001.
On 6 November 1999, the draft preamble written by poet Les Murray and Prime Minister John Howard was offered to, and rejected by, the Australian community as part of the referendum on a republic. On 8 June 2003 the Preamble Project was launched at the Museum of Sydney. The Preamble Project began as a conversation between the writer James Bradley and other republicans about the need to provide some imaginative foundation for the ongoing debate about an Australian Republic. In the course of that conversation the idea was floated of inviting several writers to draft preambles to a republican Constitution as a way of giving voice to some of the deeper impulses an Australian Republic might embody.
In the creation of an Australian Republic, the underlying source of authority is the democratic will of the Australian people. The Constitution of that Republic will be the expression of that will and embodies our values and aspirations. And so, in setting forth its unifying purpose the preamble to a republican Constitution must give voice to the deeper impulses that underlie its creation. It must, in other words, tell us the story of who we are.
Six writers offered individual statements reflecting their vision for Australia, its land and people.
1. James Bradley begins his statement with a pledge of allegiance to "the land, the sea [and] the sky".
2. Peter Carey declares that Australia is a nation "engendered by a foreign king, by foreign wars, by happenstance [and] by a once great empire which also bequeathed us our first rich cultural inheritance". Perhaps predictably for a writer who has spent his career probing the ambiguities in the Australian national identity, he chooses to make clear the contradictions in our past and our present, exhorting us to draw strength from these contradictions, and to recognise in them the bond that we must make if we are to draw strength from ourselves.
3. For Richard Flanigan the preamble becomes something more like a national prayer, an exhortation to find meaning in our past and in the land that we share, and to make ourselves anew through the medium of our shared love of that land. It is unashamedly romantic, not just in its language and imagery, buth with its explicit belief in the idea of the republic as an act of the imagination.
4&5. Delia Falconer and Dorothy Porter by contrast offer more plainsong approaches to the question. Delia Falconer compresses her feelings into a single sentence, trying to draw together the many impulses a republic might embody, acting finally to remind our elected representatives that their power stems from our will, and no higher source. Dorothy Porter also seeks to express the values the republic might embody by reference to the popular will, but unlike Delia Falconer she chooses to couch her contribution in a series of commitments we choose to make as one people, commitments as to what we will try to be, thus transforming itself into a statement of principles, giving heed to our history only as a thing from which we might learn, but never be hostage to.
6. Leah Purcell's contribution opens in the language of the Kamilaroi and Gungarri people and continues in English, calling for respect for pioneers, immigrants, the land and its first peoples. Eschewing grand gestures altogether it enjoins us all to a shared respect for each other's rights and histories, thereby providing a basis for the trust upon which a Republic might find itself.
The full text of the six preambles can be read at: http://tasmaniantimes.com/jurassic/preamble.html
On 3 September 2009, the Law, Justice and Safety Committee tabled in the Queensland Parliament the report A Preamble for the Constitution of Queensland 2001. This report can be viewed at http://www.parliament.qld.gov.au/view/committees/documents/lcarc/reports/Report%2070.pdf The Committee canvassed a range of issues regarding
- What should be in a preamble
- Whether it is desirable for Queensland to have a constitutional preamble; and
- How a preamble should be implemented
The Committee received over 200 submissions. Of these, 140 submissions included three variations of form letters which stated that no preamble is desired with almost all of these submissions providing no reasons for opposition to a preamble. A further 19 submissions opposed any preamble, with reasons. A further four submissions did not support having a preamble but provided suggestions as to the content of any preamble. This left about 40 submissions that gave suggestions as to the content of a proposed preamble.
On behalf of the Australian Republican Movement I forwarded a submission on 6 March 2009 on The Preamble of the Queensland Constitution:
The Australian Republican Movement submits that the current Legal, Constitutional and Administrative Review Committee (LCARC) include a statement on the sovereignty of the people of Queensland in the preamble to the Queensland Constitution and not take the same position as the previous LCARC Committee. This earlier position conflicts with the action taken by the Queensland Government in 2005 with the introduction of the ‘Constitutional and Other Legislation Amendment Bill 2005 Bill’.
I went on to argue, “There appears to be a conflict in thinking between different LCARC reports on issues that refer to the sovereignty of the people of Queensland” and finished the submission with, “With reference to the text of a draft preamble for the Queensland Constitution the Queensland Government needs to lead by example and implement a preamble that begins with ‘We, the People of Queensland’, and includes a statement on the ‘sovereignty of the people of Queensland’.”
The Preamble to the Constitution of Queensland Constitution was adopted as part of Queensland’s 150th anniversary celebrations. It starts:
The people of Queensland, free and equal citizens of Australia, subject to no law or authority but that sanctioned by this Constitution and the Constitution of Australia;
and the second point states:
adopt the principle of the sovereignty of the people, under the rule of law, and the system of representative and responsible government, prescribed by this Constitution
Popular sovereignty is the idea that the people govern themselves. It is where the government is put together by the people, it belongs to the people and works for them - it is an expression of their will. The colonial Queensland Premier and Chief Justice Samuel Griffith wrote in 1896 "in a republic the necessary and direct source of all authority is the people ... whereas in a constitutional monarchy authority is derived from the Sovereign". Queensland's founding federal father correctly saw the definition of the term 'republic' concerned the location of popular sovereignty.
The interesting point for republicans is the level of uncertainty that surrounds whether the aspirational statements or values in a constitutional preamble could be used to interpret the Constitution. Constitutional lawyer Professor George Williams has stated:
Although a preamble does not create substantive rights or obligations, its symbolic aspect may assist in the interpretation of the constitution itself by providing normative guidance. Thus, in its second, justiciable aspect, a preamble can be used in constitutional interpretation and in the construction of statutes in the development of the common law as a legally useful statement of fundamental values.
Like the preambles to ‘ordinary laws’, constitutional preambles serve a purpose in that they outline such matters as the history of the decision to unite. The Preamble to the Constitution of Queensland was adopted as part of Queensland’s 150th anniversary celebrations. Frequently, preambles will also say something about the values and ideals of the community or touch upon the political process that was used to bring into force a new Constitution. Queensland’s preamble acknowledges “freedom and equality”; “sovereignty of the people”; “Aboriginal and Islander peoples whose lands, winds and waters we now share”; “determination to protect our unique environment”; “our forebears”; and “a resolution to build a society based on democracy, freedom and peace”. However it is the republican principle of popular sovereignty enshrined in the preamble as a Queensland aspiration that sets the example for other Australian states and shines on the way forward to a future republican federated Australia.