The Politics of the Preamble
by Anne Winckel
Zadok Perspectives Issue No. 64
Winter 1999

Part 4

IT IS NOT SURPRISING that the various draft proposals by political leaders seem to be written in the image of their makers. While ignoring some of the key recommendations of the Constitutional Convention (such as references to representative democracy and responsible government), Howard and Kennett blithely included some of their own ideological concerns in their draft preambles. Howard's original preamble seemed to favour tall poppies, achievement and excellence over "fairness" and "equal dignity", and included anti-political correctness sentiments, along with the controversial "mateship" reference. Kennett's draft uses the language of the "Victorian slogan" when it states: "The future is our frontier"; and Kennett's own values are reflected in his call to cherish and prize "Australia's distinctive identity and lifestyle". There seems some truth in the accusation that those who were excluded from the drafting in the 1890s are once again being ignored. Of the various political proposals, it is the draft of Gareth Evans that reads most consistently as an application of the recommendations of the Constitutional Convention.

ATSIC has long been calling for the recognition of Aboriginal and Torres Strait Islander people in the Constitution. Despite the 1988 recommendation against such a reference (and a similar negative recommendation in the 1993 Republic Advisory Report), there is now near universal support for such an inclusion in a new preamble. However, a huge (and I would argue quite unnecessary) debate surrounds the use of the term "custodian". The Evans' draft uses the word, but Howard refused (lest he 'lose middle Australia') and compromised with "kinship"; and Kennett avoided the debate by not associating the custodianship with the indigenous peoples.

Originally, the opposition to the use of such a word was associated with the Government's fear of how the High Court would use it in Constitutional interpretation. Since the Prime Minister has proposed that the Constitution be amended to prohibit the preamble being used in interpretation, his opposition to the use of the word is diminished. Frank Brennan goes much further in his draft, making reference to the Aboriginal and Torres Strait Islanders as "the prior and continuing occupiers and custodians of the land", who "have continuing rights as indigenous peoples".

Women's groups have argued for the inclusion of the word "women" in the preamble, to explicitly acknowledge the fact that women, too, are citizens of Australia. Having been disenfranchised at Federation and not represented in the original drafting of the Constitution, women (like indigenous Australians) now want their existence acknowledged. The 1998 Women's Constitutional Convention (held the week before the main Convention) also recommended that there be a reference to gender equality in the preamble. The main Convention concluded that issues such as gender equality and the equality of men and women before the law needed further consideration.
Not one of the three male political authors uses the word "women". (We must remember that the whole Constitution is at present phrased in the masculine gender-so that the members of Parliament, the Governor General, and the High Court Justices are each "he".) Gareth Evans and Kennett both make reference to equality, but Kennett's reference is arguably inaccurate as he claims that the Commonwealth was (historically) "founded on the values of equality and dignity". Marian Sawer (a legal academic) suggested that the Evans draft could have been amended to read: "Believing in freedom and equality; Affirming the equality of men and women . . . "

Despite the public commitment of the Prime Minister to including a reference to the equality of men and women before the law, both drafts fail to mention women at all. In Howard's original draft was a half-hearted reference to the "equal dignity" of all, which is immediately qualified lest it encroach on achievement-his current draft appears even more limited.

Anne Winckel Anne Winckel lectures in Legal Studies at the University of Melbourne. She is currently doing postgraduate research in Constitutional history, focussing on the significance of the Commonwealth preamble.