The Preamble to the Constitution

Wednesday , 9, December 2015 Leave a comment


It’s generally accepted that everything below Section 9 is the Constitution, and everything above it is a UK Act which, technically, hasn’t been binding since 1931.

The High Court 1)did2) use it in Kable v DPP (NSW) (1996) 189 CLR 51 in explaining the concept of a unified court system, established under Chapter III, but used it as more of a contextual approach to understand the legal meaning of the Constitution, but it actually means nothing in terms of Constitutional lawtooltip({ tip: "#footnote_plugin_tooltip_text_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

The first 3 paragraphs are (excluding the long and short title, I’m assuming you skipped those) as follows:

“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”

Following the constitutional technique which has been approved in the Engineers Case (1920) 28 CLR 129, plain English should be used. It is also important to use connotation rather than denotation (see: Engineers at 142-3 and 151; and also see Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 493). Forgive me for forgetting the case, but I believe it was Galdron J who made the vary good point that the Constitution should be read as if it is being read for the very first time, and to apply a modern meaning.

It’s also important to understand that the first few sections of any Act merely provide context, and in the case of Westminster acts are full of formalities that are legal idioms (ie: they don’t have words that are legally binding.) A good example is ‘for peace, order and good government’. This doesn’t create anything that is legally actionable, as it can be debated from sunrise to sunset what is ‘peace, order and good government’ without any definitive answer.

In the first paragraph ‘Almighty God’ is a legal idiom, as the question of ‘which God?’ springs to mind. Christian? Tibetan? Islamic? This phrase has no legal effect.

Great Britain and Ireland is the United Kingdom, and expresses that the Crown creating the Act is the Crown of the UK.

The bits in the first paragraph that provides some legal device is:

“the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania … 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”

This simply means that the states have agreed to form a federal parliament, which is answerable to UK parliament and the Constitution. UK parliament relinquished power to legislate for Australia in 1931, leaving the Crown in Australia’s hands, so what we are left with is that we have a hierarchy of:

Constitution > Crown > Federal Government > States.

This first paragraph simply describes a constitutional monarchy.

The second paragraph reads:

“And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen”

This paragraph is stating that the UK parliament has agreed with that colonies have the right to Federation, and they will grant it.

The third paragraph, the one I think you are most concerned with is:

“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”

‘Spiritual and Temporal’ is a reference to the House of Lords in the UK (their senate), and ‘Commons’ is the House of Commons (their house of representatives).

Remember, the House of Lords is not elected, and are members of the clergy, and the nobility from time to time. Hence ‘spiritual’ (the clergy) and ‘temporal’ (nobility, as they are from time to time).

Also, the House of Commons are elected commoners, hence, ‘Lords Commons’.

This paragraph simply states that the Act has passed through both houses of UK Parliament, and is given royal assent.

A summery of the first three paragraphs could be:

“The colonies of Australia has requested to unite under a Federation, in a Constitutional Monarchy.

UK Parliament recognizes this, and has advised the Monarch.

The Act has passed through both houses of parliament, and is now given royal assent. It is as follows..:”

John Quick and Robert Garran, writing in 1901, state that the Preamble does not depart from the basic structure laid down for preambles in late 19th century publications on statutory interpretation. Their elucidation of the eight ‘separate and distinct affirmations or declarations in the Preamble’ is the most concise analysis of the rationale that prevailed in the minds of the framers of the Constitution. Quick and Garran believed the purpose of the Preamble was to declare:

the agreement of the people of Australia;
their reliance on the blessing of Almighty God;
the purpose to unite;
the character of the union – indissoluble;
the form of the union – a Federal Commonwealth;
the dependence of the union – under the Crown;
the government of the union under the Constitution; and
the expediency of provision for admission of other colonies as States.

As Quick and Garran observed of the above affirmations, only the third, fifth, seventh, and eighth are found elsewhere in the Constitution. The remaining four:

“have therefore to be regarded as promulgating principles, ideas or sentiments operating, at the time of the formation of the instrument, in the minds of the framers, and by them imparted to and approved by the people to whom it was submitted.”

http://www.austlii.edu.au/au/journals/UNSWLJ/2001/28.html

The framers, along with leading commentators of the time, anticipated a role for the Preamble in constitutional interpretation. This was a factor in the inclusion of s 116 of the Constitution, which provides that the Commonwealth cannot pass laws abrogating freedom of religion. Section 116 was based upon a provision accepted at the 1891 Convention and drafted by Tasmanian Attorney-General Andrew Inglis Clark. In 1898, the section was retained in an amended form largely at the behest of Henry Higgins, subsequently a justice of the High Court. Higgins put the rather far-fetched argument that the Commonwealth Parliament might be able to claim a power to legislate in regard to religion as a result of the Preamble’s reference to ‘Almighty God’. According to Higgins, s 116 was needed not to protect a fundamental human right, but to

“make it clear beyond doubt that the powers which the states individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters.”

Although other members of the Convention argued that the Preamble would not enable the Commonwealth to pass laws on religious matters, s 116 was nevertheless agreed to, in the words of W Harrison Moore, ‘to meet the danger’. This suggests that at least some of the framers believed that the Preamble might affect the scope of federal legislative power and that it might play a role in constitutional interpretation in other areas not subject to a provision such as s 116.

Commentators writing on the newly enacted Constitution shared the belief that the Preamble would be justiciable. Quick and Garran asserted that sections of the Preamble:

“may be of valuable service and potent effect in the Courts of the Commonwealth, aiding in the interpretation of words and phrases which may now appear comparatively clear, but which, in time to come, may be obscured by the raising of unexpected issues and by the conflict of newly emerging opinions.”

Their view appears to have been based upon principles relating to the construction of ordinary statutes. Quick and Garran did not explain whether or why those principles would apply to a constitutional preamble. Anne Winckel has suggested that written constitutions, when compared with ordinary statutes, may be distinct in their ‘authorship, content, amenability and [manner of] interpretation’. These and other inherent differences may limit the extent to which the High Court, in deciding how to use the Preamble as an aid to interpretation, would reason by analogy from the statutory context. Although the High Court in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers Case’) emphasised that the Court should interpret the Constitution in accordance with the ordinary rules of statutory construction, the High Court has not dealt with this issue in the context of the Preamble, nor has it articulated an interpretive approach indicating the weight that the Preamble should be given.:

Nevertheless, as George Winterton has suggested, the Preamble ‘will inevitably be employed in constitutional interpretation’, although its persuasiveness will continue to be a matter of debate. According to Gregory Craven, the ordinary rules of statutory construction and analogous principles of constitutional interpretation suggest that the Preamble can be determinative of a legal question only where it assists in resolving existing ambiguity in the substantive provisions of the Constitution. Craven is clearly correct. The Preamble should not be ascribed the same legal effect as an operative provision.

Courtesy of : The Freeman Delusion



References   [ + ]

1. did* use it in Kable v DPP (NSW) (1996) 189 CLR 51 in explaining the concept of a unified court system, established under Chapter III, but used it as more of a contextual approach to understand the legal meaning of the Constitution, but it actually means nothing in terms of Constitutional law
2. use it in Kable v DPP (NSW) (1996) 189 CLR 51 in explaining the concept of a unified court system, established under Chapter III, but used it as more of a contextual approach to understand the legal meaning of the Constitution, but it actually means nothing in terms of Constitutional law