Preamble Referendum: Initial Bill – Explanatory Statement

This is the Explanatory Statement for the Initial Bill for the Constitutional Preamble referendum.

Explanatory Statement – Initial Bill

CONSTITUTION ALTERATION (PREAMBLE) 1999

EXPLANATORY STATEMENT

Constitution Alteration (Preamble) 1999

1. Introduction

2. The main elements of the Constitution Alteration (Preamble) 1999

3. The Constitutional Convention’s recommendations relating to a preamble

4. The preamble to the Constitution Act of the United Kingdom

5. Clauses of the Constitution Alteration (Preamble) 1999

Clause 1 – Short title

Clause 2 – Commencement

Clause 3 – Schedule

Clause 4 – Effect of preamble

6. The Schedule

Constitution Alteration (Preamble) 1999

1. Introduction

1.1 The Constitutional Convention met in February 1998 to consider whether Australia should become a republic, which republic model should be put to voters to consider against the present system of government, and in what timeframe any change might take place. The Convention supported the adoption of a republican system of government based on a ‘bipartisan appointment of the President model’ and recommended that the model, and other related changes supported by the Convention, be put to the people at a constitutional referendum. The Convention resolved that, if a referendum was successful, the republic should be established by 1 January 2001.

1.2 The Prime Minister confirmed at the close of the Convention that the Government would put the Convention’s preferred model to a constitutional referendum in 1999. Bills to give effect to the Convention’s resolutions on a republic have been prepared. Those Bills are the Constitution Alteration (Establishment of Republic) 1999 and the Presidential Nominations Committee Bill 1999.

1.3 The Constitution of the Commonwealth of Australia is contained in s.9 of the Act of the United Kingdom known as the Commonwealth Australia Constitution Act 1900 (in this explanatory statement that Act is called ‘the Constitution Act (UK)’). The Constitution Act (UK) contains a preamble but there is no preamble to the Constitution proper. The Convention resolved that the existing preamble to the Constitution Act (UK) should remain intact.

1.4 The Convention also resolved that the Constitution should include its own preamble. It made this recommendation in the context of recommending that Australia adopt a republican system of government. A preamble may be inserted in the Constitution proper without any amendments being made to the existing preamble to the Constitution Act (UK) or to any of the covering clauses of that Act. (The covering clauses are the first 9 sections of the Constitution Act (UK).)

1.5 Since the Constitutional Convention was held, there has been considerable public interest in the inclusion of a preamble in the Constitution proper, including among Australians who do not support a change to a republican system of government. The Government has therefore decided that the Australian people should have an opportunity to adopt a preamble, irrespective of whether or not Australia becomes a republic.

1.6 The referendum will therefore have two separate questions, one on the republic and one on the preamble. The Constitutional Alteration (Preamble) would amend the Constitution by inserting a preamble in it. The referendum on the preamble would enable the Australian people to vote on whether the Constitution should be altered so as to contain a preamble.

2. The main elements of the Constitution Alteration (Preamble) 1999

2.1 The Constitution Alteration (Preamble) 1999 would insert a preamble into the Constitution of the Commonwealth of Australia. The preamble would be located just after the title.

2.2 The preamble is not intended to have legal force.

3. The Constitutional Convention’s recommendations relating to a preamble

3.1 The Constitutional Convention resolved that there should be a new preamble to the Constitution proper. It also resolved that care should be taken to draft the preamble in such a way that it does not have implications for the interpretation of the Constitution and it said that Chapter III of the Constitution should state that the Preamble should not be used to interpret the other provisions of the Constitution.

4. The preamble to the Constitution Act of the United Kingdom

4.1 As noted above, the Constitution is contained in covering clause 9 of the Constitution Act (UK).

4.2 The Constitution Act (UK) contains a preamble which recites the circumstances in which the Commonwealth of Australia was established. The existing preamble is as follows:

‘Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania [Western Australia is not mentioned], 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:’

Western Australia is not mentioned in the existing preamble because it did not vote to join the Commonwealth until after the Constitution Act (UK) had received the royal assent on 9 July 1900. By the time Queen Victoria issued a proclamation on 17 September 1900 proclaiming that the Commonwealth of Australia was to come into existence on 1 January 1901, Western Australia had decided to join.

4.3 If in the future it was considered desirable to alter or repeal the preamble or the covering clauses of the Constitution Act (UK), this could be done by the Commonwealth Parliament at the request of the States under the Australia Act 1986, or by a further constitutional referendum.

5. Clauses of the Constitution Alteration (Preamble) 1999

Clause 1 – Short title

5.1 Clause 1 states that the proposed law to alter the Constitution to insert a preamble may be cited as the Constitution Alteration (Preamble) 1999.

Clause 2 – Commencement

5.2 Clause 2 brings the Constitution Alteration (Preamble) 1999 into force on 1 January 2001.

Clause 3 – Schedule

5.3 Clause 3 alters the Constitution by inserting after the title, ‘The Constitution’, the preamble set out in the Schedule.

Clause 4 – Effect of preamble

5.4 Clause 4 alters the Constitution by inserting a new s.125A which sets out the effect of the preamble.

5.5 Proposed s.125A states that the preamble has no legal force and shall not be considered in interpreting the Constitution or any law in force in the Commonwealth or any part of the Commonwealth.

6. The Schedule

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