CONSTITUTION - PREAMBLE

Any insertions, therefore, deserve to be considered in terms of how they fit with the national movement away from a belief that some people are born to rule. The Republican ideal is that sovereignty derives from the citizenry, not from gods, a clerisy, the military or landed proprietors.

John Howard is hoping to piggyback his prejudices on the popularity of a republic. Yet each of his four points for a Preamble is partisan, an attempt to make his ideas appear consensual.

The prime minister has scrambled controversial points from theology, prehistory, jurisprudence and political science. We, the people, are yet to be told how these precepts will be worded. Indeed, we may learn that the list has changed, again. Two weeks ago, Federalism was in but then dropped out in favour of equality between men and women before the law.

Either Howard’s preamble is meaningless, and hence a waste of our time, or he intends its items to be taken seriously and therefore needs to be approached with caution. Had our Founding Fathers gone in for ‘inspirational and aspirational’ wordsmithing, we might have had White Australia in the Constitution and not just as the Immigration Act for sixty years.

Commitment to God.
The current Preamble has ‘the people … humbly relying on the blessing of Almighty God’. Why not leave well enough alone?

The Australian framers followed Canadian and US precedents by not invoking a higher power until battered by parsons alleging that its omission would be ‘unparalleled in all history except in the dark annals of the French Revolution’. The delegate heading the drive for an acknowledgment of God confessed in his diary that its inclusion in the draft of March 1898 had been ‘chiefly intended to secure greater support from a large number of voters’. His opponents still feared that to mention God was to encourage bigotry.

Now the Prime minister favours adding a ‘commitment to God’, a form of words which would collide with Section 116:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Whether commitment were opinion or action, that usage would become entanged with these protections. The prime minister should look at all of the Constitution, and also J. A. La Nauze’s 1972 The Making of the Australian Constitution.

Reference to the supernatural as the source of political rights and obligations offends the Republican principle that power, freedom and justice are human creations and responsibilities. The monarch’s claim to be divinely appointment shortened the walk between regicide and deicide.  

2. representative democracy.
Howard’s qualification of democracy as ‘representative’ is about to deny us the option of voting for the direct election of a president. The prime minister demonstrated how little he trusts even representative democracy by appointing half the delegates to last year’s  Convention. He also plans to name half the panel that would propose the candidates for the president who he would then select.

The most strenuous defences of the liberties of Australian citizens have not been any Almighty or parliamentary representatives but came through direct democracy with the defeat of the two Conscription ballots in 1916 and 1917 and of the 1951 Communist Party Dissolution Act. On those three occasions, Howard’s political forebears were bested by the popular will.

With  half of the Constitution detailing how ‘representative democracy’ is to operate, there is no need to gild its gold. Elevation of that aspect but not the rule of law looks like a sop to One-Nation ignorance about judicial review, a snide swipe against the High Court. Since the Constitution mandates the appointment of a Chief Justice but not of a prime minister, why is his Preamble raising the executive above the judiciary?

Howard, along with supporters of the minimalist model for a republic, does not want to preserve not representative democracy so much as the unrepresentative regime of the executive arm.

This prime minister has even less aspiration to inspire Australians to extend democratic principles into workplaces or throughout society. His emphasis on representative democracy is in line with those security police who consider as subversive even constitutional attempts to redistribute economic power, thereby providing a genuine common wealth.

3. Equality of men and women before the law.
Here the worries are threefold. The first is what language to use. The second is the bias of confining equality to only what happens before the law. The third is the neglect of other realms of discrimination - ethnicity, race, sexual orientation or religion.

The difficulties regarding vocabulary were apparent in the variants used to report Howard’s proposal: sexual equality, gender equality, and equality for men and women. The last sounds the safest until you try to specify the differences. Are they biological, cultural or some mixture? These problems will not go away by using sex for a biological inheritance and gender for a social-cultural outcome.

Motherhood statements are the problem, not any solution. Lets hope that the wording about God does not require a personal pronoun.

Equality before the law is a partisan approach to gender equity. Is the law before which men and women will be equal to be decided by Black Letter judges or by those who consider social circumstances? Campaigners for women’s rights condemn the former for ignoring the social forces that have made the genders unequal before they get to court.

Howard’s equality before the law revives the One Nation prejudice that everyone be treated the same. That approach restricts equality in the manner satirised by Anatole France: The law in its majestic impartiality forbids both rich and poor alike to sleep under bridges and to steal bread.

Yet even a promise of social equality between men and women would not redress other sources of injustice, notably those of class or ethnicity.

4. Prior occupancy.
Aboriginal claims to ownership could be weakened if the Preamble mentions only their occupation. Similarly, prior cuts them off from continuing. ‘Prior occupation’, therefore, sounds like a one-point plan to extinguish native title.

Terra nullius never stated that this continent had been unoccupied before the British government set up another of its prisons here. True, black rhetoricians and slovenly scholars still prattle about terra nullius as an error of fact rather than a doctrine requiring legal and property systems compatible with British assumptions. Mabo and Wik rebutted a view that denied ownership without needing to question occupancy.

Every treaty with indigenous peoples over land has been broken by the invaders and no one should assume that the Wik legislation has satisfied the mining or pastoral corporations, or the Howard cabinet. Reconciliation requires acknowledgment of continuing ownership.

Everyone anxious to keep Australia’s options open for a real republic have reasons enough to vote NO to both propositions. John Howard meanwhile will have to find a form of words which does not put his Preamble at odds with the rest of the constitution, which John Howard reiterates ain’t broke, and with the aspirations of the electorate. Before seeking some other way to write himself into the history books, he should read more of them.

Humphrey McQueen is a Canberra historian whose most recent book is Temper Democratic, How Exceptional is Australia? (Wakefield Press).

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