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Federal Election October 2004:
Which Candidates Trust the People?

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Crafting a Model Constitution

Task One - The Preamble

  1. It seems logical that we should start crafting our ‘Model Constitution’ by having a go at what we would like the preamble to say as this is usually the first clause of a constitution.
  2. In most constitutions the preamble is a statement of great significance. It usually reflects the history of the nation. However, most importantly, it establishes the fundamentals of the society and expresses the hopes and aspirations of the people. Preambles also often state the basis of authority or legitimacy of the constitution.
  3. Because the current Australian Constitution is part of a British Act of Parliament, it does not have a ‘normal’ preamble although the preliminary clauses of the Act are sometimes referred to as the preamble. These clauses are attached as Annex A.
  4. You will recall that we were asked to vote on a draft new preamble at the recent referendum on the subject of the Republic. That preamble is attached as Annex B although, as you know, the People rejected it at the referendum.
  5. The preambles of the Constitutions of the USA, South Africa and India are attached at Annex C. These preambles have been chosen at random. Both the USA and India were formerly British colonies. The South African Constitution is more recently introduced and came into being at the cessation of apartheid in that country,
  6. At Annex D some criteria have been listed on a matrix to allow Members to respond in a ‘tick the box’ fashion. This will provide an indication of the degree of importance Members place on each of the criteria listed. However, Members are encouraged to have a go at formulating their own version of what the preamble should say.
  7. Some draft preambles that are generally considered to have some merit in terms of a new Australian constitution are attached at Annex E.
  8. The Task for this Month

  9. Draft a preamble for our "Model Constitution’ or at least indicate your views on the table at Annex D and perhaps express a preference from the preambles at Annex E.

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Annex A to Task One: The Preamble

The preamble to the Commonwealth of Australia Constitution Act 1900 passed by the British Parliament on 9th July 1900.

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: ---

Short Title

This Act may be cited as the Commonwealth of Australia Constitution Act.

Act to extend to the Queen’s successors

The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom

Proclamation of Commonwealth

It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor General of the Commonwealth.

Commencement of Act

The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

Operation of the Constitution and laws

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose first port of destination are in the Commonwealth.

Definitions

"The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States: and each of the parts of the Commonwealth shall be called "a State".

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.

Repeal of Federal Council Act

The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to effect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

Application of Colonial Boundaries Act

After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self governing colony for the purposes of that Act.

Constitution

The Constitution of the Commonwealth shall be as follows: --

The Constitution of Australia then follows as section 9 of the Act, starting with a table of contents.


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Annex B to Task One: The Preamble

Draft Preamble put to Referendum in 1999

Statement in relation to Constitution Alteration (Preamble) 1999

This proposed law would make the following additions to the Constitution.

Preamble

With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good.

We the Australian people commit ourselves to this Constitution:

proud that our national unity has been forged by Australians from many ancestries; never forgetting the sacrifices of all who defended our country and our liberty in time of war;

upholding freedom, tolerance, individual dignity and the rule of law;

honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;

recognising the nation-building contribution of generations of immigrants;

mindful of our responsibility to protect our unique natural environment;

supportive of achievement as well as equality of opportunity for all;

and valuing independence as dearly as the national spirit which binds us together in both adversity and success.

 

125A Effect of preamble

The preamble to this Constitution has no legal force and shall not be considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the Commonwealth.


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Annex C to Task one: The Preamble

Preambles of the Constitution of Other Countries

United States of America

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 

South Africa

We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to ­

Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

Improve the quality of life of all citizens and free the potential of each person; and

Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

 


India

We the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity;

and to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of our Nation


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Annex D to Task One: The Preamble

Preamble Criteria

It is appreciated that drafting a constitutional preamble is not necessarily everyone’s ’cup of tea’. However, it is important that everyone has a say in what should or should not be in our constitution. To this end, the following matrix has been prepared to allow everyone to have input into what finally appears in our ‘Model Constitution’.

Please tick the box that most closely reflects your view of what should or should not be in our preamble.

SUBJECT                                                                      INCLUDE             EXCLUDE
                                                                                      Must     Should     Could    Should_

Introductory ‘We the People of Australia’_________O_____O_____O______O____

Reference to Almighty God___________________ O_____O_____O______O___

Reference to God__________________________O_____O_____O______O___

Declaration of sovereignty over Australia_________O_____O_____O______O___

Reference to the origins of the Constitution_______O_____O_____O______O___

Our demand for Representative Democracy______O_____O_____O______O___

Gov’t by Cabinet responsible to Parliament_______O_____O_____O______O___

OR

Gov’t by Parliament responsible to the People____ O_____O_____O______O___

The Rule of Law____________________________O_____O_____O______O___

OR

A demand that JUSTICE be paramount__________O_____O_____O______O___

Acknowledgment that A&TSI were here first______ O_____O_____O______O__

Recognition of cultural diversity________________ O_____O_____O______O___

Recognition of sacrifices made

in defence of our country_____________________ O_____O_____O______O__

Recognition of sacrifices made
in developing our society_____________________ O_____O_____O______O___

Recognition of the special contribution of migrants_   O_____O_____O______O__

Affirmation of respect for the environment______  _   O_____O_____O______O__

We the People enact this Constitution
as the basic law of our society_________________ O_____O_____O______O_

Equality for all_____________________________ O_____O_____O______O__

OR

A&TSI have special rights_____________________O_____O_____O______ O_

Citizens have responsibilities as well as rights             O_____O_____O_______O


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Annex E to Task One: The Preamble

Some Preambles Suggested by Various People

A

We the People of Australia, conscious of our responsibilities to human kind, declare sovereignty over this land Australia and pledge to preserve our natural environment as was done by the Aboriginal and Torres Strait Islander inhabitants before us. Having sought the blessing of Almighty God and created a Federation under the Crown in 1901, we now declare Australia as a free, independent, democratic and egalitarian society in which justice for all is paramount and in which each and every citizen has equal rights and responsibilities and is equal before the law. A society governed by a Parliament of Elected Representatives constrained only by the will of the people and this Constitution adopted by referendum as the cornerstone and basic law of our nation the Commonwealth of Australia.

B

We the people of Australia relying on the blessing of Almighty God and acknowledging the original occupancy and custodianship of Australia by Aboriginal and Torres Strait Islander peoples, do hereby enact this Constitution as the cornerstone and basic law of our society. This Nation, having evolved by peaceful means from six dependent colonies to a freely established Federation under the Crown, now declare The Commonwealth of Australia as a fully independent, free, democratic and egalitarian society with sovereignty over the land of Australia as defined in this Constitution. Recognising and honouring the sacrifices made by many in the defence and development of our society, the People of Australia declare that for now and for evermore this society will be governed by the people for the people using a system of democratically elected representatives. We further declare that as far as possible we will preserve this land and its natural flora and fauna in the natural state. We undertake to abide by the laws of the society, to respect the rights and cultures of all citizens, and to strive for justice for all.

C

We the People of Australia relying on the blessing of God and cognisant of our duty to all other citizens of the world, enact by referendum this Constitution as the cornerstone of our society. This Nation, having evolved by peaceful means from dependent colonies to a freely established Federation, now declare The Commonwealth of Australia as a fully independent, free, democratic and egalitarian society with sovereignty over the land of Australia as defined in this Constitution. The People of Australia; including descendants of the original inhabitants, descendants of the early settlers, and the more recent migrants and refugees from around the world who have accepted all the rights and obligations of Australian citizenship; declare that for now and for evermore this society will be governed by the people for the people using a system of democratically elected representatives as defined in this Constitution. We further declare that as far as possible we will preserve this country and its natural flora and fauna in the natural state. We undertake to abide by the laws of the society, to respect the rights of all citizens, and to strive for justice at all times.

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Last updated: 23 February 2001