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McCann, Siobhan --- "Referendum: Reflections on the Preamble" [2000] AltLawJl 12; (2000) 25(1) Alternative Law Journal 35

Referendum: Reflections on the Preamble

SIOBHÁN MCCANN[*] argues that Referendum question number two raised a lot of questions!

Whether you’re a republican or not, last year’s referendum could have been better executed.

Perhaps those happy with the outcome are not too concerned about how the vote was run, or will claim that complaints from republicans can hardly be taken too seriously because, after all, everyone expects a loser to grumble a little. But for those who believe that the process is significant, and that all voters should have access to clear information about what they are voting for — in short, for those who wanted people to vote against the republic because they really didn’t want it and not simply because they didn’t understand or were confused, there is reason for concern.

A funny thing happened to me on my way to the polling booth, and it illustrates this concern. The fact that my story relates to question number two, the question on the preamble, may deflect criticism that these are no more than the grumblings of a loser on the republican issue.

There are those who will want to criticise the way in which the preamble was devised, the lack of broad consultation with the community, and the legal ambiguity of its effect on the interpretation of the Constitution. These are important and appropriate points to make. My point is that there was also a serious problem with the management of the process of voting itself.

I was on holiday when the country voted ‘no’. Nevertheless it was, for me, a significant event in this country’s history and I had, I thought, informed myself reasonably well about the issues involved before going into a polling booth near work a fortnight before the vote was to be held. I had watched the telly, engaged in lively office discussions about the legal detail, and clarified the issues which mattered to me.

I wanted a republic, and I wanted a preamble, but not the preamble proposed by Mr Howard. I had found convincing the arguments put forward by those at the constitutional convention and elsewhere that devising a preamble which encapsulated some of the values which we held in common as a community would be a good addition to the Constitution for the new millenium. Nevertheless, I didn’t feel that what Howard, Murray and others had written fulfilled the requirements.

Armed with the very clear knowledge that there was a proposed preamble and that I did not like it, I came to question number two of the referendum ballot, and was confused. The question on the ballot paper asked me whether I approved ‘a proposed law to alter the Constitution to insert a preamble’.

The phrasing of the question stopped me in my tracks. ‘a preamble’? What preamble? The question did not ask whether I approved ‘the proposed preamble’. Was the job of finding a preamble still to be completed? Were we being asked to agree to the job being done? Why mess with the indefinite article without good reason?

When I sought to clarify the point I was met with baffled looks and mutterings and much shuffling of paper. The staff at the polling booth flicked through the AEC’s Referendum booklet and seemed unable to find anything to clarify the matter. I voted and left, irritated and not a little concerned about the misleading nature of the question. I found it particularly misleading in contrast with the first question, which had been phrased very much more clearly; indeed its clarity was part of what was dividing the country, particularly the republicans.

But that’s not all that bothered me. Where was the mention of the existing preamble? I could find no reference to it or to whether it was to be replaced. The changes outlined to the Constitution did not include changes to the existing preamble, despite the fact that it contains several references to the Queen and the crown and so on. What would happen to it? Implicit in the wording of the question was the assertion that a preamble did not already exist.

I raised these concerns with the Australian Electoral Commission’s information hotline and was told that all the literature made it quite clear that I was voting for a specific preamble and if I hadn’t taken the time to read the literature there wasn’t very much they could do. Furthermore, they could do nothing about the wording of the question, constrained as they were by the rule that referendum questions had to replicate the long title of the proposed legislation.

On the matter of the existing preamble I was informed that it was not a preamble at all, though it was true that people called it that. It was, rather, an introductory paragraph to the Act. Osborne’s Concise Law Dictionary defines ‘preamble’ as ‘the recitals set out in the beginning of a statute showing the reason for the Act’. It is not immediately obvious to me what difference there is between this and an introductory paragraph to an Act. It may not have contained poetry or set out our shared community values, but I’m not sure why that should make it any less a preamble.

The word ‘preamble’ is one which, though it has technical meanings, is in common use. If the AEC or those responsible for drafting the questions for the referendum sought to give the word a particular significance then why hadn’t this been more carefully explained? More to the point, why was it necessary to give the word this artful meaning in the context of a referendum? Is this not somewhat inimical to the democratic objectives of this kind of popular vote?

It is quite true that I had not read the Australian Electoral Commission’s literature on the referendum. When I did read it, however, I found the proposed preamble on the last page of the booklet and found a good deal of ambiguity, not only about the content of the preamble but also about whether there was one already.

There is no legal reason why the AEC could not have posted a copy of the proposed preamble on the backs of polling booths. Indeed the option was considered, and rejected in favour of what was finally provided on the last page of the official information pamphlet. I find this an interesting decision, and one which appears in its effect to favour the politically alert and those accustomed to reading the ‘officialese’ of government department brochures over those less confident about the process or its implications.

The AEC official referendum pamphlet’s only clarification of the issue of the existing preamble is in its reproduction of the official arguments for ‘yes’ and ‘no’. Predictably enough, the ‘yes’ case indicates that there is currently no preamble in our Constitution, and the official ‘no’ case indicates the opposite.

Of course I understand that there are unresolved political and legal arguments about the consequences of the addition of a preamble to the Constitution, and that the AEC sought to inform voters of these arguments by setting them out side by side. Nevertheless, the question of whether or not there is a preamble is surely one of fact, and ought to have been explained separately and not in the midst of political rhetoric.

If we get another chance at a referendum on these issues we will be faced with similar legal, constitutional and political arguments, both in relation to the republic and in relation to the preamble. But what those in charge of the process will also need to pay attention to is the problem of how to clearly articulate the questions in such a way that they are understood by a vast majority of voters.

If the invitation to the public to be legislators is to be genuine, then attention must be paid to the importance of words, and of clarity of expression, in the legislative and democratic processes.


[*] Siobhan McCann is a Sydney lawyer.


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