It could be a bad year for humanist republicans like myself. The Prime Minister has determined that he will draft a preamble to the Constitution to be put before the people. Apart from the republic, which I fear will fare badly in a crowded field, some of his backbench also want to include God, which is strange given s/he is in the existing one. The key issue though will be the form of the recognition of the prior occupation of this land by an aboriginal people.
Opinion varies on what kind of words will be used to describe the first occupancy. If the words are confined to the simple, eg "Australia has built a nation from a land inhabited by an indigenous people and all those who came later from all over the world ..." the result will enhance the present, "Whereas the people of NSW ..." However, if the preamble begins to ascribe particular qualities to one group, eg "aboriginal people are custodians of the land ..." or "were the keepers of the secrets of the land ..." or even the more adventurous view that aborigines "should be the keepers of all myths ..." then we are beginning to assign roles and even rights to one group not to be enjoyed by others.
Those who argue for a fulsome and "role-assigning" preamble, which appears to be the Beazley view, will argue that it is not legally binding in the way other parts of the Constitution are. It would be akin say to the National Anthem which was supported in a plebiscite. This is misleading. A set of words agreed by constitutional referendum will have much more than popular assent, they will create legal obligations, and will carry the same weight as any other part of the document. In fact the Prime Minister has used the phrase, "incorporation into the Constitution" to describe the task.
Moreover, the preamble will colour (pun intended) the entire document because presumably the preamble will give meaning to the remainder. If it did not then why bother? Any future High Court justice would be entitled to read not only the Constitution, but any statute in the light of the preamble.
If the preamble is legally binding then presumably it creates a proprietary interest attaching to aborigines alone. A role-assigning task of the fulsome variety, like aborigines as the keeper's of national myths, may well give them ownership of all myths, including those from "a bewildering number of distant lands."
The preamble debate, which will be used as another round of the reconciliation saga, will not be productive if one group is given a special role. No one should carry a privilege that does not attach itself to an office and be constrained by law. The creation of a special class of person is the ultimate destroyer of reconciliation. This special status will inevitably force a debate on the definition of the group given special status. At present anyone can join the indigenous club, and just about anyone does, but the moment there is something to be gained by it, like a proprietary interest, then will come the nasty business of defining the beneficiaries. Such a process is not what I had in mind for reconciliation.
There is an assumption by the fulsome advocates that the words of the constitution should have a moral dimension. The current race powers in the Constitution were immoral at their inception. More recently, the proponents in the Hindmarsh Island case wanted to give them a new and moral interpretation. Presumably if immoral intent can be given a "moral make-over" then the reverse may also hold. It may be more sensible to have the race power removed altogether. After all, in the absence of majority support, the courts are just another forum to be used by the politically organised to get what they want.
The preamble debate also has elements of the national identity debate. But a national identity can exist outside a formal document. As any aborigine can testify, an identity can be carried in the head or the heart for a very long time. The ends of the so called "struggle for an identity" should not be confused with the means of achieving it.
It is a doubtful proposition that a single document can or should contain a nation's hopes and dreams. But if there must be a document then there are much better ones to achieve that. Like the vast Australian (indigenous) literature, fiction and non-fiction, including theatre, poetry, plays, art, science and on and on. Our identity is being made and remade every day, some survives some does not. It may be natural selection but why should the ephemeral endure, which is the risk in a fulsome constitutional document?
My plea to the PM is to keep the preamble minimalist.
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