Balancing Symbolism and Function in
Constitutional Preambles: A Reply to Twomey
Paul Kildea*
The proposal to recognise Aboriginal and Torres Strait Islander
peoples in a preamble to the Australian Constitution presents a
number of unique challenges. Some, as Anne Twomey notes
in this volume in her comprehensive and cogent analysis of
the subject, are technical and structural in nature.1 Others
concern the task of dealing with likely disagreement over
the preamble’s contents. The focus of this short comment,
however, is on a third category of challenge that arises from
a need to manage the potential tension between the symbolic
and functional purposes of a constitutional preamble.2 After
outlining what these purposes are, I argue that the tension
between the two will be particularly acute with respect to
Indigenous recognition. In line with Twomey, I suggest that,
while there are no easy means of reconciling symbolism
and function, the best approach may be to ensure that
any preambular reform is advanced simultaneously with
substantive amendments. I conclude with a brief assessment
of the Expert Panel’s recommendation to forego a new or
amended preamble in favour of inserting a statement of
recognition into the body of the Constitution.
The fact that constitutional preambles contain both
symbolic and functional aspects has been noted by several
authors.3 The symbolic component of a preamble refers to
its expression of broad values, principles and aspirations,
often trying to capture feelings about national identity
that are widely shared. The functional aspect, meanwhile,
refers to the fact that a preamble may be used as an aid to
judicial interpretation of the constitutional text in certain
limited circumstances. A tension between the symbolic and
functional purposes of a preamble arises where the insertion
of broad symbolic statements risks unexpected and unwanted
interpretive consequences. Put in simple terms, exercises in
preambular ‘constitutional poetry’,4 while advantageous to
the national psyche, may be subsequently regretted if a court
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draws on preambular language to interpret the constitutional
text in unanticipated ways.
This tension between symbolism and function is inherent to
constitutional preambles, and it is unrealistic to expect that it
can be eliminated – a successful preamble will accommodate
both. In the context of the current reform process, the challenge
will crafting a preamble that gives appropriate ‘symbolic’
recognition to Aboriginal and Torres Strait Islander peoples,
while leaving the way open for interpretive consequences
with which we are comfortable.
Twomey notes that there are two main approaches available
to accommodate the symbolic aspect of a preamble, while
mitigating concerns about its potential interpretive use.5
These are the insertion of a clause limiting the interpretive
uses of the preamble, and the deliberate employment of
careful and limited wording in drafting the preamble’s text.
I share the concerns of others that the former approach will
render the act of constitutional recognition insincere and
hollow.6 I also share Webber’s view that, for symbolism to
be meaningful and effective, it must carry the potential
(however small) to have actual consequences.7
The second approach – use of careful and limited wording –
has more to recommend it. But there is a balance to be struck
here as well. Being too paranoid about future interpretive
consequences could lead to the use of wooden or unsatisfying
words that do not meet the public’s expectation that the
act of constitutional recognition should advance national
healing and reconciliation. The fact that this expectation
exists is apparent from numerous public statements on
the issue. Prime Minister Julia Gillard, for example, has
said that constitutional recognition ‘is an important step
to building trust and respect, it’s an important step to
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building and acknowledging that the first peoples of our
nation have a unique and special place in our nation.’8
Mick Gooda, the Aboriginal and Torres Strait Islander
Social Justice Commissioner, has described a referendum
on this subject as an ‘opportunity to reset the relationship
between Aboriginal and Torres Strait Islander peoples
and the rest of Australia’ and an ‘exercise that builds the
healthy relationships necessary for an agenda of hope’.9
The symbolic weight attached to this constitutional reform
process was also reflected in the Expert Panel’s discussion
paper, which positioned it alongside events such as Cathy
Freeman’s gold medal at the Sydney Olympic Games, the
Sydney Harbour Bridge Walk in support of reconciliation,
and the National Apology delivered by Prime Minister
Kevin Rudd in 2008.10
These statements underscore the fact that a great deal is
being asked of this referendum, and of any new or amended
preamble. In the face of a public desire for ‘constitutional
poetry’, it may be difficult to insist on cautious drafting.
To take one example, if the public thought that genuine
reconciliation required a statement acknowledging the
history of dispossession of Indigenous peoples, federal
Parliament would need to decide whether Winterton’s
concerns about how such a statement might affect native
title claims should prevail over public opinion.11 That
choice would be especially difficult if the inclusion of that
statement was seen as critical to winning public support
at a referendum. This is not to say that caution should not
win out, but it does demonstrate that the potential conflict
between symbolism and function could be especially acute
given public perceptions about the significance of this
reform moment.
It may be that the challenge of balancing the symbolic and
functional components of any new or amended preamble
will not be as difficult as Twomey suggests. Certainly, other
commentators have been more relaxed about the potential
interpretive uses of constitutional preambles. Some point to
the High Court’s historic reluctance to draw on the words
of the existing preamble in constitutional interpretation.12
Others suggest that it would be peculiar if courts were
forbidden from taking into account principles that the
public, through a democratic process, had adjudged to be
fundamental to our political life.13 There is also a view that
it is preferable for judges to rely on democratically endorsed
‘community values’ rather than their own perceptions of
those values.14 If these authors are correct, the symbolic
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and functional aspects of a new or amended preamble may
reach a relatively natural accommodation.
In the end, the best way to navigate the tension between
symbolism and function may be to ensure that the text of
the new or amended preamble is sufficiently connected
with the substantive provisions of the Constitution. It is
only where a preamble introduces concepts and principles
that are out of step with the body of the constitution that
interpretive problems arise. On the other hand – and as
Twomey observes – concern about unintended interpretive
consequences dissipates where the preamble matches the
substance of the Constitution.15
If we accept this, then the challenge of balancing symbolism
and function with respect to Indigenous recognition will
be best met by making sure that preambular reform only
proceeds as part of a package of wider, substantive reforms.
As it stands, the text of the Constitution contemplates
racially discriminatory laws via sections 25 and 51(xxvi).
While this remains the case, any new or amended preamble
containing broad, generous statements about the history
and continuing contributions of Indigenous peoples will
not only look peculiar, but will pose potential interpretive
anomalies. The primary task, therefore, should be to
develop a suite of substantive reforms; once that is achieved,
a complementary preamble should then be drafted.
The extent to which a proposal for a new or amended
preamble will feature in the unfolding reform debate is
uncertain. In its January 2012 report, the Expert Panel did
not include preambular reform in its five recommendations
for constitutional amendment.16 The Panel did, however,
recommend the insertion of a new section 51A containing
a ‘statement of recognition’, which appears as a preamble
to a new Commonwealth head of power with respect to
Aboriginal and Torres Strait Islander peoples. The symbolic
aspect of section 51A resides in the statement’s recognition
of Aboriginal and Torres Strait Islander peoples, including
their status as first occupants of Australia, their continuing
relationship with their traditional lands and waters, their
continuing cultures, languages and heritage, and ‘the need
to secure [their] advancement’. However, while these words
serve a symbolic objective, the positioning of the statement
of recognition in the body of the Constitution signals that it is
not intended as a purely symbolic gesture; on the contrary,
it is intended to have legal consequences. Its functional
purpose is to limit the head of power, by inviting future
Vo l 1 5 N o 2 , 2 0 1 1
B alancing S y mbolism and F unction in C onstitutional P reambles :
A R epl y to T w ome y
courts to interpret the grant of legislative power in the light
of its text. Most notably, the use of the word ‘advancement’ in
the statement could potentially be interpreted as confining
the head of power to beneficial laws.
9
The practice of confining a preamble to a particular section
is unfamiliar in the Australian constitutional context. As a
drafting technique it will no doubt be subject for further
debate as this reform process unfolds. But one advantage of
this unorthodox provision is that it appears to provide the
clarity of purpose that Twomey argues is so important with
respect to preambular reform. By ensuring that the symbolic
words of the statement of recognition are closely connected
with a substantive provision, it achieves a successful
accommodation between symbolism and function. It holds
the potential to advance reconciliation and national healing,
while minimising the prospects of unexpected interpretive
consequences.
10
Mick Gooda, ‘Effective Engagement: The Tonic for a Reconciled
Nation’,(Speech delivered at the University of Sydney,
Reconciliation Week Public Lecture, Sydney, 30 May 2011)
<http://www.hreoc.gov.au/about/media/speeches/social_
justice/2011/20110530_reconciliation.html>.
‘A National Conversation About Aboriginal and Torres Strait
Islander Recognition’ (Discussion Paper, You Me Unity, May 2011)
5 <http://youmeunity.org.au/downloads/ 2653fb1b6a59a1ab8d18.
pdf>.
11
Noted in Twomey, above n 1, 14.
12
See, eg, McKenna, Simpson and Williams, above n 3, 386–93.
13
Webber, above n 2, 268.
14
See, eg, McKenna, Simpson and Williams, above n 3, 395–96;
Anne Winckel, ‘A 21st Century Constitutional Preamble: An
Opportunity for Unity Rather than Partisan Politics’ (2001) 24
University of New South Wales Law Journal 636, 647.
15
Twomey, above n 1, 13.
16
Expert Panel on Constitutional Recognition of Indigenous
Australians, Recognising Aboriginal and Torres Strait Islander
Peoples in the Constitution (2012) xviii <http://www.youmeunity.
org.au>.
*
Lecturer, Director, Federalism Project and Co-director,
Referendums Project, Gilbert + Tobin Centre of Public Law,
Faculty of Law, University of New South Wales.
1
Anne Twomey, ‘The Preamble and Indigenous Recognition’ (2011)
15(2) Australian Indigenous Law Review 4.
2
Here I adopt the terminology of Jeremy Webber, ‘Constitutional
Poetry: The Tension Between Symbolic and Functional Aims in
Constitutional Reform’ (1999) 21 Sydney Law Review 260, 262.
3
Ibid 262; Mark McKenna, Amelia Simpson and George Williams,
‘First Words: The Preamble to the Australian Constitution’ (2001)
24 University of New South Wales Law Journal 382, 382 (adopting
the terminology of ‘symbolic’ and ‘justiciable’ aspects).
4
Webber, above n 2.
5
Twomey, above n 1, 14–15.
6
See, eg, Megan Davis and Zrinka Lemezina, ‘Indigenous
Australians and the Preamble: Towards a More Inclusive
Constitution or Entrenching Marginalisation?’ (2010) 33 University
of New South Wales Law Journal 239, 261; Alex Reilly, ‘Preparing
a Preamble: The Timorous Approach of the Convention to the
Inclusion of Civic Values’ (1998) 21 UNSW Law Journal 903, 904.
7
Webber, above n 2, 268.
8
Prime Minister, Minister for Indigenous Affairs and AttorneyGeneral, ‘Transcript of Joint Press Conference, Melbourne’ (Press
Conference, 8 November 2010) <http://www.pm.gov.au/pressoffice/transcript-joint-press-conference-10>.
(2011) 15(2) AILR
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