The Constitution of Australia

A Contextual Analysis

Cheryl Saunders

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847317407
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

Consistently with the aims of the series, the book canvasses the Australian constitutional system in a way that explains its form and operation, provides a critical evaluation of it and conveys a sense of the contemporary national debate. The chapters deal with the foundations of Australian constitutionalism, its history from the time of European settlement, the nature of the Australian Constitutions, the framework for judicial review, the legislative, executive and judicial branches of government, federalism and multi-level government and rights protection. Running through all chapters is the story of the gradual evolution of Australian constitutionalism within the lean but almost unchanging framework of the formal, written, national Constitution. A second theme traces the way in which the present, distinctive, constitutional arrangements in Australia emerged from creative tension between the British and United States constitutional traditions on which the Australian Constitution originally drew and which continues to manifest itself in various ways. One of these, which is likely to be of particular interest, is Australian reliance on institutional arrangements for the purpose of the protection of rights. The book is written in a clear and accessible style for readers in both Australia and countries around the world. Each chapter is followed by additional references to enable particular issues to be pursued further by readers who seek to do so. 'The Constitution of Australia' has already been cited in a High Court of Australia case: Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

1

Foundations

Settlement – Federation – Independence – Reconciliation

I. SETTLEMENT

A. Constitutional Consequences

HISTORIANS BELIEVE THAT humans first reached Australia quite early after their dispersal from Africa, around 60,000 years ago.¹ Australia’s current constitutional arrangements have relatively recent origins, however. The first of four formative events that are examined in this chapter was British colonisation of the territory that now is Australia within two decades after Captain James Cook claimed possession of ‘the whole eastern coast’ in 1770 in the name of the British King.²

The first colony was a penal settlement.³ The ships that arrived from England in 1788 under the command of Captain Arthur Phillip in order to establish a permanent settlement at Sydney Cove carried only convicts, marines, officials and their families. Unlike other British colonies to which convicts were transported, there was no civilian population, the Aboriginal peoples aside. In the circumstances, the arrangements for government were necessarily unusual; Phillip and his immediate successors as Governor held sweeping local authority which they exercised without representative institutions of any kind for 35 years. Nevertheless, even at this stage there was rudimentary provision for adjudication and a skeletal base on which constitutional government eventually would build. After an initial period of indecision on the part of the Imperial authorities, the Commission issued to Phillip, shortly before his departure, encouraged the development of the settlement as a colony and not merely a ‘penal establishment under military government’.⁴ As the character of the population changed through emancipation and an increase in the numbers of free settlers, the rule of law was gradually strengthened⁵ and embryonic institutions of representative government began to emerge in response to demand.

It has sometimes been asked, only partly in jest, whether Australia’s convict origins have affected its national character, with implications for attitudes to authority, including what poet Les Murray has termed Australian ‘ability to laugh at venerated things’.⁶ Whatever the answer, in other respects the manner of British colonisation was formative in Australian constitutional development. The pattern of British settlement determined the territorial organisation of the land mass, initially in the form of colonies and subsequently as the States and territories of the Australian federation. Settlement by the British rather than by any other European power ensured that Australian law had a foundation in English law and that the Australian legal system adopted the principles and practices of the common law tradition. At the same time, assumptions about the basis on which the common law was absorbed into Australia had disastrous consequences for the indigenous inhabitants, of whom there may have been around 500,000 when the first fleet arrived, which provide a rationale for the modern reconciliation movement.⁷ British settlement also meant that the institutional structure of government that developed in Australia would be modelled broadly on the institutions, principles and practices familiar in Britain itself, adapted to suit Australian conditions and preferences including, over time, the perceived necessities of federation.

B. Territorial Organisation

With a total land mass of more than 7.5 million square kilometres Australia is only slightly smaller than the continental United States, excluding Alaska. It is much more sparsely populated, however, with a population of around 21.5 million in 2010. The relatively low population density of 2.6 people per square kilometre can be attributed in part to the terrain, two-thirds of which is arid or semi-arid. The level of its unpredictable rainfall makes Australia the driest continent in the world, apart from Antarctica.

The topography of the country also helps to explain the pattern of settlement and development. The principal original colonies were scattered around the coast in relatively hospitable locations, at considerable distances from each other. The first in time was a huge eastern colony of New South Wales, notionally covering more than half the continent, centred on the first settlement in Sydney from 1788. Over the following 40 or so years, satellite settlements were established along the east coast to the south and the north in what now are the cities of Hobart, Melbourne and Brisbane and which became the capitals of the colonies of Tasmania, Victoria and Queensland respectively. By 1859 all three had separated from New South Wales. Thereafter, for the most part, they developed independently, although under the same imperial umbrella and with a degree of intercolonial co-operation. For a brief period in 1839–40 New Zealand was governed from New South Wales as well, until the Treaty of Waitangi was signed, British sovereignty was formally proclaimed, and New Zealand was established as a colony in its own right.⁸

In 1829 another huge colony that now is Western Australia was established to lay claim to the remainder of the continent, centred on settlements in the south-west, one of which eventually became the capital city of Perth. Seven years later Adelaide was founded in the centre of the south coast, as the capital of the first fully free settlement, the Province of South Australia. For more than 40 years from 1863 the extended boundaries of this colony cut a swathe through the centre of the continent, from south to north, incorporating the Northern Territory, for which the town of Darwin was established on the north coast in 1869. There was no significant change to this territorial organisation of the mainland of Australia and Tasmania after 1863 apart from the separation of the Northern Territory from South Australia in 1911 and the carving out from New South Wales of the Australian Capital Territory, in which the city of Canberra was established, as the seat of federal government in 1911.

The original colonial settlements thus became the principal cities: magnets for population, industry and government, often at the expense of development elsewhere, even where development was feasible. The Australia of the early twenty-first century is a highly urbanised and centralised society, with 65 per cent of the population living in eight cities that in turn are the capitals of the six Original States and two self-governing territories of the Australian federation. Five of the eight constituent units are huge in territorial terms and the two largest, Western Australia and Queensland, cover more than half the continent between them. The distances between State capitals vary from 883 kilometres in the case of the two most populous cities of Sydney and Melbourne, to almost 4,000 kilometres, covering three time zones, which lie between Sydney and Perth.

The territorial organisation of Australia has not gone unchallenged. There have been movements to create new States since federation.⁹ None has succeeded, however, and while the Northern Territory may yet become a State, this would not fundamentally alter the territorial division of the country.¹⁰ Proposals for the federal constitutional recognition of local government as a constituent partner in the federation also have been debated for more than 30 years and this remains a live issue despite rejection at referendum in 1988.¹¹ There are occasional calls for the abolition of federalism altogether, sometimes tempered by proposals to create a larger number of regions, exercising devolved power of some kind.¹² Major structural change nevertheless seems unlikely; and not only because of the innate advantage of the status quo and the difficulty of constitutional amendment, outlined in chapter two. This is one of the fault lines of the Australian constitutional system, at which a range of conflicting preferences intersect, over the choices between versions of federalism and unitary government; a controlled and an uncontrolled constitution; parliamentary sovereignty and constitutional checks and balances; and the interests of Australians who live close to the centre of national power in the south-east of the country and those who live further away.

C. Common Law and Legal System

Settlement by Britain in the late eighteenth and early nineteenth centuries left the Australian colonies with a foundation of English law and with legal systems in the common law tradition.

The former incorporated into Australian law a range of English statutes of constitutional significance, including the Magna Carta, the Bill of Rights 1688, the Act of Settlement 1700 and the Habeas Corpus Act 1679, concepts of tenure and estates in property that recognised the ultimate title of the Crown and core constitutional principles derived from judicial decisions.¹³ While most early English statutes have now been repealed by State Parliaments, foundational measures such as those listed above generally have been retained.¹⁴

The introduction of a common law legal system also influenced subsequent Australian constitutional development. The Commonwealth Constitution itself was predicated upon the principles and practices of the common law although, as chapter two shows, the precise nature of the relationship between the two is still being worked out. Until well into the twentieth century, Australian law was part of a more or less unified body of common law that applied throughout the former British Empire. Even after the emergence of distinctive national systems of common law, Australian law continued to be influenced by developments elsewhere in the common law world.¹⁵

There is nothing unusual about the idea that colonisers take with them the law that is familiar at home. In the case of British colonies settled at the turn of the nineteenth century, this familiar colonial technique was given additional impetus by belief in the superiority of the common law and pride in the constitutional protections that it was deemed to confer. The effect of introduced law on an existing population, however, depended on the basis on which sovereignty over the territory was claimed, further complicated, in the case of Australia, by parallel changes in the conception of sovereignty over the critical period.¹⁶ In the late eighteenth century the prevailing classification distinguished between colonies acquired by conquest or cession on the one hand and those acquired by occupation, on the other. In conquered or ceded colonies the existing law remained in place for local inhabitants unless overridden by the law of the new sovereign. In an occupied or settled colony, on the other hand, the territory was ‘uninhabited’, or at least ‘desert and uncultivated’ and English law was ‘automatically there in force’.¹⁷

From the outset, Australia was treated largely as if it fell into the category of land acquired by occupation. For the most part there was no attempt to conclude treaties with the indigenous inhabitants; and the one attempt made, in Victoria, was repudiated by the Governor in 1835 as ‘void and of no effect against the rights of the Crown’.¹⁸ The conflict that followed settlement might well have been categorised as conquest, but there was no formal acknowledgement of the laws of the conquered peoples and of their relationship to the land.¹⁹ English law was simply absorbed to the extent that it was applicable. In New South Wales and Tasmania, reception continued until 1828, when the circumstances of the colonies had begun to normalise and Legislative Councils had been established to make laws for the future.²⁰

The treatment of the Australian colonies was ‘unusual’ in this respect.²¹ By contrast, colonies settled both earlier and later, in North America and New Zealand, were formally considered to be conquered or ceded or a combination of the two. The explanation may be traced in part to reports taken back to England from Cook’s expedition, after claiming possession of New South Wales in 1770. According to the naturalist Sir Joseph Banks, the land was ‘immense’ but ‘thinly inhabited’ and it was possible that the interior was ‘totally uninhabited’. Before he left for New South Wales in 1787, Phillips himself noted ‘the general opinion’ that there are ‘very few Inhabitants in the Country’.²²

Once the first fleet arrived at Sydney Cove it soon became evident that these assumptions were incorrect. Initially, however, it was unclear that the Indigenous peoples themselves were subject to the common law. But over the course of the nineteenth century, spurred by a more territorial conception of sovereignty, the present understanding of the Australian colonies as settled, with all its attendant legal consequences, gradually hardened into law, until finally confirmed by the Privy Council in 1889.²³ It was rationalised with the earlier tripartite theory by extending the notion of ‘uninhabited’ to include territory that was ‘practically unoccupied, without settled inhabitants or settled law’.²⁴

Reception of the common law on this basis profoundly affected the Aboriginal peoples as they came in contact with it, although in some cases contact was ...