PART A
ADDENDUM 1
Sources of constitutional
ideas
KEY CONCEPTS
■
■
■
The Australian colonies inherited the following constitutional principles from the United Kingdom:
• the rule of law—the idea that the executive government is subject to the law and that it has no
coercive powers over ordinary people, which are not granted by law
• the independence of the judiciary—judges are given security of tenure so that they can make
decisions without fearing retribution by the executive government
• the sovereignty of Parliament—that a Parliament can make or unmake any law it likes
• responsible government—the executive government is headed by ministers who must maintain
the confidence of the ‘lower’ House of Parliament and resign or face a new election if they lose it.
When the Commonwealth of Australia was formed, the Constitution incorporated the following ideas
from the United States:
• a federal system in which a central government exercises certain powers, but more local (state)
governments exist and have some degree of political autonomy
• a written Constitution, amendable only by a special process and having higher status than laws
made by any of the parliaments
• a written Constitution that incorporates specific grants of power to the legislature, the executive
government and the judiciary, and a guarantee of the independence of the judiciary
• a written Constitution that incorporates the notion of judicial review of the validity of legislation—
i.e. that the courts can declare an Act of Parliament invalid because it breaches the Constitution.
The Commonwealth Constitution also incorporated a Swiss idea: the special process for amending the
Constitution is a referendum at which a proposed alteration must be approved by a majority of the
voters of the Commonwealth and a majority of the voters in a majority of the states.
1.1
Context and overview
Part A:
Addendum 2
can be
viewed at <www.
palgravemacmillan.
com.au/law/
constitutionallaw>.
Australia has been inhabited for at least 40,000 years. The ideas that underpin
our constitutional and legal systems were brought here by British colonists,
starting with the settlement of Sydney in 1788. (The source of the idea that
it was permissible to plant settlers on someone else’s land, which would now
be seen as a gross breach of international law, will be considered in Part A:
Addendum 2.)
1
CONSTITUTIONAL LAW
Although most of the colonies started off as penal settlements, after
transportation ceased they all developed self-governing systems modelled on
the British ideas of ‘responsible government’ and ‘Parliamentary sovereignty’.
However, when the people of the colonies decided to federate they had
to take some ideas from other sources. The idea of a federal system with
powers divided between the central government and the States was taken
from the United States of America, and the idea that amendments to the
Constitution must be approved by a vote of the people was taken from the
Swiss Constitution.
In this chapter the sources of these ideas will be explored in more detail. The
importation of the English principles will be discussed in Part A: Addendum 2,
and the adoption of the American and Swiss ideas will be noted in Chapter 2.
1.2
Lofty principles from classical times
Throughout most of history, in most parts of the world, the people who have
held office as leaders, e.g. chiefs, kings, queens, shahs, sultans or emperors, have
managed to bluff their subjects into accepting two principles:
■
■
that the eldest son, or eldest daughter in the absence of a son, or at least
some close relative, should succeed to the office on the death of the
incumbent
that the leader (chief, king, queen, etc.) should have absolute power.
However, there have been exceptions. For parts of their history, Ancient
Rome and some of the city-states of Ancient Greece were democracies, of a
kind—as long as you ignore the exclusion of women from public life and the
fact that freemen were outnumbered by slaves. Though clearly a flawed example
of a democracy, ancient Athenian democracy left us a few great slogans. In The
Peloponnesian War, Thucydides reports the funeral oration given by Pericles at
the end of the first year of the war (431 bc). Rather than praising the heroism
of those who had died he reminded the audience what they had been fighting
for—Athenian democracy:
Our Constitution does not copy the laws of neighbouring states; we are rather
a pattern to others than imitators ourselves. Its administration favours the
many instead of the few; this is why it is called a democracy. If we look to the
laws, they afford equal justice to all in their private differences; if to social
standing, advancement in public life falls to reputation for capacity, class
considerations not being allowed to interfere with merit; nor again does
poverty bar the way, if a man is able to serve the state, he is not hindered by
the obscurity of his condition.
… our ordinary citizens, though occupied with the pursuits of industry, are
still fair judges of public matters; … and, instead of looking on discussion
2
PART A
ADDENDUM 1
as a stumbling block in the way of action, we think it an indispensable
preliminary to any wise action at all.1
He finished the speech with the claim that Athens was the ‘school of Hellas’;
one might say in retrospect that it was the school of the world. Athens won
the war, and the following century saw the flourishing of philosophy in that
city, with its three great figures, Socrates, Plato and Aristotle. Socrates (who
had fought in the war) and Plato were quite viciously anti-democratic, but
Aristotle tried to be more objective. In his Politics he left us three influential
ideas. One was that man is a ‘political animal’. In a literal sense this means that
the fullest development of humanity was to live in a polis, the city-state familiar
to him and other Greeks. But it can be interpreted more broadly to mean that
it is natural for us to live under government, in what the English writers of the
seventeenth century called ‘civil society’. A second idea was that the best form
of government was one that contained a mixture of the forms of monarchy,
oligarchy and democracy—later much quoted by writers praising the English
Constitution. The third was his suggestion that there is something better than
any of the three forms just mentioned—rule by law:
Now, absolute monarchy, or the arbitrary rule of a sovereign over all the
citizens, in a city which consists of equals, is thought by some to be quite
contrary to nature; it is argued that those who are by nature equals must
have the same natural right and worth, and that for unequals to have an
equal share, or for equals to have an unequal share, in the offices of state,
is as bad as for different bodily constitutions to have the same food and
clothing. Wherefore it is thought to be just that among equals every one be
ruled as well as rule, and therefore that all should have their turn. We thus
arrive at law; for an order of succession implies law. And the rule of the law,
it is argued, is preferable to that of any individual. On the same principle,
even if it be better for certain individuals to govern, they should be made
only guardians and ministers of the law … he who bids the law rule may be
deemed to bid God and Reason alone rule, but he who bids man rule adds
an element of the beast; for desire is a wild beast, and passion perverts the
minds of rulers, even when they are the best of men.2
Aristotle does not actually say that the kind of law that would best control the passions of the rulers would be a Constitution, but it is an inference
than may come easily to the modern mind. (He did write about The Athenian
Constitution, but it was more of a historical and descriptive account than an
argument as to how a Constitution should work.)
Ancient Rome was a republic for a while, but, like the English much later,
they tended to work out mechanisms for government rather than theorising
about them. Once the Roman Empire supplanted the Republic, there was little
talk of rulers being subjected to the law. In the Codex, written in Emperor
1
2
Thucydides, The Peloponnesian War, Book II, Ch VI.
Aristotle, Politics, Book III, Ch 16.
3
CONSTITUTIONAL LAW
Justinian’s name, there is a passage that declaims: ‘It is a statement worthy of
the majesty of a reigning prince for him to profess to be subject to the laws; for
Our authority is dependent upon that of the law’—but, though a good emperor
would submit to the laws, a cunning one would profess to be bound by them
and a bad one might be assassinated, there was no legal procedure for bringing
one to account. The actual legal doctrine taught by the jurists, beginning with
Ulpian (170–223), was Princeps legibus solutus est (the leader is set loose from
the laws—i.e. is above the laws). The idea of democracy was buried away in the
works of Thucydides, the idea of the rule of law in the works of Aristotle and
emperors and kings just got on with the business of subjecting their subjects.
1.3
English constitutional history
1.3.1
‘Anglo-Saxon liberty’ and Magna Carta
Writing in about 98 ad, when Rome had been under an Emperor for 125 years,
Tacitus wrote about the Germanic tribes and reported (perhaps with a touch
of envy) that they held tribal gatherings to discuss important matters and the
leaders would ‘gain attention rather from their ability to persuade, than their
authority to command’3. Though Germany itself ended up being ruled by a
Kaiser (a word derived from the Latin Caesar), the old Germanic spirit held on
in the northwest of Europe and the offshore islands. Popular assemblies known
as Things were responsible for the laws (they still survive in the Allthing of
Iceland and the Tynwald of the Isle of Man). There may have been kings as well,
but they were sometimes elected by the Thing, and sometimes had to give way
to the decisions of the Thing. In Anglo-Saxon England the equivalents of the
Things were known as moots or folkmoots at the local level, and at the national
level there was the Witenagemot (meeting of wise men) who advised the king,
elected kings (they usually elected the eldest son, but occasionally exercised the
right to pick another member of the family) and occasionally may have deposed
a king. This may not have been modern democracy or limited government, but
in the seventeenth century it was idealised as a period of ‘Anglo-Saxon liberty’
to be contrasted with the imposition of the ‘Norman yoke’ after the defeat of
the last Anglo-Saxon king by William the Conqueror in 1066.
Whether or not it was the Anglo-Saxon spirit, something kept stirring in the
minds of the English after 1066. When Henry I was crowned in 1100, after a
period of oppressive rule by his brother William Rufus, he issued a ‘Charter of
Liberties’ in which he promised to return to the laws of King Edward, his pious
grandfather known as ‘the Confessor’. However, the family tendency to govern
oppressively flared up again in his great-grandson John, and in 1215 the barons
were only persuaded not to rebel against him when he agreed to sign the Magna
Carta (meaning Great Charter) in which he promised not to encroach upon
a long list of the ‘liberties’ of the free men of the kingdom. He then ignored
3 Tacitus, A Treatise on the Situation, Manners and Inhabitants of Germany, para 11.
4
PART A
ADDENDUM 1
the charter, resumed fighting with the barons and died in the following year.
A modified version of the Charter, with more clauses, was issued on behalf of
the young Henry III in 1217 and another version, with less clauses, in his own
name in 1225. Most of the specific liberties guaranteed by the Charters, except
trial by one’s peers, seem irrelevant or meaningless now—e.g. ‘castle-guard’ and
the prohibition of ‘fish-weirs’— but they made the basic point that the kings
acknowledged (when forced to) that their powers were limited and that their
subjects had certain basic rights.
In the century after the Charter, the English Parliament was founded: first
by Simon de Montfort, in a period when he had usurped government from
Henry III, and second on a permanent basis by Edward I. In 1295 Edward summoned each county to return two knights, each borough to elect two ‘burgesses’
(freemen of the borough) and each city to elect two citizens; this became the
standard pattern until the Reform Acts of the nineteenth century. One of the
first things the ‘Model Parliament’ did was to re-enact the Charter in the form
that we now know as an Act of Parliament—something signed by the King on
the advice and with the consent of the Parliament—in 1297. What had been
articles, or clauses, 39 and 40 became clause 29:
No Freeman shall be taken or imprisoned, or be disseised of his Freehold,
or Liberties, or free Customs, or be outlawed, or exiled, or any other wise
destroyed; nor will We pass upon him, nor condemn him, but by lawful
judgment of his Peers, or by the Law of the land. We will sell to no man, we
will not deny or defer to any man either Justice or Right.
From the time of the first parliament, the idea that the king could not raise
taxes without consent of parliament took hold, on the theory that taxes were a
willing gift from the people to their king. However, until 1701 kings kept testing
the limits and the claimed exceptions to this theory.
For the next couple of centuries it became routine that Parliament would
demand that each succeeding king should reconfirm the promises of the
Charter (a footnote in the English Statutes at Large lists 32 confirmations).
The most memorable was an Act of 1368 (42 Edw III c 3), which introduced
the phrase ‘due process of law’ to history:
that no man of what estate or condition that he be, shall be put out of land
or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death,
without being brought in answer by due process of law.
From about this time4 the commoners and the lords started sitting in two separate ‘houses’ or chambers—the House of Commons and the House of Lords—and
it became accepted that both Houses must consent to a proposed law (a ‘Bill’)
before it could be presented to the king for assent. This is the origin of the notion
of a ‘bicameral’ (two-chambered) parliament that has been copied around the
world.
4 The best historians can ascertain is ‘mid–fourteenth century’.
5
CONSTITUTIONAL LAW
1.3.2
The separation of powers in early practice
The kings’ promises to observe due process were made more plausible by the
fact that a regular system of courts had been established. In the century or
so after the conquest, the king and his court—the curia regis—had generally
administered the nation and decided disputes between private parties while
travelling around the land. By 1190 it seems that three separate courts, in the
sense of courts of law, had emerged and were differentiated from the ‘court’ in
the more general sense. These were the Court of Common Pleas, the Court of
King’s Bench and the Court of Exchequer, all administering the same body of
‘common law’ but with, originally, specialist jurisdictions. One of the articles
of the Magna Carta provided that ‘Common Pleas shall not follow our court
about, but shall be held in some fixed place’—apparently litigants felt it was
easier to seek justice in London than to track the court down to wherever the
king was that week. A little later (roughly 1345) the Lord Chancellor’s office
became separated from the curia regis and evolved into the Court of Chancery,
administering the separate and more flexible doctrines of Equity. The full history of these four courts and the battles between them for jurisdiction can be
read in an English legal history text, but their existence had a few constitutional
consequences:
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■
6
While the main remedies given by the common law courts were damages
and recovery of possession of land, the Court of Chancery developed more
flexible remedies, including injunctions and declarations. These are still the
most common remedies sought in constitutional litigation. Their origin
in Equity means that there is some discretion as to awarding them and
formulating their terms.
As the courts invented new forms of writs, partly to ‘steal’ jurisdiction from
each other and partly to find better ways of doing justice, they developed
the ‘great writ’ of habeas corpus—a command to bring a named person
before the court. At first, this was most probably used as the equivalent of a
modern summons, simply to ensure that a relevant witness was before the
court, and later to take cases over from the jurisdiction of lower courts or
from rival superior courts, but by Tudor times (from 1485) it was commonly
issued in a form that said, essentially, ‘whereas you have the person (habeas
corpus) of X in your custody, bring him/her to court and show cause why
he/she should not be released’. That is, the courts had used it to assume the
power to test the validity of imprisonment and to order the release of victims
of arbitrary imprisonment.
The combination of kingly promises of due process, the existence of law
courts structurally separated from the king’s court, and the availability
of habeas corpus, added up to a semi-guarantee that the courts would
protect subjects from oppression by the executive. The conversion of
this semi-guarantee into a real guarantee will be studied in the following
section.
PART A
ADDENDUM 1
1.3.3 The seventeenth century—legal limits on
executive power
In medieval Europe, Kings were held to be subject to the law of God, but in the
sixteenth century they made stronger claims to absolute power. In 1576 Jean
Bodin, a loyal servant of the King of France who was hoping for promotion,
wrote Six Livres de la République in which he claimed that a sovereign ruler must
have ‘the highest power over citizens and subjects unrestrained by laws’ [emphasis
added]. In England the Tudors Henry VII, Henry VIII, Mary and Elizabeth I may
have exercised arbitrary rule at times, but they knew it was necessary to pay lipservice to the ancient liberties of the English. The influence of Parliament even
increased under Henry VIII because he relied heavily on Parliament’s support to
pursue his projects, such as declaring England a Protestant nation with himself as
the head of the church (Act of Supremacy 1534) and dissolving the monasteries.
However, when Elizabeth I died childless and the throne passed to the young
James VI of Scotland in 1603, he was not only a remarkably distant relation to
inherit the throne (the grandson of her first cousin), but he brought an alien
philosophy—Bodin’s idea of the divine right of kings—to England. During
his reign as James I of England, the strife was legal rather than physical. On
two occasions, disputes, which were more like debates between the King and
the judges than ordinary law cases, were heard in the courts, presided over by
Coke CJ and duly reported in his own Reports:
Prohibitions del Roy (1607) 12 Co Rep 64: Coke held that ‘The King in
his own person cannot adjudge any case, either criminal or betwixt
party and party; but it ought to be determined and adjudged in some
Court of Justice, according to the law and custom of England.’
Prerogative
powers
are special
powers held by the
monarch and not
exercisable by ordinary
people.
Case of Proclamations (1611) 12 Co Rep 74: in consultation with the
other Chief Justices, Coke ruled specifically that ‘the King by his proclamation cannot create any offence which was not an offence before’,
and more generally as to prerogative powers, that ‘the King hath no
prerogative but that which the law of the land allows him’. And of
course the law of the land, according to Prohibitions del Roy, is to be
interpreted only by the courts.
The King seems to have accepted these rulings, but he dismissed Coke in
1616. His son, Charles I, bullied the judges into agreeing that he had the power
to levy ‘ship money’ taxes without the consent of Parliament in R v Hampden
(1637) 3 St Tr 825, but civil war broke out in 1642 and he was captured and
executed in 1649. England was briefly a republic, styled ‘the Commonwealth’,
until 1660, when the monarchy was restored. However, Charles II and James II
(Charles I’s sons) kept claiming more power than the members of Parliament
were prepared to concede, and in 1688 Parliament invited William of Orange
and his wife Mary (James’s daughter) to replace James in a coup which quickly
became known as the ‘Glorious Revolution’.
7
CONSTITUTIONAL LAW
All through the Civil War and in the period leading up to the Revolution,
people had been publishing books and pamphlets arguing the case, on the one
hand, for monarchy, and on the other hand, for the ancient rights of Englishmen
or more radical theories of democracy, limited government, written constitutions and the separation of powers. However, the leaders of the Revolution
simply wanted to reinstate the principles that they thought were already part of
the English system of government (its ‘Constitution’, as they saw it). Therefore,
as the price for William and Mary taking over the throne, they demanded their
assent to the Bill of Rights (not finally signed until 1689, but cited as the Bill of
Rights 1688). It provides:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
That the pretended power of suspending the laws or the execution of
laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of
laws by regal authority, as it hath been assumed and exercised of late,
is illegal;
That the commission for erecting the late Court of Commissioners
for Ecclesiastical Causes, and all other commissions and courts of like
nature, are illegal and pernicious;
That levying money for or to the use of the Crown by pretence of
prerogative, without grant of Parliament, for longer time, or in other
manner than the same is or shall be granted, is illegal;
That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
That the raising or keeping a standing army within the kingdom in
time of peace, unless it be with consent of Parliament, is against law;
That the subjects which are Protestants may have arms for their defence
suitable to their conditions and as allowed by law;
That election of members of Parliament ought to be free;
That the freedom of speech and debates or proceedings in Parliament
ought not to be impeached or questioned in any court or place out of
Parliament;
That excessive bail ought not to be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted;
That jurors ought to be duly impanelled and returned, and jurors which
pass upon men in trials for high treason ought to be freeholders;
That all grants and promises of fines and forfeitures of particular
persons before conviction are illegal and void;
And that for redress of all grievances, and for the amending,
strengthening and preserving of the laws, Parliaments ought to be
held frequently.
It should be very carefully noted that although the Bill later gave its name
to special laws that limited the powers of legislatures, there is nothing in the
Bill of Rights that purports to limit the powers of the Parliament. Each ‘article’
(originally un-numbered, but now referred to by the numbers shown above),
8
PART A
ADDENDUM 1
is limiting only the monarch’s prerogative power. Some articles (1, 4 and 6)
specifically say that Parliament can make laws. Others have exactly the same
effect—the king cannot limit the right to bear arms, but Parliament can; the
king cannot regulate the presentation of petitions to Parliament, but Parliament
can; the king cannot instruct the judges as to the level of bail and fines to be
imposed, but Parliament can; the king cannot keep a standing army by exercise
of the prerogative, but Parliament can authorise a permanent defence force and
regulate its size by controlling the budget.
The general principles, and most of the details, of the Bill of Rights are still
law in Britain and in Commonwealth countries (though in most places jurors in
cases of high treason no longer have to be freeholders). The Bill, in fact, transferred sovereign power in England (and in Scotland, when the two parliaments
united in 1707) from the monarch to Parliament, although the full effects of
that took a century or more to become apparent. It is probably from this time
that we can also say that Coke’s rulings in Proclamations and Prohibitions del
Roy, which may have been seen as mere opinions until then, were accepted as
clear statements of the law of England.
1.3.4 The eighteenth century—judicial
independence and the rule of law
In 1688 William had agreed to the inclusion of principles in the Bill of Rights
only where he conceded that they had long been claimed as part of English
law, but had rejected attempts to impose new limits on his power. However,
he was so keen to have the Act Of Settlement enacted in 1701, to guarantee
that his successors must be Protestants, that he agreed to the inclusion in the
Act of some extra limitations, a ‘Bill of Rights Part 2’. The two provisions that
are of current importance are clauses 6 and 7 of Article 3, sometimes cited as
Articles 6 and 7:
6.
7.
That no person who has an office, or place of profit, under the King,
or receives a pension from the Crown, shall be capable of serving as a
member of the House of Commons.
That … Judges’ Commissions be made quamdui se bene gesserint [for
so long as he/she conducts himself/herself well], and their salaries
ascertained and established; but upon the address of both Houses of
Parliament it may be lawful to remove them.
The first of these was intended to guarantee the independence of members
of parliament (MPs) by ensuring that their principal loyalty to ‘the country’
would not be overridden by financial dependence on the Crown. It has been
substantially copied into Australia’s Commonwealth Constitution as para 44(iv)
and, as we will see in Chapter 8, can cause trouble in modern conditions.
Clause 7 ensures the independence of the judiciary; no longer would a king be
able to dismiss a judge as James had dismissed Coke. Judges’ tenure was now in
the hands of the new sovereign, Parliament.
9
CONSTITUTIONAL LAW
Parliament was also taking control in another way. Because Parliament now
controlled the spending of money by the government, real executive power was
being transferred from the king or queen to the leaders of Parliament. Even
William III—a King who still acted as the real commander-in-chief of his own
army—had been told to his face by Lord Rochester that ‘princes must not only
hear good advice, but must take it’5, and developments in the next few reigns
showed this advice being turned into constitutional doctrine. Robert Walpole
was the first person to be recognised as the Prime Minister, from about 1721.
The meetings of the ministers, chaired by the prime minister, became known as
cabinet meetings, after the small ante-room in which they met to decide what
advice they would give the king (‘cabinet’ is Middle French for a small room).
In the following century there were a few occasions on which a king tried to
appoint a personal favourite as prime minister, but increasingly it became clear
that the job must be given to the person who could command a majority in
Parliament, especially in the House of Commons; the king’s ‘advisers’ were really
making the decisions; and the monarch’s role was to accept the advice.
The effect of judicial independence was demonstrated later in the century in
the case of Entick v Carrington (1765) 95 ER 807. Entick was a radical journalist
campaigning against the government of the day. Carrington and some other
‘King’s Messengers’ had forced their way into Entick’s house and seized his
papers, pursuant to a warrant issued by the Secretary of State. Entick sued, not
in some special constitutional cause of action, but in trespass. The defendants
pleaded that their actions were authorised by the warrant and that similar
warrants had been used for a century or more without challenge. The Court
dismissed that argument, saying ‘If it is law, it will be found in our books. If
it is not to be found there, it is not law.’ That passage is now seen as standing
for the proposition that the executive can only exercise coercive power against
people if the power is expressly granted by law. That is, it is now seen as the
leading case on the rule of law. Aristotle’s old theory had been given legal force.
A few years earlier, Charles de Montesquieu had published L’Espirit des Lois
(The Spirit of Laws, 1748) in which he claimed that the spirit of English law was
the preservation of liberty and that it did this by observing a strict separation
of government powers. Judicial power was exercised by an independent judiciary, legislative power by the Parliament and executive power—which, he said,
needed to be vested in one man for efficiency’s sake—was, he said, exercised
by the King. It is not clear whether he had not observed English ways closely
enough or just could not resist a bit of theoretical model-building; either way
this was not quite right. But it was close—the King’s power to decide cases had
been devolved to the judiciary, his power to make laws had been devolved to
Parliament, his power to make executive decisions had largely been devolved to
ministers in Parliament and was still diminishing, the judiciary was independent
and the executive was subject to the rule of law. Only a few people had the right
to vote and for trade unionists and Catholics, England was not yet a liberal
paradise, but a middle-class dissenter like Entick certainly had more freedom
5
10
See Brian W Hill, The Growth of Parliamentary Parties 1689–1742, (Allen & Unwin, 1976), p 86.
PART A
ADDENDUM 1
in England than in the European monarchies and possibly more than anywhere
else in the world.
1.3.5 The nineteenth century—Cabinet or
responsible government and parliamentary
sovereignty
In the early nineteenth century the restrictions on the right to vote attracted
increasing opposition, and were finally relaxed—a little—by the ‘Great’ Reform
Act of 1832. This gave Parliament’s claim to represent the people much greater
legitimacy and from the accession of Queen Victoria in 1837 onwards it became
unthinkable that she should commission anyone as prime minister who did not
have the support (the ‘confidence’, in parliamentary language) of the House of
Commons. The British did not seem to realise what they had done—when the
Canadians asked for ‘responsible government’ in 1848 the British had to ask
them to explain the term. The Canadians replied that it meant a system like the
British system, where:
1.
2.
though executive power is exercised in the name of the Queen, neither
she nor Governor-General exercise real power, but always accept the
‘advice’ of the Ministers, and
the Ministers, led by a Prime Minister, must have the support of the
majority of the more numerous and democratically-elected House of the
parliament, i.e. they are responsible to Parliament, not to the monarch.
The phrase more commonly used in Britain for the system is cabinet
government. In 1867 Walter Bagehot published his book The English
Constitution, in which he described cabinet government as the ‘efficient secret’
of the Constitution. The central theme of the book was that the ‘English’
(British) system of government had a ‘dignified part’ and an ‘efficient part’.
Hidden behind all the dignified talk of ‘Her Majesty’s Government’, the use of
royal seals on documents and the appointment of judges and military officers by
royal commission, the efficient part was government by Cabinet, which Bagehot
described as ‘a committee of Parliament’. The House of Commons acted just as
much as an electoral college as the official electoral college in the United States,
and the prime minister was just as much an ‘elective first magistrate’ as the
President of the USA. Bagehot claimed that the ‘efficient secret’ was that instead
of the separation of powers that Montesquieu had claimed to observe, there was
a ‘nearly complete fusion of the executive and legislative powers’. This was hardly
a secret to anyone who was familiar with government, but it did demonstrate
how much the system had developed since 1688.
The other principle that had developed was the sovereignty of Parliament.
Before the revolution, Coke CJ had claimed in Dr Bonham’s case (1610) that ‘in
many cases, the common law will controul Acts of Parliament, and sometimes
adjudge them to be utterly void’, but it is hard to find a case where that had
happened. Parliament led the Civil War against Charles I and the Glorious
11
CONSTITUTIONAL LAW
MONTESQUIEU’S IDEAL (CLOSE TO THE REALITY OF THE US CONSTITUTION)
Legislature
Executive
Judiciary
New laws
Executive decisions
Judicial decisions
RESPONSIBLE GOVERNMENT IN BRITAIN SINCE 1721
Queen
Parliament
The Courts
Ministers
Appointment of judges
Dismissal of judges
Agenda
setting
Public service
Judicial decisions
‘Upper’
House
‘Lower’
House
Executive
decisions
Majority
support
New Laws
(Note, the dashed line shows a theoretical power not exercised since 1830.)
Figure 1.1
A comparison of the separation of powers in Montesquieu’s ideal and responsible government in Britain
Revolution against James II, and inherited what they had claimed—absolute
power. Twice, in the Acts of Union with Scotland (1706) and then with Ireland
(1800), Parliament declared that certain provisions about religion would apply
‘in all time coming’ or would remain ‘in full force for ever’—and each time they
repealed these provisions when they seemed inappropriate to later conditions.
Most remarkably, in 1716 a Parliament elected under an Act providing for
three-year terms extended not only the terms of later Parliaments, but its own
term by the Septennial Act 1716.
So when Professor AV Dicey wrote An Introduction to the Study of the Law
of The Constitution in 1885 he declared that the Constitution of Britain had
two principal features—the sovereignty of Parliament and the rule of law. He
summed up the former by saying that Parliament had ‘the right to make or
unmake any law whatever’ and offered the above three examples as proof. His
version of the rule of law was idiosyncratically English. He claimed, uncontroversially enough, that it meant:
the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power, and equality before the law, or the equal subjection of all classes to the ordinary law of the land …
12
PART A
ADDENDUM 1
However, he added the claim that the rule of law worked better in Britain
than in nations with written constitutions because the rights of Britons were
sufficiently protected by the ordinary law applied in ordinary courts. He obviously had in mind Entick v Carrington—where a citizen asserted his rights by
suing government officers in the tort of trespass—though the book is in fact
remarkable for its lack of case citations. It is also remarkable for the fact that it
claims that the executive has no prerogative powers and for ignoring the thenwide immunity of the ‘Crown’ (the executive government) from statutes and
from lawsuits. Like Montesquieu, he was presenting an idealised model of the
British system, rather than describing it with perfect accuracy.
Dicey conceded that the sovereignty of Parliament and the rule of law ‘may
appear to stand in opposition to each other, or to be at best only counterbalancing forces’, but claimed they actually reinforced each other. This claim may have
had some validity when no party could rely on the unquestioned support of the
majority of the House of Commons, but when the two-party system became
more entrenched—a process that was already happening when Dicey wrote The
Law of the Constitution—a government that found its powers limited by law
could readily have the law changed. In fact, in a later book, Law and Opinion
in England in the Nineteenth Century (1905), Dicey thoroughly disapproved of
some of the more collectivist laws that Parliament had recently enacted in the
exercise of its sovereignty, which, he said, was ‘an instrument well adapted for
the establishment of democratic despotism’. (Oddly, he takes no credit in this
later book for having made the sovereignty of Parliament well known, instead
attributing it to Blackstone and Bentham.)
For the late-Victorian lawyers who drafted the Commonwealth Constitution
and became the leading federal politicians for the Commonwealth’s first few
decades, the principles stated by Bagehot and Dicey—Cabinet (or responsible)
government, the sovereignty of Parliament and the rule of law—were a strong
part of their heritage. They still have a dominant influence on state politicians
and their legal advisers, who tend to emphasise the sovereignty of Parliament
while paying less attention to the rule of law. But there were two other
strands of thought contributing to the development of the Commonwealth
Constitution.
1.4
Revolutionary concepts—a written
Constitution and judicial review of
legislation
1.4.1
Origins in the English revolution
As mentioned above (1.3.3), a ‘pamphlet war’ was fought out in parallel with
the shooting version of the Civil War. Many new and democratic theories
were offered. In An Arrow Against All Tyrants (1646), Richard Overton argued
that just as ‘by nature no man may abuse, beat, torment, or afflict himself, so
13
CONSTITUTIONAL LAW
by nature no man may give that power to another’. That is, if we see power as
a gift of those who are governed, there are limits on how much power can be
given. In the search for a basis on which to settle the Civil War, a group called
the Levellers drew up an ‘Agreement of the People’ which incorporated many
of the limitations contained in that Magna Carta and the Petition of Right
and many others besides, and was intended to be superior to laws made by the
Parliament. In its terms it forbade any member of Parliament ‘to render up, or
give, or take away any of the foundations of common right, liberty, and safety
contained in this Agreement’. It was not adopted. Sir Henry Vane suggested, in
A Healing Question (1646), that the way to bring about the establishment of
fundamental constitutions was through a ‘General Council, or Convention, of
faithful, honest, and discerning men, chosen for that purpose by the free consent of the whole body of adherents to this cause’. It may have been an echo
of this idea that had led the meeting of MPs and Lords, who invited William
and Mary to take the throne in 1688, to style themselves the ‘Convention
Parliament’; certainly the idea of special Conventions to draft fundamental
constitutions was later adopted in both America and Australia. John Milton,
better known as a poet, weighed in with an essay on The Tenure of Kings and
Magistrates (1649), in which he argued that it was the right of a people to
change their leaders ‘as oft as they shall judge it for the best’ whether or not
the leader had been a tyrant, ‘merely by the liberty and right of freeborn men
to be governed as seems to them best’.
Most famously, John Locke wrote his Second Treatise on Civil Government
(1690), probably written before the Glorious Revolution but published in 1690
when it was safer to do so. In this he argued that people form societies in order
to protect their ‘property’ (which, in his usage, included ‘life’ and ‘liberty’ as well
as property in the material sense, ‘estate’). He argued that we give governments
just sufficient power to defend that property (as broadly defined) and that we
have a right to rebel against an unjust government. He spelled out a number
of areas that government had no power to touch, and outlined a rudimentary
version of the theory of separation of powers, later expounded in more detail
by Montesquieu.
1.4.2
Adoption after the American revolution
When the American colonies rebelled against British rule in 1776 they were
not rejecting all things British—they claimed to be rebelling against the King
and his ‘evil advisers’ in the cause of re-establishing government under the true
principles of English law, including the principle that Montesquieu claimed to
have seen at work in England—the separation of powers. However, they also
picked up some of the ideas about limited government that had been floated in
England in the 1640s but not adopted there.
While their War of Independence was still in progress, many of the former
colonies (now calling themselves ‘States’) made new constitutions for themselves, several of which included ideas such as written constitutions, Bills of
Rights and a strict separation of powers. The Constitution of Massachusetts
14
PART A
A confederation
is a grouping of
states, where
the central authority
is responsible for
a few key matters,
like defence and
foreign affairs, but
otherwise the states
retain a good deal of
autonomy; in many
cases the central
government has no
power to make laws
directly binding the
citizens.
ADDENDUM 1
(1780) added an idea based on Aristotle’s reference to the rule of law—after
prescribing the separation of powers, the Constitution gave the reason: ‘to the
end it may be a government of laws and not of men’. Some of the state constitutions were originally ratified by a popular referendum—in Massachusetts,
even though only people with a certain amount of property could vote for
representatives, all males were allowed to vote on the ratification of the
Constitution.
From early in the War of Independence till 1789 the states were joined
by ‘Articles of Confederation’, which established a fairly weak Congress.
Dissatisfaction with the Articles led in 1787 to the election of a Constitutional
Convention to revise the Articles, but instead the delegates drafted a new
Constitution, which came into effect in 1789 following ratification by nine
of the states. Following Montesquieu’s theory, the Constitution provided for a
strict separation of powers; indeed, the Convention followed Montesquieu so
far as to provide for a one-man executive, to be called the president, despite
the misgivings of those who felt that they were re-instituting a monarchy. The
English precedent of a bicameral legislature was followed, but since titles of
nobility were prohibited by the Constitution (Art I, Sec 9, Clause 8 and Art I,
Sec 10, Clause 1) the ‘upper’ House was not named after the House of Lords but
after the ancient Roman institution, the Senate.
Delegates from the less populous states were anxious to preserve the ‘rights’
(by which they meant the powers and status) of the states as much as possible,
so America became a federation, with a number of specified powers granted
to the new federal Congress by Art I sec 8, and the states impliedly left free
to make laws on the residue. (This implication was later confirmed by the
10th Amendment.) Concern for the less-populous states also affected the
constitution of the Congress—under the ‘Great Compromise’, state representation in the House of Representatives is proportional to population, whereas
in the Senate each state has equal representation. The president is elected by an
electoral college, in which each state has a number of members equal to the total
number of members of the House of Representatives and the Senate—so there
is a slight extra weighting for the less-populous states. Having been drafted by
delegates elected by the people, on a state-by-state basis, the Constitution was
ratified by state conventions elected by the people, again on a state-by-state
basis. Article V provides that amendments will be ratified by the legislatures of
two-thirds of the states—which are of course elected, more or less fairly, by the
people—but a direct vote of the people, as the people of the United States, plays
no part in the system. Although the words of enactment say: ‘We the people
of the United States … do ordain and establish this Constitution’, the people
always speak through their elected representatives. Principles of federalism,
and equality of the states rather than equality of the people, overrode any idea
of direct democracy.
The supremacy of the Constitution (together with treaties made under
the authority of the United States) over the law of the land was expressed in
article IV, s.2. Although the Constitution did not quite spell out the logical
conclusion that a law inconsistent with the Constitution could be invalid, that
15
CONSTITUTIONAL LAW
Federation is
a form of
government
in which powers and
functions are divided
between a central
government and a
number of political
subdivisions that
have some degree of
political autonomy.
seemed to be the obvious consequence. Alexander Hamilton made it clear that
he expected that consequence in No 78 of the ‘Federalist Papers’ (a series of articles published in pro-ratification newspapers during the debate on ratification):
No legislative act … contrary to the Constitution can be valid. To deny this
would be to affirm that … the representatives of the people are superior to
the people themselves …
The interpretation of the laws is the proper and peculiar province of the
courts. A Constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought to be preferred;
or, in other words, the Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people
is superior to both; and that where the will of the legislature, declared
in its statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the
former.
Marbury v Madison 5 US (1 Cranch) 137
In 1803 the United States Supreme Court applied Hamilton’s reasoning in
Marbury v Madison 5 US (1 Cranch) 137. The actual issue in the case was
whether an Act of Congress could give the Court additional original jurisdiction, and the holding on that issue—that it could not—makes it seem like the
Court is very humbly refusing jurisdiction. But to decide that point it had to
exercise a much greater jurisdiction—the power to hold that an Act of Congress,
repugnant to the Constitution, is invalid and can be disregarded by everyone.
It reasoned thus:
That the people have an original right to establish, for their future government,
such principles as, in their opinion, shall most conduce to their own happiness,
is the basis on which the whole American fabric has been erected. The exercise of
this original right is a very great exertion; nor can it, nor ought it, to be frequently
repeated. The principles, therefore, so established, are deemed fundamental. And
as the authority from which they proceed is supreme, and can seldom act, they
are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish
certain limits not to be transcended by those departments.
16
PART A
ADDENDUM 1
The powers of the [United States] legislature are defined and limited; and
that those limits may not be mistaken or forgotten, the Constitution is written.
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended
to be restrained? …
Those … who controvert the principle, that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining
that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It
would declare that an act which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely obligatory. It would
declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving the
legislature a practical and real omnipotence, with the same breath which professes
to restrict their powers within narrow limits …. That it thus reduces to nothing,
what we have deemed the greatest improvement on political institutions, a written
Constitution, would, of itself, be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.
In English law the concept of ‘judicial review’ is well known, but it is a
concept of administrative law—the superior courts can review the validity
of decisions made by lower courts or executive officers. For an English court
to declare that an Act of Parliament is invalid is unthinkable; even under the
Human Rights Act 1998 the strongest thing the courts can do is to declare that
a law is incompatible with the rights established by the European Convention,
and leave it to the executive government and Parliament to decide whether
that is so embarrassing that they must amend the law. However, Marbury v
Madison established that under a written Constitution that declares itself to be
the supreme law of the land, judicial review can also extend to reviewing the
validity of Acts of the legislature. Though the drafters of our Constitution had
not lived under such a system, they had, apparently, all read Lord Bryce’s text
The American Commonwealth and were familiar with the Marbury v Madison
principle.
1.5
The Swiss idea—popular control of the
amending process
We have seen above that the sovereignty of the people over the United States
Constitution is always expressed through their elected representatives. However,
a precedent for more direct involvement of the people was available in the
Swiss Constitution. Switzerland had been a loose federation (a ‘confederation’)
17
CONSTITUTIONAL LAW
for centuries but had changed in 1848 to a more centralised, yet still federal,
structure, influenced by the United States Constitution. As the new Constitution
was intended to resolve differences, which had resulted in a brief, if one-sided,
civil war, a consensus approach was proposed for its ratification. A referendum was proposed in which a ‘double majority’ was required—it had to be
approved, and was approved, by a majority of the voters overall and a majority
of the voters in a majority of the cantons. The double majority requirement,
which reflects a compromise between federalism and the sovereignty of the
people, was applied to future proposals for constitutional change in the revised
Constitution of 1874 and has remained in the Swiss Constitution ever since,
through several revisions. This was also known to the Australian drafters and,
as we shall see in the next chapter, was incorporated into the Commonwealth
Constitution.
Chapter summary
This chapter has reviewed the main ideas inherited by Australia from the constitutional
practices of England (later Britain), the United States and one fundamental idea from
Switzerland.
The British ideas are reflected in the internal structure of Commonwealth and state
governments: an elected Parliament and an executive government in which decisions
made in the name of the monarch are made in reality by a public service under the
control of ministers who are ‘responsible’ to Parliament, meaning that they must be
members of it and supported by the majority of members of the ‘lower’ House. The
powers of the government are limited to those given to it by law and illegal actions
can be restrained by the courts, the judges of which have tenure to assure their
independence from the executive government. The states can amend most provisions in their own constitutions, but they are bound by limits in the Commonwealth
Constitution.
The United States Constitution was well known to the drafters of the Commonwealth
Constitution and they took from it the idea of a division of powers between the
Commonwealth and states, as well as the notion that the Constitution could be a
supreme law that is binding on the people and all the legislatures. However, the drafters
did not follow the American method of amendment; instead they copied the Swiss
notion of requiring amendments to be approved by the voters by a ‘double majority’—a
majority of the people of the whole nation and a majority of the people in a majority
of the states.
The idea of the rule of law, first mentioned in Greek political philosophy, was given
some legal effect against the executive government in Britain after the judges were
given independence (Entick v Carrington) and then acquired greater force in America and
Australia with the adoption of the idea that judges can review the validity of statutes by
testing them against the limits in the written Constitution (Marbury v Madison).
18
PART A
ADDENDUM 1
Masterclass
REVIEW QUESTIONS
1 Does Britain (the United Kingdom) have a Constitution? If the answer is ‘yes and no’,
explain in what sense yes and in what sense no.
2 Suppose one of your friends has only heard the phrase ‘the rule of law’ in contexts
like ‘the rule of law has broken down in Somalia’ and thinks that it is a concept that
is contrasted with anarchy, meaning firm enforcement of the law and little tolerance
of dissent and disorder. Explain to them the other meaning, where the rule of law is
contrasted with too much arbitrary power in the hands of government, and explain
the origins of the concept.
3 The same friend has just heard the phrase ‘responsible government’ for the first time
and, logically enough, thinks that it means a government that balances the budget
and does not make silly decisions. Explain what it means in the context of British and
colonial history. Who is the government responsible to under this concept?
4 People sometimes complain—especially, but not exclusively, in the context of
debating whether we should have a Bill of Rights—about too much power being
vested in an ‘unelected judiciary’. What is the historical reason for the judiciary being
unelected? If they were elected for a term of five or seven years, would they be more
independent of the executive government or less?
FURTHER READING
Richard Beeman, RR, Plain, Honest Men: The Making of the American Constitution (Random
House, New York, 2009).
AH Birch, Representative and Responsible Government University Press, Cambridge, Allen &
Unwin, (London, 1964).
Alexander Hamilton, James Madison & John Jay, The Federalist Papers (New American
Library, New York, 1961).
Frederick W Maitland, The Constitutional History of England (Cambridge, 1908).
Sir Owen Dixon, ‘Two Constitutions Compared’, Jesting Pilate and others papers and
addresses (Law Book Co, Melbourne, 1965).
19