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Constitution » The Australian Constitution

By Mr John Brett, April 2015, Toowoomba.

A History of Constitutions

Whenever a group of people associate together to form an increment of association it is to achieve an objective they could not obtain as individuals. For thousands of years the control of individuals and groups of people was imposed from the apex of a tribe, religious group or similar binding group. The control of these groups was asserted by those with knowledge and power who made the rules, which were generally binding on all within the group, irrespective of adverse consequences to some.

These were essentially feudal systems which still operate today, alone or within other political systems. The distinguishing feature of these systems was that both power and authority resided in the hands of a leader or his selected and trusted associates. They evolved through time mainly for the defence of the group, against other invading or hostile groups. Their success or failure was dependent on all obeying the commands of their leaders, as we witness in all military systems today.

Written Rules

Right back to the Egyptian era there were few or no rules of association written down. They were passed on from generation to generation and were copied by other groups.

For thousands of years new groups and new nations came into existence as they were overrun or conquered by other groups. Old identities disappeared in conquests and new leaders created new associations, but both power and authority always remained in single hands at the apex.

The discovery of the New World (America & South America), Africa, Australia, New Zealand and the Pacific Islands, by insular Europeans, was to bring into existence new nations on existing territories, some of which had tribal systems in place. The European incursions, mainly from the Latin countries, brought with them accompanying immigrations, which were products of the European feudal systems. Much blood was spilt in the clash of old and the new imported feudal systems in the America’s and elsewhere.

A New System

Australia and New Zealand became two of the last territories to be civilised, besides the sub Sahara African continent. The new immigrants brought with them a system different to the feudal systems. This new system which grew out of Britain’s feudal past, started in 1215 when King John at the point of the Baron’s swords, was forced to obey the same laws as did his subjects. This one historic incident was to change the civilised world for the next eight hundred years. Not only did it establish the separation of power of the King from the authority of his subjects, it re-introduced the old Roman Rule of Law, which held that the King was subject to the same laws as his people. No one was exempted from the agreed laws. The law could be changed, but you could not exempt yourself from it, King or Queen, Baron or Duke, soldier, sailor or candlestick maker, it applied to all.

The next great advance was in 1265 when the first parliament was called in Britain by Simon de Montfort. This new system was to further consolidate the separation power from authority, where authorship resided in each individual licensing a censure of the political power that sought to serve or control him. Henceforth those wielding political power could do so only with the authority of their subjects through their councillor or representative.

As this new Parliamentary system evolved down the centuries, the laws and rules that were enacted to govern the conduct between citizens, became embodied in a multitude of acts made law by this expanding parliamentary system. It became known as the English Constitution. This constitution had no written existence as we know constitutions today, but was dispersed amongst centuries of parliamentary enactments.

The mechanism which developed this type of constitution became known as Common Law.

Common Law is that natural law that exists within and between individuals and was different from the Roman Law of Europe, which was Canon Law, where man-made laws were to do with rules external to individuals, such as the road rules and the height of buildings, taxation etc.

Common Roots

This prevailing and often ailing system suddenly gave written expression to written constitutions which are so familiar to us today. The end of the American War of Independence in 1783 led to a new nation needing its own constitution or set of rules, in order to have agreed order. The story of the birth of the American written constitution is a story for another place, but it was to have a profound and far reaching influence on the Australian constitution which was also written at the birth of this new nation, but this time preceding the birth. Download as PDF ›

Both the American and Australian constitutions had their roots deep in the same Common Law of England, but each chose a different method of refereeing the rules, with vastly different consequences. The American constitution was the healing of a bitter conflict between King and Councillors, between power and authority, aided and abetted by other powers seeking to control the dormant potential wealth of that huge continent.

Australia’s constitution was born as no other nation before us. The continent was already divided into six self governing colonial states, whose constitutions or rules of conduct and government had been written in the first instance for New South Wales, by people in the Colonial Office of the British Government, if only for the want of a better authority. The emerging States that followed had some local influence in the writing of their constitutions, as they learnt from the first and successive colonial constitutions.

Then for twenty years or more from 1880 a movement for a federation of states to form what is now the Australian Federation, gained enough momentum and discourse to ask in each state by way of a referendum, whether they favoured the proposed new Federation.

The resounding answer was “yes”, so the long process of writing our constitution began. The new Federal constitution was to be the child of the agreeing states.

A New Constitution

Drafts from the states and many people produced many new constitutions, all remarkably the same in principle with the undergirding principle being the division between those who were to wield power and those who were to authorise the application of power. Right from the outset there was a determination to limit the power of this new government. Any extension of federal power was to be subjected to the authority of the states and by referendum of the people. The Crown was retained, as the adjudicator or referee for the stated application of each section of the constitution, unlike the U.S. constitution who chose the President as the final adjudicator in any unresolved dispute. The great and lasting difference was that Australia chose to have a Governor General appointed by the Queen, but independent of the Monarch, to be the referee in any unresolved constitutional conflict. Personification of the institution enables the reserve powers of the referee to always arrive at a resolution of any conflict. The Crown’s only and prime concern, was that the rules were abided by or altered by common consent.

The Crown as a dynasty always foreshadows the likely characteristics of those to follow. The Americans have no such inkling of what character comes next. The pedigree of the referee is paramount to any successful organisation that needs fidelity and continuity.

As was to transpire, the great disputes that arose over the application of power in the American system were resolved by the President who was part of the dispute, the very situation any workable constitution sought to avoid.

On The Playing Field

The lasting validity of the Australian model that its citizens wrote was vindicated at the same time our constitution came into existence. This arose from our new found experience in writing constitutions at very low levels, as onto playing fields of the world came the sporting contest that was to demonstrate beyond any doubt what worked and what failed constitutionally. The invention of the inflatable ball at this time led to the invention of most of the sporting games that dominate our lives today. Associations were formed to play the game and make the rules, with provision for changing the rules as decided by the players. This playing field constitution education was so successful it brought us to the situation we enjoy today, where every hour around the world those games are played out to the enjoyment of the onlookers and the constant satisfaction of the players across all the languages and political divisions of the world. The success, simplicity and transparency of the playing field constitution led to the engagement of thousands of ordinary Australians in the design of a federal political constitution , where little interest existed before the advent of the playing fields of the world.

The constitutions of the playing fields are designed and function as a TIMED CONFLICT OF POWER. While the political constitution is designed to PREVENT UNLIMITED POWER BEING EXERCISED BY MEN, OVER UNLIMITED TIME.

Success

Australia became the first nation in history to write its own constitution, which within 50 years drove it to become the most successful nation in history. From a penal colony with no infrastructure to a civilised fully industrialised and self-contained community. People from all over the world flocked here to enjoy the benefits and security it offered. Other nations a thousand years old still have not eclipsed that achievement. To cap this achievement we became the first nation ever to choose its own national flag, to fly over this achievement.

The success, simplicity and transparency of the playing field constitution led to the engagement of thousands of ordinary Australians in the design of a federal political constitution. Design started from the already existent States, where the dispersal of power was understood as the great inhibitor of centralised power. “Power in many hands was power in safe hands”.

The writers were well aware of the virtues of the systems that had previously imprisoned them but also aware of the vices harboured in those systems. There had only been five other national constitutions written before Australia’s, the U.S.1787, Canada 1867, Germany 1871 and Switzerland 1874. The shortcoming of the American model, which we were to avoid, had by this time become well known. Most Australians understood that, “all governments were like fire, excellent servants but bad masters”. Up to this point, by virtue of the State governments, we had become the most successful ever, self governing colonies.

The compelling arguments for a national government were many. Defence was the main driving issue, as the separate States could only be concerned with their own boundaries. The new telegraph system was rapidly extending beyond the town and city limits, as the phone system to follow promised likewise. The existing mail system was already having interstate transfer problems. The Postmaster General’s Department, one of the first new federal bodies, developed mail, telegraph and phone services across the whole continent and overseas, to an efficiency and reliability not enjoyed by other nations a fraction of our geographical size.

The Referee Or Umpire

The simplicity and uncomplicated principles of the constitution playing field, contain and remain the static model for all successful constitutions. A successful constitution is one that satisfies the requirement of all the participants, not just those with a special or monetary interest.

The likely participants meet and decide on the rules to be applied to the event and the players, making provision for any change in the rules by agreement of the participants. The governing committee must be elected by the participants and be able to be removed by the same process.

Without an independent refereeing or umpiring organisation, whose members cannot belong to the playing organisation, nor can be bribed or intimidated, all constitutional organisations are open to corruption and eventual downfall. Australia’s choice of the Crown occupant as the referee, acting through their representative in the person of the Governor General, has thus far avoided the great controversies of other systems where the participants choose their own adjudicator.

Quick & Garran in their one thousand page annotation of the Australian Commonwealth Constitution, defined the political government thus:-

“Constitution”

DEFINITION: A Constitution is a general law for the government of a political community, unamendable and unrepealable, except in the manner and on compliance with the conditions prescribed by the authority which created it. It deals with the sovereign power of Government and the various forms, organs, and agencies through which that power is brought into action and the relations, interdependence, and co-operation of those forms, organs, and agencies, in the performance of the work of government.

Of note is the last eight words of that definition, which are:- “…in the performance of the work of government.”

Ref: See the “Annotation of the Constitution of the Commonwealth of Australia” by Quick & Garran. Download as PDF ›

 

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