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Republic? More Power For Politicians (p4 of 11)

THE WESTMINSTER SYSTEM IN AUSTRALIA.

When Australia was settled by the colonists in 1788, they brought with them the Westminster System of checks and balances and the principle that the Bible is the rule for the whole of life and government. Giving judgment in the Supreme Court of New South Wales in 1874 in the case of ex parte Thackeray (1874 13 S.C.R (N.S.W.) 1 at p. 61), Mr. Justice Hargraves explained the principle in the following words:

"We, the colonists of New South Wales, 'bring out with us' (to adopt the words of Blackstone) this first great common law maxim distinctly handed down by Coke and Blackstone and every other English Judge long before any of our colonies were in existence or even thought of that 'Christianity is part and parcel of our general laws, and that all the revealed or divine law, so far as enacted by the Holy Scriptures to be of universal obligation, is part of our colonial law - as clearly explained by Blackstone Vol. 1 pp. 4243; and Vol. 4 pp. 43-60."

This is the true basis of Australian common law. It remains judicially unchallenged to the present day.

The Westminster system of government, with its separation of powers, its grounding in the Bible as the only rule for life and government and its checks and balances, continued through the agreement of the colonies to join together as a federal Commonwealth. Indeed, it was adopted as the undergirding basis for the Constitution that has served Australia so well since 1 January 1901.

The Constitution of the Commonwealth of Australia, unlike the constitutions of most other countries, neither establishes a new principle of government nor does it purport to be the "fountain head" of law or to establish or guarantee citizens' rights. Indeed, the term "Constitution" can be somewhat misleading. Rather than being a Constitution in the same sense as the constitutions of some other countries, it has the nature of a treaty among the six former Colonies 'ratified' by the colonial power (Britain). This 'agreement' or Constitution was adopted within the existing legal structures and was crafted in such a way that there is no room for doubt.

The federal Commonwealth of Australia came into existence on 1st January 1901 as a result of the Commonwealth of Australia Constitution Act of the British Parliament, to which royal assent was given on 9th July, 1900. Of course, it would have been possible for the colonies to revolt, declare their independence, and establish a Constitution themselves. However, they wisely chose the path of acting within the law. They realised the Australian colonies were colonial possessions of Britain and the British Parliament was the only legislature with legal power to establish the Commonwealth of Australia. Accordingly, they carefully structured the proposals for federation and requested Britain to enact those proposals. This was done willingly by the British parliament.

Although the Commonwealth of Australia Constitution Act, and the Constitution established by it, was legislated in Britain, it was exclusively for Australia and became exclusively Australian law. It has no continuing place in the law of Britain and is under the control of Australia alone.

While it is true there is no specific reference in the Constitution to the continuance in Australia of the historic principle that the Bible is the rule for life and government, no specific reference was necessary. Equally, there was no need for specific reference to the fact that all other aspects of the law as it stood in England at the date of Australian settlement (or such other dates as were established by statute) continue as the law in Australia unless and until changed by law enacted in Australia by an Australian parliament.

Of course, this does not mean the law of the land requires any person to believe the Bible or to be a Christian. It means that the principles of government in Australia are justice, mercy and lawfulness understood in terms of the Christian ethics expressed in the Bible. No religion or religious belief is imposed on Australian people Indeed such imposition is expressly forbidden by s.116 of the Constitution.

Written and authorised by Dr David Mitchell,
18 Proctors Rd. Dynnyrne, Tasmania 7005

Due acknowledgement should be given when quoting from material on this Site

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