Chief Justice Robert French
14 January 2011, St Louis, USA
Australia, like the United States, has a written constitution and a federal structure. Unlike the United States and many other modern democracies it does not have a Bill of Rights in its Constitution nor a statutory Charter of Rights. Nevertheless, it is generally speaking one of the world's more durable and successful representative democracies. The object of this presentation is to say something about the history and features of the Australian Constitution, its similarities to and differences from the Constitution of the United States and how the rule of law and the protection of human rights works in Australia.
Australia's Constitution was inspired in part by the Constitution of the United States, in part by the model of responsible government in the United Kingdom, and in part by the provisions for popular amendment of the Constitution to be found in Switzerland at the turn of the 19th century. Australian nationhood is rooted in evolutionary rather than revolutionary events. This has a connection to the absence of a Bill of Rights in the Constitution and recent debate in Australia as to whether even a statutory provision for the national protection of human rights is necessary.
It is helpful to begin by looking briefly at Australia's history, particularly its constitutional history, and the constitutional framework.
Many histories lie across the contemporary Australian landscape. The oldest of them stretches back 40 millennia. It is told in the Dreamings, songs, traditions and ceremonies of indigenous Australians. The second history is that of the British colonisers. It began formally on 26 January 1788 when Arthur Phillip annexed the eastern half of Australia in the name of the British Crown. It continued with successive annexations of the rest of the continent by Britain, the evolution of the colonies into self-governing polities, and their union in a Federal Commonwealth in 1901. After Federation and predominantly in the second half of the twentieth century, there followed a wave of new histories, those of the many people of non-British origin who migrated to this country from all parts of the world. Some sought refuge from oppression and persecution. They brought with them a rich diversity of cultural heritage. Nearly one quarter of the people living in Australia today were born overseas. Forty three per cent of Australians were either born overseas or have at least one parent who was born overseas. In recent years migrants to Australia have come from over 180 different countries.1 Taken together, these histories belong to all Australia and taken together they define us, though it is the constitutional history to which I now turn.
Australia's constitutional development
Australia's constitutional history, from the perspective of its colonisers, began with the taking of the possession of the eastern part of the continent by James Cook in 1770.2 In 1786, New South Wales was designated as a place to which British convicts might be transported.3 In 1788 Governor Philip arrived in that colony as the embodiment of the authority of the British Crown.4In that year, 13 American colonies voted upon the Constitution of the United States. The year 1823 saw the first appointed local legislative body in New South Wales and the establishment in that colony of a Supreme Court.5 Tasmania was separated from New South Wales in 1825.6
In 1850 the British Parliament passed the Australian Constitutions Act 1850 (Imp). That Act provided for the enactment and alteration by colonial legislatures of their own constitutions. It also provided for the creation of a separate colony of Victoria to be carved out of New South Wales. That separation took effect in January 1851. In 1854 the Legislative Council of Tasmania enacted a Constitution Act in terms authorised by the 1850 Act. It became effective upon receiving the Royal Assent. It established a bi-cameral legislature.7 In 1855, common form constitutions authorised by Imperial statutes were established in New South Wales and Victoria. Responsible government was adopted within the framework of those constitutions as a matter of convention. Queensland was created out of New South Wales as a separate colony in 1859. The separation was effected by Letters Patent and an Order in Council which established the Constitution of the Colony in terms similar to the 1855 New South Wales Constitution.8 South Australia was created as a province in 1834 by Imperial statute.9 A South Australian Constitution Act 1855 was enacted by the South Australian Legislature.10
Western Australia was established as a colony by an Imperial statute in 1829. It achieved representative government in 1890 when the Constitution Act 1889 was authorised by Imperial Statute. It established a bi-cameral legislature, including a nominated Legislative Council. That was replaced by an elective Council in 1893.11 The Constitution Act 1899 passed by the Western Australian Parliament consolidated its predecessor enactments.
The Constitutions of the Australian Colonies derived their legal authority directly or indirectly from Acts of the Imperial Parliament. They were the result of local initiatives by the colonists. Each of the Colonies at the close of the 19th century had well-established and well-respected judicial systems. At the apex of each judicial system was a Supreme Court. Those judicial systems were constituted as the judicial systems of the States after Federation. Importantly, their generally high standing and practical economic considerations led to a provision being included in the Australian Constitution whereby State courts could be invested with federal jurisdiction. They were so invested, and as appears later, that provision in the Australian Constitution, together with the role of the High Court as the final court of appeal on all matters within Australia, supported doctrines that the Supreme Courts cannot be abolished, and must maintain their supervisory jurisdiction within the States and further that the courts of the States cannot be required or authorised to do things which are repugnant to the judicial function and would render them unfit repositories for federal jurisdiction.