The Origins of Australian Law

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Opening of the First Parliament of the Commonwealth of Australia by H.R.H. The Duke of Cornwall and York (Later King George V), May 9, 1901.

Putting aside customary Aboriginal law, contemporary Australian law originates from the British legal hegemony following colonisation of the eastern seaboard of Australia in 1770.  Australia’s legal system is described as an absorbed jurisdiction of the Imperial British legal system, followed by a sequence of Imperial and, upon Federation of Australia, Australian statutes that comprise together with concomitant Commonwealth, Imperial and State and Territory common law, custom and Constitutional convention, “the law” of Australia.

Australia became a Federation on 1 January 1901 by enabling provision in the 9 July 1900 enactment of Imperial statute known as the Commonwealth of Australia Constitution Act 1900[1].

The creation of an Australian Federation overlayed an existing group of six Colonies turned States that form the Federation.  The Federal jurisdiction consists of its enumerated jurisdiction found in s.51 of the Commonwealth Constitution and certain other Constitutional powers.  The residual jurisdiction reverts to the States.

Opening of the First Parliament of the Commonwealth of Australia by H.R.H. The Duke of Cornwall and York (Later King George V),
May 9, 1901.

The jurisprudential foundation of Australia’s Constitutions

In order to determine the jurisprudence expressed in Australia’s Constitutions, we need to restate briefly the structure of Australia’s Federal Constitutional system.

P H Lane notes that ‘every Australian must obey two sets of laws.  He can use two kinds of courts.  He elects two governments.  And he knows two Constitutions.  These two sets of laws, courts, governments and Constitutions are Commonwealth and State’.[2] The Commonwealth Constitution is on its surface silent on the question of what morality prevailed at the date of drafting.  There are no ‘objects’ provisions in the Commonwealth Constitution Act.  By comparison, in the State Constitutions, for example the Constitution Act (NSW) 1902, section 5 prescribes:

s.5 General legislative powers

The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever…

The phrase ‘peace, welfare and good government’ is the foundation of any moral insight at the statutory level of the legislative powers of the Parliament of New South Wales.  It takes its roots from Imperial law and is universally applied within the Commonwealth countries.  Its French motto is paix, ordre et bon gouvernement and its abbreviation “POGG” is synonymous with a Government’s residual jurisdiction otherwise not accommodated in any other legislative instrument or prerogative.  POGG is found in the United States legislatures, Canada and other Commonwealth common law countries as it is found in the laws of the States of Australia.

The significance of this observation flows from the next consideration on whether the Australian Commonwealth Constitution is a creature of Christian legislative intent or simply an instrument to be read narrowly as any other legislative instrument, as is forcefully advocated by successive High Court Justices.  This question is critical to the thesis as it determines the question of what jurisprudence is latent in the Constitution by the founding draftsmen of the Commonwealth Constitution.

Relevantly, the question to be answered is first, whether the Commonwealth Constitution is a Christian Constitution.

If Australia’s Commonwealth Constitution is found to be Christian in jurisprudence, then this fact has profound moral and legal implications as to the application and relevance of the natural and moral law.  If Australia’s Commonwealth Constitution is not founded upon a Christian jurisprudence, then the question is what jurisprudence is our Constitution founded upon?  There must be a jurisprudence, whether that jurisprudence is one of any number of possible secular humanist ideologies, or something else.  It is a question of inquiry to discover Australia’s foundational jurisprudence from which we then assess whether that jurisprudence seeks to coalesce with the natural law and the moral law.

“…humbly relying on the blessing of Almighty God…”

These words: ‘humbly relying on the blessing of Almighty God’ are presently found in section 1 of the Commonwealth of Australia Constitution Act 1900.  The existence of these words is most significant in discerning the Legislator’s intent in light of the debate that took place during the Australasian Federation Conference of 1898.  On 2 March 1898 a Conference representative from South Australia, P M Glynn, moved an amendment to the proposed Constitution’s preamble:

“That the following words be inserted after the word “Constitution” (line 2) :- ‘humbly relying upon the blessing of Almighty God’.”[3]

What followed in debate on this Petition of 2 March 1898 was a detailed deliberation on the Constitutional importance of these words.  It is clear from the transcript of proceedings that this matter was of grave significance to the Conference.  Transcript reveals this issue had been debated before at other conventions.  In moving this particular petition, P M Glynn acknowledges in support of the motion “that it embodies the spirit of the nine suggestions in regard to this matter made by the various Houses of Parliament which have considered the Draft Constitution”[4].  In short, the petition was supported by the all the Houses of Parliament on the Australian continent at that time and in the forerunner for the provision that would ultimately find its way into the statutory provision that is section 1 of the present Commonwealth Constitution.

Making of laws on religion vs statement of moral intent

Opposing the petition was a representative called Higgins.  The debate focused not on the question of whether the preamble ought not reflect the reality that Australia was a “Christian people”, but rather whether the Commonwealth and not the States, had the power to make laws on religion.  Higgins in rebuttal argues:

“…so I will make no opposition to the insertion of seemly and suitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are not conferring on the Commonwealth a power to pass religious laws.  I want to leave that as a reserved power to the state, as it is now.  Let the states have the power.”[5]

The petition was passed by the Conference and s.1 of the Constitution now includes the words “humbly relying upon the blessing of Almighty God”.  The significance of these few words must be understood in the context of the Conference deliberations of the time.  That is, the Constitutional Act ultimately passed in 1900 includes the clause and in doing so, gives statutory recognition in the Commonwealth Constitution after considered deliberation, of an expressly Christian jurisprudence.

The significance and import of the Constitutional Preamble

The cornerstone argument that led to the incorporation of the preamble is perfectly summarised by Sir John Downer, grandfather to Alexander Downer, who argues with force against those opponents of the proposed amendment.  Whilst a long quote, these words express amply the doctrine of ‘absorbed jurisdiction’.  By ‘absorbed jurisdiction, it is meant that Australia, from inception as a British Colony, carried with it the entire jurisdiction of the Imperial Government of Great Britain and with it, its Christian jurisdiction:

 “Sir JOHN DOWNER (South Australia).- I desire to say just a few words, because I think there is a more serious question involved than the mere insertion of the words of this amendment.  I am sure that we all listened with great pleasure to the speech of Mr. Higgins on the subject.  He reminded us of the decision in

America that the Christian religion is a portion of the American Constitution, and of the enactments that were passed in consequence.  I do not know whether it has occurred to honorable members that the Christian religion is a portion of the English Constitution without any decision on the subject at all.  It is part of the law of England which I should think we undoubtedly brought with us [start page 1741] when we settled in these colonies.  Therefore, I think we begin at the stage at which the Americans were doubtful, without the insertion of the words at all, and I would suggest to Mr. Higgins to seriously consider whether it will not be necessary to insert words distinctly limiting the Commonwealth’s powers.

 Mr.  HIGGINS. – There are words printed in an amendment to that effect.

 Sir JOHN DOWNER. – I feel more strongly than ever that that ought to be done, because I can very well understand the way in which the very persons who are presenting petitions and asking for this recognition would resent the consequences if they found that the religious control was taken away from the state and put into the Commonwealth.  For my own part, I think it is of little moment whether the words are inserted or not.  The piety in us must be in our hearts rather than on our lips.  Whether the words are inserted or not, I think they will have no meaning, and will have no effect in extending the power of the Commonwealth; because the Commonwealth will be from its first stage a Christian Commonwealth, and, unless its powers are expressly limited, may I legislate on religious questions in a way that we now little dream of.”[6]

Here, Sir John Downer expresses with accuracy the absorbed and inherent Christian jurisdiction of Great Britain which, by definition, is the jurisdiction of Australia from inception of the Commonwealth.  This absorbed jurisdiction critically includes the Christian jurisdiction of Great Britain.  In particular, this jurisdiction includes the former Ecclesiastical Courts that in the late 19th Century were absorbed into the Courts of Equity amongst other jurisdictions and within which the ostensibly Christian jurisdictions are practiced in Australian Courts to this very day.  Remedies such as Declaratory relief, prerogative writs and other remedies unique to the Ecclesiastical Courts only have expression by virtue of that very Christian jurisdiction which Sir John Downer refers.  In giving recognition to the Christian jurisdiction of the Commonwealth and States, Sir Downer debunks the apparent impediment of jurisdictional conflict between Commonwealth and States with the making of laws based upon a Christian jurisprudence.  This was the nature of the debate leading to the making of the Commonwealth Constitution and concludes that the legislator had in clear contemplation Australia’s Constitution was and remains a Christian Constitution.

Since Federation in 1901, rapturous debate in the High Court of Australia and in academia has revolved around whether Australia’s Commonwealth Constitution is a Christian Constitution, or whether it is an instrument of secular creation, to be statutorily interpreted narrowly by application of general rules of statutory interpretation like any other statute.  Alongside this question is the overarching cultural question of whether Australia may properly be described as a “Christian nation” by virtue of its primary Constitutional instruments as the founding exposition of Australia’s cultural ministry as

a Christian Confessional State, albeit not of any particular Christian denomination.  The debate from the Constitutional Conference of 1898 shows that the legislative intent gives unambiguous recognition of the fact that the Drafters of our Constitution gave express recognition of Australia’s Christian jurisprudence being saturated within the absorbed jurisdiction in the making of our new Commonwealth jurisdiction.

For completeness, that same absorbed jurisdiction is manifest in the Constitutions of the States of Australia, who are themselves creatures of Imperial statute and prerogative writ.  The same ineluctable principle of absorbed jurisdiction as expressed by Sir John Downer applying to the Commonwealth equally applies to the States’ Constitutions.  In short, all Constitutions of the Commonwealth, States and Territories are inextricably mixed with the absorbed Christian jurisdiction of Imperial England from their respective inceptions and cannot be ignored or distilled away.

[2] Lane, P H An Introduction to the Australian Constitution [3rd Ed.] The Law Book Company (1983) p.1

[3] Australasian Federation Conference [1898] Petitions – Motion moved by Glynn, P. M. p. 1732.

[4] Glynn P M: Loc. cit.

[5] Australasian Federation Conference [1898] Petitions – Reply by Higgins,  p. 1735.

[6] Australasian Federation Conference [1898] Petitions – Sir John Downer,  pp. 1741-1742

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