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[Drafting the Constitution: The Samuel Griffith Society] 

 

The Australian Constitution is sometimes criticised by those wanting to change it because it is does not, for example refer to the Cabinet or the Prime Minister. But the Constitution was not intended to be a complete text on the constitutional system. It was a document federating the six self governing countries into a nation, setting up new Federal institutions and granting them certain limited powers.

The Founding Fathers, led by the Queenslander who was to become the  first Australian Chief Justice, Sir Samuel Griffith  ( shown above in the illustration from The Samuel Griffith Society site, the only Australian site dedicated to the study and advancement of federalism) would have seen the constitution as Bolingbroke did, as  that "assembly of laws, customs and institutions...according to which the community has agreed to be governed.”

The Founding Fathers assumed that the absolute rights Australians had brought with them from Britain would continue.


From Magna Carta, through the Glorious Revolution to our Federal Constitution...


 William Blackstone is an English jurist  much revered in the United States. In his ‘Fundamental Laws of England,  published in 1760, he enumerates a stream of signal documents which declare what he saw as the “absolute rights of Englishmen.”

It was these rights which the American colonists believed they had taken with them to the new land, and it was those rights which they claimed King George III was infringing. He saw these documents, all of a constitutional nature, as the spring from which parliament and the common law came.

They are a golden thread which begins with Magna Carta, its various confirmations, the Petition of Right and the Habeas Corpus Acts under Charles 1. They come through the Bill of Rights, 1689 and the Act of Settlement of 1701 the major pieces of legislation in the period referred to as the Glorious Revolution.

After this the modern Westminster system developed through the development of our modern constiutional monarchy, a crowend republic.

Our constitutional system assumes these continue, and in particular that it is based on the Westminster system. This means that the executive government is carried out by the Australian Crown through ministers  responsible to the federal House of Representatives or state lower house.  Most importantly  they must continue to enjoy its confidence.

Accordingly, the Australian Crown  will normally act on the lawful advice of ministers who enjoy  the confidence of the House of Representatives. There is one important rider to this.

The government can only govern with moneys appropriated by the Parliament. Without supply a government cannot govern.

And so the essence of our constitutional system is based on successful and gradual developments over centuries, unique in the world, a golden thread which goes back to the Magna Carta.

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