This chapter explores the history of Australian constitutionalism. To this end, it necessarily develops a definition of constitutionalism that fits the sometimes-distinctive Australian approach but that also is plausible from the standpoint of global theory and practice. To assist to frame the historical story, the chapter identifies a series of continuing influences on Australian constitutionalism, including the sources on which it draws; the implications of the long Indigenous relationship with country; the nature and duration of colonial status from 1788; and the early impetus towards electoral democracy. Against that background, the chapter traces the historical development of written Constitutions in Australia; of the role of popular sovereignty, including conceptions of the people; of the character and extent of constitutional limits on public power; and of judicial review. It concludes with some brief reflections on the principal features of Australian constitutionalism now and some of the challenges that it faces.

All courts perform functions of a broadly constitutional kind. They provide a key mechanism for ensuring compliance with law and the peaceful resolution of disputes between people, according to law. Viewed from this perspective, they are integral to the capacity of a state to carry out its responsibility to establish and maintain internal peace and security.1 In one form or another, courts also are likely to be the forum for the resolution of that most challenging category of legal disputes: enforcing compliance with law by the institutions of the state itself. In each of these respects, courts are central to the rule of law. They may be analysed in terms of separation of powers or representative democracy, as well, where these are features of the constitution of the state.

Introduction

The contemporary concept of a constitution can be traced to the instruments so named that came into effect in the United States and France at the end of the eighteenth century, in each case in the wake of revolution. Over the century that followed, a constitution became widely accepted as a single written document that prescribes the key elements of a system of government and that derives its authority from a sovereign people. In time, it became more clearly established that a constitution is superior law, distinguished from ordinary law by the manner in which it is made and changed. Over the course of the twentieth century, it became widely accepted that constitutions can be enforced through courts, even at the expense of ordinary law, although the arrangements for doing so varied significantly, in accordance with the differing logic that underpinned them.

While these generalisations are broadly accurate, at least two caveats are necessary. The ideas inherent in the concept of a constitution were not born in a vacuum at the end of the eighteenth century but had a long gestation in Europe, prompted in part by constitutional developments in seventeenth-century Britain, with long roots in the ancient world. Nor do all states have constitutions that match all facets of the modern conception, even now. In the United Kingdom, the Constitution remains an accumulation of laws, principles and practices. In New Zealand, the Constitution Act 1986 can be altered in the same way as ordinary law. There is no judicial review of the constitutional validity of national legislation in, for example, the Netherlands, Ethiopia and Switzerland, although the alternatives and the rationales for them differ. Nevertheless, at least for the moment, the general features of a constitution are sufficiently settled to provide a standard by reference to which exceptional cases can be identified and explained. Constitutions broadly in this form spread across Europe and Latin America in the first part of the nineteenth century and reached parts of Africa, the Middle East, Asia and the Pacific by the end of the century. They continued to proliferate in the twentieth century, in line with the increase in the number of independent states.

FRAMEWORK

Authority for Review

Constitutional review, in the sense of judicial review of the actions of all organs of State, including the legislature on grounds of constitutionality, is an established feature of Australian constitutional arrangements. Review was assumed by the framers of the Constitution either as a consequence of the status of the Constitution as an act of the Imperial Parliament or as a necessary incident of federation or both. It was accepted with equanimity by the first Commonwealth Attorney General, charged with the responsibility of introducing the legislation to establish the High Court. That Court entertained a range of constitutional disputes in the first year of its establishment, and within five years, it had invalidated laws of both the Commonwealth and some State Parliaments, consistent with Quick and Garran's expectation that it would be a “guardian of the Constitution” against “encroachments” from both spheres. In 1951, a Justice of the High Court described “the principle of Marbury v. Madison” as “axiomatic” in Australia. The description has become de rigueur, and it unquestionably reflects Australian practice.

It is occasionally noted, nevertheless, that the Constitution does not explicitly provide for review. Review of legislation on grounds of constitutionality also jars with one strand of the Australian constitutional inheritance, although it is entirely compatible with the other. Neither of these points should be overstated.

The Uniform Income Tax cases are landmarks in Australian political and constitutional history. The four interrelated Acts, which prompted the litigation by which the Commonwealth sought to secure sole authority for the imposition and collection of income tax, were described by critics as ‘revolutionary’ when first introduced into the Parliament. In response, the Government claimed that the measures were necessary to meet the ‘serious crisis’ presented by the current phase of World War II. On the existence of the crisis at least, there was no disagreement; the Bills received assent on the day after the battle of Midway Island. The rejection of the challenge in the first case and the limited success of the plaintiffs in the second affected the course of Australian federalism and engaged the High Court in some constitutional questions of the greatest difficulty, with implications well beyond the financial provisions of the Constitution.

With hindsight, the cases symbolise a turning point in Australian constitutionalism. In the first case, the national emergency, the perception of federalism as an interim form of government to which a unitary system was to be preferred and a literal approach to the judicial interpretation of the Constitution combined to produce an outcome that had scant regard to the federal nature of the Constitution. By 1957 the national emergency was over and much else had changed besides. Australia was on the way to political acceptance of federalism, however grudging.