This page is part of the Australian Constitutional Information Site

Government Under a Book of Rules
A Citizens' and Politicians' Manual of the Constitutional Basis of Government in Australia, by John Pyke

[Back to Index]

Introduction

This is a "Web text" of Constitutional law in Australia, which I hope will be read not just by law students, but by high-school students, citizens and politicians. It is about the Book(s) of Rules under which our governments operate - the main book called the Commonwealth Constitution and the less-well-known books called the States' Constitution Acts. It is important that governments' powers are limited by a Book of Rules, and it is important that citizens and politicians know that there is a Book of Rules, and, at least in outline, what the Rules are.

A constitution has two main functions - it sets up the institutions of government and grants them powers to exercise, and it places limits on their powers. [You might count this as three functions, but I see the granting of powers as part and parcel of the establishment of institutions.] In this web text, I am covering both aspects but, compared to most texts written for law students, putting rather less emphasis on exploring the outer limits of every one of the Commonwealth Parliament's "heads of power" and more emphasis on the role of constitutions as things that place limits on the power of government. I have also included a full discussion of the history of that important idea, and of other ideas that were brought here by the English colonists; in University law schools we tend (unrealistically, I fear) to assume that students know these things.

A Text with a Point of View

It will probably be clear from much of the following material that I think that the idea of having government powers - both executive and legislative powers - limited by a Constitution is a Thoroughly Good Thing. You will find a number of caustic remarks about the idea of parliamentary sovereignty and the pretensions of those politicians who believe in it, the fact that the States don't have real constitutions, and the total misdescription of executive power in our Constitutions, and I make no apology for letting my feelings show.

However, this does not mean that I agree with some of the early writers on limited government who said things like "Government is a necessary evil" (Paine) or "The government governs best that governs least" (Jefferson). In the chapters on the development of limited government, I have included links to some of the American sites that have excellent collections of the significant historical documents, such as the Constitution Society and Liberty Haven. This does not mean that I endorse the views presented on other parts of those sites, with their sometimes-extreme development of the theme that all regulation by government (except, perhaps, laws for the protection of private property and those who accumulate it) is baaaaad! I believe that governments can do many useful things to advance the common good - but they should always be subject to some rules about what they can do and how they can do it, in order to keep the political "game" fair, to remind politicians that they are not gods (and that Government is not, collectively, God) and that We the People hold, in the last resort, sovereign power in the nation.

You will also notice the occasional critical comment on the High Court's interpretation of the current Rules (though the Court's overall approach makes a lot more sense in many respects than the case law I had to learn as a student in the 1970s). I have of course, like any sensible legal author, discussed the possible directions of development of the judicial interpretation of the Rules. Sometimes I make it pretty clear that I think development ought to take place in a certain direction - but I hope I have always made clear what is definitely established in case law, what is a reasonably-predictable extrapolation of current trends, and what is mere hope on my part.

In other respects, I have tried to make this a totally objective text. I am not at all sure that a federation is what we would set up if we were designing a perfect system for Australia in the 2000s (and given a federation I think the central government ought to have a few more legislative powers and the States a more independent source of revenue) - but I have set out to explain the federal system as it is, without comment. I don't believe that the present set of rules is the best we could have - in fact, I made some specific suggestions for a better set of rules when I campaigned for election to the Constitutional Convention in 1997 (see Constitutional Alterations for a Real Republic on my old campaign web site), and I am a republican, but I have parked those hobby horses in other parts of this site, and they will not get a run in these Book of Rules pages (except that I haven't been able to resist a dig at the monarchists' misreliance on Walter Bagehot when I discuss his writings on cabinet government). But, apart from that occasional "editorialising" this is principally a descriptive text. It should be clear where I am presenting a factual explanation of the rules (which you should believe!) and where I am, occasionally, throwing in a comment (which you can agree with or not).

About the Links

In the earlier historical chapters I have included many links to other sites which display copies of historical documents or biographical material about figures in English history. These have been chosen in a pretty random, not to say haphazard, fashion - I've generally used the first reasonable one for each topic that I found when I searched - so it is possible that there are better sources for some of these topics. [One link is perhaps a bit whimsical, but even it contains accurate historical information. Once you have found the one Monty Python link, I promise you there are no more.] Readers are encouraged to search for themselves, and to report any brilliant sites that I haven't found.

In the later Chapters most of the links are to the standard sites that display copies of Acts of Parliament and law reports, in particular the Australian Legal Information Institute (AustLII). AustLII does a marvellous job on a limited budget, but one of the things it doesn't do is to provide "bookmarks" (name tags) within case reports - so though I'd like to be able to link to the significant paragraphs within judgements I can't - the links will just take you to the head of the file for each judgement. Some of the judgements are very long, and the significant bits are deep within them, so unless you're very good at skim-reading you might not want to bother clicking the links. [Or you could try to develop your skimming skills...]

Disclaimer

I am not going to say "this is not a source of legal advice" - of course it is, in a general way! I hope an occasional reader will be prompted by something he or she has read here to successfully challenge some law or some government action. But remember that this is written in general terms for general readers - if you read something that makes you think you have a cause of action, get specific advice on your specific matter from a practising lawyer. Don't assume that because you have read something here, you can rush off and start legal action, representing yourself and quoting the clever stuff on this web site. I will certainly not accept liability for any losses you might suffer that way!
Now start with Chapter 1, or go back to the Index.
Written by John Pyke, with a little help from DiDa!. I licence any person to make a copy of this work for his or her own use, and copies for non-profit distribution to family or friends, and I licence teachers in schools or universities to make (or authorise the making of) multiple copies for non-profit distribution to their students, in each case subject to the condition that authorship is attributed to me and that this notice is fully included in the copy. First posted 5th February 2002.