Law and the Constitution

Adrian Cunningham

Australia is a documentary democracy. Our ever-evolving democratic system of government and the associated rule of law derives its legitimacy from documents that have legal weight. If these documents had never been created we would not have the democratic system of government that we now take for granted. If the documents were to be destroyed or vanish off the face of the earth, the continued existence of our democracy would, at the very least, be brought into question. Given the vulnerability of documents to loss, it is sobering to think just how fragile our federal nationhood and democratic liberties may be.

There is little that is particularly novel about Australia’s situation here. Laws have been codified in written form for as long as human beings have used written communication. When the conquistadors took control of the Americas the legitimacy of their actions was, according to the colonisers, confirmed by the presence of accredited notaries who made contemporaneous documentation of the conquests. Without such formal notarised documentation the territorial acquisitions had no legitimacy in Spanish law.

What makes Australia different is that our nation was (and continues to be) created through peaceful and democratic processes. It was the first country in the world to be created through a free vote of its people–(or at least that subset of its people who at the time were allowed to vote. No blood-stained revolution or dramatic declaration of independence was needed to create the Australian nation. Australia is one of the world’s most stable and long-lived democracies and is regarded internationally as a model of democratic experimentation and innovation. At each step in the peaceful and democratic evolutionary process documentation was created. The story of our country is told through the various documents that give our governments the right to govern, and that place constraints on the powers of those who govern to prevent the concentration and potential abuse of power that can so easily occur.

These documents belong to us and are our safeguards against tyranny and dictatorship. They are part of our history but, more importantly, are the guarantors and shapers of our future. And the story is an ongoing one. Australian democracy is dynamic, contested and constantly evolving. Each evolutionary change is legitimised by and documented in records.

Much of this key legal and constitutional documentation has been inscribed on the UNESCO Memory of the World Australian Register and the Asia-Pacific Register. It is fitting that these UNESCO inscriptions provide an important recognition and safeguard for the documents that in turn safeguard our very existence as a nation, and our most basic freedoms, rights and entitlements.

The seventeen Landmark Constitutional Documents of the Commonwealth of Australia collectively tell the story of the establishment and evolution of Australia’s democracy. These different documents reside in different locations and are controlled by different custodians. They consist of sixteen original legal instruments and one film. Each legal instrument has been selected because of the significance of the legal safeguard(s) it codifies and/or the significance of the aspect of our constitutional change and history that it embodies. Each legal instrument has its own story. These are told in detail on the wonderful ‘Documenting a Democracy’ website which provided the initial inspiration and impetus for the nomination to the UNESCO Memory of the World Australian Register – see http://www.foundingdocs.gov.au/ These documents tell the story of the successful democratic experiment that is Australia and the documentary means by which this success was made possible.

The film records the moment of inauguration of the Australian nation on 1 January 1901 and is the product and evidence of the fact that Australia was the first country to come into being in front of a movie camera in the very earliest days of moving picture technology.

The story of our constitutional democracy began with the former British colonies in Australia which, through an act of collective will and hard-won consensus, persuaded the British Parliament to pass legislation creating the Australian nation. Since then Australia has gradually asserted its growing independence from the imperial power to which it once belonged, and has also given recognition to the legal and moral rights of its Indigenous inhabitants.

The seventeen Landmark Constitutional Documents are:

1. Commonwealth of Australia Constitution Act, 9 July 1900 (UK) – assent original [A gift from the British Government to the Australian people, 1990 – controlled by the Parliament of Australia]
2. Royal Commission of Assent establishing the Commonwealth of Australia, 9 July 1900 [Custody of the National Archives of Australia]
3. Royal Proclamation of Inauguration Day for the Commonwealth of Australia, 17 September 1900 [Owned by the National Library of Australia]
4. Letters Patent for the Office of Australian Governor General, 29 October 1900 [Custody of the National Archives of Australia; Controlled by the Office of the Governor General]
5. Pacific Island Labourers Act, 1901 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
6. Immigration Restriction Act, 1901 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
7. Commonwealth Franchise Act, 1902 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
8. Judiciary Act, 1903 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
9. Conciliation and Arbitration Act, 1904 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
10. Seat of Government Acceptance Act, 1909 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
11. Commonwealth Electoral Act, 1924 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
12. Statute of Westminster Adoption Act, 9 October 1942 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
13. Nationality and Citizenship Act, 1948 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
14. Yolngu people of Yirrkala bark petitions to the Parliament of Australia, August 1963 [Custody of the Parliament of Australia]
15. Australia Act, 3 March 1986 (Australia) – assent original [Custody of the National Archives of Australia; Controlled by the Office of Parliamentary Counsel]
16. Mabo v Queensland No. 2 Judgement of Justice Gerard Brennan, 3 June 1992 [In the custody and control of the High Court of Australia]
17. Film of the inauguration ceremony of the Commonwealth of Australia, Sydney, 1 January 1901 [Owned by the National Film and Sound Archive]

A key pillar of Australia’s Constitutional democracy is the High Court of Australia, established by Section 71 of the Australian Constitution. The Records of the High Court of Australia, as inscribed on the UNESCO Memory of the World Australian Register in 2008 in fact contain one of the seventeen key Constitutional documents described above – the Mabo Judgement of 1992, which inserted the legal doctrine of native title into Australian law. Complementing these on the Register are the Mabo Case Papers and Eddie Mabo’s personal papers held by the National Library of Australia.¹

The records of the High Court up to 1980 are held by the National Archives of Australia, while more recent records are still in the custody of the Court. This vast collection documents the contested nature of the evolution of the rule of law as it has underpinned our system of government for over 100 years. It includes judges’ notebooks, correspondence between members, reports and records of judgements. It illustrates the development of Australia’s common law practices and principles. It also includes a range of images and film of the openings of the original court and of the new High Court building in Canberra in 1980.

The records provide an insight into diverse landmark judicial decisions affecting Australian society, democracy and government. The cases represented here cover such issues as Commonwealth versus State powers (the Engineers case 1920 and the Tasmanian Franklin Dam case 1983), economic regulation (the Bank Nationalisation case 1948), freedom of speech and subversion (the Communist Party case 1951), the separation of powers doctrine (the Boilermakers case 1956), Native Title (the Mabo case 1992) and anti-homosexuality laws and human rights (the Toonen case 1994).

The records of the High Court of Australia are essential to an understanding of the richness and complexity of the story of governance and the protection of liberties in our democracy. Together with the Landmark Constitutional Documents and the Mabo Case Papers they are the irreplaceable source material on the evolution of the rule of law in our nation.