The importance of the Commonwealth Constitution should never be underestimated. The nation of Australia was formed by the adoption of the Constitution with effect from the 1st January 1901. The pattern of government was established for one nation under God.

The purpose of the Constitution was to effect an arrangement among the six independent (independent of each other) Australian Colonies by which they could operate together as a federal nation without losing their identities. The idea was that the new Federal Government would have jurisdiction in a limited number of matters of common concern. Indeed, the Constitution had, and still has, the nature of a treaty entered into by each of the States (formerly Colonies) regulating their co-operative relationship with one another and together. While it is true that the legislative and administrative jurisdiction of the Federal Government has been greatly extended in the years (almost 100) since the Constitution was adopted, this extension demonstrates a 'dynamic' in the Constitution enabling change to accommodate changing circumstances.

Unlike the Constitutions of many other nations, the Commonwealth of Australia Constitution was not intended to establish rights for the people of the newly-formed federal entity. The people's rights existed and still exist independently of the agreement known as the Constitution. This does not mean that the Constitution has no relevance to the people as individuals or as a whole. On the contrary, the Constitution is a fundamental document establishing the Commonwealth of Australia as a fully independent self-governing nation; a nation in which neither the British Government nor the Monarch of Britain has any power of control. All executive power is vested in the Governor-

General by section 61, all legislative power is vested in the Commonwealth Parliament and all judicial power is vested in the High Court and other Courts established by the Commonwealth Parliament.

Although Australia is fully independent in every respect, the historic principles of separation of powers and the other checks and balances that made the old British system of government the envy of the world are retained and entrenched by the Commonwealth Constitution. These principles cannot be changed without the consent of an overall majority of the Australian people in a majority of States voting at a Referendum under section 128 to change the Constitution.

There is no section of the Commonwealth Constitution that specifically declares the principle of separation of powers or the other checks and balances. These protections have been carefully crafted into the whole scheme of the Constitution by the wording of various sections. By way of example, reference can be made to sections 58 and 68.

In section 58 the Governor-General, as the Queen's representative, is given discretion to assent to proposed laws passed by the Commonwealth Parliament or to withhold assent. He does not have unfettered discretion but must exercise that discretion only 'as the Queen's representative', that is to say, within the responsibility the Queen would have had if she were the one with executive powers in Australia and the responsibility for assenting to or withholding assent from proposed Australian laws. The Queen's responsibility (the discretion vested in her) is expressed in the Coronation Oath where she undertakes to govern lawfully, justly and mercifully, to maintain God's law and to regard the Bible as the rule for the whole of life and government (see Coronation Oath Act, 1 Will. and Mar. c.6 (1688)). It is the Governor-General who has the responsibility in Australia to apply those principles and who has the discretion to decline to follow the direction of Prime Minister or Parliament if application of the principles requires it.

Similarly, section 68 makes the Governor-General Commander-in-Chief of the Australian armed forces as the Queen's representative. He is neither her personal representative nor is he empowered to take directions from her. His power as Commander-in-Chief is simply for implementing the Coronation Oath and to ensure that the politicians can never use the armed forces against the people. In this regard he is not the representative of the Parliament and is not bound by the directions of the Prime Minister or of the Government.

Australia's form of government established by the Commonwealth Constitution is a fundamental feature of this nation. It is controlled entirely by the Australian people and the Australian Government. It restricts the power of politicians and guarantees historic democracy. All Australians should understand it, be proud of it and make every effort to maintain it.

David Mitchell

3rd May 1999