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Contents of the Constitution.

A Constitution note in the modern sense is a fundamental law or instrument of government. It consists mainly of:

  • 1. The frame of government, which creates and provides for the continuance of the legislative, executive and judicial organs, and defines their powers and relations to each other;
  • 2. An enumeration of rights of the citizens or classes of citizens against the government which may vary from the enunciation of a few general principles which are rather counsels of perfection than practical restraints, to the most minute provisions on all sorts of matters rigorously binding the organs of government; and
  • 3. Provisions for amendment.

It will also contain a number of arrangements which are provisional and temporary merely, but are necessary to start the machine upon its work.

The constitution of a state formed by the union of states is a more complicated matter. We do some violence to the idea of contract when we regard an ordinary constitution either as a compact of the citizens or a compact between the citizens and their government; but we need neither


  ― 76 ―
analogy nor metaphor to speak of the agreement of the parties in a union of states. As Professor Dicey remarks, “the foundations of a federal state are a complicated contract,” and this bargain may include many matters. The States are jealous not merely of possible encroachments of the central government on their sphere, but of the possibility of a rival State securing any advantage over them in matters within the power of the central government. This jealousy is not less apparent in the Australian Constitution than in others of the same kind; and it has some very important consequences. The principle of State equality and State right, pressing upon and conflicting with the democratic principle, modifies the democratic character of the Constitution which, where there is not room for that conflict, is the dominant note of the instrument. Fervid declarations of individual right, and the protection of liberty and property against the government, are conspicuously absent from the Constitution; the individual is deemed sufficiently protected by that share in the government which the Constitution ensures him. Another feature which belongs to the federal character of this instrument is that the Constitution in many cases does not confine itself to conferring powers on the central government, but prescribes how those powers are to be used. This, in the opinion of an eminent and friendly critic (Sir Samuel Griffith), goes beyond the proper functions of a Constitution. Others see in these provisions indications of a general distrust of parliamentary institutions.note The contractual basis of the Constitution seems a sufficient answer to both objections.

If the Constitution makes fundamental some things that might be in the control of the governmental organs, it also contains much that is not fundamental. There are many provisional arrangements which are completely under the control of Parliament, but which had to be established before the government could get under weigh. Whether


  ― 77 ―
these arrangements might not more conveniently have been contained in a separate instrument, or put in a schedule of the Act, it is useless now to consider. It is sufficient to note that “Until the Parliament otherwise provides,” is a phrase which meets us in all parts of the Constitution.

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