Salus populi suprema lex esto. Veritas numquam perit.
The welfare of the people shall be the supreme law. Truth never perishes.
The Document Written to Constrain Government, Not the People
Introduction
There is a widely held and rarely examined assumption in Australian civic life that the Constitution is the document that establishes what the government can do. This assumption is half right and half wrong in a way that matters enormously.
The Constitution does establish what the government can do. But its deeper purpose, the purpose embedded in its structure, its language, and the High Court decisions that have interpreted it, is to establish what the government cannot do. The people of the colonies did not gather in conventions in the 1890s, vote in referendums, and negotiate with the Imperial Parliament to create an instrument that would limit themselves. They created an instrument that would limit the government they were bringing into existence.
That distinction, between a constitution that constrains the people and a constitution that constrains government, is not semantic. It changes everything about how the document should be read, how government authority should be understood, and what Australians are entitled to demand when government cannot identify the constitutional basis for its acts.
The People Came First
The Commonwealth of Australia Constitution Act 1900 (UK), recorded on the Federal Register of Legislation under identifier C2013Q00005 C06, begins not with the Parliament, not with the Executive, and not with the courts. It begins with the people.
The Preamble records that the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble Federal Commonwealth under the Crown and under the Constitution hereby established.
The people agreed. The people established. The Constitution did not create the people. The people created the Constitution. The government structures that follow, the Parliament in Chapter I, the Executive in Chapter II, the Judicature in Chapter III, exist because the people brought them into existence for defined purposes and within defined limits. Those structures are the creatures of the Constitution. The Constitution is the creature of the people.
This is not a theoretical abstraction. It is the structural logic of the founding instrument itself. Section 128, the provision dealing with alteration of the Constitution, makes the point with complete clarity. The Constitution cannot be altered by Parliament alone. It cannot be altered by the Executive. It cannot be altered by the courts. It can only be altered by the people, through the referendum mechanism that section 128 prescribes. The people sit above the constitutional framework because they are its source. Government sits within the constitutional framework because the people placed it there.
What the Constitution Actually Does
Reading the founding instrument, the Commonwealth of Australia Constitution Act 1900 (UK) (C2013Q00005 C06), with this understanding, its structure becomes clear.
Chapter I establishes the Parliament and, in sections 51 and 52, lists the subjects upon which it may make laws. This is not a grant of unlimited power. It is a defined and bounded grant. The Parliament may legislate on the subjects listed. It may not legislate on subjects not listed, except as the Constitution otherwise provides. Every Act of Parliament that reaches beyond the listed subjects is, to that extent, constitutionally invalid.
Chapter II vests executive power in the Crown, exercisable by the Governor-General. It does not vest unlimited executive power. It vests the executive power of the Commonwealth, which extends, as section 61 provides, to the execution and maintenance of the Constitution and the laws of the Commonwealth. Executive power is power to act within the constitutional framework, not power to act outside it.
Chapter III vests judicial power in the courts. More precisely, it vests the judicial power of the Commonwealth in courts constituted under that Chapter, and in no other body. The Parliament cannot vest judicial power in a body that is not a court within the meaning of Chapter III. The Executive cannot adjudicate. These are not suggestions. They are structural constraints embedded in the document by the people who wrote it.
The sections that touch most directly on the rights and liberties of the people are framed as prohibitions on government action. Section 51(xxxi) provides that the Parliament may acquire property only on just terms. The government cannot simply take. Section 80 provides that trials on indictment for Commonwealth offences shall be by jury. The government cannot deprive a man or woman of that protection. Section 116 provides that the Commonwealth shall not make laws establishing a religion or prohibiting its free exercise. The government cannot reach into that space. Section 117 provides that a subject of the Queen resident in any State shall not be subject in any other State to discrimination not applicable to residents of that State. The government cannot treat people differently on the basis of their State of residence.
None of these provisions grants the people anything they did not already have. They existed as men and women with rights at common law before the Constitution was enacted. What the Constitution does is prevent government from taking those things away.
The Burden of Proof Lies on Government, Not the People
This principle was not invented by modern courts. It was identified and stated precisely at the moment of Federation itself.
Quick and Garran’s Annotated Constitution of the Commonwealth of Australia, published in 1901 and regarded as the foundational commentary on the Constitution, states at page 795:
“Every power alleged to be vested in the National government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary, the burden of proof lies on those who assert its existence, to point out something in the Constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so Congress, or those who rely on one of its statutes, are bound to show that the people have authorized the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the National government, or both of them together, may have done in the persuasion of its existence, must be deemed null and void, like the act of any other unauthorized agent.”
Three things in that passage deserve particular attention.
First, there is no presumption in favour of the existence of a power. Government does not get the benefit of the doubt. The presumption runs the other way. If power cannot be identified, it does not exist.
Second, the burden lies on those who assert the power’s existence. It is not for the people to disprove that government has authority. It is for government to prove that it does. The constitutional order places the burden precisely where it belongs: on the party claiming to act with authority.
Third, the standard is strict exactitude. Not approximate identification. Not a general reference to a document. Not a publication pointing to “the Constitution” without a section number. Strict exactitude. The search for the power must find something in the Constitution that directly or by necessary implication confers it.
And if nothing is found, the consequence is equally precise. Whatever the executive or legislature has done in the persuasion that the power exists must be deemed null and void, like the act of any other unauthorised agent.
Quick and Garran were writing in 1901 about the constitutional framework the people had just established. They understood, from the moment of Federation, that the constitutional order placed government in the position of an agent. The people are the principal. The Constitution is the authority given to the agent. An agent who acts beyond the authority given by the principal acts as no agent at all.
The High Court Has Confirmed This
This is not a reading imposed on the Constitution from outside. It is the reading the High Court has consistently applied.
In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, the High Court found an implied freedom of political communication in the Constitution. The reasoning is instructive. The Court did not find that the Constitution grants Australians a right to political communication. It found that the Constitution establishes a system of representative government, and that representative government is structurally incompatible with laws that prevent the people from communicating about political matters. The freedom exists because the Constitution places constraints on government, not because it grants privileges to the people.
In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, the High Court confirmed that the Constitution establishes a framework of government under the rule of law, and that judicial review of executive action under Chapter III cannot be removed by Parliament. Government cannot place itself beyond accountability to the courts. The Constitution prevents it. This is not a restriction on the people. It is a protection for them.
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the full Court confirmed that the implied freedom of political communication operates as a structural limitation on legislative and executive power. The Constitution limits what government can do. It does not limit what the people may say.
The Rights the People Already Had
The people of the colonies brought with them to Federation the rights of the English common law. Trial by jury. Habeas corpus. The right not to be imprisoned without lawful cause. The right to property. Freedom from arbitrary executive action. These rights did not come from the Constitution. They predate it by centuries.
Magna Carta 1215 established that no free man shall be seized or imprisoned except by the lawful judgment of his equals or by the law of the land. The Bill of Rights 1688 constrained the Crown. The common law developed over centuries to protect the individual against the power of the state. These protections were part of the legal inheritance of every man and woman in the Australian colonies. The Constitution did not create them. It assumed them.
What the Constitution did was create a federal government with defined powers and place structural limits on its exercise of those powers. The Bill of Rights tradition was already present in the common law. The Constitution added to it by constraining the new federal government from the moment of its creation.
What This Means in Practice
If the Commonwealth of Australia Constitution Act 1900 (UK) (C2013Q00005 C06) constrains government and not the people, several practical consequences follow.
A government agency that cannot identify the section of the Constitution grounding its authority for a specific act has not merely been administratively imprecise. It has failed to demonstrate that it was acting within the limits the people placed upon it.
When a man or woman asks a government agency “by what authority do you act?”, that question is not an act of defiance. It is the constitutional order working exactly as intended. The Constitution was designed to produce that question and to require that it be answerable. Government answers to the Constitution. The Constitution answers to the people.
A documented example of this principle in action arose in FOI/2024/260, a Freedom of Information request to the Department of the Prime Minister and Cabinet. The request asked for the constitutional head of power for the Proclamation of King of Australia dated 11 September 2022. After 176 days, two extension requests, and an internal review conducted by a First Assistant Secretary, the Department confirmed on the formal record that it held no document identifying the constitutional head of power for that Proclamation.
Measured against the standard Quick and Garran identified in 1901, that is precisely the situation in which, as they wrote, whatever the executive or legislature has done in the persuasion that the power exists must be deemed null and void, like the act of any other unauthorised agent.
The Proclamation of a Head of State is among the most significant constitutional acts a government can perform. The founding instrument that grounds all government authority is the Commonwealth of Australia Constitution Act 1900 (UK), recorded on the Federal Register of Legislation as C2013Q00005 C06. That instrument has not been altered by referendum since 1977. It has nine covering clauses and a Preamble that are as much a part of it as the constitutional text in section 9. It constrains the government that operates under it.
When government cannot identify the provision of that instrument that grounds its acts, the document the people created to constrain it has not failed. The government operating within it has.
The Alteration Provision
Section 128 is the clearest statement of where sovereignty resides. The Constitution shall not be altered except by passage through Parliament, submission to the electors, and approval by a majority of all electors and by a majority of electors in a majority of States.
Parliament cannot alter the Constitution. The Executive cannot alter it. The courts cannot alter it. Ordinary legislation cannot alter it. Administrative reclassification cannot alter it. A government printing office giving a publication a different title from the founding instrument does not alter it.
Only the people can alter it. And they must be asked directly, with a clear question, and they must say yes. This is the constitutional expression of the principle that the people are the source of the constitutional order and retain the power to change it. Government is their instrument, not their master.
Conclusion
The Commonwealth of Australia Constitution Act 1900 (UK) (Federal Register of Legislation identifier C2013Q00005 C06) is the document the people of the Australian colonies created to establish their federal government and constrain its power. It is not a document that creates or limits the rights of the people. The people had rights before the Constitution existed. What the Constitution did was erect a framework of limited government, bounded power, and structural accountability that those in government must operate within.
Every section that grants power to the Parliament does so within defined limits. Every section that touches on the rights of the people does so by preventing government from interfering with them. Every provision that matters most operates as a constraint on government, not a constraint on the people.
Quick and Garran stated the principle in 1901: every power alleged to be vested in the national government must be affirmatively shown to have been granted. The burden of proof lies on those who assert the power’s existence. The search for that power must be conducted in a spirit of strict exactitude.
The Constitution belongs to the people. The government operates within it. When government cannot identify the constitutional basis for its acts, it has not demonstrated the authority the people granted it. That is not a technicality. It is the constitutional order functioning precisely as the people designed it to function.
Potestas limitata. Salus populi suprema lex. Limited power. The welfare of the people is the supreme law.
Sources: Commonwealth of Australia Constitution Act 1900 (UK), Federal Register of Legislation identifier C2013Q00005 C06; Quick and Garran, Annotated Constitution of the Commonwealth of Australia (1901), page 795; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; FOI/2024/260, Department of the Prime Minister and Cabinet, decision dated 18 September 2024 and internal review decision dated 30 January 2025.
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