From the Divine to the Derivative
A brief overview
1. Divine law and natural law
At the foundation of the entire legal order sits divine law – the law of God – and natural law derived from it. This is not a theological assertion alone. It is the jurisprudential foundation of the English common law tradition, stated plainly by its most authoritative expounders. Bracton in the thirteenth century: the King himself ought not to be under any man, but under God and the law – sub Deo et lege. Blackstone in the eighteenth century: no human law that contradicts the law of God is of any validity whatsoever.
Natural law is the expression of divine law accessible to human reason – the principles of right conduct and right ordering of society that are discernible without revelation, by the exercise of reason applied to the nature of man and his relationship to others. From natural law flows the concept of natural rights: rights that a man or woman holds by reason of their nature as a human being, not by reason of any grant from a State, Parliament, or legislature.
This tier is foundational and immovable. Nothing in the tiers below it can alter, extinguish, or override it. Any human law that conflicts with it is, in the tradition from which the common law grows, not law at all.
2. Man
God created man. That sequencing is not incidental to the legal order – it is the reason the legal order exists and the measure against which it is judged. Man is prior to the State. Man is prior to Parliament. Man is prior to the courts, the statutes, and every instrument of government that the tiers below this one describe.
A man or woman does not derive their existence, their rights, or their fundamental liberties from any Parliament, any constitution, or any statute. Those things are derivative. The man or woman is original. Rights — to life, to liberty, to property, to conscience, to deal freely with one’s own estate — are not grants from government. They are inherent in the nature of man as a being created under God, recognised and protected by the common law, and capable of being taken away only by clear lawful authority traceable all the way back to this foundation.
Every act of government, every statute, every delegation of authority, every statutory office, and every instrument of enforcement was created by men and women and exists to serve men and women – not the reverse. A statutory office is the creation of a statute. A statute is the creation of a Parliament. A Parliament is the creation of men and women who came together and constituted it. The chain of creation runs from God, through man, downward through every human institution. No human institution sits above the man or woman it was constituted to serve.
This has a precise legal consequence. When a statutory office-holder – a council officer, a bailiff, a registrar, a revenue officer, a sheriff – exercises a power against a man or woman, that office-holder is a man or woman themselves, exercising a power that other men and women constituted for a defined purpose. The office-holder derives their authority from a chain that runs upward through statute, Constitution, common law, and natural law, ultimately to God. That authority extends only as far as the chain lawfully extends. It does not extend to the destruction of the very rights the system was constituted to protect.
3. The common law
Growing directly from the divine and natural law foundation, and reflecting the nature and rights of man as created under God, is the English common law — the body of legal principle developed over centuries by courts applying reason, conscience, and precedent to resolve disputes in a manner consistent with the higher law from which it derives.
The common law is not a creation of Parliament. It predates Parliament. It includes the constitutional principles governing the Crown, the rights of the subject, the nature of valid legislation, the limits of authority, the right to property, the right to liberty, the right to due process, and the right to deal freely with one’s own estate. These are not statutory grants. They are common law rights – what remains to a man or woman when all lawful restraints are accounted for.
Magna Carta 1215 and the Bill of Rights 1688 are significant markers within this tradition – formal expressions of common law constitutional principle given the additional force of statute – but they express principles the common law recognised before, during, and after those instruments were sealed or enacted. They are evidence of the common law, not the source of it.
The common law is the legal order that the Australian colonies received at settlement. Every Australian statute, every Australian constitution, and every Australian court operates within the common law framework. None of them created it.
4. Imperial constitutional instruments
Within and derived from the common law sits the body of Imperial constitutional legislation — Acts of the Imperial Parliament of the United Kingdom that shaped the constitutional framework within which Australian law operates.
The most significant for Australian purposes are Magna Carta 1215 (confirmed by statute from 1297), the Bill of Rights 1688, the Act of Settlement 1701, and the Commonwealth of Australia Constitution Act 1900 (UK). These instruments are Imperial Acts, enacted by a Parliament whose own authority derives from the common law constitutional framework described above, and whose legitimacy ultimately traces to the same divine and natural law foundation.
The covering clauses of the Commonwealth of Australia Constitution Act 1900 (UK) – including covering clause 2, identifying the heirs and successors in the sovereignty of the United Kingdom as the constitutional Crown – sit at this level. They are part of the enacting instrument of the Constitution itself. They are entrenched Imperial legislation, currently unalterable by any operative mechanism, as established in the analysis in this conversation.
5. The Commonwealth Constitution
Within the covering clauses of the Commonwealth of Australia Constitution Act 1900 (UK) sits the Constitution proper – clause 9, containing sections 1 to 128. This instrument, recorded on the Federal Register of Legislation under base identifier C2004Q00685, the latest version being compilation C2013Q00005 C06 dated 29 July 1977, constitutes the Parliament of the Commonwealth, defines and limits its legislative power, establishes the courts, and distributes power between the Commonwealth and the States.
The Constitution is not the source of all law. It is itself an exercise of power derived from the Imperial constitutional framework above it, which derives from the common law, which derives from the nature of man under God. It operates within the common law tradition, using common law concepts – the Crown, Parliament, courts, due process – that it did not invent and does not own.
The Constitution is alterable only by referendum under section 128. That mechanism does not reach the covering clauses above it.
6. State constitutions
State constitutions sit at an equivalent level to the Commonwealth Constitution within their own jurisdictions. They predate the Commonwealth Constitution in most cases — the Constitution Act 1889 (WA) predates Federation by eleven years. They are preserved by section 106 of the Commonwealth Constitution, subject to that Constitution where the two interact, and subject to section 109 where a State law is inconsistent with a valid Commonwealth law.
State constitutions, like the Commonwealth Constitution, are instruments of the common law constitutional tradition. They did not create the common law rights that exist within their jurisdictions. They operate within and are measured against those rights.
7. Commonwealth statutes
Below the Constitution sit statutes of the Commonwealth Parliament — Acts enacted in exercise of the heads of legislative power conferred by the Constitution. A Commonwealth statute is valid only where it falls within a head of power, is enacted within constitutional limits, and has received constitutionally valid Royal Assent from a properly identified and grounded Crown authority.
Commonwealth statutes may alter the common law in their field, but only to the extent the principle of legality permits – that is, with clear, unambiguous, and express words where common law rights of men and women are being displaced, and with just terms where property rights are being acquired under section 51(xxxi).
A Commonwealth statute creates statutory offices, statutory labels, and statutory obligations. Those things are creatures of the statute. They are not creatures of the common law, and they do not reach beyond what the statute expressly authorises. The men and women who hold those statutory offices are men and women first – their office does not elevate them above the common law or above the rights of the men and women they deal with.
8. State statutes
Below State constitutions sit State statutes – Acts enacted by State Parliaments within their plenary legislative power, subject to the same Royal Assent requirements, the same principle of legality constraints, and the same section 109 Commonwealth inconsistency test.
State statutes create the local government framework, the Torrens title system, the rating and land administration systems, the conveyancing regime, and the enforcement machinery that most men and women encounter in their daily lives. Every statutory office within those systems – council officer, registrar, valuer, enforcement officer, bailiff – is a creature of State statute, exercising powers the statute defines and limits.
A man or woman in a statutory office is still a man or woman. The office does not give them authority beyond what the statute confers. The statute does not give them authority beyond what the Constitution permits. The Constitution does not give them authority beyond what the common law and natural law allow. And the common law and natural law do not permit the destruction of the rights of men and women that those laws exist to protect.
State statutes that purport to displace common law rights of men and women must meet the principle of legality standard confirmed in Potter v Minahan (1908) 7 CLR 277 and Clissold v Perry (1904) 1 CLR 363. State statutes that purport to acquire property must provide just terms. State statutes that cannot be traced to valid Royal Assent by a constitutionally grounded Crown are open to the challenge developed throughout this conversation.
9. Delegated legislation
Below enabling statutes sits delegated or subordinate legislation – regulations, rules, by-laws, local laws, and other instruments made under a power conferred by a statute. These instruments are valid only within the four corners of the power the enabling statute confers. Acts beyond that power are void regardless of their form or procedural compliance – ultra vires.
A local council’s local laws sit here. A Minister’s regulations sit here. A registrar’s rules of practice sit here. The men and women employed to administer and enforce these instruments are men and women exercising derivative authority at the lowest rung of a chain that runs all the way up to God. Every step in that chain must be sound. A break at any point is a break in the authority itself – not a technicality, but a fundamental failure of legitimacy.
10. Statutory offices and the men and women who hold them
Statutory offices – councils, revenue offices, titles registries, enforcement agencies, courts below the constitutional level – sit within and beneath the delegated legislation tier. They are constituted by statute. Their powers are defined by statute. The men and women who occupy those offices derive whatever authority they exercise from the statutory chain above them.
Those men and women are not the authority. They hold, temporarily, a delegated exercise of authority that was constituted by men and women before them, under instruments that must be traceable without break all the way to the constitutional and common law foundation. When that traceability fails – when the delegation chain is broken, when the enabling statute lacks valid Royal Assent, when the head of power does not extend to the act complained of — the man or woman in the statutory office has no authority. They are a man or woman like any other, with no more right to act against another man or woman than any stranger would have.
Nemo dat quod non habet – no one may give what they do not have. The statutory office gives only what the chain above it lawfully provides. Where the chain fails, the office is empty of authority, whatever its title.
The chain in full
God created man. Man, in exercise of reason and conscience consistent with natural law, developed the common law. The common law provided the framework within which constitutions were made and Parliaments were constituted. Parliaments enacted statutes within constitutional limits. Statutes created offices and delegated powers. Men and women in those offices exercise those powers – derivative, conditional, and limited – against men and women who stand at common law with rights that predate every statute, every office, and every Parliament in the chain.
Every act of authority is measured against that chain. Every claim of authority must be traceable through it. What cannot be traced is not authority. It is force.
Sub Deo et lege – under God and the law. That is the standard. Everything in the chain below is measured against everything above it. The man or woman at the bottom of the chain – the one against whom authority is being exercised – stands not only at the bottom but also, by reason of their nature as a man or woman created under God, at the origin of the entire chain. They are both its subject and its source.
This overview is provided for public information and does not constitute legal advice.
Last Updated 2 months ago
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