Page 907 - Week 03 - Thursday, 14 March 1991
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It is interesting to look at how that came about. King James II of England was making certain social changes within that country - changes that Protestants particularly disagreed with. As a result of that, King James' reign from 1685 came to an end in 1688 with the people calling upon William of Orange and Mary to take up the throne of England. But prior to that they wrote a bill of rights which was agreed to by William and Mary and thus became part of the fundamental law of England.
When Federation occurred in Australia it was adopted into Australian fundamental law. In England Catholics were already armed, which is why the Bill of Rights referred to Protestants alone. In many of the earlier cases in colonial Australia judgments appear to affirm the constitutional fundamental rights of the people of Australia. These earlier cases appear to have been ignored by contemporary lawyers; yet the cases have never been overruled. I refer to and will quote extensively from a paper titled "Review of Law" by Sydney solicitor, Terry Schulze.
In 1839 Judge Dowling talked of the "applicability of all the fundamental laws of England". Other comments were: "... it adds to the great constitutional right conferred by Magna Charta"; and "... personal rights which are ... fundamental, constitutional and inherent ...". Schulze says:
Clearly the early judges considered that the people of Australia had fundamental rights.
He says that in 1833, when "the judges considered the statute ... and the law of Australia", Judge Burton "recognised the duty of the judges as the guardians of the people". Judge Burton said:
I look upon this clause as the great charter of the Colony, and at once yielding to the colonists all that by the common law, or by the liberal, and enlightened, and accumulated wisdom of our ancestors, has been provided for the protection of life, liberty and property, and for regulating the transactions of men with each other.
Schulze says:
All becomes by virtue of it the "justice and right" which the judges are sworn to do to all the King's subjects, and which is expressly provided in one of the clauses of Magna Charta.
(Quorum formed) He continues:
The learned judge also recognised the separation of powers doctrine ... wherein he noted the difference in deciding the application of the law versus the policy decisions of Parliament inherent in making a law.
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