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What is a Constitution?

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The notion that the authority of political administrations should be limited by law to preserve individual freedoms lies at the heart of our constitutional, democratic system of government. Constitutions are collections of laws, customs and practices - sometimes written in a single document, sometimes not - which provide the framework for political institutions, such as parliament, and confirm the rights and responsibilities of citizens. Constitutional law is generally regarded as `supreme' or higher law in the sense that it stands above the power of a government, though it may be altered by legislation, judicial interpretation, popular action, or customary evolution.

Most constitutions are written down and codified, like those of the United States of America or the Commonwealth of Australia, while some others, notably the constitution of the United Kingdom, rely on legislation and conventions collected and added to over time. It is frequently said that the UK has an `unwritten' constitution because it has no single, identifiable constitutional document, though the differences between written and unwritten constitutions are more apparent than real. Even the most narrowly-detailed written constitution cannot include every single feature or process of a political system; also, most `unwritten' constitutions include at least some statute law or other written provisions. In either case, according to Graham Maddox, the ``roots of constitutionalism are to be sought in the soil of a community's public and social life". After all, even written constitutions rely on some kind of deeper, broad-based commitment to the ideals of constitutional government. In an abstract sense, we choose to accept the notion of constitutional legitimacy and to respect our political institutions, even when we disagree with the particular decisions of a government.

Western Australia's constitution is a `written' constitution, in that it gains its initial authority and legal status from the Constitution Act 1889 (itself founded on earlier Imperial legislation), which set out the form of parliamentary self-government for the colony. However, this original Constitution Act has been amended and altered many times by the WA Parliament as - unlike the US and Australian constitutions - it can usually be changed by a vote of elected parliamentary members and without a referendum. Today, when we talk about the State's constitution we are referring to those parts of the original Act which have not been repealed and all the subsequent amendments, most of which are embodied in another Act, the Constitution Acts Amendment Act 1899.

It is also true that convention plays a part in the conduct of constitutional government in WA, as it does in the Australian Commonwealth and the United Kingdom. Many of the operational procedures of State Parliament depend upon unwritten customs and traditions of the Westminster system, inherited when the Constitution Act was proclaimed in 1890. For example, the original Act made no mention of the office of Premier, yet John Forrest happily accepted that title when he led the first government in 1891. Also, while the Act was intended to establish parliamentary government  - with a Cabinet drawn from the legislature to exercise executive power - there was little written detail on how this system worked. Instead the State's constitution relied on what was 'taken for granted' in British colonies about how a parliamentary, Westminster-style government should operate.

Western Australia's constitution preceded the adoption of the Commonwealth constitution at the Federation of Australian colonies in 1901, and so did not discuss the role of the national government, nor the relationship between the State and Commonwealth. While the Commonwealth constitution provides for a hybrid system of government based on the political institutions of the United States and United Kingdom, the constitution of WA and those of other Australian States are wholly inspired by the UK model. WA's Constitution Act 1889 was drafted with the express wish to create a Westminster-style parliament, quite dissimilar from the US system in which executive and legislative powers are formally divided and federalist. However, an important difference remains between the constitutional provisions of Western Australia and the UK. By codifying British parliamentary forms in a written document, WA's constitution developed a distinctly different legal standing to that of the 'unwritten' constitution it imitated. As a result, the State's constitution has, at least at a theoretical level, a special status as a 'higher law' which stands above the Parliament, in common with the constitutions of the US and Australian Commonwealth. In constitutional systems of this sort, any government which breaks these `higher laws' can be challenged in a judicial court and its actions reversed. Hence, much of Western Australia's constitutional law has developed in legal decisions, by a process known as judicial review. In the UK, parliament is commonly regarded as the highest law in the land.

The other important difference enshrined in WA's constitution is the potentially powerful role of the State's upper house. Whereas the House of Lords in the UK is now a limited chamber of review, the Legislative Council in WA has considerable power to check the legislative intentions of Government, which is based in the lower house Legislative Assembly. In theory, it could wield this power much as the Australian Senate has done in recent years. In practice, the Legislative Council has been dominated by conservative interests throughout its history, until 1997. It remains to be seen whether it will fulfil its potential to act as an independent house of review.

Western Australia's constitutional past is part of a wider history of the theory and practice of constitutionalism that has underwritten political systems around the world. The State's constitution shares characteristics with other constitutional documents and provisions, especially those with origins in the British Empire. Yet its explicit detail and the history of its development is uniquely Western Australian.