British RN, who commanded the First Fleet and who

British ‘constitutionalism’ consists of largely unwritten conventions and practices, and correlated institutional structures and processes, which are concerned with the distribution of the sovereign power of the state, the operation of law, the conduct of government, and the principles applicable to the relationship between the state and its citizens. It reflects historical practices, shared beliefs, and norms that have become intrinsic values. The ‘rule of law’ is perhaps the most fundamental of these values, which holds that power is not to be exercised arbitrarily, oppressively, and certainly not in the absence of due process and the application of natural justice.      On that summer’s day in 1788, it was as if the Common Law, with its ancient liberties and rights, the Magna Carta, the political philosophy of Hobbes and Locke, the supremacy of parliament over absolute monarchy (which had been hard fought and won in Britain a century earlier), the rule of law, the freedom of religious observance and belief, and so much more, came ashore on that day.  That certainly was the view of Captain Arthur Phillip RN, who commanded the First Fleet and who was appointed to be the first Governor, as it was of His Lordship Viscount Sydney who, as Secretary of State of the Home Office (the Home Secretary), was instrumental in the sending of the fleet to New South Wales. By instinct and worldview, the settlers and those who thought about these matters in London viewed the issue of governance and the exercise of power through a specifically British lens.  Moreover, the British Parliament at Westminster retained an overriding ‘paramount’ power to legislate for the new colonies. Within a few decades, emboldened by the rapid economic expansion of the colonies, which occurred largely off the back of sheep and gold, calls for self-government and democratic reform emerged, which fell on largely receptive ears in London. Colonial legislatures were established in the 1850s, as the colonies were granted powers of local self-government, except to the extent that the British Parliament legislated otherwise (these assemblies could not make laws which were ‘repugnant’ to relevant British laws).It should not be thought that our colonial forebears were passive recipients of British political and legal wisdom, and nor should it be thought that British constitutionalism arrived fully formed in 1788. Our colonial forebears used the inheritance of 1788 wisely and took the opportunity of democratic reform and increased self-government to build a local mode of democratic practice and engagement––not least in the context of the expansion of the electoral suffrage, albeit more slowly for women than for men. While our institutions and practices had an obvious resemblance to their British roots, the offshoots were recognisably ‘Australian’ by the second half of the 19th Century, decades before ‘Australia’ came into being. Towards the end of the 19th Century, the colonists started to conceive of the establishment of a nation, which was realised with Federation on 1st January 1901. As I observed last year, our Constitution is not given to lyrical declarations and expressions of grand concepts concerned with rights and liberties and their philosophical foundations––as are some others. It is, on the contrary, a ‘rule book’ for governing Australia, not least of course with respect to the written separation of political power, as between the legislature, the executive and the judiciary.Relevantly, for my purposes today, I suspect that the founding fathers (in keeping with the times, they were all men), had a positive preference not to codify our rights and liberties in the Constitution, on the assumption that these were ancient and already possessed by the colonists, through the rule of law, and the operation of representative democracy and parliamentary (or ‘responsible’) government which constitutionally constrained the monarch and the executive. They reasoned that conferral through express provisions in the Constitution was unnecessary, and perhaps even potentially detrimental to those inherit rights and liberties.  Over and above the assumption of the rule of law in our Constitution, and the other elements of our inherited British birthrights, the founding fathers also had the benefit of distilling the best of the ideas of the Enlightenment, as they had been developed in the 18th and 19th Centuries in Europe and North America, without the war, revolution and violence seen in those older polities. We owe a great deal to the purposeful and peaceful emergence of an ‘Australian’ system of national governance in the 19th Century, fashioned before Federation, which had the benefit of many tributary streams of inspiration and design, principal of which was our British inheritance, but with important contributions from other sources, such as American federalism and the Enlightenment, which had a broader European origin and outlook.Of course, the Constitution which brought about the federation of the colonies was itself an Act of the British Parliament. It would take almost another century to finally break the legal ties to that legislature––first by way of the passage of the Statute of Westminster in 1931, its adoption by the Australian Parliament in 1942 (backdated to 3rd September 1939), and finally the passage of the Australia Act in 1986 which, 198 years after the landing of the First Fleet, made clear once and for all that the Australian Parliament was sovereign, its British ancestor could not legislate for the Commonwealth, and the State Parliaments were not required, by colonial era legislation, to enact laws consistently with British statutory law. This long story of the gradual and purposeful building of the institutions and conventions of national governance is of paramount importance and significance, and perhaps we take it all too readily for granted. As public servants, we should probably better understand and appreciate the story, and its various strands and elements.  In any event, whether by providence or fortuna, the birthright of those first settlers––free and convict––came to these shores with that fleet, and so became our inheritance, as the laws and liberties upon which we built the Australian system of national governance.Recall that this was a time of European expansion and empire-building, which had commenced three hundred years earlier with the discovery of the New World and the Spanish conquest of large parts of the Americas. It could have been our fate to be the subjects of a different empire, or perhaps several, had history taken different turns, and had what we know today as ‘Australia’ been colonised by the Spanish or French Crowns, or perhaps, later, the Empire of Napoleon, or perhaps one or more of the other European kingdoms and empires. Surely it can be little doubted that with the expansion of European power from the late 15th Century onwards, what we know today as ‘Australia’ would have been colonised by one or more of these powers––and how so different would have been our historical development and national evolution?   What cannot be today doubted, of course, is that the establishment of British sovereignty in 1788 did not extinguish the native title enjoyed by the indigenous First Nations, which the Common Law most notably recognised in 1992 by way of the Mabo decision of the High Court of Australia.  Without seeking to insert myself into the contemporary debate about Australia Day, I should think that we could all agree that more could, and should, be done to ensure that all––and especially our children––are better informed about the history of the establishment of British sovereignty on this continent in 1788 and, notwithstanding, the continued existence of a connection to the land on the part of the indigenous First Nations – even if for two centuries the received view was a legally fictitious one which held that the land had literally been empty and that the assertion of political sovereignty in 1788 carried with it rights of territorial ownership.As I have said previously, a nation-state is not an arbitrary geographical construct that happens to be inhabited at any one time by randomly selected individuals who lack any prior connections or common history.  The very idea of ‘Australia’ implies continuities in terms of common identity, the durability and strength of our institutions, as well as our system of national governance.  Citizens are essentially strangers (we cannot possibly know all of our fellow citizens) who respect one another regardless of cultural, racial, religious or other differences, and who expect each other to participate equitably in our society, with a full appreciation of the rights and responsibilities that come with membership of that society. That is why our citizenship pledge and affirmation, which will be heard around the nation today, recognises allegiance to Australia and its people; our shared democratic beliefs, rights and liberties; and the observance of our laws.Through the nation-state, we are bound together by a ‘social contract’ which is the basis on which our differences are reconciled, interests harmonised, decisions taken, rules set and courses of action agreed. The ‘social contract’ founds the political community, shapes its institutional structures and arrangements, confers powers, and ensures that sovereign power is distributed, checked and balanced. The latter ensures that government can be effected with consent and legitimacy, and where necessary with restrictions, without any citizen having to seek recourse through extra-constitutional action and, at the extreme, civil insurrection and political violence. Through the ‘social contract’, I accept certain restrictions on my liberty on the understanding that others have done the same, that sovereign power is exercised for the common good and for common protection, and that power cannot otherwise fetter my liberty, and certainly cannot do so absent natural justice and established processes.     Whatever else might be said about 26th January 1788, it is undeniably the case that the building of the Australian nation-state began on that day, a long project which continues to evolve to this day.  Our particular ‘social contract’, derived from the British constitutional tradition, cannot be understood without reference to the arrival of the First Fleet and the subsequent evolution of our system of national governance, with its constituent institutions, arrangements, conventions, processes and practices. With every pledge of allegiance on the part of new citizens, and affirmation of allegiance on the part of existing citizens, our mutual bonds of national association are invoked, as is our national story, and the undertakings that we have made to one another, to our forebears and to our descendants through the ‘social contract’ that is otherwise known as ‘Australia’. The birthright and inheritance of 1788 is indelibly a part of that story.