Constitution of Australia
Encyclopedia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government
operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referendum
s held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act
of the Parliament of the United Kingdom
.
Royal Assent
was given by Queen Victoria on 9 July 1900, upon which date the Constitution became law. It came into force on 1 January 1901. Even though the Constitution was originally given legal force by an Act of the United Kingdom parliament, the Australia Act 1986
removed the power of the United Kingdom parliament to change the Constitution as in force in Australia, and the Constitution can now only be changed in accordance with the prescribed referendum procedures.
Other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster
, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942
, and the Australia Act 1986, which was passed in equivalent forms by the Parliaments of every Australian state, the United Kingdom, and the Australian Federal Parliament. The Statute of Westminster Adoption Act made Australia a de jure independent nation (though it had been de facto independent for some years before then), while the Australia Act severed the last remaining constitutional links between Australia and the United Kingdom. Even though the same person, Queen Elizabeth II, is the monarch of both countries, she acts in a distinct capacity as monarch of each.
Under Australia's common law
system, the High Court of Australia
and the Federal Court of Australia
have the authority to interpret constitutional provisions. Their decisions determine the interpretation and application of the constitution
.
of Australia began with moves towards federation in the 19th century, which culminated in the federation of the Australian colonies to form the Commonwealth of Australia in 1901. However, the Constitution has continued to develop since then, with two laws having particularly significant impact on the constitutional status of the nation.
colonies
in Australia under a single federation. However, impetus mostly came from Britain and there was only lacklustre local support. The smaller colonies feared domination by the larger ones; Victoria
and New South Wales
disagreed over the ideology of protectionism
; the then-recent American Civil War
also hampered the case for federalism. These difficulties led to the failure of several attempts to bring about federation in the 1850s and 1860s.
By the 1880s, fear of the growing presence of the Germans
and the French in the Pacific, coupled with a growing Australian identity, created the opportunity for establishing the first inter-colonial body, the Federal Council of Australasia
, established in 1885. The Federal Council could legislate on certain subjects, but did not have a permanent secretariat, an executive, or independent source of revenue. The absence of New South Wales
, the largest colony, also diminished its representative value.
Henry Parkes
, the Premier of New South Wales, was instrumental in pushing for a series of conferences in the 1890s to discuss federalism one in Melbourne
in 1890, and another (the National Australasian Convention) in Sydney
in 1891, attended by colonial leaders. By the 1891 conference, significant momentum had been built for the federalist cause, and discussion turned to the proper system of government for a federal state. Under the guidance of Sir Samuel Griffith, a draft constitution was drawn up. However, these meetings lacked popular support. Furthermore, the draft constitution side-stepped certain important issues, such as tariff policy. The draft of 1891 was submitted to colonial parliaments but lapsed in New South Wales, after which the other colonies were unwilling to proceed.
In 1895, the six premiers of the Australian colonies agreed to establish a new Convention by popular vote. The Convention met over the course of a year from 1897 to 1898. The meetings produced a new draft which contained substantially the same principles of government as the 1891 draft, but with added provisions for responsible government
. To ensure popular support, the draft was presented to the electors of each colony. After one failed attempt, an amended draft was submitted to the electors of each colony except Western Australia
. After ratification by the five colonies, the Bill was presented to the British Imperial Parliament with an Address requesting Queen Victoria to enact the Bill.
Before the Bill was passed, however, one final change was made by the imperial government, upon lobbying by the Chief Justices of the colonies, so that the right to appeal from the High Court
to the Privy Council
on constitutional matters concerning the limits of the powers of the Commonwealth or States could not be curtailed by parliament. Finally, the Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900. Western Australia
finally agreed to join the Commonwealth in time for it to be an original member of the Commonwealth of Australia, which was officially established on 1 January 1901.
In 1990, the original copy of the Commonwealth of Australia Constitution Act 1900 from the Public Records Office in London
was lent to Australia, and the Australian government requested permission to keep the copy. The British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990
.
laws to the Commonwealth. This was resolved by the Statute of Westminster 1931
, adopted by the Commonwealth via the Statute of Westminster Adoption Act 1942
. The Statute of Westminster freed the Dominions, including the Commonwealth, from Imperial restrictions. Legally, this is often regarded as the moment of Australia's national independence.
However, due to specific exemptions in the Statute of Westminster, Imperial law continued to be paramount in Australian states. This was altered by the Australia Act 1986
, which was passed in substantially the same form by the Commonwealth parliament and the British parliament, at the request of each state. In addition to ending the British Parliament's power to legislate over Australian states, the Australia Act also cut the last avenues of appeal from the Australian courts
to the Judicial Committee of the Privy Council
. As a symbol of the significance of this legislation, Queen Elizabeth II travelled to Australia to personally sign the proclamation of the law.
For the Constitution, the impact of these two laws is that the Constitution as in force in Australia is now separate from the text in the original Act. While the British Parliament can amend or repeal the Imperial Act, that would not affect Australia. Instead, the Constitution as in force in Australia can only be amended following the referendum
mechanisms set out in the Constitution. Conversely, any amendment to the Constitution in Australia following the referendum
mechanisms would not affect the text of the Imperial Act as in force in the United Kingdom.
, which consists of three constituent parts: The Sovereign (King or Queen) of Australia
, who is represented by the Governor-General of Australia
; the House of Representatives
; and the Senate
. Section 1 provides that legislative power is vested in this Parliament, which has paramount power of governance.
Part II of this chapter deals with the Senate. Senators are to be "directly chosen by the people of the State", voting as a single electorate. Each State is to have the same number of senators. Currently, there are 12 senators for each State, and 2 each for the mainland territories, the Northern Territory
and the Australian Capital Territory
.
Part III deals with the House of Representatives. As nearly as practicable, Section 24 requires the House to be composed of twice as many members as the Senate, each elected by a single electorate. This is the so-called 'Nexus', which is designed to prevent swamping of the senate's power in the case of a joint sitting (see Section 57 below). The number of electorates in a State is to be (roughly) proportional to its share of the national population.
Part IV ("Both Houses of the Parliament") deals with eligibility for voting and election to the parliament, parliamentary allowances, parliamentary rules and related matters.
Part V deals with the powers of the parliament. Section 51
deals with powers of the Commonwealth parliament and are called "specific powers". These contain "concurrent powers", in the sense that both the Commonwealth and States can legislate on these subjects, although federal law prevails in the case of inconsistency (Section 109
). Of the thirty-nine elements of section 51, a few have become critical in determining the scope of Commonwealth government action, including the Trade and Commerce Power
, the Corporations Power
and the External Affairs Power
. Section 52 deals with powers exclusively vested in the Commonwealth parliament. States cannot legislate on these subjects.
, advised by the Federal Executive Council
. Under this Chapter, the Governor-General is the commander in chief, and may appoint and dismiss the members of the Executive Council, ministers of state, and all officers of the executive government. These powers, along with the powers to dissolve (or refuse to dissolve) parliament (Section 5, Section 57), are termed "reserve powers", and their use is dictated by convention. Generally, the Governor-General acts only on the advice of the Prime Minister
. There has been only one instance of the Governor-General acting outside the advice of the Prime Minister of the day, when Governor-General Sir John Kerr, acting on his own authority, dismissed Prime Minister Gough Whitlam in the 1975 Australian constitutional crisis.
Reserve powers in all Westminster nations are only extremely rarely exercised outside of the understood conventions. However, in contrast with the constitutions of other Commonwealth Realms such as Canada
which formally grant extensive reserve power
s to the Monarch, even the formal powers of the Queen of Australia are extremely limited, and most powers are only exercisable by the Governor-General.
Section 68 states that the Commander in chief of Australia's naval and military forces as being: "The commander in chief of the naval and military forces of the Commonwealth is vested in the Governor General as the Queen's representative". The Commander in chief of the Australian Defence Force
is therefore currently Her Excellency Quentin Bryce
as the Governor General of Australia whilst the Queen of Australia is not in command of the military.
branch of government. Section 71 vests judicial power in a "Federal Supreme Court" to be called the High Court of Australia
, and such other federal courts as Parliament creates, and in such other courts as Parliament invests with federal jurisdiction. Such courts are called "Chapter III Court
s" are the only courts that can exercise federal judicial power. Sections 73 and 75-78 outline the original and appellate jurisdiction of the High Court. Section 74 provides for the circumstances in which an appeal can be made to the Queen in Council
. Section 79 allows Parliament to prescribe the number of judges able to exercise federal jurisdiction and section 80 guarantees trial by jury
for indictable offence
s against the Commonwealth.
Section 92 provides that "trade, commerce, and intercourse among the States shall be absolutely free". The precise meaning of this phrase is the subject of a considerable body of law.
Section 96 gives the Commonwealth power to make grants to States "on such terms and conditions as the Parliament thinks fit". This power has been held to be unconstrained by any other provision, such as Section 99 which forbids giving preference to one State or part thereof over another State or part thereof. It is subject only to Section 116, freedom of religion
, and possibly other such freedoms. This power, although evidently envisaged as a temporary measure ("during a period of ten years ... and thereafter until the Parliament otherwise provides"), has been used by the Commonwealth to encourage cooperation by the States to various extents over the years.
Section 101 sets up an Inter-State Commission
, a body which is now defunct, but which was originally envisaged to have a significant role in the federal structure.
Section 109
provides that, where a State law is inconsistent with a federal law, the federal law prevails (to the extent of the inconsistency).
Section 111 provides that a State can surrender any part of the State to the Commonwealth. This has occurred on several occasions, most notably the surrender by South Australia
to the Commonwealth of the Northern Territory
.
Section 114 forbids any State from raising a military force, and also forbids the State or the Commonwealth from taxing each other's property.
Section 116 establishes what is often called "freedom of religion", by forbidding the Commonwealth from making any law for the establishment of a religion, imposing any religious observance, or prohibiting the exercise of a religion, or religious discrimination for public office.
No new states have been admitted to the Commonwealth since federation.
) shall be located within New South Wales
but no less than one hundred miles from Sydney
, and that the Governor-General may appoint deputies. Section 127 previously provided that Aborigines
cannot be counted in any Commonwealth or State census. This section was repealed
in 1967.
. Successful amendment requires:
The referendum bill must be put to the people by the Governor-General between two and six months after passing parliament. After the constitutional amendment bill has passed both the parliamentary stage and the referendum, it then receives Royal Assent
. When proclaimed, it will be in effect, and the wording of the Constitution will be changed.
An exception to this process is if the amendment bill is rejected by one house of Federal Parliament. If the bill passes the first house and is rejected by the second, then after three months the first house may pass it again. If the bill is still rejected by the second house, then the Governor-General may choose to still put the bill to the people's vote.
Section 128 also provides that any amendment affecting equal representation of a State in the Senate, or minimum representation in the House of Representatives can only be presented for Royal Assent if it is approved in that State.
Forty-four proposals to amend the Constitution have been voted on at referendums, of which eight have been approved. The following is a list of amendments which have been approved. For a complete list of all referendums and plebiscites held, see Referendums in Australia Referendums and plebiscites by year.
issued by the Crown, conventions
are an important aspect of the Constitution, which have evolved over the decades and define how various constitutional mechanisms operate in practice.
Conventions play a powerful role in the operation of the Australian constitution because of its set-up and operation as a Westminster system
of responsible government
. Some notable conventions include:
However, because conventions are not textually based, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. The most extreme case was the Australian constitutional crisis of 1975
, in which the operation of conventions was seriously tested. The ensuing constitutional crisis was resolved dramatically when the Governor-General Sir John Kerr dismissed the Labor Prime Minister Gough Whitlam
, appointing Malcolm Fraser
as caretaker Prime Minister pending the 1975 general election. A number of conventions were said to be broken during this episode. These include:
tradition in Australia, the law on the interpretation and application of the Constitution has developed largely through judgments by the High Court of Australia
in various cases. In a number of seminal cases, the High Court has developed several doctrines which underlie the interpretation of the Australian Constitution. Some examples include:
The vast majority of constitutional cases before the High Court deal with characterisation
: whether new laws fall within a permissible head of power granted to the Commonwealth government by the Constitution.
The Australian Constitution does not include a Bill of Rights
. Some delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution
, but the majority felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for its scant protection of rights and freedoms.
Some express rights were, however, included:
It has also been found that there is at least one implied right. In 2007, in Roach v Electoral Commissioner
, the High Court
held that Constitution sections 7 and 24, by providing that members of the House of Representatives and the Senate be "directly chosen by the people", created a limited right to vote. This entailed the guarantee of a universal franchise in principle, and limited the Federal Parliament's legislative power to modify that universal franchise. In the case, a legislative amendment to disqualify from voting all prisoners (as opposed to only those serving sentences of three years or more, as it was before the amendment) was struck down as contravening that right.
There are also some guaranteed freedoms, reasons why legislation that might otherwise be within power may nonetheless be invalid. These are not rights of individuals, but limitations upon legislative power. However, where legislation that would adversely affect an individual is found to be invalid for such a reason, the effect for the individual is similar to vindicating a right of that individual. As with rights, such freedoms may be express or implied:
Attempts in High Court
cases to find further implied rights or freedoms have not been successful. Implication of a freedom of association and a freedom of assembly, independently or linked to that of political communication, has received occasional judicial support but not from a majority in any case.
. There have been some calls for the insertion of such a section to express the spirit and aspirations embodied in the constitution. However, there has been fierce opposition, usually on the basis of the content of the preamble, as well as possible legal ramifications of this text. In 1999, a proposed preamble, principally authored by John Howard
, the then Prime Minister
, was defeated in a referendum held concurrently with the Republic referendum. The "Yes" vote (in favour of the insertion of the preamble) did not achieve a majority in any of the six states.
stated that while it is not an active priority, the current structure "no longer reflects either the fundamental democratic principles that underpin the Australian nation or its diversity", and he has given some indications that a referendum for an independent, elected President, repairing the main issue of the 1999 vote, is being considered. He went on to say that "over the next year there would be an "accelerated public debate" about the monarchy question".
, although commemorations were low key and were not widely held after 2001. Constitution Day was revived in 2007 and is jointly organised by the National Archives of Australia
, which holds the original Constitution documents, and the Department of Immigration and Citizenship.
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
s held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
.
Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
was given by Queen Victoria on 9 July 1900, upon which date the Constitution became law. It came into force on 1 January 1901. Even though the Constitution was originally given legal force by an Act of the United Kingdom parliament, the Australia Act 1986
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
removed the power of the United Kingdom parliament to change the Constitution as in force in Australia, and the Constitution can now only be changed in accordance with the prescribed referendum procedures.
Other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942
Statute of Westminster Adoption Act 1942
The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the legislative independence of the various self-governing Dominions of the British Empire...
, and the Australia Act 1986, which was passed in equivalent forms by the Parliaments of every Australian state, the United Kingdom, and the Australian Federal Parliament. The Statute of Westminster Adoption Act made Australia a de jure independent nation (though it had been de facto independent for some years before then), while the Australia Act severed the last remaining constitutional links between Australia and the United Kingdom. Even though the same person, Queen Elizabeth II, is the monarch of both countries, she acts in a distinct capacity as monarch of each.
Under Australia's common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system, the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
and the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
have the authority to interpret constitutional provisions. Their decisions determine the interpretation and application of the constitution
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
.
History
The history of the ConstitutionConstitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of Australia began with moves towards federation in the 19th century, which culminated in the federation of the Australian colonies to form the Commonwealth of Australia in 1901. However, the Constitution has continued to develop since then, with two laws having particularly significant impact on the constitutional status of the nation.
Federation
In the mid-19th century, a desire to facilitate cooperation on matters of mutual interest, especially intercolonial tariffs, led to proposals to unite the separate BritishUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
colonies
Crown colony
A Crown colony, also known in the 17th century as royal colony, was a type of colonial administration of the English and later British Empire....
in Australia under a single federation. However, impetus mostly came from Britain and there was only lacklustre local support. The smaller colonies feared domination by the larger ones; Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
and New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
disagreed over the ideology of protectionism
Protectionism
Protectionism is the economic policy of restraining trade between states through methods such as tariffs on imported goods, restrictive quotas, and a variety of other government regulations designed to allow "fair competition" between imports and goods and services produced domestically.This...
; the then-recent American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
also hampered the case for federalism. These difficulties led to the failure of several attempts to bring about federation in the 1850s and 1860s.
By the 1880s, fear of the growing presence of the Germans
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
and the French in the Pacific, coupled with a growing Australian identity, created the opportunity for establishing the first inter-colonial body, the Federal Council of Australasia
Federal Council of Australasia
The Federal Council of Australasia was a forerunner to the current Commonwealth of Australia, though its structure and members were different. It consisted of the then British colonies of New Zealand, Victoria, Tasmania, South Australia, Fiji, and others. However, the largest colony in the region,...
, established in 1885. The Federal Council could legislate on certain subjects, but did not have a permanent secretariat, an executive, or independent source of revenue. The absence of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
, the largest colony, also diminished its representative value.
Henry Parkes
Henry Parkes
Sir Henry Parkes, GCMG was an Australian statesman, the "Father of Federation." As the earliest advocate of a Federal Council of the colonies of Australia, a precursor to the Federation of Australia, he was the most prominent of the Australian Founding Fathers.Parkes was described during his...
, the Premier of New South Wales, was instrumental in pushing for a series of conferences in the 1890s to discuss federalism one in Melbourne
Melbourne
Melbourne is the capital and most populous city in the state of Victoria, and the second most populous city in Australia. The Melbourne City Centre is the hub of the greater metropolitan area and the Census statistical division—of which "Melbourne" is the common name. As of June 2009, the greater...
in 1890, and another (the National Australasian Convention) in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
in 1891, attended by colonial leaders. By the 1891 conference, significant momentum had been built for the federalist cause, and discussion turned to the proper system of government for a federal state. Under the guidance of Sir Samuel Griffith, a draft constitution was drawn up. However, these meetings lacked popular support. Furthermore, the draft constitution side-stepped certain important issues, such as tariff policy. The draft of 1891 was submitted to colonial parliaments but lapsed in New South Wales, after which the other colonies were unwilling to proceed.
In 1895, the six premiers of the Australian colonies agreed to establish a new Convention by popular vote. The Convention met over the course of a year from 1897 to 1898. The meetings produced a new draft which contained substantially the same principles of government as the 1891 draft, but with added provisions for responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
. To ensure popular support, the draft was presented to the electors of each colony. After one failed attempt, an amended draft was submitted to the electors of each colony except Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
. After ratification by the five colonies, the Bill was presented to the British Imperial Parliament with an Address requesting Queen Victoria to enact the Bill.
Before the Bill was passed, however, one final change was made by the imperial government, upon lobbying by the Chief Justices of the colonies, so that the right to appeal from the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
to the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
on constitutional matters concerning the limits of the powers of the Commonwealth or States could not be curtailed by parliament. Finally, the Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900. Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
finally agreed to join the Commonwealth in time for it to be an original member of the Commonwealth of Australia, which was officially established on 1 January 1901.
In 1990, the original copy of the Commonwealth of Australia Constitution Act 1900 from the Public Records Office in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
was lent to Australia, and the Australian government requested permission to keep the copy. The British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990
Australian Constitution (Public Record Copy) Act 1990
The Australian Constitution Act 1990 is an Act of the Parliament of the United Kingdom, passed in 1990. The purpose of the Act was to allow the Commonwealth of Australia to retain the original copy of the Commonwealth of Australia Constitution Act 1900 , which the British government had loaned for...
.
The Statute of Westminster and the Australia Acts
Although Federation is often regarded as the moment of "independence" of Australia from Britain, legally the Commonwealth was a creation of the British Imperial Parliament, through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia by paramount force. As a result, since Australia was still legally a colony, there was continued uncertainty as to the applicability of British ImperialBritish Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
laws to the Commonwealth. This was resolved by the Statute of Westminster 1931
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
, adopted by the Commonwealth via the Statute of Westminster Adoption Act 1942
Statute of Westminster Adoption Act 1942
The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the legislative independence of the various self-governing Dominions of the British Empire...
. The Statute of Westminster freed the Dominions, including the Commonwealth, from Imperial restrictions. Legally, this is often regarded as the moment of Australia's national independence.
However, due to specific exemptions in the Statute of Westminster, Imperial law continued to be paramount in Australian states. This was altered by the Australia Act 1986
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
, which was passed in substantially the same form by the Commonwealth parliament and the British parliament, at the request of each state. In addition to ending the British Parliament's power to legislate over Australian states, the Australia Act also cut the last avenues of appeal from the Australian courts
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
to the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
. As a symbol of the significance of this legislation, Queen Elizabeth II travelled to Australia to personally sign the proclamation of the law.
For the Constitution, the impact of these two laws is that the Constitution as in force in Australia is now separate from the text in the original Act. While the British Parliament can amend or repeal the Imperial Act, that would not affect Australia. Instead, the Constitution as in force in Australia can only be amended following the referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
mechanisms set out in the Constitution. Conversely, any amendment to the Constitution in Australia following the referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
mechanisms would not affect the text of the Imperial Act as in force in the United Kingdom.
Articles
The Commonwealth of Australia Constitution Act 1900 (Imp) contains a Preamble, and nine sections. Sections 1 8 are covering clauses outlining the legal procedures for the establishment of the Commonwealth. Section 9, beginning with the words "The Constitution of the Commonwealth shall be as follows ...", contains the Constitution of the Commonwealth of Australia. The Constitution itself is divided into eight chapters, containing 128 sections.The Parliament
Chapter I sets up the legislative branch of government, the Parliament of AustraliaParliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
, which consists of three constituent parts: The Sovereign (King or Queen) of Australia
Monarchy in Australia
The Monarchy of Australia is a form of government in which a hereditary monarch is the sovereign of Australia. The monarchy is a constitutional one modelled on the Westminster style of parliamentary government, incorporating features unique to the Constitution of Australia.The present monarch is...
, who is represented by the Governor-General of Australia
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
; the House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
; and the Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
. Section 1 provides that legislative power is vested in this Parliament, which has paramount power of governance.
Part II of this chapter deals with the Senate. Senators are to be "directly chosen by the people of the State", voting as a single electorate. Each State is to have the same number of senators. Currently, there are 12 senators for each State, and 2 each for the mainland territories, the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
and the Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
.
Part III deals with the House of Representatives. As nearly as practicable, Section 24 requires the House to be composed of twice as many members as the Senate, each elected by a single electorate. This is the so-called 'Nexus', which is designed to prevent swamping of the senate's power in the case of a joint sitting (see Section 57 below). The number of electorates in a State is to be (roughly) proportional to its share of the national population.
Part IV ("Both Houses of the Parliament") deals with eligibility for voting and election to the parliament, parliamentary allowances, parliamentary rules and related matters.
Part V deals with the powers of the parliament. Section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
deals with powers of the Commonwealth parliament and are called "specific powers". These contain "concurrent powers", in the sense that both the Commonwealth and States can legislate on these subjects, although federal law prevails in the case of inconsistency (Section 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
). Of the thirty-nine elements of section 51, a few have become critical in determining the scope of Commonwealth government action, including the Trade and Commerce Power
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
, the Corporations Power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
and the External Affairs Power
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
. Section 52 deals with powers exclusively vested in the Commonwealth parliament. States cannot legislate on these subjects.
The Executive Government
Chapter II sets up the executive branch of government. Executive power is to be exercised by the Governor-GeneralGovernor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
, advised by the Federal Executive Council
Federal Executive Council
The Federal Executive Council is the formal body holding executive authority under the Constitution of Australia. It is equivalent to the other Executive Councils in other Commonwealth Realms such as the Executive Council of New Zealand and is equivalent to the Privy councils in Canada and the...
. Under this Chapter, the Governor-General is the commander in chief, and may appoint and dismiss the members of the Executive Council, ministers of state, and all officers of the executive government. These powers, along with the powers to dissolve (or refuse to dissolve) parliament (Section 5, Section 57), are termed "reserve powers", and their use is dictated by convention. Generally, the Governor-General acts only on the advice of the Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
. There has been only one instance of the Governor-General acting outside the advice of the Prime Minister of the day, when Governor-General Sir John Kerr, acting on his own authority, dismissed Prime Minister Gough Whitlam in the 1975 Australian constitutional crisis.
Reserve powers in all Westminster nations are only extremely rarely exercised outside of the understood conventions. However, in contrast with the constitutions of other Commonwealth Realms such as Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
which formally grant extensive reserve power
Reserve power
In a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike a presidential system of government, the head of state is generally constrained by the cabinet or the...
s to the Monarch, even the formal powers of the Queen of Australia are extremely limited, and most powers are only exercisable by the Governor-General.
Section 68 states that the Commander in chief of Australia's naval and military forces as being: "The commander in chief of the naval and military forces of the Commonwealth is vested in the Governor General as the Queen's representative". The Commander in chief of the Australian Defence Force
Australian Defence Force
The Australian Defence Force is the military organisation responsible for the defence of Australia. It consists of the Royal Australian Navy , Australian Army, Royal Australian Air Force and a number of 'tri-service' units...
is therefore currently Her Excellency Quentin Bryce
Quentin Bryce
Quentin Bryce, AC, CVO is the 25th and current Governor-General of Australia and former Governor of Queensland....
as the Governor General of Australia whilst the Queen of Australia is not in command of the military.
The Judicature
Chapter III sets up the judicialJudiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
branch of government. Section 71 vests judicial power in a "Federal Supreme Court" to be called the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, and such other federal courts as Parliament creates, and in such other courts as Parliament invests with federal jurisdiction. Such courts are called "Chapter III Court
Chapter III Court
In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
s" are the only courts that can exercise federal judicial power. Sections 73 and 75-78 outline the original and appellate jurisdiction of the High Court. Section 74 provides for the circumstances in which an appeal can be made to the Queen in Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
. Section 79 allows Parliament to prescribe the number of judges able to exercise federal jurisdiction and section 80 guarantees trial by jury
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
for indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
s against the Commonwealth.
Finance and Trade
Chapter IV deals with finance and trade in the federal system. Section 81 prescribes that all Commonwealth revenue shall form the Consolidated Revenue Fund. Parliament can make laws as to the appropriations of money (Section 53). Unlike most other powers of the parliament, laws made under the appropriations power are not ordinarily susceptible to effective legal challenge. Section 90 gives the Commonwealth exclusive power over duties of custom and excise.Section 92 provides that "trade, commerce, and intercourse among the States shall be absolutely free". The precise meaning of this phrase is the subject of a considerable body of law.
Section 96 gives the Commonwealth power to make grants to States "on such terms and conditions as the Parliament thinks fit". This power has been held to be unconstrained by any other provision, such as Section 99 which forbids giving preference to one State or part thereof over another State or part thereof. It is subject only to Section 116, freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, and possibly other such freedoms. This power, although evidently envisaged as a temporary measure ("during a period of ten years ... and thereafter until the Parliament otherwise provides"), has been used by the Commonwealth to encourage cooperation by the States to various extents over the years.
Section 101 sets up an Inter-State Commission
Inter-State Commission
The Inter-State Commission, or Interstate Commission, is a defunct constitutional body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade...
, a body which is now defunct, but which was originally envisaged to have a significant role in the federal structure.
The States
Chapter V contains provisions dealing with the States and their role under the federal system. Sections 106-108 preserves the Constitution, powers of the Parliament, and the laws in force of each of the States.Section 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
provides that, where a State law is inconsistent with a federal law, the federal law prevails (to the extent of the inconsistency).
Section 111 provides that a State can surrender any part of the State to the Commonwealth. This has occurred on several occasions, most notably the surrender by South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
to the Commonwealth of the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
.
Section 114 forbids any State from raising a military force, and also forbids the State or the Commonwealth from taxing each other's property.
Section 116 establishes what is often called "freedom of religion", by forbidding the Commonwealth from making any law for the establishment of a religion, imposing any religious observance, or prohibiting the exercise of a religion, or religious discrimination for public office.
New States
Chapter VI allows for the establishment or admission of new states. Section 122 allows the Parliament to provide for the representation in Parliament of any territory surrendered by the States, or placed by the Queen in the authority of the Commonwealth. Section 123 requires that changing the boundaries of a State requires the consent of the Parliament of that State and approval by referendum in that State.No new states have been admitted to the Commonwealth since federation.
Miscellaneous
Chapter VII provides that the seat of government of the Commonwealth (now CanberraCanberra
Canberra is the capital city of Australia. With a population of over 345,000, it is Australia's largest inland city and the eighth-largest city overall. The city is located at the northern end of the Australian Capital Territory , south-west of Sydney, and north-east of Melbourne...
) shall be located within New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
but no less than one hundred miles from Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
, and that the Governor-General may appoint deputies. Section 127 previously provided that Aborigines
Australian Aborigines
Australian Aborigines , also called Aboriginal Australians, from the latin ab originem , are people who are indigenous to most of the Australian continentthat is, to mainland Australia and the island of Tasmania...
cannot be counted in any Commonwealth or State census. This section was repealed
Australian referendum, 1967 (Aboriginals)
The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration 1967, which became law on 10 August 1967 following the results of the referendum...
in 1967.
Alteration of the Constitution
Chapter VIII specifies the procedures for amending the Constitution. Section 128 provides that constitutional amendments must be approved by a referendumReferendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
. Successful amendment requires:
- an absolute majority in both houses of the federal parliament; and
- the approval in a referendumReferendumA referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
of the proposed amendment by a majority of electors nationwide, and a majority in a majority of states.
The referendum bill must be put to the people by the Governor-General between two and six months after passing parliament. After the constitutional amendment bill has passed both the parliamentary stage and the referendum, it then receives Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
. When proclaimed, it will be in effect, and the wording of the Constitution will be changed.
An exception to this process is if the amendment bill is rejected by one house of Federal Parliament. If the bill passes the first house and is rejected by the second, then after three months the first house may pass it again. If the bill is still rejected by the second house, then the Governor-General may choose to still put the bill to the people's vote.
Section 128 also provides that any amendment affecting equal representation of a State in the Senate, or minimum representation in the House of Representatives can only be presented for Royal Assent if it is approved in that State.
Amendments
As mentioned above, successful amendment of the Constitution requires a referendum in which the "Yes" vote achieves a majority nationally, as well as majorities in a majority of states.Forty-four proposals to amend the Constitution have been voted on at referendums, of which eight have been approved. The following is a list of amendments which have been approved. For a complete list of all referendums and plebiscites held, see Referendums in Australia Referendums and plebiscites by year.
- 1906Australian referendum, 1906The Australian referendum of 12 December 1906 approved an amendment to the Australian constitution related to the terms of office of federal senators. Technically it was a vote on the Constitution Alteration Act, 1906, which after being approved in the referendum received the Royal Assent on 3...
Senate ElectionsAustralian referendum, 1906The Australian referendum of 12 December 1906 approved an amendment to the Australian constitution related to the terms of office of federal senators. Technically it was a vote on the Constitution Alteration Act, 1906, which after being approved in the referendum received the Royal Assent on 3...
amended Section 13 to slightly alter the length and dates of Senators' terms of office. - 1910Australian referendum, 1910The 1910 Australian Referendum was held on 13 April 1910. It contained two referendum questions.* State Debts * Surplus Revenue ...
State DebtsAustralian referendum, 1910 (State Debts)The referendum of the 13 April 1910 approved an amendment to the Australian constitution. Technically it was a vote on the Constitution Alteration Act, 1909, which after being approved in the referendum received the Royal Assent on the 6 August.Upon the establishment of the Commonwealth of...
amended Section 105 to extend the power of the Commonwealth to take over pre-existing state debts to debts incurred by a state at any time. - 1928Australian referendum, 1928The referendum of the 17 November 1928 approved an amendment to the Australian constitution concerning financial relations between the Commonwealth of Australia and its states...
State DebtsAustralian referendum, 1928The referendum of the 17 November 1928 approved an amendment to the Australian constitution concerning financial relations between the Commonwealth of Australia and its states...
inserted Section 105A to ensure the constitutional validity of the Financial Agreement reached between the Commonwealth and State governments in 1927. - 1946Australian referendum, 1946The 1946 Australian Referendum was held on 28 September 1946. It contained three referendum questions.* Social Services * Marketing * Industrial Employment ...
Social ServicesAustralian referendum, 1946 (Social Services)Constitution Alteration 1946 proposed to extend the powers of government over a range of social services. The question was put to a referendum in the Australian referendum, 1946 with two other questions...
inserted Section 51 (xxiiiA) to extend the power of the Commonwealth government over a range of social services. - 1967Australian referendum, 1967The 1967 Australian Referendum was held on 27 May 1967. It contained two referendum questions.* Parliament * Aboriginals ...
AboriginesAustralian referendum, 1967 (Aboriginals)The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration 1967, which became law on 10 August 1967 following the results of the referendum...
amended Section 51 (xxvi) to extend the power of the Commonwealth government to legislate for people of any race to Aborigines; repealed Section 127 which stated that "In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted." - 1977Australian referendum, 1977The 1977 Australian Referendum was held on 21 May 1977. It contained four referendum questions and one non-binding plebiscite.Referendums:* Simultaneous Elections * Senate Casual Vacancies ...
- Senate Casual VacanciesAustralian referendum, 1977 (Senate Casual Vacancies)The referendum of 21 May 1977 approved an amendment to the Australian constitution concerning the filling of casual vacancies in the Senate. Technically it was a vote on the Constitution Alteration 1977 which, after being approved in the referendum, became law on 29 July of the same year.Prior to...
part of the political fallout of the constitutional crisis of 1975; formalised the convention, broken in 1975, that when a casual vacancy arises in the Senate, the state parliament concerned, if it chooses to fill the vacancy, must choose the replacement from the same party as the departing Senator if that party still exists. - ReferendumsAustralian referendum, 1977 (Referendums)Constitution Alteration 1977 proposed to allow residents in the territories to vote in referendums. Residents in territories were to be counted towards the national total, but would not be counted toward any state total...
amended Section 128 to allow residents of the TerritoriesStates and territories of AustraliaThe Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
to vote in referendums, and be counted towards the national total. - Retirement of JudgesAustralian referendum, 1977 (Retirement of Judges)The legislation Constitution Alteration 1977 proposed to create a retirementage of 70 for judges in federal courts.The question was put to a referendum in the Australian referendum, 1977.-Results:...
amended Section 72 to create a retirement age of 70 for judges in federal courtsChapter III CourtIn Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
.
- Senate Casual Vacancies
The role of conventions
Alongside the text of the Constitution, and Letters PatentLetters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
issued by the Crown, conventions
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
are an important aspect of the Constitution, which have evolved over the decades and define how various constitutional mechanisms operate in practice.
Conventions play a powerful role in the operation of the Australian constitution because of its set-up and operation as a Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
. Some notable conventions include:
- While the constitution does not formally create the office of Prime Minister of AustraliaPrime Minister of AustraliaThe Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
, such an office developed a de facto existence as head of the cabinet. The Prime Minister is seen as the head of government. - While there are few constitutional restrictions on the power of the Governor-GeneralGovernor-General of AustraliaThe Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
, by convention the Governor-General acts on the advice of the Prime Minister.
However, because conventions are not textually based, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. The most extreme case was the Australian constitutional crisis of 1975
Australian constitutional crisis of 1975
The 1975 Australian constitutional crisis has been described as the greatest political crisis and constitutional crisis in Australia's history. It culminated on 11 November 1975 with the removal of the Prime Minister, Gough Whitlam of the Australian Labor Party , by Governor-General Sir John Kerr...
, in which the operation of conventions was seriously tested. The ensuing constitutional crisis was resolved dramatically when the Governor-General Sir John Kerr dismissed the Labor Prime Minister Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
, appointing Malcolm Fraser
Malcolm Fraser
John Malcolm Fraser AC, CH, GCL, PC is a former Australian Liberal Party politician who was the 22nd Prime Minister of Australia. He came to power in the 1975 election following the dismissal of the Whitlam Labor government, in which he played a key role...
as caretaker Prime Minister pending the 1975 general election. A number of conventions were said to be broken during this episode. These include:
- The convention that, when the Senator from a particular State vacates his or her position during the term of office, the State government concerned would nominate a replacement from the same political party as the departing Senator. This convention was allegedly broken by first the LewisTom Lewis (Australian politician)Thomas Lancelot Lewis AO is a former New South Wales politician, Premier of New South Wales and Minister of the Crown in the cabinets of Sir Robert Askin and Sir Eric Willis. He was made the Premier of New South Wales following Askin's retirement from politics and held it until he was replaced by...
government of New South WalesNew South WalesNew South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
and then by the Bjelke-PetersenJoh Bjelke-PetersenSir Johannes "Joh" Bjelke-Petersen, KCMG , was an Australian politician. He was the longest-serving and longest-lived Premier of Queensland, holding office from 1968 to 1987, a period that saw considerable economic development in the state...
government of QueenslandQueenslandQueensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
who both filled Labor vacancies with an independent and a Labor member opposed to the Whitlam government respectively.
- Note: The convention was codified into the Constitution via the national referendum of 1977Australian referendum, 1977 (Senate Casual Vacancies)The referendum of 21 May 1977 approved an amendment to the Australian constitution concerning the filling of casual vacancies in the Senate. Technically it was a vote on the Constitution Alteration 1977 which, after being approved in the referendum, became law on 29 July of the same year.Prior to...
. The amendment requires the new Senator to be from the same party as the old one and would have prevented the appointment by Lewis, but not that by Bjelke-Petersen. However, the amendment states of the appointee that if "before taking his seat he ceases to be a member of that party...he shall be deemed not to have been so chosen or appointed". Bjelke-Petersen appointee Albert Patrick FieldAlbert FieldAlbert Patrick Field was an Australian who was a French polisher plucked from obscurity to become a Senator in 1975. The circumstances of his appointment were instrumental in precipitating the 1975 Australian constitutional crisis.Queensland ALP Senator Bertie Milliner died suddenly on 30 June 1975...
was expelled from the Labor Party before taking his seat and would therefore have been ineligible under the new constitutional amendment.- The convention that, when the Senate is controlled by a party which does not simultaneously control the House of Representatives, the Senate would not vote against money supplyConfidence and supplyIn a parliamentary democracy confidence and supply are required for a government to hold power. A confidence and supply agreement is an agreement that a minor party or independent member of parliament will support the government in motions of confidence and appropriation votes by voting in favour...
to the government. This convention was allegedly broken by the Senate controlled by the Liberal-Country party coalitionCoalition (Australia)The Coalition in Australian politics refers to a group of centre-right parties that has existed in the form of a coalition agreement since 1922...
in 1975. - The convention that a Prime Minister who cannot obtain supply must either request that the governor general call a general election, or resign. This convention was allegedly broken by Gough Whitlam in response to the Senate's unprecedented refusal.
- The convention that, when the Senate is controlled by a party which does not simultaneously control the House of Representatives, the Senate would not vote against money supply
Interpretation
In line with the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tradition in Australia, the law on the interpretation and application of the Constitution has developed largely through judgments by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in various cases. In a number of seminal cases, the High Court has developed several doctrines which underlie the interpretation of the Australian Constitution. Some examples include:
- Separation of powersSeparation of powers in AustraliaThe doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. A strict separation is not maintained in Australia, following the Westminster system and the doctrine of responsible government. Nevertheless, it is clear that it has been heavily...
The three separate chapters dealing with the three branches of government implies a separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, similar to that of the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
, but unusual for a government within the Westminster systemWestminster SystemThe Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
. Thus, for example, the legislature cannot purport to predetermine the legal outcome, or to change the direction or outcome, of a court case. - Division of powersFederalism in AustraliaOn 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America.- Federal features in the Australian Constitution :...
Powers of government are divided between the Commonwealth and the State governments, with certain powers being exclusive to the Commonwealth, others being concurrently exercised, and the remainder being exclusively held by the States. - Intergovernmental immunities Although the Engineers' CaseAmalgamated Society of Engineers v Adelaide Steamship Co. Ltd.Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129 was a landmark Australian court case decided in the High Court of Australia on 31 August 1920...
held that there was no general immunity between State and Commonwealth governments from each other's laws, the Commonwealth cannot enact taxation laws that discriminated between the States or parts of the States (Section 51(ii)), nor enact laws that discriminated against the States, or such as to prevent a State from continuing to exist and function as a state (Melbourne Corporation v CommonwealthMelbourne Corporation v CommonwealthMelbourne Corporation v Commonwealth 74 CLR 31; [1947] HCA 26 , also known as the Melbourne Corporation case or the State banking case, is an important case in Australian constitutional law...
).
The vast majority of constitutional cases before the High Court deal with characterisation
Characterisation
Characterization or characterisation is the art of creating characters for a narrative, including the process of conveying information about them. It may be employed in dramatic works of art or everyday conversation...
: whether new laws fall within a permissible head of power granted to the Commonwealth government by the Constitution.
Protection of rights
- See also Australian constitutional law Protection of rights
The Australian Constitution does not include a Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. Some delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, but the majority felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for its scant protection of rights and freedoms.
Some express rights were, however, included:
- Right to trial by jury Section 80 creates a right to trial by juryTrial by JuryTrial by Jury is a comic opera in one act, with music by Arthur Sullivan and libretto by W. S. Gilbert. It was first produced on 25 March 1875, at London's Royalty Theatre, where it initially ran for 131 performances and was considered a hit, receiving critical praise and outrunning its...
for indictable offences against Commonwealth law. However, the Commonwealth is left free to make any offence, no matter how serious the punishment, triable otherwise than on indictment. As Justice HigginsH. B. HigginsHenry Bournes Higgins , Australian politician and judge, always known in his lifetime as H. B. Higgins, was a highly influential figure in Australian politics and law.-Career:...
said in R v Archdall (1928): "if there be an indictment, there must be a jury, but there is nothing to compel procedure by indictment". In later cases, the High CourtHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has split: some judges have attempted to find a right, on the basis that no constitutional provision may be understood in a way that renders it empty; others have thought that this would inject content, beyond the boundaries of judicial interpretation. The Court has been flexible on the meaning of "jury": there will be a "jury", although not all members are male as would have been the Framers' understanding; but there will not a valid decision by a jury, if there is a majority verdict (even though that is permitted in some states). In practice, however, no major issue of abuse of this uncertainty has been raised. - Right to just compensation Section 51(xxxi) creates a right to compensation "on just terms" for "acquisition of property" by the Commonwealth from any state or person. The "acquisition of property", itself, is not restricted, but the High CourtHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has understood the expression broadly so as to give a broad entitlement to compensation. - Right against discrimination on the basis of out-of-State residence Section 117 prohibits disability or discrimination in one state against a resident of another state. This is interpreted widely: the restriction will be invalid if it treats an out-of-state resident more onerously than if they were resident within the state.) However, it does not prohibit states from imposing residential requirements where these are required by the State's autonomy and its responsibility to its people; a state may, for example, permit only residents to vote in state elections.
It has also been found that there is at least one implied right. In 2007, in Roach v Electoral Commissioner
Roach v Electoral Commissioner
Roach v Electoral Commissioner HCA 43 is a High Court of Australia case dealing with the validity of Commonwealth legislation that prevented prisoners from voting...
, the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
held that Constitution sections 7 and 24, by providing that members of the House of Representatives and the Senate be "directly chosen by the people", created a limited right to vote. This entailed the guarantee of a universal franchise in principle, and limited the Federal Parliament's legislative power to modify that universal franchise. In the case, a legislative amendment to disqualify from voting all prisoners (as opposed to only those serving sentences of three years or more, as it was before the amendment) was struck down as contravening that right.
There are also some guaranteed freedoms, reasons why legislation that might otherwise be within power may nonetheless be invalid. These are not rights of individuals, but limitations upon legislative power. However, where legislation that would adversely affect an individual is found to be invalid for such a reason, the effect for the individual is similar to vindicating a right of that individual. As with rights, such freedoms may be express or implied:
- Express: freedom of religion Section 116 creates a freedom of religion, by prohibiting the Commonwealth (but not the states) from making "any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion". This section is based on the First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
to the U.S. Constitution, but is weaker in operation. As the states retain all powers they had as colonies before federation, except for those explicitly given to the Commonwealth, this section does not affect the states' powers to legislate on religion. Section 116 has never been successfully invoked. A deterrent to invoking it is, as the High CourtHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has found, the uncertain meaning of "religion".
- Implied: freedom of political communication In 1992 and 1994, the High CourtHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
found that the Constitution contained an "implied freedom of political communication", in a series of cases including Australian Capital TelevisionAustralian Capital Television Pty Ltd v CommonwealthAustralian Capital Television v Commonwealth 177 CLR 106 was a significant court case decided in the High Court of Australia on 30 September 1992...
and Theophanous. These were majority decisions, but the existence of the freedom was unanimously confirmed in Lange v ABC. Rejecting wider suggestions in the earlier cases, Lange decided that the freedom can be found only in the "text and structure" of the Constitution and not by reference to any general legal or political principles, for example that of "democracy". In these terms, the freedom was found to be a necessary concomitant of the provision in Constitution sections 7 and 24 that the houses of the Commonwealth parliament shall be "chosen by the people"; the people must not be restricted from communicating with each other and with their representatives on all matters that may be relevant to that choice. The freedom was deemed to extend into the states and territories, on the basis that nationally there is a single sphere of political communication. The U.S. First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
refers to "speech", which may be oral or written but is limited as to protection of non-verbal expression (such as burning a draft card). The High CourtHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has avoided that limitation by preferring the broader term "communication". Nonetheless, the freedom is not absolute: legislation that "burdens" the freedom of political communication will nevertheless be valid if it "proportionately" pursues some other legitimate purpose (such as public safety).
Attempts in High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
cases to find further implied rights or freedoms have not been successful. Implication of a freedom of association and a freedom of assembly, independently or linked to that of political communication, has received occasional judicial support but not from a majority in any case.
Preamble
While a pro forma preamble prefaces the Imperial Commonwealth of Australia Constitution Act 1900, the Australian Constitution itself does not contain a preamblePreamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
. There have been some calls for the insertion of such a section to express the spirit and aspirations embodied in the constitution. However, there has been fierce opposition, usually on the basis of the content of the preamble, as well as possible legal ramifications of this text. In 1999, a proposed preamble, principally authored by John Howard
John Howard
John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
, the then Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
, was defeated in a referendum held concurrently with the Republic referendum. The "Yes" vote (in favour of the insertion of the preamble) did not achieve a majority in any of the six states.
Republic proposals
At various times since Federation, debates have occurred over whether Australia should become a republic. On 6 November 1999, Australians rejected a proposal to remove the Queen and replace the Governor-General with a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. This was despite opinion poll results suggesting that the majority of Australians are in favour of some form of a republic. Many voters who voted against the 1999 referendum cited the appointment of the President by a joint action of Parliament, rather than through direct election, as a fatal flaw in that referendum. In research and polling following the 1999 referendum, the single greatest concern expressed about the referendum as written seemed to be that it did not create and respect a meaningful separation of powers between a Republican President and Parliament and its legislative authority. By being able to appoint the President, rather than having the President popularly elected from the entire nation for a fixed term, many felt that too much power was being focused into Parliament's hand with no check or balance on that power. Support for holding another referendum in the foreseeable future seems to be growing, and another referendum being held is more possible than it has been recently. Former Prime Minister Kevin RuddKevin Rudd
Kevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010...
stated that while it is not an active priority, the current structure "no longer reflects either the fundamental democratic principles that underpin the Australian nation or its diversity", and he has given some indications that a referendum for an independent, elected President, repairing the main issue of the 1999 vote, is being considered. He went on to say that "over the next year there would be an "accelerated public debate" about the monarchy question".
Commemoration
Constitution Day is celebrated on 9 July, the date the Constitution became law in 1900. The date is not a public holiday. Constitution Day was first held on 9 July 2000 to mark the centenary of the Constitution in the lead up to the Centenary of FederationFederation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
, although commemorations were low key and were not widely held after 2001. Constitution Day was revived in 2007 and is jointly organised by the National Archives of Australia
National Archives of Australia
The National Archives of Australia is a body established by the Government of Australia for the purpose of preserving Commonwealth Government records. It is an Executive Agency of the Department of the Prime Minister and Cabinet and reports to the Cabinet Secretary, Senator Joe Ludwig.The national...
, which holds the original Constitution documents, and the Department of Immigration and Citizenship.
See also
- Constitutional history of AustraliaConstitutional history of Australia-Emergence of the Commonwealth of Australia:After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all...
- Process model (Australia)Process model (Australia)A process model is a proposal to assist the Parliament of Australia make decisions concerning constitutional reform. In Australia, process models are devised to involve the public in republicanism.-Rationale:...
- Proposals for new Australian StatesProposals for new Australian StatesA number of proposals for the creation of additional states in Australia have been made in the past century. However, to date, none have been added to the Commonwealth since Federation in 1901...
- Separation of powers in AustraliaSeparation of powers in AustraliaThe doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. A strict separation is not maintained in Australia, following the Westminster system and the doctrine of responsible government. Nevertheless, it is clear that it has been heavily...
- Section 44 of the Australian ConstitutionSection 44 of the Australian ConstitutionSection 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia...
eligibility for election to Parliament - Federalism in AustraliaFederalism in AustraliaOn 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America.- Federal features in the Australian Constitution :...
- Section 51 of the Australian ConstitutionSection 51 of the Australian ConstitutionSection 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
federal heads of power - Section 109 of the Australian ConstitutionSection 109 of the Australian ConstitutionIn Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
inconsistency between state and federal laws
- Section 51 of the Australian Constitution
- Referendums in AustraliaReferendums in AustraliaIn Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
referendums to amend the constitution - Secessionism in Western AustraliaSecessionism in Western AustraliaSecessionism has been a recurring feature of Western Australia's political landscape since shortly after European settlement in 1829. The idea of self governance or secession has often been discussed through local newspaper articles and editorials and on a number of occasions has surfaced as very...
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
External links
- Official text (PDF) as amended and in force today within Australia, from ComLawComLawComLaw is an Australian government web site run by the Attorney-General's Department providing online copies of Commonwealth legislation and related documents. The website was redesigned and re-released early in 2011....
- Commonwealth of Australia Constitution Act, 1900. Entry on the origins, development, structure and evolution of the Australian constitution at Documenting a Democracy.
- Full text (HTML) file of the Constitution. From the Parliament of Australia web site.
- Full Text (Including Amendments) On One Page
- Royal Commission of Assent enacting the Constitution and founding of the Commonwealth of Australia. From the National Archives of Australia web site.
- The Australian Constitution: a First Reading, John Kilcullen, Macquarie University, 2004
- Final Report of the Constitutional Commission Summary: 1988