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Constitution of Australia
Created 1898-1900
Ratified 9 July 1900
Location National Archives of Australia, Canberra, Australia
Authors Sir Samuel Walker Griffith, Andrew Inglis Clark, (et al.)
Signers Queen Victoria
Purpose To unify the Australian colonies as a single nation, and create the law under which the Australian Commonwealth Government operates
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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 referendums 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.

The Commission of Assent was signed by Queen Victoria on 9 July 1900, upon which the Constitution became law. The Constitution 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 Acts removed the power of the United Kingdom parliament to change the Constitution, and only the Australian people can amend it (by referendum).

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. Together, these Acts had the effect of severing all 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.[1] Their decisions determine the interpretation and application of the constitution.

Contents

History

The history 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.

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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 British colonies in Australia under a single federation. However, impetus mostly came from Britain and there was only lacklustre local support.[2] 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 Westminster Parliament with an Address requesting the Queen 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.

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, there was continued uncertainty as to the applicability of British Imperial 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.[3] Legally, this is often regarded as the moment of Australia's national independence.

However, Imperial laws continued to be paramount in Australian states. This was resolved by the Australia Act 1986, which was passed in substantially the same form by the parliaments of Australia, the United Kingdom, and each of the states. In addition to ending the British Parliament's power to legislate over Australian states, the Australia Acts 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.

One result of these two laws is that Australia is now a fully independent country, and the text of the Constitution is now regarded as fully separated from the text in the original Act, since only the Australian people can amend the Constitution, by referendum[citation needed]. However, the Act remains on the UK's law book with a citiation noting "The Constitution is not necessarily in the form in which it is in force in Australia". Even if the United Kingdom Parliament were to repeal the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia[citation needed].

Articles

The Commonwealth of Australia Constitution Act 1900 (Imp) contains a Preamble, and nine sections. Sections 1 – 8 cover 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 Australia, 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.

The Executive

Chapter II sets up the executive branch of government. Executive power is to be exercised by the Governor-General, 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 powers 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.

The Judicature

Chapter III sets up the judicial 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 Courts" 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 offences 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, 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.

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 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.

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 Canberra) 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.

Alteration of the Constitution

Chapter VIII specifies the procedures for amending the Constitution. Section 128 provides that constitutional amendments must be approved by a referendum. Successful amendment requires:

  • an absolute majority in both houses of the federal parliament; and
  • the approval in a referendum 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 from the Governor-General. 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.

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.

  • 1906 – Senate Elections – amended Section 13 to slightly alter the length and dates of Senators' terms of office.
  • 1910 – State Debts – 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.
  • 1928 – State Debts – inserted Section 105A to ensure the constitutional validity of the Financial Agreement reached between the Commonwealth and State governments in 1927.
  • 1946 – Social Services – inserted Section 51 (xxiiiA) to extend the power of the Commonwealth government over a range of social services.
  • 1967 – Aborigines – 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."
  • 1977

The role of conventions

Alongside the text of the Constitution, and Letters Patent 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:

  • While the constitution does not formally create the office of Prime Minister of Australia, 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-General, 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, 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:

  • 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 Lewis government of New South Wales and then by the Bjelke-Petersen government of Queensland who both filled Labor vacancies with an independent and a Labor member opposed to the Whitlam government respectively.[4]
Note: The convention was codified into the Constitution via the national referendum of 1977. 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 Field was expelled from the Labor Party before taking his seat and would therefore have been ineligible under the new constitutional amendment.[5]
  • 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 to the government. This convention was allegedly broken by the Senate controlled by the Liberal-Country party coalition in 1975.[4]

Interpretation

In line with the common law 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:

  • Separation of powers – The three separate chapters dealing with the three branches of government implies a separation of powers, similar to that of the United States, but unusual for a government within the Westminster system. 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 powers – 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' Case 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 Commonwealth).

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.

Criticism

Protection of rights

See also Australian constitutional law – Protection of rights

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:

  • Right to trial by jury – Section 80 creates a right to trial by jury for indictable offences against Commonwealth law. There are serious conceptual limitations to this right however, since the Commonwealth is free to make any offence, no matter how serious the punishment, triable otherwise than on indictment. As Justice Higgins said in R. v. Archdall & Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128: "if there be an indictment, there must be a jury, but there is nothing to compel procedure by indictment". In practice, however, no major issue of abuse of this loophole has been raised.
  • Right to just compensation – Paragraph 51(xxxi) creates a right to just compensation for assets taken by the Commonwealth.
  • Right to freedom of religion – Section 116 creates a limited right to 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 Amendment of 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, and, in accordance with High Court interpretations, no Federal legislation on religion, short of establishing an official religion of Australia, would be limited by it either.
  • Right to freedom from discrimination against out-of-State residents -Section 117 prohibits disability or discrimination in one state against the resident of another state. This is interpreted widely (Street v Queensland Bar Association), but does not prohibit states from imposing residential requirements where they are required by the State's autonomy and its responsibility to its people.

In 1992 and 1994, the High Court of Australia found that the Constitution contained an "implied" right to freedom of political communication, in a series of cases including the Australian Capital Television case and the Theophanous case. This was seen as a necessary part of the democratic system created by the Constitution. The application of this "implied right" has, however, been restricted in later cases, such as Lange v ABC. It is in no way equivalent to a freedom of speech, and only protects individuals against the government trying to limit their political communication: it offers no protection against other individuals.

In 2007, the High Court of Australia in Roach v Electoral Commissioner held that sections 7 and 24 of the Constitution, 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.

Other attempts to find other "implied rights" in High Court cases have not been successful.

Preamble

While a pro forma preamble prefaces the Imperial Commonwealth of Australia Constitution Act 1900, the Australian Constitution itself does not contain a preamble. 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.

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[6]. 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. Prime Minister Kevin Rudd has 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", [7] 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".[8]

Commemoration

Constitution Day is celebrated on 9 July[9], 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 Federation, 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.[10]

See also

Notes

  1. ^ The High Court's jurisdiction is under s.30, and the Federal Court's s.39B, of the Judiciary Act 1903 (Cth)
  2. ^ Parkinson (2002)
  3. ^ Blackshield and Williams (2002)
  4. ^ a b Gough Whitlam. The Truth of the Matter. Penguin. 1979 (Reprint: Melbourne University Press. 2005.)
  5. ^ Reflections from the Seventies (transcript), ABC TV Four Corners, accessed 13 January 2010
  6. ^ republic.pdf "Newspoll: January 2007 republic poll (PDF)". http://www.newspoll.com.au/image_uploads//0103 republic.pdf. Retrieved 2007-02-17. 
  7. ^ Kevin Rudd Vows To Make Australia A Republic http://www.telegraph.co.uk/news/worldnews/1584378/Kevin-Rudd-vows-to-make-Australia-a-republic.html
  8. ^ Kevin Rudd Vows To Make Australia A Republic http://www.telegraph.co.uk/news/worldnews/1584378/Kevin-Rudd-vows-to-make-Australia-a-republic.html
  9. ^ "9 July – Constitution Day". National Archives of Australia. http://www.naa.gov.au/whats-on/constitution-day/events-08.aspx. Retrieved 2008-07-09. 
  10. ^ "Constitution Day Celebrations". 2008-07-09. http://www.alp.org.au/media/0708/mssms090.php. Retrieved 2008-07-09. 

References

  • Parkinson, Patrick (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. ISBN 0-455-21292-9. 
  • Blackshield, Tony; Williams (2006). Australian Constitutional Law and Theory. Sydney: Federation Press. ISBN 1-86287-585-5. 

External links


Simple English

Constitution of Australia
Created 1898-1900
Ratified 9 July 1900
Location National Archives of Australia, Canberra, Australia
Authors Sir Samuel Walker Griffith, Andrew Inglis Clark, and others.
Signers Queen Victoria
Purpose To join the Australian colonies as a single nation, and make the law under which the Australian Commonwealth Government operates

The Constitution of Australia is the laws that set up the Australian Commonwealth Government and the way it works. It is made up of several documents. The most important is the Constitution of the Commonwealth of Australia. The people of Australia voted in referendums from 1898–1900 to accept the Constitution. The Constitution was then passed as a part of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom. Queen Victoria signed it on 9 July 1900. The Constitution became law on 1 January 1901. Even though the Constitution was an Act of the United Kingdom parliament, the Australia Acts took away the power of the United Kingdom parliament to change the Constitution. Now only the Australian people can change it by referendum.

Two other laws support the Australian Constitution. The first is the Statute of Westminster, as passed by the Commonwealth as the Statute of Westminster Adoption Act 1942. The second is the Australia Act 1986, which was passed by the Parliaments of every Australian state, the United Kingdom, and the Australian Federal Parliament. Together, these Acts had the effect of cutting all constitutional links between Australia and the United Kingdom. Even though the same person, Queen Elizabeth II, is the monarch of both countries, these are now separate countries.

Under Australia's common law system, the High Court of Australia and the Federal Court of Australia have the power to decide what the constitution actually means.[1].

Contents

History

The history of the Constitution of Australia began with moves towards federation in the 19th century. This led to the Australian colonies joining together to form the Commonwealth of Australian 1901.

Federation

In the mid-19th century, the Australian colonies needed to work together on things that affected them all, especially tariffs between the colonies. This cooperation led to plans to join the colonies together in a single federation. The push to do this was mainly coming from Britain and there was little local support.[2] The smaller colonies thought they would be taken over by the larger ones. Victoria and New South Wales did not agree about the need to protect local industry as opposed to allowing everyone to trade freely. The then-recent American Civil War also weakened 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 Australians were worried about the growing presence of the Germans and the French in the Pacific. Along with a growing Australian identity, this created the opportunity to start the first inter-colonial body, the Federal Council of Australasia, in 1885. This Federal Council could make laws on certain subjects, but did not have a permanent office, an executive, or its own source of income. New South Wales, the largest colony, would not take part.

Henry Parkes, the Premier of New South Wales, pushed for a series of conferences in the 1890s to talk about federalism. The first one was in Melbourne in 1890, and another, the National Australasian Convention, in Sydney in 1891. These were attended by colonial leaders. By the 1891 conference, many people wanted a federal system. Most of the discussion was about how this federal system would work. With help from Sir Samuel Griffith, a draft constitution was written. These meetings did not have popular support. The draft constitution also left out important, but difficult, issues, such as tariff policy. The draft of 1891 was given to colonial parliaments but was not supported by New South Wales. Without NSW, the other colonies were unwilling to continue.

In 1895, the six premiers of the Australian colonies agreed to set up a new Convention by popular vote. The Convention met over the course of a year from 1897 to 1898. The meetings produced a new Constitution that was the same as the 1891 draft, but with added provisions for responsible government. To get popular support, the draft was voted on by the electors of each colony. After one failed attempt, a changed draft was given to the electors of each colony except Western Australia. Five colonies passed the Bill that was then sent to the Westminster Parliament with a letter requesting the Queen to make it into law.

The British government made one change before the Bill was passed. The Chief Justices of the colonies wanted the right to appeal decisions of the High Court to the Privy Council on constitutional matters. They were worried that the limits of the powers of the Commonwealth or States could be changed by parliament. The British Parliament passed the Commonwealth of Australia Constitution Act in 1900. Western Australia finally agreed to join the Commonwealth in time for it to join the Commonwealth of Australia, which officially began on 1 January 1901.

In 1990, the Public Records Office in London loaned the original copy 1900 of the Commonwealth of Australia Constitution Act to Australia. The Australian government wanted to keep the copy. The British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990.

The Statute of Westminster and the Australia Acts

Although Federation made Australia independent of 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. As a result, there was continued uncertainty as to whether British Imperial laws still applied to the Commonwealth. This was fixed 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 laws and controls.[3] Legally, this is the moment of Australia's national independence.

However, British laws were still more important in Australian states. This was fixed by the Australia Act 1986, which was passed by the parliaments of Australia, the United Kingdom, and each of the states. This law stopped the British Parliament's power to make laws over Australian states. It also stopped appeals from the Australian courts to the Judicial Committee of the Privy Council. As this was a very important document, Queen Elizabeth II travelled to Australia to sign the proclamation of the law.

One result of these two laws is that Australia is now a fully independent country. The Constitution is now different from the original Act, as the Australian people can change the Constitution, by referendum[needs proof]. However, the original Act remains on the UK's law book with a note saying, "The Constitution is not necessarily in the form in which it is in force in Australia". Even if the United Kingdom Parliament were to remove the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia[needs proof].

Articles

The Commonwealth of Australia Constitution Act 1900 (Imp) contains a Preamble, and nine sections. Sections 1 – 8 are explain the laws to set up the Commonwealth. Section 9, starting with the words "The Constitution of the Commonwealth shall be as follows ...", contains the Constitution of the Commonwealth of Australia. The Constitution itself is in eight chapters, with 128 sections.

The Parliament

Chapter I sets up the Parliament of Australia. This has three parts:

Section 1 says that legislative power belongs to the Parliament. It is the most powerful part of government.

Part II of Chapter 1 is about 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 of Chapter 1 is about the House of Representatives. Section 24 says the House must have twice as many members as the Senate, each elected by a single electorate. This is called the 'Nexus'. It 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 based on its share of the national population.

Part IV of Chapter 1 says who can vote, who can be elected to the parliament, how much members can be paid, parliamentary rules and related matters.

Part V of Chapter 1 is about the powers of the parliament. Section 51 deals with powers of the Commonwealth parliament and are called "specific powers". There are "concurrent powers", as both the Commonwealth and States can make laws on these subjects. Federal law is more important if the laws are different (Section 109). Of the thirty-nine parts of section 51, a few have become very important in deciding how much power the Commonwealth government has in law. These include the Trade and Commerce Power, the Corporations Power and the External Affairs Power. Section 52 deals with powers that belong only to the Commonwealth parliament. States cannot make laws on these subjects.

The Executive Government

Chapter II sets up the executive branch of government. Executive power is to be exercised by the Governor-General, advised by the Federal Executive Council. The Governor-General is the commander in chief. He or she 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". The use of these powers is 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 not taking the Prime Minister's advice. Governor-General Sir John Kerr, acting on his own, 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 powers to the Monarch, even the formal powers of the Queen of Australia are extremely limited, and most powers can only be used by the Governor-General.

Section 68 says that the Command in chief of Australia's naval and military forces as being: "The command 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 now Her Excellency Quentin Bryce as the Governor General of Australia. The Queen of Australia is not in command of the military.

The Judicature

Chapter III sets up the judicial branch of government. Section 71 gives judicial power in a "Federal Supreme Court" to be called the High Court of Australia. The Parliament can also make new federal courts or give other courts federal powers. Such courts are called "Chapter III Courts" are the only courts that can use federal judicial power. Sections 73 and 75-78 outline the original and appellate jurisdiction of the High Court. Section 74 explains how an appeal can be made to the Queen in Council. Section 79 allows Parliament to limit the number of judges able to exercise federal jurisdiction and section 80 guarantees trial by jury for indictable offences against the Commonwealth.

Finance and Trade

Chapter IV deals with finance and trade in the federal system. Section 81 says that all Commonwealth revenue shall form the Consolidated Revenue Fund. Parliament can make laws as to the how its money is spent (Section 53). Unlike most other powers of the parliament, laws made under this power cannot usually be challenged. 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 give money to States "on such terms and conditions as the Parliament thinks fit". This power is not limited by any other part of the Constitution, such as Section 99 that forbids giving preference to one State or over another State. It is subject only to Section 116, freedom of religion, and possibly other such freedoms. This power, which was only meant to be used ("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 no longer exists, but which was meant to have a significant role in the federal structure.

The States

Chapter V sets out how what the States can do in a federal system. Sections 106-108 preserves the Constitution, powers of the Parliament, and the laws in force of each of the States.

Section 109 says that, where a State law is different to a federal law, the federal law is the legal law.

Section 111 says that a State can give up any part of its lands to the Commonwealth. This has happened several times. South Australia gave the Northern Territory to the Commonwealth.

Section 114 stops any state from having its own military force. It also stops the State or the Commonwealth from taxing each other's property.

Section 116 sets out "freedom of religion", by stopping the Commonwealth from making any law to start a religion, imposing any religious observance, or stop a religion, or religious discrimination for public office.

New States

Chapter VI allows new states to be made, or to join the Commonwealth. Section 122 allows the Parliament to provide for the representation in Parliament of any new territory. Section 123 says that changing the boundaries of a State needs the support of the Parliament of that State and must pass a referendum in that State.

No new states have joined the Commonwealth since federation.

Miscellaneous

Chapter VII says that the seat of government of the Commonwealth (now Canberra) shall be in New South Wales but no less than one hundred miles from Sydney, and that the Governor-General may appoint deputies. Section 127 first said that Aborigines cannot be counted in any Commonwealth or State census. This section was changed in 1967.

Alteration of the Constitution

Chapter VIII sets out how the Constitution can be changed. Section 128 says that changes must be approved by a referendum. A successful change needs:

  • a majority in both houses of the federal parliament; and
  • a majority of votes nationally in a referendum.
  • a majority in a majority of states

The Governor-General must put the referendum bill to the people between two and six months after passing parliament. After the constitutional amendment bill has passed both the parliament and the referendum, it then receives Royal Assent from the Governor-General. This makes it the new law 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.

Changes

As mentioned above, changing 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 change the Constitution have been voted on at referendums. Eight have been approved. The following is a list of changes that have been approved.

  • 1906 – Senate Elections – changed Section 13 to change the length and dates of Senators' terms of office.
  • 1910 – State Debts – changed Section 105 to give the Commonwealth power to take over state debts.
  • 1928 – State Debts – added Section 105A to make sure the Financial Agreement reached between the Commonwealth and State governments in 1927 was legal.
  • 1946 – Social Services – added Section 51 (xxiiiA) to give more power to the Commonwealth government over a range of social services.
  • 1967 – Aborigines – changed Section 51 (xxvi) to give power to 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."
  • 1977
    • Senate Casual Vacancies – 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 relevant state parliament must choose the a new Senator from the same political party as the departing Senator (if that party still exists).
    • Referendums – changed Section 128 to allow residents of the Territories to vote in referendums, and be counted towards the national total.
    • Retirement of Judges – changed Section 72 to make judges retire at age 70 federal courts.

The role of conventions

As well as the written Constitution, and Letters Patent issued by the Crown, conventions are an important part of the Constitution. These have developed over the years and define how various constitutional mechanisms work 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 important conventions include:

  • The constitution does include a Prime Minister of Australia. This position began as the 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-General, by convention the Governor-General acts on the advice of the Prime Minister.

However, because conventions are not written down, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. One 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:

  • 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 Lewis government of New South Wales and then by the Bjelke-Petersen government of Queensland who both filled Labor vacancies with an independent and a Labor member opposed to the Whitlam government respectively.[4]
Note: The convention was written into the Constitution after the national referendum of 1977. The change means a new Senator has to be from the same party as the old one. This would have prevented the appointment by Lewis, but not that by Bjelke-Petersen. However, the change also says that if the new Senator "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 Field was expelled from the Labor Party before taking his seat and would not have been appointed under the new constitutional change.[5]
  • The convention that, when the Senate is controlled by a party which does not control the House of Representatives, the Senate would not vote against money supply to the government. This convention was allegedly broken by the Senate controlled by the Liberal-Country party coalition in 1975.[4]

Interpretation

In line with the common law 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:

  • Separation of powers – The three separate chapters dealing with the three branches of government implies a separation of powers, similar to that of the United States, but unusual for a government within the Westminster system. 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 powers – 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' Case 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 Commonwealth).

The vast majority of constitutional cases before the High Court deal with characterisation: whether new laws are part of the power granted to the Commonwealth government by the Constitution.

Criticism

Protection of rights

The Australian Constitution does not include a Bill of Rights. Some people at the 1898 Constitutional Convention wanted a Bill of Rights like the United States Constitution, but the majority felt that the traditional rights and freedoms of British subjects were enough. These would be protected by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for not protecting rights and freedoms.

Some rights were included:

  • Right to trial by jury – Section 80 creates a right to trial by jury for indictable offences against Commonwealth law. There are serious limits to this right however, since the Commonwealth is free to make any offence, no matter how serious the punishment, triable otherwise than on indictment. As Justice Higgins said in R. v. Archdall & Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128: "if there be an indictment, there must be a jury, but there is nothing to compel procedure by indictment". In practice, however, no major issue of abuse of this loophole has been raised.
  • Right to just compensation – Paragraph 51(xxxi) creates a right to just compensation for assets taken by the Commonwealth.
  • Right to freedom of religion – Section 116 creates a limited right to freedom of religion. It stops 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 Amendment of the U.S. Constitution, but is weaker in operation. As the states keep 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, and, in accordance with High Court interpretations, no Federal legislation on religion, short of establishing an official religion of Australia, would be limited by it either.
  • Right to freedom from discrimination against out-of-State residents -Section 117 stops disability or discrimination in one state against the resident of another state. This is interpreted widely (Street v Queensland Bar Association), but does not prohibit states from imposing residential requirements where they are required by the State's autonomy and its responsibility to its people.

In 1992 and 1994, the High Court of Australia found that the Constitution gave an "implied" right to freedom of political communication, in a series of cases including the Australian Capital Television case and the Theophanous case. This was seen as a necessary part of the democratic system created by the Constitution. The application of this "implied right" has, however, been restricted in later cases, such as Lange v ABC. It is in no way equivalent to a freedom of speech, and only protects individuals against the government trying to limit their political communication: it offers no protection against other individuals.

In 2007, the High Court of Australia in Roach v Electoral Commissioner said that sections 7 and 24 of the Constitution, 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 means that there is a universal franchise in principle, and limited the Federal Parliament's legislative power to change it. In the case, a legislative change to stop all prisoners from voting (as opposed to only those serving sentences of three years or more, as it was before the amendment) was rejected as breaking that right.

Other attempts to find other "implied rights" in High Court cases have not been successful.

Preamble

While a pro forma preamble prefaces the Imperial Commonwealth of Australia Constitution Act 1900, the Australian Constitution itself does not have a preamble. There have been some calls to add one 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, written 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.

Republic proposals

There have been many people who have wanted Australia to become a republic. On 6 November 1999, Australians did not support a law to remove the Queen and replace the Governor-General with a President. The President was to be appointed by a two-thirds majority of the members of the Commonwealth Parliament. Opinion poll results said that the majority of Australians are in favour of some form of a republic[6]. Many voters who voted against the 1999 referendum wanted to be able to vote for a President. In research and polling following the 1999 referendum, people said that an appointed President would not be able to act independently of the Parliament. By being able to appoint the President, rather than having the people elect a President, many felt that too much power was being given to Parliament with no check or balance on that power. Support for holding another referendum in the near future seems to be growing, and another referendum may be held. Former Prime Minister Kevin Rudd said the current situation "no longer reflects either the fundamental democratic principles that underpin the Australian nation or its diversity", [7]. He was thinking about a referendum for an independent, elected President. He went on to say that "over the next year there would be an "accelerated public debate" about the monarchy question".[8]

Commemoration

Constitution Day is celebrated on 9 July[9], 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 as part of the Centenary of Federation. The celebrations were not big and have not been 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.[10]

Notes

  1. The High Court's jurisdiction is under s.30, and the Federal Court's s.39B, of the Judiciary Act 1903 (Cth)
  2. Parkinson (2002)
  3. Blackshield and Williams (2002)
  4. 4.0 4.1 Gough Whitlam. The Truth of the Matter. Penguin. 1979 (Reprint: Melbourne University Press. 2005.)
  5. Reflections from the Seventies (transcript), ABC TV Four Corners, accessed 13 January 2010
  6. republic.pdf "Newspoll: January 2007 republic poll (PDF)". http://www.newspoll.com.au/image_uploads//0103 republic.pdf. Retrieved 2007-02-17. 
  7. Kevin Rudd Vows To Make Australia A Republic http://www.telegraph.co.uk/news/worldnews/1584378/Kevin-Rudd-vows-to-make-Australia-a-republic.html
  8. Kevin Rudd Vows To Make Australia A Republic http://www.telegraph.co.uk/news/worldnews/1584378/Kevin-Rudd-vows-to-make-Australia-a-republic.html
  9. "9 July – Constitution Day". National Archives of Australia. http://www.naa.gov.au/whats-on/constitution-day/events-08.aspx. Retrieved 2008-07-09. 
  10. "Constitution Day Celebrations". 2008-07-09. http://www.alp.org.au/media/0708/mssms090.php. Retrieved 2008-07-09. 

References

  • Parkinson, Patrick (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. ISBN 0-455-21292-9. 
  • Blackshield, Tony; Williams (2006). Australian Constitutional Law and Theory. Sydney: Federation Press. ISBN 1-86287-585-5. 

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