Constitution of Australia

The Constitution of Australia is the law under which the government of Australia operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referenda 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 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, as Australia is now an independent country, the United Kingdom parliament has no power to change the Constitution, and only the Australian people can amend it (by referendum). Letters patent issued by the Crown, on the advice of Australian ministers, are also part of the Constitution of Australia.

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 head of state of both countries, she acts in a distinct capacity as head of state 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.

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.

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 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 January 1 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 on 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 Australian 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. To avoid all doubt, 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, 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. Even if the United Kingdom Parliament were to repeal the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia.

The only United Kingdom law which today has application for Australia is the law governing succession to the throne, but even the applicability of this has never been tested.

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.

The Parliament

Chapter I sets up the legislative branch of government, the parliament. Section 1 provides that legislative power is vested in the Parliament, which is composed of the Queen, the Senate, and the Australian House of Representatives. The Queen's powers are normally exercised by the Governor-General (Section 2).

Part II of this chapter deals with the Senate. Selection for the Senate is 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. It is to be composed of twice as many members as the Senate, each elected by a single electorate. The number of electorates in a State is to be (roughly) proportional to its share of the national population.

Part IV deals with eligibility for voting and election to the parliament.

Part V deals with the powers of the parliament. Section 51 deals with powers of the Commonwealth parliament. These are "concurrent powers", in the sense that both Commonwealth and States can legislate on these subjects, although federal law prevails in the case of inconsistency (Section 109). 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 as the Queen's representative, 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.

The Judicature

Chapter III sets up the judicial branch of government. Judicial power is vested in a "Federal Supreme Court" to be called the High Court of Australia (Section 71). Section 72 allows for the creation of other federal courts by the Parliament, and requires that all federal courts, including the High Court, must have security of tenure. Such courts are called "Chapter III Courts". These, and only these, courts can exercise federal judicial power. The High Court has jurisdiction over matters arising under the Constitution, federal laws, treaties, foreign affairs (Sections 75-78). The High Court is also the apex appellate court in Australia, and hears appeals from any other federal court, state Supreme Courts, and the Inter-State Commission only on questions of law.

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 any such terms and 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 106, 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.

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 deleted 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 the states, and the approval of a majority of electors in each state specifically impacted by the amendment.

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
- 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 state government concerned must choose the replacement from the same party as the departing Senator.
- Referendums - amended Section 128 to allow residents of the Territories to vote in referenda, and be counted towards the national total.
- Retirement of Judges - amended Section 72 to create a retirement age of 70 for judges in federal courts.

The role of conventions

Alongside the text of the Constitution, and Letters Patent issued by the Crown, an important aspect of the Constitution is Conventions, 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 restrictions on the power of the Governor-General, as representative of the Queen of Australia, 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 John Kerr dismissed the Prime Minister Gough Whitlam. 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 the Bjelke-Petersen government of Queensland.^[4] The convention was subsequently codified into the Constitution via a referendum.
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]
The convention that, if the government cannot secure supply, the Prime Minister would resign or call for an election. This convention was broken by the government of Gough Whitlam following the blocking of supply by the Senate.

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. 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. The delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution, but the majority of delegates 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 specific rights were, however, included:

Right to trial by jury - Section 80 creates a right to trial by jury for indictable offences against Commonwealth law. Although Isaac Isaacs and other liberal delegates pointed out that the Commonwealth could easily evade this provision by changing the definition of indictable offences, in practice this has not been an issue.
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.

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. 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.

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

Preamble

The Australian Constitution 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 Prime Minister John Howard, 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 nor in the national total.

A republic?

At various times since Federation, debates have raged over whether Australia should become a republic. On 6 November 1999, Australians rejected a proposal to replace the Queen with a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. This is despite the fact that opinion polls showed Australians to be generally in favour of the idea of a republic. Some republicans opined that it was the particular model which was rejected, whereas some monarchists viewed the results of the referendum as proof that Australians ultimately have no interest in a republic. There are no current plans for a second referendum.

Notes

^ The High Court's jurisdiction is under s.30, and the Federal Court's s.39B, of the Judiciary Act 1903 (Cth)
^ Parkinson (2002)
^ Blackshield and Williams (2002)
^ ^a ^b Gough Whitlam. The Truth of the Matter. Penguin. 1979 (Reprint: Melbourne University Press. 2005.)

References

Parkinson, Patrick (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. ISBN 0-455-21292-9. {{cite book}}: Cite has empty unknown parameter: |coauthor= (help)
Blackshield, Tony (2006). Australian Constitutional Law and Theory. Sydney: Federation Press. ISBN 1-86287-585-5. {{cite book}}: Unknown parameter |coauthor= ignored (|author= suggested) (help)

External links

Full text (htm file). From SCALEplus
Full text (PDF file). From SCALEplus.
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. From official Parliament of Australia website.

[1] The High Court's jurisdiction is under s.30, and the Federal Court's s.39B, of the Judiciary Act 1903 (Cth)

[Parkinson-2] Parkinson (2002)

[Blackshield-3] Blackshield and Williams (2002)

[Whitlam-4] Gough Whitlam. The Truth of the Matter. Penguin. 1979 (Reprint: Melbourne University Press. 2005.)

[1]

[2]

[3]

[4]