Constitution of Australia

The Constitution of Australia also known as the Australian Constitution, is a written constitution that is supreme law of Australia. It establishes Australia as a constitutional monarchy, its form as a federal government, and sets out its relations with the State Governments. Authority to interpret the Constitution resides in the High Court.[1]

Commonwealth of Australia Constitution Act
Constitution of Australia.jpg
Original titleCommonwealth of Australia Constitution Act 1900 (UK), s. 9
JurisdictionAustralia
Ratified6 July 1900 (1900-07-06)
Date effective1 January 1901 (1901-01-01)
SystemFederal Government
Branches
Chambers
ExecutiveSee Australian Government
JudiciarySee Judiciary of Australia
AmendmentsSee Referendums in Australia
Last amendedSee 1977 Australian referendum (Retirement of Judges)
LocationNational Archives of Australia
Author(s)Constitutional Conventions, 1890–91
SignatoriesQueen Victoria
SupersedesAustralian Colonies Government Act 1850

The Constitution was drafted and approved after discussion and referendums held by members of the British colonies in the late 19th century. Its approved draft was enacted as section 9 of the Commonwealth of Australia Constitution Act 1900, an act of the Parliament of the United Kingdom. The Act united the six colonies into a single colony. Australia later became an independent nation. The Act was given Royal Assent on 9 July 1900, was proclaimed on 17 September 1900, and entered into force on 1 January 1901. It remains technically in force in the United Kingdom, although without operation there, in its original form.[2] The UK Parliament never amended the Act, and legal recognition of its competence to do so was formally ended by the Australia Act 1986.

The Constitution is in force in Australia as amended by Australians.[3] Although the Constitution initially derived its lawful authority from the UK Parliament, the present understanding of the High Court and some academics is that it derives its authority from the Australian people.[4]

The Australian Constitution is understood to incorporate various unwritten constitutional conventions and ideas derived from the Westminister system, one of which is responsible government. It is notable for not containing a national bill of rights. Australia is among a tiny minority of democratic nations to not have a formal bill of rights in any form; constitutional or statutory.

The Constitution may only be amended by national referendum. Forty four referendums have been held, of which eight have succeeded; most recently in 1977. Ongoing debates exist regarding further proposals for amendment. Some ideas include the inclusion of a preamble, the addition of an Indigenous voice to government, and the prospect of an Australian republic. The Morrison Government announced in late 2019 that a referendum will be held on whether to add a First Nations voice to Parliament.

Other documents of constitutional significance to Australia include the Statute of Westminster, and the Australia Act 1986.

HistoryEdit

Prior to federationEdit

Political movements to federate the Australian colonies grew to prominence in the mid 19th century. Multiple motivations existed for increased political co-operation between the colonies; including a desire to regulate inter-colonial tariffs. Tensions existed however between the larger colonies and the smaller ones, and in the degree to which each colony embraced protectionist policies. Those tensions and the outbreak of the American Civil War harmed the political case for federalism in the 1850s and 60s.

In 1889 the Federal Council of Australasia was established. It arose out of a fear of the growing presence of German and French colonies in the pacific, and a growing Australian identity. The council could legislate on certain subjects but did not have a permanent secretariat, an executive, or independent source of revenue. Perhaps most problematically New South Wales, the largest colony, did not join the body.

A series of conferences to discuss federalism was promoted by the Premier of New South Wales Henry Parkes; the first held in 1890 at Melbourne, and another at Sydney in 1891. These conferences were attended by most colonial leaders. By the 1891 conference the federalist cause gained momentum. Discussion turned to what the proper system of federal government ought to be. A draft constitution was drawn up at the conference under the guidance of Sir Samuel Griffith, however, these meetings lacked popular support. An additional problem was that this draft constitution sidestepped some critical issues like tariff policy. The 1891 draft was submitted to colonial parliaments, however it lapsed in New South Wales. After that event 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. Some delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution, but this was decided against.

To ensure popular support, the 1898 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.

Prior to the bill's enactment a final change after lobbying by the colonial Chief Justices. This change set a right to appeal from the High Court to the Privy Council. After the change, the 'Commonwealth of Australia Constitution Act' was passed by the British Parliament in 1900. Western Australia then agreed to join the Commonwealth in order to ensure it would be an 'original state'. The Commonwealth of Australia was then officially established on 1 January 1901.

After federationEdit

At federation Australia was still regarded as a colonial dominion of the British Empire. British Imperial laws were still in force, although according to Robert Menzies 'the real and administrative legislative independence of Australia (was) never challenged' since the creation of the Commonwealth.[5] The formal power of the British Imperial parliament to override Australian legislation was restricted by the UK's 1931 passage of the Statute of Westminster, adopted into Australian law by the Statute of Westminster Adoption Act 1942. The adoption act acceded Australia to the Statute of Westminister retroactively, with the date set to 3 September 1939, when Australia entered WWII.

 
Photo of the Australia Act 1986 (United Kingdom) document located in Parliament House, Canberra

Australia did not arguably achieve full de jure independence from the UK until 1986, with the passage of the Australia Act. That act formally ended the UK parliament's ability to legislate over Australian States, and also abolished all appeals from Australian courts to the Privy Council. Queen Elizabeth II traveled to Australia personally to sign the proclamation into law.

In 1988, the original copy of the Commonwealth of Australia Constitution Act 1900 from the Public Record Office in London was lent to Australia for the purposes of the Australian Bicentenary. The Australian government requested permission to keep the copy, and the British Parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990. The copy was given to the National Archives of Australia.

A curiosity of the document's history is that the act remains in force at the UK's parliament in its original form,[6] while in Australia the constitution exists as amended by referendum.[7] Australian High Court judges have discussed in obiter that the constitution's source of lawful authority may no longer reside in the imperial parliament, but may instead now derive its lawful authority from the Australian people.[8]

Following the 2017–18 Australian parliamentary eligibility crisis, there was discussion of whether to retain or replace the current constitution.[9][10] Former Prime Minister Bob Hawke advocated for getting "rid of the constitution we've got", and replacing the constitution with a system that does not include states.[11]

CommemorationEdit

Constitution Day is celebrated on 9 July,[12] 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. Further events have not been widely held since 2001. The day was revived in 2007 and is jointly organised by the National Archives and the Department of Immigration and Citizenship.[13]

Document structure & TextEdit

 
The Constitution as amended

Covering clausesEdit

There exist eight 'covering clauses' as preface to the Imperial Commonwealth of Australia Constitution Act 1900. The covering clauses are pro-forma enacting formulae, with no effect on the constitution's legal content. The second covering clause sets out that Australia's monarch is to be the same as in the UK.

Main documentEdit

The Constitution is divided into eight chapters, collectively containing 128 sections. The first three chapters state the respective powers of the legislature, executive, and judiciary. This split into three chapters has been interpreted by the High Court as giving rise to a substantive separation of powers doctrine in Australia.[14]

Chapter I: The Parliament sets up the legislative branch of government. Its constituent parts are stated to be the Sovereign (represented by the Governor-General), the Senate, and the House of Representatives. It provides for the number of representatives to attend each body, and provides that the representatives attending both must be chosen directly by the electorate. Each electorate of the house of representatives is to be apportioned equally by population, whereas senators are allocated unevenly between 'original states', the territories, and future states (of which none presently exist). The house of representatives is required to have twice as many members as the senate. Chapter 1 also provides for the monarchy. While the incumbent monarch is Queen Elizabeth II,[15] her legal capacity as queen of Australia is separate to her capacities as monarch to other nations.[16]

The chapter notably also provides for the powers of the Commonwealth parliament. The parliament is not granted plenary power by the constitution. Section 51 contains a list of enumerated topics that the Commonwealth parliament is permitted to legislate upon. States may also legislate upon these topics, but Commonwealth law prevails in the event of collision between the laws. Section 52 contains a brief list of topics that only the Commonwealth may legislate upon.

Other matters dealt within the chapter include eligibility issues for voting or standing in elections; and miscellaneous matters regarding parliamentary procedures and allowances.

Chapter II: The Executive Government sets up the executive branch. Executive powers are stated to be exercised by the Governor-General on the advice of the Federal Executive Council. The Governor-General is stated to be the commander in chief, with power to appoint and dismiss persons within the executive, as well as the power to dissolve parliament. These powers of the governor general are often referred to as reserve powers, and by constitutional convention are only exercised on the advice of the Prime Minister in cabinet. On a federal level the reserve powers of the governor general have only been exercised absent the advice of the prime minister one time; when the Whitlam government was controversially dismissed by John Kerr.

Australia's military is also provisioned for within this chapter, with section 68 stating that command of Australia's naval and military forces is to be vested in the Governor-General.

 
Chapter III establishes the High Court as Australia's apex court

Chapter III: The Judicature sets up the judicial branch. Commonwealth judicial power is vested in a federal supreme court to be called the High Court of Australia. The parliament is authorized to create federal courts, and to vest the exercise of federal judicial power within the courts of the states. Section 74 (now defunct) provides for the circumstances in which an appeal may be made to the Queen in Council, s75 provides for the High Court's jurisdiction, and s80 guarantees trial by jury for indictable offences against the Commonwealth.

Chapter IV: Finance and Trade deals commercial matters within the federation. s81 prescribes all Commonwealth revenue to a Consolidated Revenue Fund, and s90 gives the Commonwealth exclusive power over custom and excise duties. Section 92 is notable for prescribing 'absolutely free' trade and commerce between the States. Section 96 allows the Commonwealth to make grants on terms determined by Parliament. s101 is notable for setting up the defunct Inter-State Commission.

Chapter V: The States contains provisions dealing with the States and their role in the federal system. Sections 106-108 preserve the powers of the States, 109 gives Commonwealth legislation supreme force over that of State governments to the extent of inconsistencies. Section 111 provides for surrender of state territory to the Commonwealth, s114 forbids States from raising military forces, and also forbids inter-government taxation of government property. Section 116 forbids religious tests for office, and the establishment of a national religion.

Chapter IV: New States allows for the establishment or admission of new states, and allows parliament to provide for representation of the territories. It also provides that state boundaries must require the consent of a state before alteration by referendum.

Chapter VII: Miscellaneous contains provisions on varied topics. Section 125 establishes Melbourne as the nation's temporary capital, while providing for the eventual capital to be established within New South Wales but no less than one hundred miles (160 km) from Sydney. In 1911 New South Wales ceded to the Commonwealth what is now the Australian Capital Territory. Canberra, built within it, was declared the national capital in 1913. Section 126 permits the Governor-General to appoint deputies

Section 127 provided that "aboriginal natives" were not to be included in headcounts for electoral purposes. That section was removed by referendum in 1967.[17]

Chapter VIII: Alteration of the Constitution is a single section providing for amendments. It prescribes that alterations may only occur through a referendum bill being approved at a national referendum. A national referendum under this section requires a 'double majority' to be valid, which consists of a majority return of electors nationally, and a majority return in a majority of states.

ScheduleEdit

The constitution also contains a schedule setting out the wording of the oath and affirmation of allegiance.[18] By convention, the Governor-General and members of parliament are required to swear an oath or affirmation of allegiance before taking office.

The oath reads:

I, (name), do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God![19]

By convention the oath or affirmation of office made by a prime minister, ministers and parliamentary secretaries when entering office is not that contained within this schedule. Rather, it is determined by the prime minister of the day, and administered to them by the Governor-General. This convention has been in place since 1901.[20]

Unwritten conventionsEdit

Constitutional conventions are an important part of the Australian constitution. Despite being unwritten, they are understood to be incorporated within the document.[21]

The conventions primarily derive from the unwritten parliamentary conventions within the Westminister system of responsible government.

Some notable conventions include the existence of the Prime Minister of Australia, as head of cabinet in council. Another is that the Governor-General by convention acts on the advice of the Prime Minister.

Unwritten conventions during the dismissalEdit

The nature of constitutional conventions gave rise to controversy during the dismissal of the Whitlam Government in 1975. In that episode, the Governor-General Sir John Kerr advised the Queen to dismiss the Labor Prime Minister Gough Whitlam, and appoint the Liberal opposition leader Malcolm Fraser as caretaker Prime Minister pending the 1975 general election. Multiple conventions were broken during the dismissal including:

  • The convention that a State Governments would nominate replacement senators of the same political party in the event of a vacancy. This convention was broken by the Lewis government of New South Wales and then by the Bjelke-Petersen government of Queensland (Bjelke-Petersen appointee Albert Patrick Field was expelled from the Labor Party before taking his seat).[22] Notably, this unwritten convention was later formally incorporated into the written constitution via national referendum in 1977.[23]
  • The convention that the Senate would not vote against money supply to the government. The Liberal-Country party coalition blocked supply to the government in 1975, forcing an election.[22]
  • The convention that a Prime Minister who cannot obtain supply must first either request the governor general call a general election, or resign. Gough Whitlam broke this convention by refusing to call an election after the Senate's block of supply.[24]

InterpretationEdit

The High Court is primarily responsible for interpreting the Constitution. Multiple legal doctrines have been applied by the court in its interpretive process. e.g. the 'separation of powers', the 'intergovernmental immunities' doctrine, the (now defunct) 'reserved state powers' doctrine, among others.

While the document does not include a Bill of Rights, some expressly stated rights and/or restrictions are established. Among these are s80 right to trial by jury, the s51(xxxi) right to just compensation, the s117 right against discrimination based on state residence, and the s116 clause prohibiting religious tests for office or establishment of religion.

The High Court has also read a number of important legal implications into the document. One of these is the 'freedom of political communication', the other is a freedom of interference from voting in at elections. Both doctrines are borne of the s7 and s24 requirements that representatives in Australia's houses of parliament be 'directly chosen by the people'.[25][26] These doctrines have been characterised as 'freedoms' or 'guarantees' by members of the High Court, and the court has been wary of describing them as 'implied rights' or 'implied constitutional rights'.[27] Some scholars have argued that the High Court's purported distinction between a 'right' versus a 'freedom' is misleading and/or little more than semantic, but the term remains in contemporary usage by the court.[27]

Alterations to the ConstitutionEdit

Historical referendums and amendmentsEdit

Amendment to the Constitution requires a referendum in which the amending act is approved by a majority in at least four States, as well as a nation-wide majority.

Forty four proposals to amend the Constitution have been voted on at referendums, only eight of which have been approved. Referendums to have achieved approval are:

  • 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 over a range of social services.
  • 1967 – Aboriginal Australians – amended section 51 (xxvi) to extend the powers of the Commonwealth to Indigenous Australians in States; repealed section 127 preventing the inclusion of all Indigenous Australians in population counts for constitutional purposes.
  • 1977 - Three amendments: First to ensure Senate casual vacancies be filled by a member of the same political party; Second to allow residents of Australian Territories to vote in referendums; Third to mandate a retirement age of 70 for judges in federal courts.

Existing major amendment proposalsEdit

Multiple ongoing debates exist regarding changes to the Australian constitution. These include debates on the inclusion of a preamble, proposals for an Australian republic, the addition of a formal recognition and/or Indigenous voice to the document, among other changes.

Inclusion of a preambleEdit

The Australian constitution does not itself contain a preamble, although a enacting formulae prefaces the document as passed in the UK Parliament.

Proposals to include a preamble have been controversial, one argument being that the inclusion of a preamble may affect the High Court's interpretations of other provisions within the document.

In 1999, a proposed preamble principally authored by the then Prime Minister John Howard was defeated in a referendum concurrent to that on a proposal to become a republic.

Republic proposalsEdit

Debates on whether Australian should become a republic have existed since Federation.

In November 1999 a referendum was held as to whether the Queen & Governor-General ought be removed from the Australian Constitution, to be replaced with a President. The referendum failed to carry.

Indigenous recognition and voiceEdit

Since 1910, there have been calls for constitutional reform to recognise Indigenous Australians.[28] In 1967, the constitution was amended providing the Commonwealth with the power to legislate for all Indigenous Australians by removing the restriction preventing the Commonwealth from legislating in states.[29] At the same time, a limitation on including all Indigenous Australians in population counts for constitutional purposes was removed which in 1967 was now relevant to only section 24.[30][31] Since those reforms, other proposals have emerged. Guaranteed parliamentary representatives, a constitutionally recognized 'voice', and an inclusion of indigenous Australians in a preamble to the constitution; are all proposals that have been made to reform the Australian constitution to further recognise indigenous Australians.

In his Closing the Gap speech in February 2020, Prime Minister Morrison reinforced the work of the Referendum Council, rejecting the idea of merely symbolic recognition, supporting a Voice co-designed by Aboriginal and Torres Strait Islander people, "using the language of listening and empowerment". The Labor Party has supported a Voice enshrined in the Constitution for a long time, and so have many of Australia's left leaning minor parties.[32]

See alsoEdit

NotesEdit

  1. ^ Judiciary Act 1903 (Cth), s 30(a) for the High Court and s 39B(1A)(b) for the Federal Court.
  2. ^ "Constitution of Australia Act 1900". legislation.gov.uk. Retrieved 11 July 2020.
  3. ^ "Constitution of Australia Act 1900". Federal Register of Legislation. Retrieved 11 July 2020.
  4. ^ Lindell, G. J. (1986). "Why is Australia's Constitution Binding? - The Reason in 1900 and Now, and the Effect of Independence". Federal Law Review. 16: 29. doi:10.1177/0067205X8601600102. S2CID 159157171.
  5. ^ Menzies, Robert (25 August 1937). "Statute of Westminster Adoption Bill 1937: Second Reading". Hansard – Parliament of Australia.
  6. ^ "Constitution of Australia Act 1900". legislation.gov.uk. Retrieved 11 July 2020.
  7. ^ "Constitution of Australia Act 1900". Federal Register of Legislation. Retrieved 11 July 2020.
  8. ^ Saunders, Cheryl (2010). The Constitution of Australia - A Contextual Analysis. Hart Publishing. ISBN 9781841137346.
  9. ^ "The constitution is broken and out of date — we should abolish it and start again". www.abc.net.au. 17 August 2017. Retrieved 1 October 2020.
  10. ^ "Principles for a new Australian Constitution". The Mandarin. 27 November 2017.
  11. ^ "Howard, Hawke criticise career politicians 'with no life experience'". www.abc.net.au. 16 August 2017. Retrieved 1 October 2020.
  12. ^ "Constitution Day". National Archives of Australia. Archived from the original on 22 February 2014.
  13. ^ "Constitution Day Celebrations". 9 July 2008. Archived from the original on 19 July 2008.
  14. ^ Spry, Max (1995–96). "The Executive Power of the commonwealth: its scope and limits". Research Paper 28 Last reviewed 19 July 2004 by the Parliamentary Library Web Manager. Archived from the original on 8 March 2016. Cite journal requires |journal= (help)
  15. ^ The effect of Commonwealth of Australia Constitution Act 1900, section (covering clause) 2.
  16. ^ R v Foreign Secretary; Ex parte Indian Association [1982] QB 892 at 928; approved by the High Court of Australia in Sue v Hill [1999] HCA 30 at [57], 199 CLR 462.
  17. ^ Korff, Jens (8 October 2014). "Australian 1967 Referendum". creativespirits.info. Retrieved 9 November 2016.
  18. ^ Constitution (Cth) Schedule 1 Oath.
  19. ^ "Oath of Office". Office of the Official Secretary to the Governor-General. Archived from the original on 26 January 2014. Retrieved 15 January 2018.
  20. ^ "Oaths and affirmations made by the executive and members of federal parliament since 1901". Parliamentary Library, Department of Parliamentary Services. Archived from the original on 7 March 2016.
  21. ^ This has been mentioned multiple times by the High Court
  22. ^ a b Gough Whitlam. The Truth of the Matter. Penguin. 1979 (Reprint: Melbourne University Press. 2005.)
  23. ^ "Reflections from the Seventies (transcript)". ABC TV Four Corners. Archived from the original on 9 January 2009. Retrieved 13 January 2010.
  24. ^ "Sir John Kerr's Statement of Reasons". 11 November 1975. Archived from the original on 16 April 2016.
  25. ^ Roach v Electoral Commissioner [2007] HCA 43, (2007) CLR 162.
  26. ^ Lange v Australian Broadcasting Corporation [1997] HCA 25, 189 CLR 520.
  27. ^ a b "Stone, Adrienne --- "Rights, Personal Rights and freedoms: The Nature of the Freedom of Political Communication" [2001] UMelbLRS 1". www.austlii.edu.au. Retrieved 29 August 2020.
  28. ^ Expert Panel on Constitutional Recognition of Indigenous Australians (2012). "1.7 Early voices for change". Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution : Report of the Expert Panel (PDF). Canberra: Commonwealth of Australia. p. 28–31. ISBN 9781921975295. Retrieved 15 September 2020.
  29. ^ Expert Panel on Constitutional Recognition of Indigenous Australians (2012). "1.8 The 1967 referendum". Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution : Report of the Expert Panel (PDF). Canberra: Commonwealth of Australia. p. 31. ISBN 9781921975295. Retrieved 15 September 2020.
  30. ^ Sawer 1966, p. 25-26,30.
  31. ^ Arcioni 2012, p. 300-301.
  32. ^ Davis, Megan (17 February 2020). "Constitutional recognition for Indigenous Australians must involve structural change, not mere symbolism". The Conversation. Retrieved 20 July 2020.

ReferencesEdit

SourcesEdit

Primary sources
Secondary sources

Further readingEdit

External linksEdit