Constitution of Australia
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The Constitution of Australia consists of a number of documents that compose a constitution under which the government of Australia operates. The most important of these is the Constitution of the Commonwealth of Australia. The text of the Constitution was originally a schedule to the Commonwealth of Australia Constitution Act 1900 or formally An Act to constitute the Commonwealth of Australia, an act of the Parliament of the United Kingdom. As Australia is now an independent country, the text of the Constitution is now regarded as fully separated from the text in the original Act, as de facto, 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 de facto effect on Australia.
Certain 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, which was passed in equivalent forms by the Parliaments of every state, the United Kingdom, and the Commonwealth. These Acts had the effect of severing all constitutional links between Australia and the United Kingdom, except for the fact that the same person, Queen Elizabeth II, is the head of state of both countries. The only United Kingdom law which today has application for Australia is the law governing the succession to the throne (and even the applicability of this has never been tested).
A number of cases before the High Court of Australia, which has the authority to interpret constitutional provisions, have also had an influence on the development of the Constitution.
A federal system
The Constitution provided the new system of government for the new federation, the Commonwealth of Australia, which consisted at its inception on January 1, 1901 of the former separate colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia.
The Constitution came into force on 1 January 1901 and superimposed a Commonwealth over the colonies without disturbing the existing colonial governments. Prior to federation the Australian colonies were distinct political entities with their own government and parliaments. At federation the Colonies retained their distinct political status and became the States of Australia. The 6 States and the Commonwealth are represented on the 7-pointed Federal Star that appears on the Australian flag.
Distribution of legislative power
The federal distribution of legislative powers in the Australian Constitution is effected by assigning to the Commonwealth Parliament a specified list of powers relating to a range of subjects and purposes, primarily in the 40 numbered paragraphs of section 51, and leaving any powers not thus assigned to be exercised by the states. This pattern of distribution follows the model of the United States Constitution and differs from the plan adopted by Canada by the British North America Act 1867. This unspecified fund of legislative power left to the States, and declared by section 107 to "continue", is sometimes referred to as "residual" power. For example, the Commonwealth parliament has exclusive power to make laws relating to "currency, coinage and legal tender" under paragraph 51(xii). This means that Australia has a single currency, which was not the case prior to Federation. Other powers include "trade and commerce with other countries, and amongst the States" (paragraph 51(i)) and "external affairs" (paragraph 51(xxix)).
In addition to the six States, Australia has two internal territories: the Australian Capital Territory (where the Commonwealth Parliament sits) and the Northern Territory (formerly the Northern Territory of the State of South Australia). Although both Territories have their own parliament, the Commonwealth Parliament can pass laws that apply to the Territories or overturn Territory legislation where the subject matter of the law is not listed in section 51.
In some areas, the Constitution gives to the Commonwealth exclusive law-making power. In these exceptional areas, the grant of power to the Commonwealth deprives the States of any power to enact valid laws. section 90, for example, provides that excise duties may only be imposed by the Commonwealth Parliament.
The normal arrangement is one of concurrent powers. Even in an area where the Commonwealth has a clear grant of law-making power, the State Parliaments will still normally have power in that area too. The possibility of conflict between State and Commonwealth laws is acknowledged by section 109. The original High Court developed the "reserved State powers" and "implied immunity of instrumentalities" doctrines to ensure both State and Commonwealth were normally to be immune from each other's laws. In 1920, this protection on State powers was swept away by the landmark decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case).
Characterisation
Precisely what is a valid exercise of the Commonwealth's legislative power is often a difficult matter to determine. For example, in 1983 the Commonwealth Government used the external affairs power in section 51 to pass legislation which prevented the Hydro-Electric Commission of Tasmania from building a dam on the Franklin River in Tasmania. The Commonwealth Government asserted that it was a signatory to the United Nations Convention for the Protection of the World Cultural and Natural Heritage and, by banning the building of a dam in a World Heritage Area in Tasmania, it was implementing that convention in Australian domestic law and the Commonwealth Act then over-rode the Tasmanian Act that had permitted the building of the dam. The referee in such disputes between the Commonwealth and the States is the High Court of Australia (established under Chapter III of the Constitution). In the landmark High Court case of Commonwealth v Tasmania (the Tasmanian Dams Case) the Commonwealth was successful. Since Federation many disputes between the Commonwealth and the States have been decided by the High Court, leading to an often lively debate within the Australian federal system.
Although the Constitution reserves a relatively limited number of legislative powers to the Commonwealth Parliament, the real situation is somewhat different. The Commonwealth Government collects the vast majority of revenue across all Australian governments. The Commonwealth Parliament also has the power to "grant financial assistance to any State on such terms and conditions as the Parliament thinks fit" (section 96). The Commonwealth uses this constitutional power in concert with its large revenues (relative to the States) to exert de facto control or significant influence in such areas as hospitals, main roads and education that would otherwise be solely within the State's legislative competence.
Head of State
The Constitution does not use the expression "head of state" or assign that role to any person or office. But a number of references in the Constitution make it clear that the authors assumed that the Queen of the United Kingdom, as head of the British Empire, would stand at the head of Australia's constitutional system, although her powers are delegated by the Constitution to the Governor-General of Australia as her representative. With the end of the British Empire, this assumption was no longer automatic, and in 1973, the Monarch was formally designated Queen of Australia, clarifying Australia's status as an independent constitutional monarchy.
Some people argue that since the Governor-General carries out all the functions of a head of state, and is received as a head of state when he travels abroad, the Governor-General ought to be regarded as Australia's head of state. This view is rejected by the Governor-General, who has stated that Queen Elizabeth II is Australia's head of state, and by the Australian government, which continues to put the Queen's head on all Australian coins, some banknotes and occasional stamps, and otherwise accord her the symbolic status of head of state. Legal theorists generally refer to the monarch's manifestation as head of state as "The Crown in right of the Commonwealth".
Parliament
Section 1 (in Chapter I) provides that the legislative power was to be vested in Federal parliament, known as the 'Parliament of the Commonwealth', consisting of the Queen, an upper house, called the Senate, and a lower house, called the House of Representatives.
Executive Authority
According to section 61 (of Chapter II),
- The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth.
Section 62 provides for a Federal Executive Council to 'advise' the Governor-General in the governance of the Commonwealth. Though the language indicated that the Executive Council was answerable to the Governor-General, in reality it is answerable to the House of Representatives, though the fact that the Senate possesses the power to withdraw Supply complicates the situation, given that loss of Supply in parliamentary democracies has the most severe implications for a government, given that it in theory should either resign or seek a parliamentary dissolution, should Supply be lost or not granted.
The Judiciary
The judicial power of the Commonwealth is vested by section 71 (in Chapter III) in a federal supreme court to be called the High Court of Australia. It is to be presided over by a Chief Justice. Chapter III also authorises the creation of other federal courts, with the High Court acting as the apex appellate court. Chapter III court judges enjoy security of tenure. The High Court has held that the separation of powers inherent in the three separate chapters means that only Chapter III courts can exercise judicial power, and only judicial power can be vested in a Chapter III Court.
The States
Section 106 (in Chapter V) provided for the continuation of the constitutions of the various states, subject to the provisions of the federal constitution.
Bill of Rights
The Australian constitution does not include a Bill of Rights. The delegates to the 1898 Constitutional Convention were familiar with the Bill of Rights of the United States Constitution, and some delegates favoured a similar section of the proposed Australian 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.
Some specific rights were, however, included. 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. Paragraph 51(xxxi) creates a right to just compensation for assets taken by the Commonwealth.
The Victorian radical H.B. Higgins was determined to insert a clause guaranteeing religious freedom in the Constitution. After much debate, the Convention adopted section 116, based on the First Amendment of the U.S. Constitution, 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 prohibition only applies to the Commonwealth Parliament, as under the Constitution the states retain all powers they had as colonies before federation, except for those explicitly given to the Commonwealth: this includes the power to legislate on religion.
Sections 7 and 24 require that both Houses of the Parliament must be "directly chosen" by the people, which was at the time a more democratic system than existed in Britain (which had a hereditary upper house, the House of Lords), or in Canada (where the Senate was, and still is, an appointed house), or in the U.S., where the Senate at this time was chosen by the State legislatures. The High Court has suggested in its obiter dicta in other judgments, however, that this does not constitute an implied right to vote, or universal suffrage.
In 1988 the Hawke Government proposed at a referendum a limited Bill of Rights, but this was rejected by the voters. In 1992 and 1994, however, the High Court of Australia, in a series of cases including the Australian Capital Television case and the Theophanous case, found that the Constitution contained an "implied right" to freedom of political communication, 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.
Amendments to the Constitution
- Main article: Referendums in Australia
Section 128 (in Chapter VIII) provided that constitutional amendments required
- 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 'double majority', 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.
As of 2005, since 1901 only 8 out of 44 referendums have been successful.
The 'Other' Constitution
Alongside the Act, other aspects of the Australian constitution include
- Letters Patent issued by the Crown
- Conventions which evolved over the decades, defining how various constitutional articles should be viewed
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.
Australia Act 1986
The parliament of the United Kingdom possessed the legal right to make constitutional legislation for the Commonwealth of Australia. From the adoption of the 1931 Statute of Westminster, this could only happen if specifically requested by the Government of the Commonwealth of Australia. This power was only removed by the enactment in 1986 by both Australia and the United Kingdom of the Australia Act 1986, which "repatriated" the Australian constitution and gave Australia absolute ownership of its lawmaking, to the complete and final exclusion of Britain.
Australian Constitution (Public Record Copy) Act 1990
In 1990, the British government passed the Australian Constitution (Public Record Copy) Act 1990 to allow the Australian government to retain the original copy of the Commonwealth of Australia Constitution Act 1900. A copy from the Public Records Office in London was lent to Australia, and the Australian government requested permission to keep the copy.
Republic debate
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 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. See republicanism in Australia.
See also
- Constitutional history of Australia
- Australian constitutional law
- Proposals for new Australian States
- Separation of powers in Australia
- Federalism in Australia
- Section 51 of the Australian Constitution - federal heads of power
- Section 109 of the Australian Constitution - inconsistency between state and federal laws
- Referendums in Australia - referendums to amend the constitution
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.