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Constitution of Australia

From Academic Kids

The Constitution of Australia consists of a number of documents. 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 (in full, An Act to constitute the Commonwealth of Australia), an Act of the Parliament of the United Kingdom. But since Australia is now a fully independent state, the text of the Constitution is now regarded as being fully separated from the text in the original Act. 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.

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.

Contents

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 (http://en.wikipedia.org/wiki/Australian_flag).

The State parliaments retain a plenipotentiary law-making power, however, the power to make laws in respect of certain matters were ceded to the Commonwealth parliament (to the exclusion of the States) under the Constitution. For example, the Commonwealth parliament has exclusive power to make laws relating to "currency, coinage and legal tender" (section 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" (section 51(i)) and "external affairs" (section 51(xxix)). A complete list of the Commonwealth parliament's law-making powers is at section 51 of the Constitution. Outside those limited areas listed in section 51 the Commonwealth parliament is without power and cannot legislate for the States.

In addition to the 6 States, Australia has 2 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). Unlike the States, the Commonwealth Parliament has plenipotentiary legislative power over the Territories. 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.

The Constitution creates a federal system under which the Commonwealth and State parliaments both have legislative power. The Constitution also provides a simple mechanism by which conflicts between Commonwealth and State laws can be addressed. To the extent of any inconsistency between an Act of the Commonwealth parliament and an Act of a State parliament, the Commonwealth Act prevails (section 109). This assumes that the Commonwealth Act is a valid exercise of the Commonwealth's legislative power. 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 Australian stamps, coins and banknotes, and otherwise accord her the symbolic status of head of state.

Parliament

Section 1 (of Chapter I) provided 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.

Article 62 provided 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 was vested by Section 71 of Chapter III in a federal supreme court to be called the High Court of Australia. It was to be presided over by a Chief Justice.

The States

Section 106 of 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. Section 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."

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.

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 free speech on political issues, as a necessary part of the democratic system created by the Constitution.

Amendments to the Constitution

Main article Referendums in Australia

Section 128 of 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 '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

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, 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 loaned to Australia, and the Australian government requested permission to keep the copy.

The Federal Republic of Australia?

At various times since Federation, debates have raged over whether Australia should become a republic. On 6 November 1999, Australians overwhelmingly rejected a proposal to replace the Queen with a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. There are no current plans for a second referendum. See republicanism in Australia.

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