Constitution of Australia

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The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of 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), [1] an Act of the Parliament of the United Kingdom.

Constitution Set of fundamental principles or established precedents according to which a state or other organization is governed

A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity, and commonly determine how that entity is to be governed.

Government of Australia federal democratic administrative authority of Australia

The Government of Australia is the government of the Commonwealth of Australia, a federal parliamentary constitutional monarchy. It is also commonly referred to as the Australian Government, the Commonwealth Government, Her Majesty's Government, or the Federal Government.

States and territories of Australia first-level subdivision of Australia

The states and territories are the first-level administrative divisions of the Commonwealth of Australia. They are the second level of government in Australia, located between the federal and local government tiers.

Contents

The Commonwealth of Australia Constitution Act 1900 (Imp) was given Royal Assent on 9 July 1900, was proclaimed on 17 September 1900, and entered 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 Act 1986 removed the power of the United Kingdom parliament to change the Constitution as in force in Australia, and the Constitution can now only be changed in accordance with the prescribed referendum procedures in Section 128.

Australia Act 1986 Legislation by the UK and Australian Parliaments

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. The Acts came into effect simultaneously.

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 (retroactive to 1939), and the Australia Act 1986, which was passed in equivalent forms by the United Kingdom Parliament and the Australian Federal Parliament (using legislative powers conferred by enabling acts passed by the Parliaments of every Australian state). The Statute of Westminster Adoption Act is often regarded as the point at which Australia became de jure an independent nation, while the Australia Act severed almost all remaining constitutional links between Australia and the United Kingdom. The remaining exception is that whoever is the monarch of the United Kingdom is also the monarch of Australia, [2] although today this person, currently Queen Elizabeth II, acts in a distinct capacity as monarch of each. [3]

Statute of Westminster 1931

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom whose modified versions are now domestic law within Australia and Canada; it has been repealed in New Zealand and implicitly in former Dominions that are no longer Commonwealth realms. Passed on 11 December 1931, the act, either immediately or upon ratification, effectively both established the legislative independence of the self-governing Dominions of the British Empire from the United Kingdom and bound them all to seek each other's approval for changes to monarchical titles and the common line of succession. It thus became a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. As the statute removed nearly all of the British parliament's authority to legislate for the Dominions, it had the effect of making the Dominions largely sovereign nations in their own right. It was a crucial step in the development of the Dominions as separate states.

Statute of Westminster Adoption Act 1942 Act of the Parliament of Australia, currently registered as C2004C00661

The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted sections 2–6 of the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the total legislative independence of the various self-governing Dominions of the British Empire. The Statute of Westminster further restricted the ability of the Parliament of the United Kingdom to legislate for the Dominions.

In law and government, de jure describes practices that are legally recognised, regardless whether the practice exists in reality. In contrast, de facto describes situations that exist in reality, even if not legally recognised. The terms are often used to contrast different scenarios: for a colloquial example, "I know that, de jure, this is supposed to be a parking lot, but now that the flood has left four feet of water here, it's a de facto swimming pool". To further explain, even if the signs around the flooded parking lot say "Parking Lot" it is "in fact" a swimming pool.

Authority to interpret the Constitution lies exclusively with federal courts: with the Federal Court of Australia and, finally, the High Court of Australia. [4]

Federal Court of Australia Australian superior court

The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law, along with some summary criminal matters. Cases are heard at first instance by single Judges. The Court includes an appeal division referred to as the Full Court comprising three Judges, the only avenue of appeal from which lies to the High Court of Australia. In the Australian court hierarchy, the Federal Court occupies a position equivalent to the Supreme Courts of each of the states and territories. In relation to the other Courts in the federal stream, it is equal to the Family Court of Australia, and superior to the Federal Circuit Court. It was established in 1976 by the Federal Court of Australia Act.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

History

Commonwealth of Australia Constitution Act
1900
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An act to constitute the Commonwealth of Australia
Citation 1900 chapter 12: 63 and 64 Vict
Territorial extent
Dates
Royal assent 9 July 1900
Commencement 1 January 1901
Status: Amended

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

A copy of the Commonwealth of Australia Constitution Act 1900 (Imp) Constitution of Australia.jpg
A copy of the Commonwealth of Australia Constitution Act 1900 (Imp)

In the mid-19th century, a desire to facilitate co-operation 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. 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.

Crown colony, dependent territory or royal colony were dependent territories under the administration of United Kingdom overseas territories that were controlled by the British Government. As such they are examples of dependencies that are under colonial rule. Crown colonies were renamed "British Dependent Territories" in 1981, and since 2002, Crown colonies have been known officially as British Overseas Territories.

Victoria (Australia) State in Australia

Victoria is a state in south-eastern Australia. Victoria is Australia's smallest mainland state and its second-most populous state overall, making it the most densely populated state overall. Most of its population lives concentrated in the area surrounding Port Phillip Bay, which includes the metropolitan area of its state capital and largest city, Melbourne, Australia's second-largest city. Victoria is bordered by Bass Strait and Tasmania to the south, New South Wales to the north, the Tasman Sea to the east, and South Australia to the west.

New South Wales State of Australia

New South Wales is a state on the east coast of Australia. It borders Queensland to the north, Victoria to the south, and South Australia to the west. Its coast borders the Tasman Sea to the east. The Australian Capital Territory is an enclave within the state. New South Wales' state capital is Sydney, which is also Australia's most populous city. In September 2018, the population of New South Wales was over 8 million, making it Australia's most populous state. Just under two-thirds of the state's population, 5.1 million, live in the Greater Sydney area. Inhabitants of New South Wales are referred to as New South Welshmen.

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 1889. 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 sidestepped 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 British Imperial Parliament with an Address requesting Queen Victoria 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 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, the British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990 and the copy was given to the National Archives of Australia.

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 Parliament, through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia by paramount force. As a result, since Australia was still legally a self-governing colony of the United Kingdom, 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 and removed nearly all of the British Parliament's remaining authority to legislate for the Dominions. The Adoption Act backdated Australia's adoption of the Statute of Westminster to 1939, when Australia entered World War II. Legally, this is often regarded as the moment Australia became a de jure sovereign nation.

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

However, due to specific exemptions in the Statute of Westminster, Imperial law continued to be paramount in Australian states. This was altered by the Australia Act 1986, which was passed in substantially the same form by the Commonwealth parliament and the British parliament, at the request of each state. In addition to ending the British Parliament's power to legislate over Australian states, the Australia Act 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.

For the Constitution, the impact of these two laws is that the Constitution as in force in Australia is now separate from the text in the original Act. While the British Parliament can amend or repeal the Imperial Act, that would not affect Australia. Instead, the Constitution as in force in Australia can only be amended following the referendum mechanisms set out in the Constitution. Conversely, any amendment to the Constitution in Australia following the referendum mechanisms would not affect the text of the Imperial Act as in force in the United Kingdom.

Chapters

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, containing 128 sections. The legislative, executive, and judicial powers are separately stated in the Constitution, in Chapters I, II and III respectively. [6]

Chapter I: The Parliament

The Australian Senate Australian Senate - Parliament of Australia.jpg
The Australian Senate
The Australian House of Representatives Australian House of Representatives - Parliament of Australia.jpg
The Australian House of Representatives

Chapter I sets up the legislative branch of government, the Parliament of Australia, which consists of three constituent parts: The Sovereign (King or Queen), who is represented by the Governor-General of Australia; the Senate; and the House of Representatives. 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 Original 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.

Chapter II: The Executive Government

Chapter II sets up the executive branch of government. Executive powers are 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. One notable 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,[ citation needed ] even the formal powers of the Queen of Australia are extremely limited, and most powers are only exercisable by the Governor-General.

Section 68 states that the command of Australia's naval and military forces is vested in the Governor-General as the Queen's representative. This role, however, is only formal (such as the commissioning of officers) and ceremonial; actual control of the armed forces rests with the government.

Chapter III: The Judicature

The judiciary: The High Court of Australia, the nation's highest court High Court of Australia (6769096715).jpg
The judiciary: The High Court of Australia, the nation's highest court

Chapter III sets up the judicial branch of government; its provisions create the federal judicature and define the way it operates. 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" and 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.

Chapter IV: 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. Some of the most recent case law has emphasised that Section 92 is preoccupied with the effect of law on interstate trade, not on the effect law has on individual traders. [7]

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 co-operation 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.

Chapter V: 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.

Chapter VI: 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.

Chapter VII: Miscellaneous

Chapter VII contains three quite different provisions. Section 125 provides that the seat of government of the Commonwealth would be in Melbourne for the time being, but eventually in Commonwealth territory, to be created within New South Wales but no less than one hundred miles (160 km) from Sydney. The national capital would thus be neither of the rival State capitals Sydney and Melbourne, but within a federal territory. In 1911 New South Wales ceded to the Commonwealth what is now the Australian Capital Territory and 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 any Commonwealth, State or other count of population. This excluded the Indigenous population from affecting the distribution between the States of seats in the House of Representatives (section 24). Section 127 was removed by referendum in 1967. [8]

Chapter VIII: 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. Amendment requires:

The Governor-General must put the bill to a referendum between two and six months after it has been passed by the parliament. If the bill is approved in the referendum, it receives the Royal Assent and becomes law, so that the wording of the Constitution is changed.

An exception to this process is if the bill is approved by only one house of the parliamentthe other house rejecting it, failing to pass it or passing it with amendments to which the first house does not agree. (Ordinarily, the bill would have been introduced in the House of Representatives; the problem would be disagreement by the Senate.) Then, after three months, the first house may pass the bill again. If the other house still does not agree with the bill, then the Governor-General may put the bill to a referendum in the form in which it was passed by the first house, with any amendments to which the two houses may nevertheless have agreed.

Section 128 also provides that an amendment that would reduce the representation of a State in either house, or its minimum representation in the House of Representatives, or that would alter the boundaries of a State or make any similar change to the State, can be presented for Royal Assent only if it has been approved in that State.

A mechanism for the conduct of a referendum is provided by federal statute: Referendum (Machinery Provisions) Act 1984 (Cth). [9] As with elections, voting is compulsory.

Schedule

The Schedule sets out the wording of the oath and the affirmation of allegiance. [10] The Governor-General and members of parliament are required to make a solemn undertaking of allegiance, by oath or affirmation as prescribed by the Constitution. In addition, when taking office, the Governor-General is required to take an oath of office, currently:

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! [11]

The oath or affirmation of office made by a prime minister, ministers and parliamentary secretaries when entering office is in wording that is not prescribed in the Constitution but determined by the prime minister of the day, and administered to them by the Governor-General. While there is no legal requirement for this, it has been the practice from the inauguration of the Commonwealth in 1901. [12]

Amendments

As mentioned above, amendment of the Constitution requires a referendum in which the proposed amendment is approved by a majority in each of a majority of the States, as well as nationally.

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.

The role of conventions

Alongside the text of the Constitution, the Statute of Westminster and the Australia Acts, 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:

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 Liberal opposition leader 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:

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. [14]

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:

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.[ citation needed ]

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:

There are also some guaranteed freedoms, reasons why legislation that might otherwise be within power may nonetheless be invalid. These are not rights of individuals, but limitations upon legislative power. However, where legislation that would adversely affect an individual is found to be invalid for such a reason, the effect for the individual is similar to vindicating a right of that individual. There is one express "freedom".

There is also one implied right that is agreed upon by a majority judgment of the High Court. An implied right is one that is not written explicitly into the wording of the Constitution, but that the High Court has found to be implied by reading two or more sections together. The implied right of freedom of political communication is discussed below.

In addition to individual rights explicitly written into the Constitution and found to be implied by sections within it there is a final category of rights known as 'structural protections'. Rather than being individual rights, these are broad protections for the community as a whole, taken from the systems and principles created by and underpinning the text and structure of the Constitution as a whole. One of the more well-known of these protections is the community right to a democratically elected parliament, commonly thought of as a limited "right" to vote, which is discussed below.

The following are implied rights or freedoms:

Attempts in High Court cases to find further implied rights or freedoms have not been successful. Implication of a freedom of association and a freedom of assembly, independently or linked to that of political communication, has received occasional judicial support but not from a majority in any case.

Head of state

The term head of state does not appear in the Australian constitution. It is conventionally acknowledged to be the Queen, since the governor-general and the state governors are defined as her "representatives". [30] [31] However, since the governor-general is given important constitutional powers, the governor-general is often referred to as head of state in political and media discussion, such as by former prime ministers Malcolm Turnbull and Kevin Rudd.

Proposals for major changes

Amongst the amendments proposed to the Constitution over the years, two proposals for major change have been prominent in recent decades, and both were considered, and defeated, in the 1999 referendum.

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.

Commemoration

Constitution Day is celebrated on 9 July, [32] 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. [33]

See also

Notes

  1. In Australian law, legislation which was enacted by the British parliament and which has or had effect in Australia by paramount force (or was subsequently received into Australian law) is referred to as "imperial" law, denoted with the "(Imp)" abbreviation when citing legislation by its short title.
  2. The effect of Commonwealth of Australia Constitution Act 1900, s (covering clause) 2.
  3. 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.
  4. Judiciary Act 1903 (Cth), s 30(a) for the High Court and s 39B(1A)(b) for the Federal Court.
  5. While the Act was (when enacted) directed towards the then-colonies of New South Wales, Victoria, South Australia (including the Northern Territory), Queensland, and Tasmania, and (if it so chose) Western Australia and (if admitted) New Zealand and other colonies or territories, subsequent changes in the constitutional arrangements of Australia mean that the territorial extent of the British Act is now restricted to the UK: Legislation UK: Commonwealth of Australia Constitution Act 1900, showing Geographical Extent.
  6. 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.
  7. Betfair Pty Ltd v Racing New South Wales [2012] HCA 12 , 249 CLR 217.
  8. Korff, Jens (8 October 2014). "Australian 1967 Referendum". creativespirits.info. Retrieved 9 November 2016.
  9. "Referendum (Machinery Provisions) Act 1984". Federal Register of Legislation. Retrieved 12 November 2016.
  10. Constitution (Cth) Schedule 1 Oath.
  11. "Oath of Office". Office of the Official Secretary to the Governor-General. Retrieved 15 January 2018.
  12. "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.
  13. 1 2 Gough Whitlam. The Truth of the Matter. Penguin. 1979 (Reprint: Melbourne University Press. 2005.)
  14. "Reflections from the Seventies (transcript)". ABC TV Four Corners . Archived from the original on 9 January 2009.
  15. "Sir John Kerr's Statement of Reasons". 11 November 1975. Archived from the original on 16 April 2016.
  16. R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers case) [1956] HCA 10 , 94 CLR 254.
  17. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) [1920] HCA 54 , 28 CLR 129.
  18. Melbourne Corporation v Commonwealth [1947] HCA 26 , 74 CLR 31.
  19. R v Archdall & Roskruge; Ex parte Carrigan and Brown [1928] HCA 18 , 41 CLR 128 at 139–140.
  20. Cheng v The Queen [2000] HCA 53 , 203 CLR 248.
  21. Commonwealth of Australia Constitution (Cth) s 51.
  22. Street v Queensland Bar Association [1989] HCA 53 , 168 CLR 461.
  23. Re Loubie [1986] 1 Qd R 272, Supreme Court (Qld).
  24. Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45 , 177 CLR 106.
  25. Theophanous v Herald & Weekly Times Ltd [1994] HCA 46 , 182 CLR 104.
  26. Lange v Australian Broadcasting Corporation [1997] HCA 25 , 189 CLR 520.
  27. Levy v Victoria [1997] HCA 31 , 189 CLR 579; see also Coleman v Power [2004] HCA 39 , 220 CLR 1.
  28. Roach v Electoral Commissioner [2007] HCA 43 , (2007) CLR 162.
  29. Rowe v Electoral Commissioner [2010] HCA 46 , (2010) 243 CLR 1.
  30. Constitution, s 2; Australia Act 1986 (Cth and UK), s 7.
  31. "Who is the Australian Head of State?" (PDF). PRS, Dept. of the Parliamentary Library. 28 August 1995. Archived from the original (PDF) on 13 September 2006.
  32. "Constitution Day". National Archives of Australia. Archived from the original on 22 February 2014.
  33. "Constitution Day Celebrations". 9 July 2008. Archived from the original on 19 July 2008.

Related Research Articles

Australian constitutional law

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

<i>Commonwealth v Tasmania</i>

Commonwealth v Tasmania was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia. The case centred on the proposed construction of a hydro-electric dam on the Gordon River in Tasmania, which was supported by the Tasmanian government, but opposed by the Australian federal government and environmental groups.

The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the States and territories of Australia, regulations promulgated by the Executive, and the common law of Australia arising from the decisions of judges.

The doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. The legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair government. A strict separation of powers is not always evident in Australia; instead the Australian version of separation of powers combines the basic democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system.

Section 51(xxvi) of the Constitution of Australia

Section 51(xxvi) of the Constitution of Australia, commonly called "the race power", is the subsection of Section 51 of the Constitution of Australia granting the Australian Commonwealth the power to make special laws for people of any race.

The reserved powers doctrine was a principle used by the inaugural High Court of Australia in the interpretation of the Constitution of Australia, that emphasised the context of the Constitution, drawing on principles of federalism, what the Court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the States. The doctrine was challenged by the new appointments to the Court in 1906 and was ultimately abandoned by the High Court in 1920 in the Engineers' Case, replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.

Section 51(xxxi) of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia, providing that the Commonwealth has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws." It is both a power and a constitutional guarantee of just compensation for property rights contingent on its exercise.

In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.

Section 51(vi) of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to the defence of Australia and the control of the defence forces. The High Court has adopted a different approach to the interpretation of the defence power, which emphasises the purpose of the legislation, primarily the defence of Australia, rather than the subject matter.

<i>R v Barger</i>

R v Barger is a High Court of Australia case where the majority held that the taxation power could not be used by the Australian Parliament to indirectly regulate the working conditions of workers. In this case, an excise tariff was imposed on manufacturers, with an exemption being available for those who paid "fair and reasonable" wages to their employees.

Section 116 of the Constitution of Australia precludes the Commonwealth of Australia from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion. Section 116 also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth. The product of a compromise in the pre-Federation constitutional conventions, Section 116 is based on similar provisions in the United States Constitution. However, Section 116 is more narrowly drafted than its US counterpart, and does not preclude the states of Australia from making such laws.

<i>Attorney-General (Vic) ex rel Dale v Commonwealth</i>

Attorney-General (Vic); Ex rel Dale v Commonwealth, commonly known as the "First Pharmaceutical Benefits case", was a High Court of Australia decision. The case dealt with limits of the powers of the Australian Federal Government under section 81 of the Constitution of Australia, to take and spend money by legislation, in this case to fund reduced prices for prescription medicines.

<i>New South Wales v Commonwealth</i> (1915)

New South Wales v Commonwealth, commonly known as the Wheat case, or more recently as the Inter-State Commission case, is a landmark Australian judgment of the High Court made in 1915 regarding judicial separation of power. It was also a leading case on the freedom of interstate trade and commerce that is guaranteed by section 92 of the Constitution.

<i>Waterside Workers Federation of Australia v J W Alexander Ltd</i> 1918 judgement in Australian law

Waterside Workers' Federation of Australia v J W Alexander Ltd is a landmark Australian judgment of the High Court made in 1918 regarding judicial power of the Commonwealth which established that Chapter III of the Constitution required judges to be appointed for life to a specific court, subject only to the removal provisions in the constitution. The majority of the High Court held that because the President of the Commonwealth Court of Conciliation and Arbitration was appointed for seven years and not life as required by s 72 of the Constitution, the Arbitration Court could not exercise judicial powers of the Commonwealth.

<i>Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association</i>

Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association, known as the Railway Servants Case, is an early High Court of Australia case that held that employees of State railways could not be part of an interstate industrial dispute under the conciliation and arbitration power, applying the doctrine of "implied inter-governmental immunities". The doctrine was emphatically rejected by the High Court in the 1920 Engineers' Case, and in 1930 the High Court upheld the validity of an award binding on state railway authorities.

<i>Australian Boot Trade Employees Federation v Whybrow & Co</i>

Australian Boot Trade Employees Federation v Whybrow & Co, commonly known as Whybrow's case or the Boot Trades case was the third of a series of decisions of the High Court of Australia in 1910 concerning the boot manufacturing industry and the role of the Commonwealth Court of Conciliation and Arbitration in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for common rule awards and the jurisdiction of the High Court to grant prohibition against the Arbitration Court. The majority held in Whybrow that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In Whybrow the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct jurisdictional error as part of its original jurisdiction. Finally in Whybrow the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.

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