Constitution of Australia

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.

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.[4] 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,[5] while in Australia the constitution exists as amended by referendum.[6] 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.[7]

Following the 2017–18 Australian parliamentary eligibility crisis, there was discussion of whether to retain or replace the current constitution.[8][9] 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.[10]

Constitution Day is celebrated on 9 July,[11] 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.[12]

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.

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.[13]

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,[14] her legal capacity as queen of Australia is separate to her capacities as monarch to other nations.[15]

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 VI: 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.[16]

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.

The constitution also contains a schedule setting out the wording of the oath and affirmation of allegiance.[17] 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![18]

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.[19]

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).[21] Notably, this unwritten convention was later formally incorporated into the written constitution via national referendum in 1977.[22]
• 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.[21]
• The convention that a Prime Minister who cannot obtain supply must first either request that 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.[23]

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.

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.

The Australian constitution does not itself contain a preamble, although an enacting formula 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.

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.

Since 1910, there have been calls for constitutional reform to recognise Indigenous Australians.[27] 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.[28] 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.[29][30] 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 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.[31]

Primary sources

Secondary sources