CONSTITUTIONAL OVERVIEW
The Australian Constitution is the fundamental law of
Australia. Accordingly, even an Act passed by a Parliament
is invalid if it is contrary to the Constitution.
Other fundamental laws in the Australian constitutional
framework are:
- the Statute of Westminster Adoption Act 1942 and
- the Australia Act 1986.
Background
The Australian Constitution was passed in 1900 as part
of a British Act of Parliament, and took effect on 1 January
1901. A British Act was necessary because before 1900,
Australia was merely a collection of six self-governing
British colonies and ultimate power over those colonies
rested with the British Parliament. In reality, however,
the Constitution is a document conceived by Australians,
drafted by Australians and approved by Australians.
The Constitution was drafted at a series of conventions
held during the 1890s and attended by representatives of
the colonies. Before the Constitution came into effect,
its terms were approved in a series of referendums held
in the different colonies. During the course of this century,
Australia has become an independent nation, and the character
of the Constitution as the fundamental law of Australia
is now seen as resting predominantly, not on its status
as an Act of the British Parliament, but on the Australian
people’s decision to approve and be bound by the
terms of the Constitution. Other important stages in the
process were the British Statute of Westminster 1931 adopted
by Australia in the Statue of Westminster Adoption Act
1942, and the Australia Act 1986, passed by
the Commonwealth Parliament with the consent of each State
with a near identical Act passed by the British Parliament,
which progressively removed the power of the British Parliament
to legislate for Australia.
What has been judicially described as ‘the sovereignty
of the Australian people’ is also recognised by section
128, which provides that the people of Australia must approve
any change to the Constitution.
The Constitution itself is contained in clause 9 of the
British Act. The first eight clauses are commonly referred
to as the ‘covering clauses’. They contain
mainly introductory, explanatory and consequential provisions.
The federal structure
The Constitution establishes a federal system of government,
with powers distributed between the Commonwealth and the
six States. It also confers the legislative, executive
and judicial powers of the Commonwealth on three different
bodies established by the Constitution – the Parliament
(Chapter I), the Executive Government (Chapter II) and
the Judicature (Chapter III).
Federal Parliament
Chapter I of the Constitution (sections 1–60) established
the Federal Parliament comprising the Queen, a House of
Representatives and a Senate (section 1). The people of
each of the States elect the same number of senators (currently
12). In the House of Representatives, the number of seats
from each State depends on the State’s population
(although each State is guaranteed at least five seats).
The people of the Northern Territory and the people of
the Australian Capital Territory currently have two members
in the House of Representatives, and each have two senators.
Sections 7 and 28 of the Constitution require regular
elections for the House of Representatives and the Senate.
Sections 7 and 24 also require members of the Commonwealth
Parliament to be directly chosen by the people.
Both the House of Representatives and the Senate must
pass a proposed law (known as a Bill) before it can become
an Act of Parliament. A Bill becomes an Act when it receives
the assent of the Governor-General (section 58).
Subject to a few exceptions referred to in section 53
(relating to the initiation and amendment of Bills that
appropriate revenue or impose taxation), the Senate has
equal power with the House of Representatives in respect
of Bills.
Section 57 prescribes the procedure for resolving any
irreconcilable disagreement between the two Houses, which
involves the holding of a ‘double dissolution’ election
for both Houses, and then, if necessary, the convening
of a joint sitting of the two Houses following the election.
Commonwealth legislative powers
The Constitution does not confer on the Commonwealth Parliament
the power to make laws on all subjects, but lists the subjects
about which it can make laws. Most of these subjects appear
in sections 51 and 52. They include defence; external affairs;
interstate and international trade; taxation; foreign,
trading and financial corporations; marriage and divorce;
immigration; bankruptcy and conciliation and arbitration
of interstate industrial disputes.
States and their legislative powers
Under the federal system established by the Australian
Constitution, the six States have their own Constitutions,
but these must be read subject to the Australian Constitution
(sections 106 and 107). Except for a few matters expressly
provided by the Constitution, a State Parliament can make
laws on any subject of relevance to that particular State.
Relationship between Commonwealth and State powers
However section 109 of the Constitution provides that
if a valid Commonwealth law is inconsistent with a State
law, the Commonwealth law operates and the State law is
invalid to the extent of the inconsistency.
Territories
Section 122 empowers the Commonwealth Parliament to make
laws in relation to Territories that have been ‘surrendered’ by
the States or which have otherwise been acquired by the
Commonwealth. In relation to these Territories, the Federal
Parliament can make laws on any subject. The Federal Parliament
has conferred significant self-government upon the Northern
Territory, the Australian Capital Territory and Norfolk
Island.
Executive Government of the Commonwealth
Australia is a constitutional monarchy and Chapter II
of the Constitution (sections 61–70) vests the executive
power of the Commonwealth in the Queen (currently Queen
Elizabeth II). The power is exercisable on a day-to-day
basis by the Governor-General as her representative (section
61). The few functions the Queen does perform (for example,
appointing the Governor-General) are done in accordance
with advice from the Australian Prime Minister. The Governor-General
normally acts in accordance with the advice of Australian
Government ministers. The appointment of ministers and
the creation of Australian Government departments of State
are referred to in section 64, which also provides that
ministers must be, or become, members of Parliament.
In practice, ministers are also members of the parliamentary
party or coalition of parties that holds a majority of
seats in the House of Representatives. Ministers may either
be senators or members of the House of Representatives,
although the Prime Minister has nearly always been a member
of the House of Representatives. Neither the Prime Minister
nor the Cabinet, which is made up of senior government
ministers, is mentioned in the Constitution, though they
are central to the executive government.
The Federal Executive Council, which is referred to in
various provisions of the Constitution and in the expression ‘Governor-General
in Council’, is, unlike the Cabinet, not a deliberative
body. Its principal functions are to receive advice and
approve the signing of formal documents such as regulations
and statutory appointments. Usually only two or three ministers
attend its meetings with the Governor-General.
Federal Judicature
Chapter III of the Constitution (sections 71–80)
provides for the establishment of the High Court of Australia.
The High Court decides disputes about the meaning of the
Constitution and is also the final court of appeal within
Australia in all other types of cases, even those dealing
with purely State matters.
Chapter III also gives the Commonwealth Parliament power
to create other federal courts (for example, the Federal
Court of Australia, the Family Court of Australia and the
Federal Magistrates Court), and to vest federal judicial
power in such federal courts and in courts of the States. ‘Federal
judicial power’ is judicial power relating to one
or more of the classes of dispute set out in sections 75
and 76.
An Australian ‘Common Market’
Chapter IV of the Constitution (sections 81–105A)
contains provisions regulating, among other things, trade
and commerce throughout Australia. The Constitution requires
the Federal Parliament to impose uniform customs duties
(section 88) and prohibits the State Parliaments from imposing
customs duties (section 90). It also provides in section
92 that trade and commerce between the States shall be ‘absolutely
free’. Section 92, in effect, prohibits action by
either the Commonwealth or a State that discriminates against
interstate trade or commerce and which has the purpose
or effect of protecting intrastate trade or commerce of
a State against competition from other States.
Section 81 provides that all money raised or received
by the Executive Government of the Commonwealth is to form
one Consolidated Revenue Fund. Section 83 provides that
no money may be expended by the Executive Government of
the Commonwealth without the authority of Parliament.
Section 96 of the Constitution allows the Commonwealth
to make conditional grants of money to the States for any
purpose.
Rights
The Australian Constitution has no Bill of Rights. However
some express protections are given by the Constitution
against legislative or executive action by the Commonwealth.
Examples are section 51(xxxi) (acquisition of property
must be ‘on just terms’), section 80 (trial
by jury is required in relation to some criminal offences)
and section 116 (Commonwealth must not to legislate in
respect of religion).
Section 117 also prohibits the State Parliaments from
discriminating against non-residents of that State. The
High Court has also recognised some implied restrictions
on legislative power derived from the system of government
established by the Constitution, for example, the freedom
of communication on political matters.
Amending the Constitution
The Constitution provides that it can be altered by a
referendum, where a majority of electors and a majority
of electors in a majority of States vote in favour of a
proposed alteration. Before a referendum can be held, the
Commonwealth Parliament must pass the proposed law containing
the suggested amendment (section 128).
More information
For more information on the Constitution, contact:
See also: Constitutional
law, Machinery
of government, Constitutional
cases, and Sawer’s The
Australian Constitution, which is available
through CanPrint Information Services and University
Co-op Bookshops.
© Australian
Government Solicitor
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