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Constitution

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Text of the Constitution

The full text of all 128 Sections of the Australian Constitution is available here, either as single sections, chapters, or all on one page.

Constitutional Overview

What is the purpose of a Constitution? What are the main features of the Australian Constitution? What are the Conventions that underpin its operation?

Federalism

Australia is a federal system, one in which the Constitution divides power between the national, or federal, government and the States. As a result, the political and financial relationship between the States and the Federal Government is an ongoing concern.

The High Court

The High Court consists of seven Justices. Led by the Chief Justice, Robert French, the court has the responsibility of interpreting the Constitution and acting as the final court of appeal from all other courts in Australia.

Governor-General

The Governor-General is the Queen’s representative in Australia. The position has ongoing responsibilities within the political system and its powers are often debated, particularly in the light of the events of 1975.

Constitutional Reform

Only 8 out of 46 attempts to change the Constitution by referendum have been successful since 1901. Many argue that real constitutional reform has been performed by the High Court in its various judgements.

Republic or Monarchy?

The question of whether Australia should become a constitutional republic has been at the forefront of political debate over the past decade. The referendum held in 1999 recorded a 55% “No” vote, but the issue remains alive.

Archived Posts

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    • http://australianpolitics.com Malcolm Farnsworth

      Not at all… I’ve been too busy for the past week or so and haven’t checked any of the comments. I’m only one person, you know. Not everything is a conspiracy.

      However, I am about to remove the comments feature from the information pages on the site. I’ve installed a forum but haven’t promoted it yet. You can start using it at http://australianpolitics.com/forum

      This site is a resource, an archive of material, etc, as well as a place of comment and opinion. It’s important to me that the two not be confused. It’s also important to me that the site does not appear to be providing legal or constitutional advice.

      Please feel free to use the forum. Incivility, offensive language and other forms of abuse are my criteria for deletion.

    • Draculon

      Hi Malcolm,

      This is my first posting here. I have a question for you if you would be good enough to answer: What legal weight or force do the Commentaries on the Constitution carry?

      Much appreciated 

    • guest

      Can someone tell me where it expressly states Australia is a secular nation? 

      • guest

        nevermind, found it. lol. 

      • http://twitter.com/Danierusake Danieru Sake

         Section 116.

    • William b

      The Current HOON laws appear to violate the australian Constitution of being innocent until proven quillty.. as was the case of the Doctor in perth who had his lamborghini impounded under these hOON laws.. at a later date and after losing his car for 28days the driver of the car was found to be INNOCENT and awarded $18,000 incosts.. so he so he was initally charged and car was impounded and he had to pay fines plus impound fees, So he was QUILTY until proved innocent…
      This is soooo not right, please explain how these laws are Valid/legal????

      • http://twitter.com/Danierusake Danieru Sake

        By referring to it as ‘Hoon laws’, I take it as meaning a reference to the Road Traffic Act 1974, particularly division 4 titled ‘Impounding and confiscation of vehicles for certain offences’.The view I take in this matter does not support your argument which suggests the creation of such law/s violates the Australian constitution; or, as an alternative, offensive to the unwritten principle of one deemed innocent until proven otherwise. It is neither of the above.

        To avoid a lengthy debate as to the validity of such laws, I shall save the effort by simply referring you to section 51(xxxi) of the Constitution which provides  –

               ” The Parliament shall, subject to this Constitution, have power to make laws…with respect to the acquisition of property on just terms from any…person for any purpose in respect of which the Parliament has power [under chapter 1 on the Constitution] to make
        laws”.

        The issue you raised as to the driver having been found ‘innocent’ is not a question of whether the law is valid but rather, whether the application of the rule was correctly enforce which could only be determine through the judiciary process as it was in this case.

    • Simon

      An interesting question has arisen since a recent read of the Australian Constitution. All references to the Governor-General are gender specific (him, he, himself) yet Quentin Bryce is the incumbant GG. If we are to follow the Constitution to the letter, the appointment of a female GG could be considered unconstitutional. If not, what is the legal reasoning for allowing so? Does the Constitution require ammending to provide for this? The Attorney-General’s department has been asked the same question and I am yet to recieve an unautomated reply or answer..
      Can anyone help?

      • http://australianpolitics.com Malcolm Farnsworth

        This issue has been covered elsewhere on these pages. Sorry, but it’s simply silly to suggest that there is something illegal about the appointment of a female Governor-General. The Constitution also refers to the Queen, but we have had 4 kings since 1901. Really, there are more serious things to be concerned about than this nonsense.

        • Simon

          Thank you Mr Farnsworth for taking the time to respond to my question. I do not, however, consider a point of constitutional clarification “simply silly”. A valid question usually calls for a valid response – not rebuke. The fact that, as you have stated, there have been 4 kings since 1901, has no relevance to the question as the Constitution covers this (schedule – oath affirmation) “. . . to Her Majesty Queen Victoiria, Her heirs and successors . . .”. I am sorry that you seem to have taken such offence at my “nonsense”(question).

          • http://australianpolitics.com Malcolm Farnsworth

            No offence taken… and none intended on my part either. A few words to explain my uncharacteristic irritation:

            Sometimes I despair at the conspiracy theories that appear on these pages. I marvel at how some people seem to believe that a century or more of constitutional government is some kind of conspiracy against the people. For example, I delete all manner of nonsense from people who argue that the entire history of the Australian federation is illegal, or that Julia Gillard has no right to be prime minister, etc.

            Another problem is dealing with the individual gripes of people who have had some kind of run-in with a government department, local council or whatever. These people often see their problem as a grave breach of their human rights when they simply need to get proper legal advice on how to challenge a decision.

            There’s also a practical issue that has been concerning me for some time. I am considering removing the comments option and setting up a forum instead so that questions can be more easily categorised and dealt with. As this page shows, there comes a point where it’s too hard to follow the lines of debate or to easily find answers to questions that have been asked. I’m open to any suggestion that anyone might have.

            As regards your question about the validity of appointing a female governor-general, Section 2 of the Constitution refers to “him” when stating that a governor-general shall be Her Majesty’s representative. References to “him” and “he” are taken to be non-gender specific. There is probably a court judgement or legislative provision that formalises this but I’ve never bothered to look for it. Politically, if not legally, this IS a nonsense discussion. The Constitution and the Letters Patent from the monarch should be sufficient to establish that women as well as men can be appointed to the position of governor-general.

            • Simon

              Thank you again Mr. Farnsworth for responding. My questions are not steeped in conspiracy, an attempt to embattle government, inferring inadequacy of the incumbent GG’s credentials or propriety, or that women are unfitting of appointed to the position of Governor-General. They are, however, based on a point of law – that which is argued daily in courtrooms around Australia. No-one is above the law and all must follow the letter of the law.
              There are volumes of legislature that go to extraordinary lengths to clearly define governance and it’s functioning. Such detail attempts to remove ambiguity. It is this ambiguity in the Constitution regarding appointment of the GG that I am seeking clarification on.
              As the Attorney-Generals office was established at Federation to advise and consult on constitutional law (among other things) I took my point of clarification to them and am still waiting for reply. Unfortunately, “. . . Constitution and the Letters Patent from the monarch should be sufficient to establish . . .” is not sufficient enough for me and as such will continue pursuit of the Attorney-General’s department for elucidation.
              Again, I thank you for your considerations.

            • http://twitter.com/Danierusake Danieru Sake

              Malcolm,

              ” For example, I delete all manner of nonsense from people who argue
              that the entire history of the Australian federation is illegal.. etc.” …

              Q: What is your understanding of our Australia came to be today, ie how did we acquired this great land from the very start?

              I’ll be interested to enter into a meaningful and mature discussion on this topic.

      • http://twitter.com/Danierusake Danieru Sake

        Simon,

        In my view, you have raised a number of valid questions which I will help answer. First and foremost, it is important to understand that the procedure of reading the law (ie, an Act such as the Constitution -  itself an Act), is not the same as reading the instructions of a learner’s manual.

        When reading an Act, it is not always advisable (unless deemed absolutely necessary) to read into every letter as there is danger in doing so which you’ve clearly demonstrated. This danger was duly noted by Michael Kirby, a former High Court Justice, who, in a recorded public speech, made the following remark –

        …giving meaning to words, [when] read in isolation,
        can be misleading, artificial and even dangerous.

        Instead, one must (as do all Judges and most lawyers)
        read and must also interpret the meaning as it was intended when it was
        written by the forefathers and/or legislatures of this land. And to properly interpret its meaning, regard must be had for the overall ‘purpose’ of the respective Act.

        By no means am I suggesting that in order to understand the meaning of a particular word or words, as the case may be, in a section of the Act, every other sections must also be read (although it would help). However, and in the words of Justice Dawson in Mills v Meeking (1990) –

        the
        purposes…are to be taken into account in construing the provisions.., not
        only where those provisions on their face offer more than one construction, but
        also in determining whether more than one construction is open.

        When we seek to understand our Constitution, it can be agreed that its purpose, as reflected in s.51, is to –

        …make laws for the
        peace, order, and good government of the Commonwealth.

        Thus, and with all due respect, it would be absurd to imply that appointing a ‘she’ as the Governor General would be, or was, unconstitutional because to the word ‘he’ was expressed in the Constitution. In actual fact, appointing Quentin Bryce was perfectly legal and constitutional.

        I will now further explain why it is so with the help of a very important piece of legislation known as the Acts Interpretation Act 1901.

        As a brief introduction, this Act should (or ‘must’ would be the better word) be referred to when there is evidence of any ambiguity in a legislation. And because it is also an Act, it is part of the law.

        Accordingly, s15AA of the Acts Interpretation Act 1901 holds –

        In the interpretation
        of a provision of an Act, a construction that would promote the purpose or
        object underlying the Act (whether that purpose or object is expressly stated
        in the Act or not) shall be preferred to a construction that would not promote
        that purpose or object.

        And in s23 provides - 

        In any Act, unless
        the contrary intention appears, words importing a gender include every other
        gender.

        I could go on but I trust that I have help answered your question.

         

    • DJ

      If possible could someone assist me? I would like to know if the constitution gives the public a constitutional right to object or complain or have reviewed about desicions that are made by Government departments ie OSR – Office of State Revenue. I do realise that there are the options available to use the court system and the ADT but what I am specifically after is it understand is that if my rights are denied in the first instance without reason then do I have a fundamental right under the constitution.
      Thanks

      • http://australianpolitics.com Malcolm Farnsworth

        You should seek legal advice on this. However, subject to the relevant legislation, you clearly have the right to appeal against decisions made by government departments and government officials. A lawyer can advise you on civil and administrative law and the precedents established over time.

    • Anonymous

      Can someone please help me? I’m looking for the section of the constitution that covers freedom of choice and people rights of choice. I’m a grade 8 student working on a debate. Thanks.

      • http://australianpolitics.com Malcolm Farnsworth

        The Constitution doesn’t mention “freedom of choice” explicitly. It’s important to remember that the Constitution establishes the structure of the political system. For example, it establishes a Parliament and the powers of the Parliament. It establishes a High Court to resolve disputes about the powers and responsibilities of the States and the Federal government.

        You may be thinking of freedom of choice in relation to a particular issue. For example, some people have been posting messages here about freedom of choice and fluoride in water. These kinds of decisions are laws passed by state Parliaments. The Constitution doesn’t necessarily say anything about what kinds of laws can be passed, only who has the power to make such laws.

        However, the High Court has over the years made decisions which establish certain rights.

        Without knowing exactly what issue(s) you’re referring to, it’s a bit hard to be more precise.

        • http://twitter.com/Danierusake Danieru Sake

           If I may correct you there Malcolm, the Constitution do in fact specify the types of laws that can be pass. These can be found under s51, Chapter IV and much of Chapter V as well as s128 if applicable.

      • Mel

        This may be helpful to you…
        Check out the Charter of Human Rights…Or the Universal Declaration of Human Rights…

    • Joemamma

      Hey Paul Dittamo this is some one you know. Shut up cause your probably saying stuff. Say Hi to Drew and Jon big asian bum

    • Tom Williamson

      As far as I can understand, Section 25 of the Constitution has not been repealed, and could therefore be used to disqualify people on the grounds of race. While the interpretation of it could also reduce the amount of votes that a state has if it reduces these rights, the effect would still be the same. Therefore, does the constitution explicitly allow people to be disqualified from voting by definition of “race”?

      • http://australianpolitics.com Malcolm Farnsworth

        Given the High Court’s history of decisions on these matters, I suspect any attempt to legislate to disqualify people on the grounds of race would be struck down in double quick time.

        • Tom Williamson

          Of course, i’m in no way endorsing this view, I just had a question about a particularly interesting legal relic. Surely if we could include a question about a preamble in a referendum, removing this wouldn’t be difficult?

          Again, thanks for the answer, my friend swore it was repealed, but alas it is not.

        • Hec2

          aaaaaaaaaaaaaaaaaaaaaahhhhhh

        • Hec2

          hi paul whats up 4p

      • Joemamma

        Hi i like pie and chiken. I am at school. :p

    • Grant

      Aplogies for the dumb question…but can “the people” force an election under our constitution?

      • http://australianpolitics.com Malcolm Farnsworth

        Not in the sense that the people can petition the government or the Parliament for an election. In some states of the USA a recall petition signed by enough voters can trigger a new election, but there is no such mechanism in Australia. In fact, to the best of my knowledge, there is no such mechanism in any Westminster style Parliament.

        An election can only be called by the Prime Minister advising the Governor-General to dissolve the House of Representatives. If the government loses the support of the lower house, an election could be held but it is also possible that a new government would take office. This happened in 1941 when two independents who held the balance of power switched their support from the coalition to Labor.

        The people and the media can call for an early election but unless the numbers in the Parliament change, it won’t happen.

        Of course, the PM has to call an election every three years. And other requirements apply to Senate elections, but in the current context an election can only be held if Gillard chooses to have one or if the House of Representatives votes her out. The attitude of Windsor, Oakeshott, Wilkie, Bandt, Katter and Crook is the key to what happens.

    • Atkenos

      It is about time that the national constitution was amended to incorporate recognition of local government, being that level of government known and respected for being closer to the people than state or federal governments. But then as a local government councillor I am somewhat biased.

      • http://australianpolitics.com Malcolm Farnsworth

        The Gillard government has committed itself to a referendum to recognise local government in the Constitution. There has been no announcement on when this referendum will take place. It may be held at the same time as the referendum to recognise Indigenous Australians in the Constitution.

    • Andrewm

      Under the federal consitutuion do States have the right to raise taxes (as distinct from a levy for example) – I was of the understanding that only the Commonwelath could do this?

      • http://australianpolitics.com Malcolm Farnsworth

        Taxes can be levied by the States and the Commonwealth. In the 1940s the States gave their power to impose income tax to the Commonwealth. State taxes include Stamp Duty, fuel excises, gambling taxes, land tax, etc.

        Today most taxation revenue is raised by the Commonwealth: income tax, GST, company tax, etc. However, much of this revenue is then distributed to the states for general or specific purposes. This is why federalism is such an important political issue in Australia.

    • Lj Webb

      i agree with LJ Webb… and australia is the best!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    • Lj Webb

      im the best

    • Lobbybobby1029

      do you think that the constitution is still interpreted and apllied in accordance to the original writers aims? if so.. please explain in a short report.

      • http://australianpolitics.com Malcolm Farnsworth

        Sorry, but if you want me to write your assignment for you, you’ve come to the wrong place.

      • Succession is Regression

        It’s not. I won’t write a report but look up Balance of Power & Vertical Fiscal Imbalance. They are about how the balance of power between State + Federal gvmts have changed since 1901

    • Guest

      I was wondering where exactly the constitution referred to the separation of powers?

      • http://australianpolitics.com Malcolm Farnsworth

        The Constitution doesn’t mention that term directly but the separation of powers is implicit in many parts of the Constitution, especially in its establishment of the Judicature and the High Court.

        It needs to be remembered that some sections of the Constitution are taken literally (eg. the terms of the Parliament, the appointment of a Governor-General, and many others), whereas other sections operate under conventions (eg. the appointment of ministers, the existence of the prime minister, Royal Assent to legislation, and many others).

        These conventions are derived from the British Westminster parliamentary system and have evolved over hundreds of years. The separation of powers between the Legislature, the Executive and the Judiciary is a key convention of this system.

        The separation of powers in the Westminster system should not be confused with the strict separation of powers that operates in the American political system. In the US the Congress, the President and the Judiciary are quite separate institutions, albeit with overlapping powers and shared responsibilities.

        The separation of powers in the Westminster parliamentary system is more blurred because the Executive (PM & Ministers) also sit in the Legislature (House & Senate). The separation with the Judiciary is more distinct.

    • Michelle59

      Yesterday I was told that under the constitution all states were to have eventually given up their parlimentary status. That is that eventually there would only be federal and ” super councils”, across the whole of Australia. Is this fact or fiction?

      • http://australianpolitics.com Malcolm Farnsworth

        Definitely fiction! The states are independent, sovereign entities with their own constitutions.

        There are people who argue that the states should be abolished and replaced with super councils but this would require approval by referendum.

    • Paul

      can yu guys plz help me iv been away on holidays nd part of my yr ten test is to find out these things can yu guys help me plz

      What is thae australian constitution?
      what are the various parts of the constitusion?
      explain how thAustralian Goverment works (upper house/ lower house, making laws, referendum etc.)

      Help plz :(

    • Rogersemini

      what does our constitution say about detainees burning our taxpayer and country premises.

      • http://australianpolitics.com Malcolm Farnsworth

        The Constitution makes no comments on political issues. It simply sets out the structure of the political system and the powers of various elements of it.

        For example, the Constitution gives the Federal Parliament power to make laws about immigration. What those laws are is a decision made by the government of the day and the members of parliament elected by the people.

    • talulah

      awww come on

    • Michelle Blogna

      it does

    • talulah

      hey yall, talulah comin atcha…
      just a quickie , what is the constitution? is it some kind of lawyer talk for government?

      catchya on the flipside

      • Bob

        under clause 66 of federation juvenille constitution act (1984), transition of each reminicent act involved 61 attonment parliament publications. in which desereations of high court parliament to institute the constitution and its colonial rights of digression.

    • Bearrs

      under clause 6 New Zealand is listed as part of the Australian Commonwealth, Is this still applicable? or was it changed at some time? Thanks Bj

      • http://australianpolitics.com Malcolm Farnsworth

        I don’t know what Clause 6 you’re referring to. There was some early discussion in the 1890s about New Zealand joining the federation but it never did.

    • Tinpis777

      Does the Australian constitution give corporations the same rights as a person as does the American constitution.

      • http://australianpolitics.com Malcolm Farnsworth

        There’s an informative article about corporations in the United States HERE.

        The Australian Constitution’s corporations power is set out in Section 51. As I understand it, the High Court has interpreted this power much more narrowly and on a case-by-case basis.

        WikiPedia has an article on the Coporations Power HERE.

        • talulah

          Please let me know more i am dying to get inside your head.
          sharni_chik@hotmail.com anytime babes, i work best at night ;)

    • Lionel

      I have the the same question as Tim
      Lionel

      • Anonymous

        Apologies – fixed now. The site is in transition from its old look to the new.

        • talulah

          appreciate it, thankyou kind sir

          • Sir George II

            excellent work, behold thy word of transition

      • talulah

        As do i lional

    • Tgalli

      Why can’t i open the hyperlink to view the Constitution?
      Tim

      • Anonymous

        Apologies – it’s fixed now. The site is in transition from the old format and this one slipped through. Thanks for letting me know.

        • Dgreen151

          doe the consituttion over power state laws eg speed cameras and fines and can that be used in a defence

          • http://australianpolitics.com Malcolm Farnsworth

            Traffic management, roads, etc, are State responsibilites. The Commonwealth Constitution isn’t really relevant in this area.

            A challenge to the validity/constitutionality of a State law may end up in the High Court for final resolution.

            • guest

              hmmm…. legal studies 3 assignment????

          • William b

            the current HOON laws apear to contradict the agenda of being innocent until proved quilty
            as was the case Of the Doctor in perth who had his Lamborghini confiscated, only to be later proved to have not been quilty of the offence, and subsequently awarded $1800 in costs
            These HOON laws appear to contradict this.. so are these HOON laws even Legal?????