Australian Constitution – Overview

Australian Crest

The Australian Constitution has operated since the federation of the Australian colonies in 1901. It establishes the framework of the main political institutions – legislature, executive and judicature – the relationships between them, and the powers of the Federal Parliament in relation to the States.

The Constitution is technically an act of the British Parliament passed in 1900. The last vestiges of British legislative influence in Australia were eliminated with the passage of the Australia Act in 1986.

The Constitution operates in two ways:

  • Literally – some sections of the Constitution are taken literally and followed to the letter.
  • Conventionally – other sections operate through a series of constitutional conventions which vest real power in the hands of elected politicians.

This mix of interpretation has led to some notable constitutional conflicts over the years, most notably in 1975 when the Governor-General, Sir John Kerr, dismissed the Whitlam Government.

The role of the High Court has also been pivotal, especially since the 1920s. It is widely believed that the difficult process of changing the Constitution has been compensated for by rulings of the Court, particularly in relation to Commonwealth-State powers.

A referendum process is the only means of changing the Constitution, although constitutional referendums are relatively infrequent. There have been only 44 attempts on 19 separate occasions to change the Constitution. Only 8 of these have been successful, the most recent in 1977. Only 4 referendums have succeeded in the past 50 years.

The Constitution consists of a Preamble, 8 Chapters, and a Schedule. It originally contained 128 sections.

Preamble
The Australian Constitution is an Act of the British Parliament. The Australian Constitution is technically Section 9 of “An Act to Constitute the Commonwealth of Australia”. The first 8 sections of the Act record that the people of the Australian colonies have agreed to unite in a federal commonwealth and that the new system of government was not imposed on the Australian people by the British Parliament.

Chapter 1 – The Parliament
This chapter establishes the Commonwealth Parliament as the Legislative Branch of government.

  • Part 1 establishes its legislative power in Australia and provides for a Governor-General, representing the Queen, with power to summon Parliament.
  • Part 2 provides for the composition and election of the Senate, and the filling of Senate vacancies. It details quorums, voting arrangements and the procedure for election of a President of the Senate.
  • Part 3 provides for the composition and election of the House of Representatives and the filling of House vacancies. It details quorums, voting arrangements and the procedure for election of a Speaker of the House of Representatives.
  • Part 4 deals with matters applicable to both houses of Parliament, particularly the qualification of members and the privileges of the Parliament.
  • Part 5 deals with the powers of the Parliament and provides a list of 40 paragraphs of specific powers. This part also deals with the joint powers of the houses and the means of resolving disagreements between the houses.

Chapter 2 – The Executive Government
This chapter deals with the Executive Government, the branch of government which carries out and enforces the laws. It provides for the exercise of executive power by the Governor-General advised by an Executive Council. Section 64 stipulates that Ministers are to be Members of Parliament, the only section of the Constitution that refers to the system of Responsible Government.

Chapter 3 – The Judicature
This chapter provides for the establishment of the Judicature, the branch of government dealing with the courts of law. Section 71 provides that the judicial power of the Commonwealth is vested in the High Court of Australia and other federal courts established by the Parliament. Other sections deal with the appointment, tenure and removal from office of judges of the High Court and other courts. Section 76 gives power to the Parliament to determine the jurisdiction of the High Court.

Chapter 4 – Finance and Trade
This chapter deals with finance and trade. One of the most important sections is Section 83 which provides that no money is to be drawn from the Treasury except under an appropriation by law. Other sections deal with customs duties, requiring that they be uniform throughout the Commonwealth. Section 92 requires that trade and commerce amongst the states shall be absolutely free. Section 96 empowers the Commonwealth Parliament to grant financial assistance to the States. Section 105A, inserted by referendum in 1929, deals with the taking over by the Commonwealth of States’ debts.

Chapter 5 – The States
This chapter deals with the States, providing for the continuance of their constitutions, parliamentary powers and laws. Section 109 provides for Commonwealth law to prevail over State law, but only in those cases where State law is inconsistent with Commonwealth law. Other sections prohibit the States from coining money, raising armed forces or discriminating against the residents of other States. This section also requires that the Commonwealth is to protect the states against invasion or domestic violence.

Chapter 6 – New States
This chapter deals with the procedures for the establishment of new States and provides for the surrender of territories to the Commonwealth by States.

Chapter 7 – Miscellaneous
This Miscellaneous chapter has two sections, one dealing with the establishment of the seat of government, the other providing for the appointment of deputies of the Governor-General. Section 127, dealing with the counting of Aborigines in censuses, was deleted by referendum in 1967.

Chapter 8 – Alteration of the Constitution
This chapters deals with Alteration of the Constitution. It provides that proposals for constitutional alteration be initiated by the Parliament and approved in a referendum by a majority of voters Australia-wide and a majority of voters in a majority of States.

Schedule
The Schedule attached to the Constitution contains the oath or affirmation to be taken by Members of Parliament before they take their seats.

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