THE CONSTITUTION

House of Representatives Factsheet No. 13

Revised June 1996


What is a constitution?

A national constitution is a set of rules for governing a country. Such rules may be based on tradition or may be written down in the form of a law or a number of laws. In some countries laws forming the constitution are ordinary laws which can be changed just like any other law, but in most countries the laws forming the constitution have a special status.

The Constitution of Australia has a special status—it cannot be changed in the same way as other laws can be changed and it is a supreme law, that is, it overrides other laws.

How was the Australian Constitution created?

Before 1901 the present Australian States were separate colonies of the then British Empire. When the colonies decided to join together in a federation, representatives from each colony were elected to attend meetings (called constitutional conventions) to draw up a constitution for the new nation. The draft constitution was later approved by a vote of the people in referenda held in each colony.

The new Australian nation was established on 1 January 1901 following the passing of the Commonwealth of Australia Constitution Act by the United Kingdom Parliament. The purpose of the Act was 'to constitute the Commonwealth of Australia'. The Constitution drawn up at the conventions was included as part of this Act, which declared that 'The Constitution of the Commonwealth shall be as follows:— . . .'.

What does the Australian Constitution do?

Australia is a federation of States which each have their own constitution, government and laws. The Australian Constitution originated as an agreement under which the former colonies came together as States in a federation. In brief, the Constitution establishes the form of the federal government (that is, the Commonwealth, national or central government) and sets out the basis for relations between the Commonwealth and the States.

The Constitution—summary

Chapter 1—The Parliament

This chapter, the longest, covers the structure and powers of the federal Parliament, including:

Chapter 2—The Executive Government

The structure and powers of the Executive Government, including:

Chapter 3—The Judicature

The structure and powers of the federal judicial system, including:

Chapter 4—Finance and Trade

Commonwealth finances and trade between the States, including:

Chapter 5—The States

The relations of the States with the Commonwealth. Under these provisions:

Chapter 6—New States

Deals with the creation of new States and gives the Commonwealth power to make laws for the government and representation of the Territories.

Chapter 7—Miscellaneous

Covers the establishment of the Seat of Government (i.e. the Australian Capital Territory) and allows the Governor-General to appoint deputies.

Chapter 8—Alteration of the Constitution

Sets out how the Constitution may be changed (outlined below).

Matters not in the Constitution

Some of the central features of Australia's system of government (described as parliamentary, cabinet or responsible government and also called a Westminster-style system) are not set down in the Constitution but are based on custom and convention. These include the position of Prime Minister and the group of senior Ministers called the Cabinet, who make major policy and administrative decisions and in effect govern the country.

On some matters the Constitution sets down temporary arrangements 'until Parliament otherwise provides'— for example, the first national elections were held under State laws. Later elections were conducted under the provisions of the Commonwealth Electoral Act. Another example is the number of Senators and Members, which may be changed by the Parliament as long as the specific conditions set by the Constitution are met.

Unlike the constitutions of some other countries, the Australian Constitution does not contain a list of the rights of citizens (a 'bill of rights').

Interpreting the Constitution—the role of the High Court

One of the roles of the High Court is the interpretation of the Constitution. The High Court does this only when a ruling on a specific provision of the Constitution is necessary in a case before the court; it does not give advisory opinions.

Interpretation of the Constitution has been needed not only because of disagreements over the meaning and application of particular provisions, but also because of developments which were not foreseen when the Constitution was written (for example, aviation and television).

Through interpretation the effect of the Constitution has been changed over the years. Many of the court's rulings have had the result of extending the powers of the Commonwealth at the expense of the States.

How can the Constitution be changed?

The Parliament can change ordinary laws by passing amending laws, but it can only initiate proposals for changes to the Constitution. The approval of the people of Australia is necessary for any change to the Constitution, just as the approval of the people of Australia was a step in the process of creating the Constitution in the first place. The Constitution itself sets out the way in which it can be changed.

A proposal to alter the Constitution starts as a bill in either House of the Parliament and can be introduced by any Member or Senator. A constitution alteration bill goes through the same stages and follows the same procedures in each House as any other bill (see Factsheet No. 7 — Making laws) with the important exception that its third reading must be passed by an 'absolute majority'. An absolute majority means that it must be agreed to by more than half of the total number of Members of the House—other bills need only the agreement of the majority of Members voting at the time (a 'simple majority').

When a constitution alteration bill has passed both Houses it is voted on by the people of Australia in a referendum (held after two months but within six months). To save expense referenda are usually held at the same time as elections for the House of Representatives and/or the Senate.

A constitution alteration bill does not have to be passed by both Houses of Parliament. If one House refuses to pass a constitution alteration bill which has been passed by the other House, the bill may be submitted to a referendum if the first House passes the bill a second time.

To be successful the proposal must be approved by the majority of voters nationwide, and also by the majority of voters 'in the majority of the States' (that is, in at least four States). If a proposal affects an individual State rather than all States generally, the proposal must also obtain majority approval in the State concerned.

Many proposals for constitutional change have been discussed over the years, but most have not got as far as referendum or have been rejected at referendum. Forty-two proposals to alter the Constitution have been passed by the Parliament and submitted to referendum, but only eight have been successful. These are:

Since 1901 the Constitution has been reviewed by several official bodies, including a Royal Commission (1928); a Conference of Commonwealth and State Ministers (1934); a Convention of Members of Commonwealth and State Parliaments (1942); a Parliamentary Joint Select Committee (1956); a Constitutional Convention (1973); a Constitutional Commission (1988) and a Republic Advisory Committee (1993).

The Constitutional Centenary Foundation was formed in 1991 to encourage public discussion, understanding and review of the Constitution in the lead up to the centenary of federation in 2001.


Suggestions for further reading

Copies of the Constitution are available from Australian Government Bookshops and the Parliamentary Education Office. There are many books about the Constitution. The following references contain information on the Constitution as it affects the Parliament and on the processes involved in passing constitution alteration bills:

House of Representatives Practice, 2nd edn. A.G.P.S., Canberra, 1989. (This book also contains the full text of the Constitution).

Odgers' Australian Senate Practice, 7th edn. A.G.P.S., Canberra, 1995. pp 555–582.


Last updated: 10 July 1996