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 1860s.

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, but 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. This remains the case, with the Constitution only protecting a small and limited number of constitutional rights.

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 was made after lobbying by the colonial Chief Justices. This change established a right to appeal from the High Court to the UK Judicial Committee of 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 to ensure it would be an "original state". The Commonwealth of Australia was then officially established on 1 January 1901.

Royal Assent to the Commonwealth of Australia Constitution Act

At federation, six British colonies became a single federated nation. Some British Imperial laws remained in force, together with those of the Australian legislatures; although, according to Robert Menzies, "the real and administrative legislative independence of Australia" was never challenged since federation.[9]

The formal power of the British Imperial Parliament to legislate with effect in Australia was restricted by the UK's passage in 1931 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 Westminster retroactively, with the date set to 3 September 1939, when Australia along with the rest of the British Empire entered World War II.

Photo of the Australia Act 1986 (United Kingdom) document located in Parliament House, Canberra

Australia arguably did not 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 UK Judicial Committee of the Privy Council.

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.[10]

A curiosity of the document's history is that the act remains in force as a statute of the UK in its original form,[11] while in Australia it has force with the constitutional amendments made by referendum (its preamble and the covering clauses have never been amended).[12] Australian High Court Justices 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.[13][14][15]

Following the 2017–18 Australian parliamentary eligibility crisis, there was discussion of whether to retain or replace the current constitution.[16][17] 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.[18]

Constitution Day is observed on 9 July, the date Queen Victoria assented to the Commonwealth of Australia Constitution Act in 1900.[19] 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.[20]

The Commonwealth of Australia Constitution Act 1900 (Imp) was granted royal assent on 9 July 1900. It consists of nine sections.

Section 9 contains the Constitution itself. Since the Constitution itself is divided into "sections", sections 1 to 8 of the Act have come to be known for convenience as the "covering clauses". The second covering clause is interpretive, specifying that throughout the Act references to "the Queen" are (in effect) references to whoever is the monarch in the UK.

In this period, "the Crown" was considered to be the same entity everywhere in the British Empire. Although that is no longer assumed, the rules of succession remain almost unchanged.

The Constitution Act contains a preamble. It does not discuss Western Australia due to the late date which it agreed to join Federation. The preamble names all states except Western Australia, mentions the Christian God and recognises the British Crown's authority.

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of

Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain

and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament

assembled, and by the authority of the same, as follows:[21]

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.[22]

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 I also defines the role of the monarch in relation to the legislature, although the monarch's own powers over legislation are now regarded as defunct.

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 inconsistency between the laws. Section 52 contains a brief list of topics that only the Commonwealth may legislate upon.

Some relevant powers of the Governor-General are provided here: to summon, prorogue or dissolve the Federal Parliament, and to give or refuse royal assent to federal bills.

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 power is stated to be exercised by the Governor-General, who appoints a Federal Executive Council and is to act "with" its advice. The Governor-General is empowered to appoint and dismiss ministers, and is the ceremonial Commander-in-Chief of the Australian armed forces. This colonial model differs substantially from the reality, which since Federation has followed constitutional convention drawn from the United Kingdom. By convention, almost all executive authority is exercised by a prime minister and a cabinet..

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 authorised 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, section 75 provides for the High Court's jurisdiction, and section 80 guarantees trial by jury for indictable offences against the Commonwealth.

Chapter IV: Finance and Trade deals with commercial matters within the federation. Section 81 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. Section 101 sets up an Inter-State Commission, now defunct.

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, section 109 provides that Commonwealth legislation prevails over that of a state to the extent of any inconsistency. Section 111 provides for surrender of state territory to the Commonwealth, section 114 forbids states to raise military forces without Commonwealth permission, and also forbids the Commonwealth to tax property of a state government and the reverse. Section 116 forbids the Commonwealth to establish a national religion, to impose any religious observance or prohibit the free exercise of any religion, or to impose a religious test for office.

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.[23]

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.[24] 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[note 1]:

I, (name), do swear that I will well and truly serve His Majesty King Charles the Third, His 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![25]

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.[26]

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 dismissed the Labor Prime Minister Gough Whitlam, and appointed the Liberal Opposition leader Malcolm Fraser as caretaker Prime Minister on the understanding that he would immediately call an election (which he then won). This crisis arose due to the breach of the convention that, in the event of a Senate vacancy, the state government would nominate a replacement from the same political party. This convention was broken by the Lewis government of New South Wales.[29] Notably, this unwritten convention was later formally incorporated into the written constitution via national referendum in 1977.[30] Additionally, the Governor-General Sir John Kerr argued that Gough Whitlam had broken an alleged convention that a prime minister who cannot obtain supply must either request that the Governor-General call a general election, or resign.[31] This view remains controversial, with no consensus amongst legal experts as to whether this convention exists.[32] While the convention that a prime minister must have the confidence of the House of Representatives to govern is accepted as a principle of responsible government, whether this convention extends to requiring the confidence of the Senate to pass supply remains subject to often partisan debate.[32]

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 nationwide majority: a double majority. This reflects the commitment to federalism within the constitution, to ensure that any changes to the document cannot be approved solely with the support of the more populous states.[36]

Forty-five proposals to amend the Constitution have been voted on at referendums, only eight of which have been approved. The eight proposals that have been approved 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.

This low success rate reflects a reluctance of Australian voters to approve changes, rather than the onerous requirements of section 128; only 3 of the 36 failed referenda received a national majority of votes without a majority of states.[37] All but one of the successful referenda also received a majority in each of the states, with exception of the 1910 State Debts referendum which succeeded despite a no vote of 66% in New South Wales.[38]

In the first decades after Federation, before Australia's constitutional relationship with the United Kingdom had been clarified, two serious attempts were made to amend the constitution via a British act of Parliament, in order to circumvent the referendum provisions of section 128:

• In 1917, during World War I, Prime Minister Billy Hughes sought to amend the Constitution to allow for the constitutionally required federal election to be postponed, thereby extending the term of his government.[39] The House of Representatives passed a motion by 34 votes to 17 calling on the British Parliament to amend the Constitution Act; Hughes had already secured the support of the British Government for his tactic. However, the equivalent motion in the Senate was defeated after Nationalist senators Thomas Bakhap and John Keating crossed the floor. Hughes then called the 1917 federal election, which saw his government re-elected.[40]
• In 1934, the Western Australia Government petitioned the British Parliament to amend the Constitution Act to allow it to withdraw from the Federation. This followed a 1933 referendum in which the state voted to secede from the rest of Australia, the results of which were rejected by the Federal Government. The petition, presented by former premier Hal Colebatch, was heard by a joint select committee of the House of Commons and House of Lords, which rejected it on the grounds that it broke the principle of non-interference in Dominion matters recently codified in the Statute of Westminster 1931.[41]

Multiple ongoing debates exist regarding changes to the Australian Constitution. These include debates on the inclusion of a preamble, proposals for an Australian republic, and formal recognition of Indigenous Australians through a Voice to Parliament.

The British act that established the Commonwealth of Australia and sets out the Constitution, includes a preamble, drafted during the 1897–8 constitutional conventions.[42] Since the 1980s, there has been in increase in the support for a change or replacement of this preamble. Despite receiving several submission, the 1988 Constitutional Commission rejected such a change due to the difficulty of drafting a proposal that would be accepted by all Australians and recognise Indigenous Australians, as well as their view that such a change should not be done unless the entire constitution was rewritten.[43]

Following this, the 1998 Constitution Convention recommended the inclusion of a new preamble, alongside their recommendation that Australia become a republic.[44] However, this recommendation was ultimately taken up by a constitutional monarchist, then prime minister, John Howard.[45] A draft, penned by Howard with the assistance of the poet Les Murray,[46] was heavily criticised by the Labor party, Indigenous leaders and the wider public. A modified version was released one day before the passage of legislation that authorised the 1999 referendum. This proposal was again opposed by the Labor party and was eventually defeated with a 60% no vote.[47] While debate around the preamble was minor compared with the debate around the republic, concerns were raised by opponents about the justiciability of the preamble, especially by those that opposed the inclusion of human rights guarantees in the document and by those who felt the court had become unduly "activist" in the wake of the Mabo decision.[48]

Debates on whether Australian should become a republic have existed since Federation.

In November 1999 a referendum was held as to whether the Queen and the Governor-General ought be removed from the Constitution, to be replaced with a President. The referendum rejected the change.

Since 1910, there have been calls for constitutional reform to recognise Indigenous Australians.[49] 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.[50] At the same time, a limitation on including all Indigenous Australians in population counts for constitutional purposes was removed, which in 1967 was relevant only to section 24.[51][52] Since those reforms, other proposals have emerged. Guaranteed parliamentary representatives, a constitutionally recognised 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 Scott 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.[53] However, many right-wing and regional groups have opposed the change.[54]

Primary sources

Secondary sources