Kara Sears
The Australian Constitution, also known as the Commonwealth Constitution, is the fundamental law that establishes the country's political structure. It is a written constitution that outlines Australia's government as a federation under a constitutional monarchy with a parliamentary system. The Constitution is divided into eight chapters and 128 sections, with sections 1 to 8 referred to as the covering clauses. While it does not include a bill of rights, the Constitution sets out the structure and powers of the three parts of the federal level of government: the Parliament, the Executive Government, and the Judicature.
| Characteristics | Values |
|---|---|
| Number of Chapters | 8 |
| Number of Sections | 128 |
| First Draft | 1891 |
| Final Draft | 1898 |
| Approval | 1898-1900 |
| Passed in Britain | 1900 |
| Came into Effect | 1 January 1901 |
| Type of Monarchy | Constitutional |
| Rights of Australian People | Not detailed, protected by common law and statute law |
| Change Requirements | Approval of Parliament and Australian people via referendum |
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What You'll Learn
The Australian Constitution's structure
The Australian Constitution, also known as the Commonwealth Constitution, is the fundamental law that governs the country's political structure. It establishes Australia as a federation under a constitutional monarchy with a parliamentary system. The Constitution is divided into eight chapters and 128 sections, outlining key features of Australia's system of government, including:
The Parliament
The Australian Constitution establishes a bicameral Parliament, consisting of two houses: the Senate and the House of Representatives. The King is also represented in Parliament by the Governor-General.
The Executive Government
The Constitution outlines the role of the Executive Government, although it does not mention the Prime Minister or the Cabinet. The Prime Minister and Cabinet operate by custom and tradition, similar to the British system.
The Judicature
The Constitution establishes the High Court of Australia as the final court of appeal. The High Court interprets the Constitution, decides its meaning, and settles disputes between the Australian and state governments.
State Governments
The Australian Constitution provides for six state governments, each responsible for managing state matters. It also outlines power-sharing arrangements between the Australian and state parliaments.
Constitutional Rights
The Australian Constitution protects a small and limited number of constitutional rights. Unlike the Constitution of the United States, Australia's does not include a bill of rights. Instead, rights are protected by common law and statute law.
Amendment Process
The Australian Constitution can only be amended by referendum, requiring a double majority: a nationwide majority as well as a majority of voters in a majority of states. This process ensures that any changes to the Constitution are approved by the Australian people.
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The monarchy and succession
The monarchy of Australia is a constitutional monarchy, with a hereditary monarch serving as the head of state and the country's sovereign. The current monarch is King Charles III, who has reigned since 8 September 2022. The monarch is represented at the federal level by the governor-general, who is currently Samantha Mostyn, and in each state by a governor, assisted by a lieutenant-governor. This system of monarchy is modelled on the Westminster system of parliamentary democracy and responsible government but incorporates unique features of the Australian Constitution.
The Australian Constitution, as a result of the Statute of Westminster 1931, allows for the passing of laws that may conflict with UK laws. However, to maintain consistency in succession laws, any changes to succession require the consent of the parliaments of each Commonwealth realm. This was demonstrated in 1936, when the UK Declaration of Abdication Act applied automatically to Australia due to its status as a dominion, even though Australia had not yet adopted the Statute of Westminster. Nonetheless, the Australian federal Parliament passed a resolution of assent as a courtesy.
The most recent reforms to the succession occurred with the Perth Agreement in 2011, where all Commonwealth realms agreed to changes, including removing the preference for male heirs and repealing the Royal Marriages Act 1772, which prevented the monarch from marrying a Roman Catholic. These reforms highlight the ongoing evolution of succession laws and Australia's role in shaping them.
While there have been occasional suggestions for a uniquely Australian monarch or an alternative head of state, such as an Indigenous "First Elder", the monarchy in Australia remains a central component of its system of government. The date of the Australian Crown's separation from the British Crown is debated, but it likely occurred between the 1930s and 1940s, with the process completed by 1948. This separation gave rise to questions about the role of the Crown in the Australian states and the potential for a divisible Crown.
In summary, the monarchy and succession laws in Australia are complex, shaped by historical factors and ongoing negotiations. The monarchy remains an integral part of Australia's government, with the monarch serving as the head of state, and any changes to succession laws require the involvement and consent of all Australian states and territories, ensuring a cooperative approach to constitutional matters.
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Commonwealth law and state law
The Australian Constitution sets out the responsibilities of the Commonwealth and State Governments. The Federal Register of Legislation is the authorised website for Commonwealth legislation and related documents. The National Library of Australia also holds a complete set of the acts of the Parliament of the Commonwealth of Australia.
Commonwealth laws are administered by a number of regulatory authorities, most commonly the Department of Climate Change, Energy, the Environment and Water. The Commonwealth has direct responsibility for Commonwealth land, the management of Australia's external territories, and the coastal seas outside the State three-mile limit, within the 200km "exclusive economic zone".
State laws are made by Acts of the State Parliament or by ordinances made by the Governor-General. In some areas, Commonwealth and State laws overlap, resulting in legislation on the same subject matter. When a state law conflicts with a Commonwealth law, Section 109 of the Constitution states that the Commonwealth law prevails, and the inconsistent parts of the State law become inoperative. However, determining whether an inconsistency exists can be challenging. A conflict will arise if a State law "alters, impairs, or detracts" from the operation of the Commonwealth law. For example, if a State law permits an action that a Commonwealth law forbids, or vice versa.
In practice, the two laws are compared to determine whether there is a "real conflict". This can be a complex process, as demonstrated in the case of Work Health Authority v Outback Ballooning Pty Ltd, which involved the death of a woman while boarding a hot air balloon. The case sparked a lengthy judicial debate about the regulation of hot air balloon rides and the relevant safety laws.
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The Australian Constitution vs. the US Constitution
The Australian Constitution and the US Constitution differ in several key ways. Firstly, in terms of visibility and cultural significance, the US Constitution is considered more central to the country's civil religion, while the Australian Constitution is described as "virtually invisible" within Australian culture and political discourse. A 2015 survey found that over a third of Australians had not even heard of their Constitution.
Structurally, the Australian Constitution is contained within an act passed by the United Kingdom, deriving its authority from the consent of the Queen and the UK Parliament. In contrast, the US Constitution describes itself as an expression of the national will, beginning with the words "We the People". The Australian Constitution lacks an explicit statement of values, aspirations, or rights, unlike the US Constitution, which emphasises personal liberty.
In terms of governmental systems, Australia is a constitutional monarchy, with the British monarch as the head of state, represented by a Governor-General chosen by the Prime Minister. In contrast, the US is a republic, with the President serving as both head of state and head of government, directly elected by the people. Australia's government, including the ministry, cabinet, and executive, is drawn from the parliament and responsible to it. On the other hand, the US Executive branch operates independently of Congress, and no individual can simultaneously be a member of Congress and a minister.
There are also differences in legislative processes and election systems. In Australia, legislation is automatically ratified by the Governor-General once passed by both houses of parliament. In contrast, US legislation requires both legislative approval and the president's signature. Australia has compulsory electoral enrolment and voting, while voting in the US is voluntary. Members of the Australian House of Representatives serve 3-year terms, while their US counterparts serve 2-year terms. Additionally, the Australian Senate can be dissolved in the event of a deadlock, whereas the US Senate cannot be dissolved.
Both countries have ongoing debates about changes to their constitutions. In Australia, debates include the inclusion of a preamble, proposals for an Australian republic, and formal recognition of Indigenous Australians. In the US, there have been debates about various amendments over the years, including those related to civil rights and liberties.
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How the Australian Constitution can be changed
The Australian Constitution is a set of rules by which Australia is governed. It outlines the structure, role, and powers of the Australian Parliament, the roles of the executive government and the High Court of Australia, and some of the rights of Australian citizens, such as the right to religious freedom. The Constitution is divided into 8 chapters and 128 sections.
The Australian Constitution can only be changed through a process called a referendum, which requires the approval of the Australian people. Ideas for changes to the Constitution can be proposed by members of parliament, interest groups, or individuals. If a proposal gains support, it must be approved by parliament before being put to a vote in a referendum.
A referendum is a vote by Australians to decide whether to support or reject a bill proposing a change to the Constitution. The Australian Electoral Commission (AEC) is responsible for conducting referendums, which must take place between two and six months after a bill is passed by parliament.
For a referendum to be successful, it must receive the support of a majority of voters in a majority of states, as well as a majority of voters nationwide (a "double majority"). Since 1901, there have been 20 referendums proposing 45 changes to the Constitution, but only 8 of these changes have been approved by the Australian people.
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Frequently asked questions
The Australian Constitution is divided into eight chapters and 128 sections. It does not detail many of the rights of the Australian people and does not include a bill of rights.
The eight chapters of the Australian Constitution outline the structure and powers of the three constituent parts of the federal level of government: the Parliament, the Executive Government, and the Judicature.
A proposed change must be approved by the Parliament and then voted on by Australians in a referendum. A referendum is only passed if approved by a majority of voters in a majority of states and by a majority across the nation.
The Australian Constitution, also known as the Commonwealth Constitution, is the fundamental law that governs the political structure of Australia. It establishes the country as a federation under a constitutional monarchy governed by a parliamentary system.
The Australian Constitution was drafted between 1891 and 1898 at a series of conventions led by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania.
