Constitution of Australia
The Constitution of Australia is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a federation under a constitutional monarchy governed with a parliamentary system. Its eight chapters set down the structure and powers of the three constituent parts of the federal level of government: the Parliament, the Executive Government and the Judicature.
The Constitution was drafted between 1891 and 1898 at a series of conventions conducted by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania. This final draft was then approved by each state in a series of referendums from 1898 to 1900. The agreed constitution was transmitted to London where, after some minor modifications, it was enacted as section 9 of the Commonwealth of Australia Constitution Act 1900, an act of the Parliament of the United Kingdom. It came into effect on 1 January 1901, at which point the six colonies became states within the new Commonwealth of Australia.
The Constitution is the primary, but not exclusive, source of Australian constitutional law; it operates alongside constitutional conventions, state constitutions, the Statute of Westminster 1931, the Australia Acts 1986, prerogative instruments and judicial interpretations of these laws by the High Court of Australia.
The document may only be amended by referendum, through the procedure set out in section 128. This requires a double majority: a nationwide majority as well as a majority of voters in a majority of states. Only eight of the 45 proposed amendments put to a referendum have passed. Proposals to amend the document to recognise Indigenous Australians and to become a republic are the subject of significant contemporary debate. The most recent referendum occurred on 14 October 2023, in which a proposed amendment to establish an Indigenous Voice to Parliament was rejected.
History
Prior to Federation
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 to ensure that a right of appeal to the Judicial Committee of the Privy Council from the High Court remained. Several colonial chief justices and other conservative and financial interests had called for amendments to be made in London, with the British government also objecting to the proposed bill. Businessmen feared that an Australian court would be unduly influenced by local interests, whilst the UK wished to ensure that no local judgments would cause embarrassment internationally or within the British Empire. Additionally, the restriction went against plans to create a new court of appeal for the whole empire. Following the amendment, restrictions on Privy Council appeals for some constitutional cases remained, with any further restrictions on appeals imposed by the Australian Parliament required to be "reserved for Her Majesty's Pleasure", meaning subject to approval by the UK government.
After this and some other minor changes, the Commonwealth of Australia Constitution Act became law after receiving royal assent on 9 July 1900. This act, also known as the covering act, also authorised the Queen to proclaim the actual act of federation, which was done by Queen Victoria on 17 September 1900, to take effect on 1 January 1901. Prior to this, Western Australia agreed to join the Commonwealth to ensure it would be an "original state" alongside the other five colonies.
After Federation
At Federation, six British colonies became a single federated nation. Some British Imperial laws remained in force, together with those of the Australian colonies although, according to Robert Menzies, "the real and administrative legislative independence of Australia" was never challenged after federation.The power of the British Imperial Parliament to legislate with effect in Australian federal law 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.
The Statute did not however remove the ability for the UK to appoint state governors, make laws that applied to the states and an appeal to the UK Judicial Committee of the Privy Council still existed for certain court cases. These remaining constitutional links to the United Kingdom were removed in 1986 with the passage of the Australia Act, leaving Australia fully independent of the British Parliament and legal system.
In 1988, the original copy of the Commonwealth of Australia Constitution Act 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 Act 1990. The copy was given to the National Archives of Australia.
A curiosity of the document's history is that the act remains in force as a statute of the UK, despite Australia's subsequent independence.
Under traditional legal theory, the Constitution is binding by virtue of the UK parliament's paramount authority over Australian law; however, various members of the High Court and some academics have expressed the view that the Constitution now derives its legal authority from the Australian people. Others contend this question is ultimately not a legal one, with the binding force of the Constitution the grundnorm or starting premise of the Australian legal system.
Following the 2017–18 Australian parliamentary eligibility crisis, there was discussion of whether to retain or replace the current constitution. 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.
Commemoration
Constitution Day is observed on 9 July, the date Queen Victoria assented to the Commonwealth of Australia Constitution Act in 1900. 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.
Document structure and text
Covering clauses
The 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 references to "Her Majesty's heirs and successors in the sovereignty of the United Kingdom". Considering the emergence of a separate Australian monarchy, on one view the plain reading of this section suggests that it ensures that whoever is the monarch of the UK is automatically the monarch of Australia as well. However, other academics have suggested that this clause merely ensures that references to "the Queen" are not restricted to whoever was the monarch at the time of the enactment and extends the meaning of the phrase to whoever is the currently lawful monarch under Australian succession law. As these laws are not automatically the same as those of the UK, it is theoretically possible for the separate people to be monarch of the UK and Australia via either of the countries passing diverging succession legislation. As such, to ensure that both positions are held by the same person, any succession laws must be changed in each Commonwealth realm, as was done most recently following the Perth Agreement.