Overview

The Australian Constitution has properly been described as 'the birth certificate of a nation'. It also provides the basic rules for the government of Australia. Indeed, the Constitution is the fundamental law of Australia binding everybody including the Commonwealth Parliament and the Parliament of each State. Accordingly, even an Act passed by a Parliament is invalid if it is contrary to the Constitution.

Background to the Constitution

The Constitution was drafted at a series of conventions held during the 1890s and attended by representatives of the colonies. Before the Constitution came into effect, its terms were approved, with one small exception, by the people of New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania.

The Australian Constitution was then passed as part of a British Act of Parliament in 1900, and took effect on 1 January 1901. A British Act was necessary because before 1901 Australia was a collection of six self-governing British colonies and ultimate power over those colonies rested with the British Parliament. In reality, however, the Constitution is a document which was conceived by Australians, drafted by Australians and approved by Australians.

Since that time, Australia has become an independent nation, and the character of the Constitution as the fundamental law of Australia is now seen as resting predominantly, not on its status as an Act of the British Parliament, which no longer has any power over Australia, but on the Australian people's decision to approve and be bound by the terms of the Constitution.

What has been judicially described as 'the sovereignty of the Australian people' is also recognised by section 128 which provides that any change to the Constitution must be approved by the people of Australia.

The Constitution itself is contained in clause 9 of the British Act. The first eight clauses of the British Act are commonly referred to as the 'covering clauses'. They contain mainly introductory, explanatory and consequential provisions. For example, covering clause 2 provides that references to 'the Queen' (meaning Queen Victoria, who was British sovereign at the time the British Act was enacted) shall include references to Queen Victoria's heirs and successors.

Creation of the Commonwealth of Australia

On the commencement of the British Act on 1 January 1901, the Commonwealth came into being and the six colonies became the six States of Australia (covering clauses 4 and 6).

The Federal Structure

The Constitution establishes a federal system of government. It is for this reason that the establishment of the Commonwealth in 1901 is often referred to as 'federation'. Under a federal system, powers are distributed between a central government and regional governments. In Australia, that distribution is between the Commonwealth and the six States. (The relationship between the Commonwealth and the Territories is discussed below.)

Separation of Powers

Chapters I, II, and III of the Constitution confer the legislative, executive, and judicial powers of the Commonwealth on three different bodies which are established by the Constitution – the Parliament (Chapter I), the Executive Government (Chapter II), and the Judicature (Chapter III). Legislative power is the power to make laws. Executive power is the power to administer laws and carry out the business of government, through such bodies as government departments, statutory authorities and the defence forces. Judicial power is the power to conclusively determine legal disputes, traditionally exercised by courts in criminal trials and litigation about such things as contracts and motor accidents.

Despite the structure of the Constitution there is no strict demarcation between the legislative and executive powers of the Commonwealth. Only the Parliament can pass Acts, but these Acts often confer on the Executive Government the power to make regulations, rules and by-laws in relation to matters relevant to the particular Acts.

For example, the Parliament may enact in the Customs Act that no person may bring a 'prohibited import' into Australia and then leave it to the Executive to specify in the Customs Regulations what is a 'prohibited import'. This delegation of legislative power is not as extreme as it may appear, however, as both Houses of Parliament usually retain the power to 'disallow' (that is, reject), within a specified time, any regulation which has been made by the Executive.

The distinction between the Parliament and the Executive Government is further blurred by the fact that the Prime Minister and the other Government Ministers (who form part of the Executive) must be members of Parliament. This reflects the principle of responsible government (discussed below) under which Government Ministers must be members of, and accountable to, the Parliament.

By contrast, the separation between the Judicature on the one hand and the Parliament and the Executive Government on the other is strict. Only a court may exercise the judicial power of the Commonwealth, so that, for example, the question whether a person has contravened a law of the Parliament (for example, by bringing a 'prohibited import' into the country) can only be conclusively determined by a court.

The Crown and Responsible Government

As well as being a federation, Australia is a constitutional monarchy. Under this system of government, as the term suggests, the head of State of a country is a monarch whose functions are regulated by a constitution. The concept of 'the Crown' pervades the Constitution. For example, the Queen is part of the Parliament (section 1), and is empowered to appoint the Governor-General as her representative (section 2). The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as her representative (section 61).

Despite the terms of the Constitution, the Queen does not play a day-to-day role in the Commonwealth Government. Those few functions which the Queen does perform (for example, appointing the Governor-General) are done in accordance with advice from the Prime Minister.

The Governor-General performs a large number of functions. However, apart from exceptional circumstances (discussed below), the Governor-General acts in accordance with the advice of Commonwealth Ministers. The reason for this is the principle of 'responsible government' which is basic to our system of government and which underlies our Constitution. Under this principle, the Crown (represented by the Governor-General) acts on the advice of its Ministers who are in turn members of, and responsible to, the Parliament. It is for this reason that section 64 of the Constitution requires Ministers to be, or become, members of Parliament.

There is a small number of matters (probably only four) in relation to which the Governor-General is not required to act in accordance with Ministerial advice. The powers which the Governor-General has in this respect are known as 'reserve powers'. The two most important reserve powers are the powers to appoint and to dismiss a Prime Minister. In exercising a reserve power, the Governor-General ordinarily acts in accordance with established and generally accepted rules of practice known as 'conventions'. For example, when appointing a Prime Minister under section 64 of the Constitution, the Governor-General must, by convention, appoint the parliamentary leader of the party or coalition of parties which has a majority of seats in the House of Representatives.

There can be circumstances, however, where there is no generally agreed convention to control the exercise of the Governor-General's reserve powers. Such a situation arose in 1975 when the Governor-General, Sir John Kerr, dismissed the Prime Minister, Mr E.G. Whitlam, after the Senate – controlled by Opposition parties – blocked the passage of the Supply Bill in an attempt to deprive the Whitlam Government of the funds needed to govern. Some people argue that Sir John acted properly in dismissing Mr Whitlam as it was consistent with a 'convention' that a Prime Minister who cannot obtain supply should either seek a general election or be dismissed. Others contend that the dismissal of Mr Whitlam breached the convention that a person who retains majority support of the House of Representatives, as Mr Whitlam did, is entitled to remain Prime Minister.

Representative Government

Another fundamental principle which underlies the Constitution is that of 'representative government' – that is, government by representatives of the people who are chosen by the people. Consistently with this principle, sections 7 and 28 of the Constitution require regular elections for the House of Representatives and the Senate, and sections 7 and 24 require members of the Commonwealth Parliament to be directly chosen by the people.

Commonwealth Parliament

The Constitution established the Commonwealth Parliament comprising the Queen, a House of Representatives and a Senate (sections 1–60). The people of each of the six States elect the same number of senators (currently 12), regardless of their State's population, and the people of the Northern Territory and the Australian Capital Territory are each currently represented by two senators. This gives a total of 76 senators. In the House of Representatives the number of seats from each State (and Territory) depends on the population (although each State is guaranteed at least five seats). The current number of members of the House of Representatives is 150.

Before a proposed law (commonly referred to as a Bill) becomes an Act of Parliament it must be passed by both the House of Representatives and the Senate. The Bill is then presented to the Governor-General who assents to it in the Queen's name (section 58). A Bill becomes an Act of Parliament when it receives this assent. Nearly all Bills which subsequently become Acts of Parliament are proposed by the Government – that is, the parliamentary party or coalition of parties which holds a majority of seats in the House of Representatives.

Subject to the few exceptions referred to in section 53 in relation to the initiation and amendment of Bills which appropriate revenue or impose taxation, the Senate has equal power with the House of Representatives in respect of all Bills. Often the Government does not have a majority of seats in the Senate. Accordingly, disputes may arise between the two Houses as to whether a Bill should be passed in its proposed form. These disputes are nearly always resolved by the two Houses.

Section 57 prescribes the procedure for resolving any irreconcilable disagreement between the two Houses. That procedure essentially involves the dissolution of both Houses of Parliament by the Governor-General (that is, a 'double dissolution'), the holding of an election for both the House of Representatives and the Senate, and then, if necessary, the convening of a joint sitting of the two Houses following the election to determine whether the proposed law or laws which led to the dissolution should be passed.

Commonwealth Legislative Powers

The Constitution confers the power to make laws on the Commonwealth Parliament. However, the power of the Commonwealth Parliament to make laws is limited to particular subjects. Most of these subjects are listed in sections 51 and 52. They include defence; external affairs; interstate and international trade; taxation; foreign, trading and financial corporations; marriage and divorce; immigration; bankruptcy; and interstate industrial conciliation and arbitration.

This list of powers given to the Commonwealth Parliament does not expressly refer to a number of important subjects including education, the environment, criminal law, and roads – but this does not mean that those subjects are wholly outside the Parliament's powers. For example, even though the Commonwealth Parliament has no specific power in relation to the environment, it can, under its external affairs power, prohibit the construction of a dam by a State if that is necessary to give effect to an international agreement on the environment. The legislative powers of the Commonwealth Parliament can also be expanded by the Parliaments of the States referring matters to the Commonwealth Parliament under section 51(xxxvii).

The States and their Legislative Powers

Under the federal system created by the Australian Constitution, the six former colonies became the six States of Australia. Before federation, each of the six colonies had its own constitution. These constitutions regulated, among other things, the Legislature, the Executive Government, and the Judiciary of the States. The Australian Constitution expressly guarantees the continuing existence of the States and preserves each of their constitutions. However, the States are bound by the Australian Constitution, and the constitutions of the States must be read subject to the Australian Constitution (sections 106 and 107).

Under the constitutions of each of the States, a State Parliament can make laws on any subject of relevance to that particular State. Subject to a few exceptions, the Australian Constitution does not confine the matters about which the States may make laws. (The most important exceptions are that the States cannot impose duties of customs and excise (section 90) and cannot raise defence forces without the consent of the Commonwealth Parliament (section 114).) Accordingly, the State Parliaments can pass laws on a wider range of subjects than the Commonwealth Parliament, and for this reason important areas such as education, criminal law, and roads are regulated primarily by laws of the States rather than by laws of the Commonwealth Parliament.

The Relationship between Commonwealth and State Powers

Although the State Parliaments can pass laws on a wider range of subjects than the Commonwealth Parliament, the Commonwealth is generally regarded as the more powerful partner in the federation. One of the principal reasons for this is section 109 of the Constitution which provides that if a valid Commonwealth law is inconsistent with a law of a State Parliament, the Commonwealth law operates and the State law is invalid to the extent of the inconsistency.

Accordingly, the Commonwealth can, within the subject matters conferred on it by the Constitution, override State laws. As a result, many subjects of Commonwealth power are regulated almost entirely by Commonwealth law, for example, bankruptcy, marriage and divorce, and immigration. Further, the States have traditionally not raised sufficient revenue to perform all their functions. During the Second World War, Commonwealth legislation effectively excluded the States from imposing income tax, and since then, various political and economic considerations have resulted in income tax being imposed solely by the Commonwealth. Also, the States are unable to impose taxes of customs and excise (section 90). Consequently, the States have received grants of financial assistance from the Commonwealth. Many of these grants are made without conditions.

Section 96 of the Constitution, however, allows the Commonwealth to make conditional grants of money to the States for any purpose. This power to impose conditions on how the money is spent by the States allows the Commonwealth to influence the way things are done in areas over which it has no direct power to pass laws. For example, the Commonwealth has exerted significant control over universities in this way even though it has no specific power in relation to education.

The Executive Government of the Commonwealth

A literal reading of the Constitution does not give much information about how the Executive Government of the Commonwealth functions. For example, the terms of Chapter II (sections 61–70) give the impression that the Governor-General has sweeping powers in relation to the Commonwealth Government. Section 61 says that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General, while section 68 provides that the command of the defence forces is vested in the Governor-General.

The Governor-General, however, exercises his or her powers in accordance with the principle of responsible government (discussed earlier). Consequently, in all but exceptional circumstances, the Governor-General acts in accordance with advice from the Ministers of the Government. The appointment of Ministers and the creation of Departments of State to administer the Government of the Commonwealth are referred to in section 64. Section 64 also provides that Ministers must be, or become, members of Parliament.

In practice Ministers are also members of the parliamentary party or coalition of parties which holds a majority of seats in the House of Representatives. Ministers may either be senators or members of the House of Representatives, although established constitutional practice dictates that the Prime Minister must be a member of the House of Representatives rather than a senator. Despite their importance to the operations of the Executive Government, neither the head of the Government (the Prime Minister) nor the principal decision-making body in the Government (the Cabinet, which is made up of senior Government Ministers) is mentioned in the Constitution.

The Federal Executive Council, which is referred to in various provisions of the Constitution, and in the expression 'Governor-General in Council', comprises all past and current Ministers. However, only current Ministers take part in Executive Council business, and usually only two or three Ministers attend meetings of the Council with the Governor-General. Unlike the Cabinet, the Executive Council is not a deliberative body. Its principal functions are to receive advice and approve the signing of formal documents such as regulations and statutory appointments.

Federal Judicature

Chapter III of the Constitution (sections 71–80) provides for the establishment of the High Court of Australia. One of the High Court's principal functions is to decide disputes about the meaning of the Constitution. For example, it is the High Court which ultimately determines whether an Act passed by the Commonwealth Parliament is within the legislative powers of the Commonwealth. The power which the High Court has to interpret the Constitution means that it is a very important body. The High Court is also the final court of appeal within Australia in all other types of cases, even those dealing with purely State matters such as convictions under State criminal laws.

Chapter III also gives the Commonwealth Parliament power to create other federal courts (for example, the Federal Court of Australia and the Family Court of Australia), and to vest federal judicial power in such courts and in courts of the States. 'Federal judicial power' is judicial power relating to one or more of the classes of dispute set out in sections 75 and 76.

An Australian 'Common Market'

Chapter IV of the Constitution (sections 81–105A) contains provisions regulating, among other things, trade and commerce throughout Australia. The desire to have a single trade area throughout Australia was one of the main reasons for the movement by the Australian people towards federation. To achieve this, Australia needed both uniform customs duties and the abolition of protectionist burdens on interstate trade.

The Constitution achieves the first of these objectives by requiring the Commonwealth Parliament to impose uniform customs duties (section 88) and by prohibiting the State Parliaments from imposing customs duties (section 90). It achieves the second objective primarily by providing in section 92 that trade and commerce between the States shall be 'absolutely free'.

Section 92, in effect, prohibits action by either the Commonwealth or a State which discriminates against interstate trade or commerce and which has the purpose or effect of protecting intrastate trade or commerce of a State against competition from other States. For example, section 92 would be contravened if the New South Wales Parliament, in an attempt to make NSW milk more pricecompetitive, imposed a special tax on all milk sold in NSW which had been produced in Victoria.

Chapter IV also regulates other aspects of finance and trade. Two of the more important provisions are section 81, which provides that all money raised or received by the Executive Government of the Commonwealth is to form one Consolidated Revenue Fund, and section 83, which provides that no money may be expended by the Executive Government of the Commonwealth without the authority of Parliament.

New States

The Constitution makes provision for the establishment and admission of new States (sections 121 and 124). No new States have been established or admitted since federation. Under section 121, a new State can be created by an Act of the Commonwealth Parliament.

Territories

Section 122 empowers the Commonwealth Parliament to make laws in relation to Territories which have been 'surrendered' by the States or which have otherwise been acquired by the Commonwealth. In relation to these Territories (of which there are currently 10), the Commonwealth Parliament can make laws on any subject – that is, it does not share its law-making power with the State Parliaments as it does in relation to the States. The Commonwealth Parliament has conferred a large measure of self-government on the people of three of the Territories, namely the Australian Capital Territory, Norfolk Island, and the Northern Territory.

Rights

The Constitution has no Bill of Rights, such as that found in the United States Constitution, which prevents a legislature from passing laws that infringe basic human rights, such as freedom of speech. Some express protections, however, are given by the Constitution against legislative or executive action by the Commonwealth, but not by the States. Examples are section 51(xxxi) (acquisition of property must be 'on just terms'), section 80 (trial by jury is required in relation to some criminal offences), and section 116 (a right exists to exercise any religion).

Section 117 prohibits the Parliament of a State from discriminating against non-residents of that State. It provides, in effect, that a resident in, say, Victoria shall not be subject to any discrimination or disability in, say, Queensland unless the person would also be subject to that disability or discrimination as a resident of Queensland. (The question whether section 117 limits the lawmaking power of the Commonwealth Parliament has not yet been conclusively resolved by the High Court.)

The High Court has also recognised some implied restrictions on legislative power derived from the fundamental system of government established by the Constitution. For example, because of the separation of powers effected by the Constitution, only a court may exercise the judicial power of the Commonwealth. Accordingly, a law of the Commonwealth Parliament cannot provide for criminal conviction by any body other than a court.

Another example of how implications from the terms or structure of the Constitution can restrict legislative power was provided in 1992 when the High Court declared invalid a Commonwealth law which attempted to restrict the broadcasting of political advertising. The Court decided that the restrictions imposed by that law were inconsistent with a necessary aspect of representative government entrenched by the Constitution – specifically, the right to freedom of communication on political matters.

Amending the Constitution

The Constitution provides a mechanism by which it can be altered, called a referendum. Before there can be any change to the Constitution, a majority of electors must vote in favour of the change. In addition, there must be a majority vote in a majority of States, that is, in four out of the six States. (Further, a proposed amendment which would diminish the representation of a State in the Commonwealth Parliament or which would alter the territorial limits of a State must be approved by a majority of electors in that State.) Ordinarily, before a matter can be the subject of a referendum, both Houses of the Commonwealth Parliament must pass the proposed law containing the suggested amendment of the Constitution (section 128).

Australian Government Solicitor October 2010