what is the Australian Constitution?

Overview of the Australian Constitution

• Definition: A constitution is a fundamental set of principles or established precedents according to which a state is governed.

Australian Constitutions

• State Constitutions: Each Australian state has its own written constitution, e.g., the Victorian Constitution is contained in the Constitution Act 1975 (Victoria).

• Commonwealth Constitution: Australia has a Commonwealth Constitution as enacted by the Commonwealth of Australia Constitution Act 1900.

Purpose and Context of the Constitution

• Contextual Understanding: No constitutional document provides a complete or totally accurate description of government operations. The constitution must be understood in the context of its historical background and objectives.

• Functions of the Australian Constitution:

  • Establishes a federal system of government.

  • Confers legislative, executive, and judicial powers on three distinct bodies:

    • Parliament

    • Executive

    • Judiciary

  • Underpins fundamental principles of responsible government.

Limitations of the Australian Constitution

• Government Structure:

  • Does not create the position of Prime Minister.

  • Makes no reference to a cabinet (the key decision-making body of government).

  • Lacks a Bill of Rights, unlike other countries (e.g., the USA).

Division of Powers in the Constitution

• State Constitutions: Section 106 preserves state constitutions. Each state has its own governing document, such as the Victorian Constitution Act 1975, which allows the Victorian Parliament to enact laws for the state.

• Commonwealth vs. State Law:

  • Section 109 states that when a law of a state is inconsistent with a law of the Commonwealth, the Commonwealth law prevails, rendering the state law invalid to that extent.

  • Section 109 can apply even without direct conflict if Commonwealth laws are intended to deal exclusively with specific subjects.

• Commonwealth Legislative Powers: Section 51 outlines the powers granted to the Commonwealth Parliament, which includes:

  • Concurrent Powers: Powers that can be exercised by both Commonwealth and state parliaments, covering areas such as defense, marriage and divorce, taxation, and immigration.

• Restrictions on Parliament’s Powers: Section 92 prohibits enactment of laws that restrict the freedom of interstate trade, commerce, travel, and communications.

Recap of Key Points

• The Australian constitution establishes a framework for governance, delineates powers between the Commonwealth and the states, and lacks certain features present in other national constitutions.