JC

Australian Constitution – Study Notes (Transcript-based)

What is the Constitution?

  • The Constitution is the founding document and the highest source of law in the Commonwealth of Australia.
  • Technically, it is section 9 of the Commonwealth of Australia Constitution Act 1900 (Imp).
  • It provides the legal framework in which our government, Parliament and courts operate.
  • It turned the colonies into States and created a federal Parliament sitting ‘above’ them, thereby creating the Commonwealth of Australia, with a federal system of government.
  • It defines the policy/topic areas in which the federal Parliament can make laws.
  • It gives the High Court power to strike down laws that are inconsistent with its text and structure (this power is called ‘judicial review’).

Federation

  • Federation occurred on 1 January 1901: the colonies became States, the federal Parliament came into being, and the Commonwealth of Australia was created.

Preamble, Covering Clause & Key Sections

  • Preamble (from the transcript):
    • 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.
  • Covering Clause 3: The Queen has the power to declare by proclamation that the colonies ‘shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia’ – came into effect 1 Jan 1901.
  • Section 106: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth; i.e., Colonies → States.

Legislative Power

  • The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth.

Constitution Structure

  • Chapter I: The Parliament
    • Part I: General
    • Part II: The Senate
    • Part III: The House of Representatives
    • Part IV: Both Houses of Parliament
    • Part V: Powers of the Parliament (notably §51)
  • Chapter II: The Executive Government (Executive power)
  • Chapter III: The Judicature (High Court)
  • Chapter V: The States
  • Chapter VIII: Alteration of the Constitution (referendum requirement)

Section 51 – Commonwealth Heads of Power

  • The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
    • (i) trade and commerce with other countries, and among the States;
    • (ii) taxation; but so as not to discriminate between States or parts of States;
    • (vi) the naval and military defence of the Commonwealth and of the Several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
    • (vii) lighthouses, lightships, beacons and buoys;
    • (x) fisheries in Australian waters beyond territorial limits;
    • (xxvii) immigration and emigration;
    • (xxix) external affairs;
    • (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States.

The Nature of the Constitution – Rigidity and Judicial Review

  • Parliament cannot pass laws that are inconsistent with the Constitution.
  • The Constitution is a ‘fundamental’ document; its text cannot be changed without a referendum; it is enforceable and considered rigid.

Constitutional Conventions

  • Many common features of Australian politics are guided by constitutional conventions – unwritten understandings or implied agreements about how things should be done.
  • Example: The Constitution does not mention the Prime Minister; it is a convention from the British system that the leader of the party with the most seats in the Lower House becomes the leader of the government.
  • This makes the Constitution an incomplete document in the sense that it relies on conventions for full operation.

Preamble, Royal Assent, and Disallowance

  • Preamble text (as quoted): ‘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’.
  • Section 9: ‘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’.
  • Section 58: Royal assent.
  • Section 59: The Queen may disallow any law passed by the Australian Parliament.
  • Discussion prompt in the transcript asks whether this is an outdated document.

Origins of the Constitution

  • Drafted at a series of conventions in the 1890s, drawn up by representatives of Australia’s six colonies.
  • The draft required:
    • approval of voters in each colony,
    • a minister from the United Kingdom government,
    • and the Westminster Parliament.
  • Because of these conditions, concerns over state rights and allegiance to the British Crown are prominent themes in the document.

Views on Indigenous and ‘Coloured’ People at Federation

  • Isaac Isaacs (first Governor-General, and 3rd Chief Justice on High Court): Aboriginal people ‘have not the intelligence, interest or capacity’ to vote.
  • HB Higgins (High Court judge, 1906): thought it ‘utterly inappropriate … to [ask them to] exercise an intelligent vote’.
  • Sir John Forrest (WA Premier): ‘We do not like to talk about [the coloured persons], but it goes without saying that there is a great feeling all over Australia against the introduction of coloured persons’.
  • James Howe (SA delegate): ‘We should as far as possible make Australia home for Australians and the British race alone’.

Amending the Constitution

  • The text can be changed only through a referendum.
  • A referendum is a public vote of all Australians on whether the text should be changed.
  • A Bill including the proposed amendments must first be passed by both houses of Parliament.
  • The changes are then submitted to a vote by the people (like an election).
  • The changes will only be made if approved by:
    • a majority of all Australian voters, and
    • a majority of voters in a majority of States.
  • This is the ‘double majority’ requirement.
  • Referenda have had very limited success, with only 8 of 44 passed; the last was in 1977.

Mode of Altering the Constitution (Article 128)

  • This Constitution shall not be altered except in the following manner:
    • The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament,
    • and not less than two nor more than six months after its passage through both Houses,
    • the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
    • If in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.
  • In formula form (conceptual):
    ext{Passage}
    ightarrow ext{Referendum}
    ightarrow ext{Governor-General assent} \ ext{Conditions: } ext{majority of all voters} \, ext{and} \, ext{majority of voters in a majority of States}
  • Procedural timing: 2 \, \le t \le 6\ \, \text{months} after passage (where t is the time window before submission for referendum).

Referendum Outcome and Plebiscites

  • The transcript discusses a non-binding plebiscite (referendum-like vote) on same-sex marriage.
  • State-by-state results (as presented):
    • Northern Territory: 61%
    • Queensland: 61%
    • Western Australia: 64%
    • South Australia: 63%
    • New South Wales: 58%
    • Victoria: 65%
    • Tasmania: 64%
    • Australian Capital Territory: 74%
  • Source: Australian Bureau of Statistics; The term ‘plebiscite’ indicates non-binding.

What would a Constitution for modern Australia look like?

  • The transcript poses a question about modernizing the Constitution to reflect contemporary values and practice.
  • This section invites consideration of reforms, balancing formal constitutional text with unwritten conventions and modern governance needs.

Connections and Real-World Relevance

  • The Constitution sets the jurisdictional boundaries between Commonwealth and States and the powers that the Commonwealth may exercise (e.g., trade, taxation, defence, external affairs).
  • It operates alongside constitutional conventions that guide day-to-day politics (e.g., appointment of the Prime Minister).
  • The amendment process demonstrates the difficulty of constitutional change and explains why high-stakes issues (e.g., Indigenous recognition, marriage equality) have historically required broad consensus across states and the population.

Key Takeaways

  • The Australian Constitution is both a legal document and a framework shaped by unwritten conventions.
  • Its powers, structure, and amendment process are designed to balance federal and state interests and to require broad public support for lasting change.
  • The High Court has the power of judicial review to ensure legislation complies with the Constitution.
  • Amendments require a double majority and adherence to the formal steps under Article 128; many proposed amendments fail.
  • Historical debates around Indigenous rights and the Crown-era text reveal tensions between democratic ideals and the colonial origins of the document.