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From Academic Kids

The Constitution of Australia consists of a number of documents. The most important of these is the Constitution of the Commonwealth of Australia. The text of the Constitution was originally a schedule to the Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia), an Act of the Parliament of the United Kingdom. But since Australia is now a fully independent state, the text of the Constitution is now regarded as being fully separated from the text in the original Act. Only the Australian people can amend the Constitution, by referendum. Even if the United Kingdom Parliament were to repeal the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia.

Certain other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act, which was passed in equivalent forms by the Parliaments of every state, the United Kingdom, and the Commonwealth. These Acts had the effect of severing all constitutional links between Australia and the United Kingdom, except for the fact that the same person, Queen Elizabeth II, is the head of state of both countries. The only United Kingdom law which today has application for Australia is the law governing the succession to the throne (and even the applicability of this has never been tested).

A number of cases before the High Court of Australia, which has the authority to interpret constitutional provisions, have also had an influence on the development of the Constitution.

A Federal System

The Constitution provided the new system of government for the new federation, the Commonwealth of Australia, which consisted at its inception on January 1, 1901 of the former separate colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia.

The Constitution came into force on ( 1 January 1901 and superimposed a Commonwealth over the colonies without disturbing the existing colonial governments. Prior to federation the Australian colonies were distinct political entities with their own government and parliaments. At federation the Colonies retained their distinct political status and became the States of Australia. The 6 States and the Commonwealth are represented on the 7-pointed Federal Star that appears on the Australian Flag http://en.wikipedia.org/wiki/Australian_flag).

The State parliaments retain a plenipotentiary law-making power, however, the power to make laws in respect of certain matters were ceded to the Commonwealth parliament (to the exclusion of the States) under the Constitution. For example, the Commonwealth parliament has exclusive power to make laws relating to "currency, coinage and legal tender" (section 51(xii)). This means that Australia has a single currency, which was not the case prior to Federation. Other powers include "trade and commerce with other countries, and amongst the States" (section 51(i)) and "external affairs" (section 51(xxix)). A complete list of the Commonwealth parliament's law-making powers is at section 51 of the Constitution. Outside those limited areas listed in section 51 the Commonwealth parliament is without power and cannot legislate for the States.

In addition to the 6 States, Australia has 2 internal territories: the Australian Capital Territory (where the Commonwealth parliament sits) and the Northern Territory (formerly the Northern Territory of the State of South Australia). Unlike the States, the Commonwealth Parliament has plenipotentiary legislative power over the Territories. Although both Territories have their own parliament, the Commonwealth Parliament can pass laws that apply to the Territories or overturn Territory legislation where the subject matter of the law is not listed in section 51.

The Constitution creates a federal system under which the Commonwealth and State parliaments both have legislative power. The Constitution also provides a simple mechanism by which conflicts between Commonwealth and State laws can be addressed. To the extent of any inconsistency between an Act of the Commonwealth parliament and an Act of a State parliament, the Commonwealth Act prevails (section 109). This assumes that the Commonwealth Act is a valid exercise of the Commonwealth's legislative power. Precisely what is a valid exercise of the Commonwealth's legislative power is often a difficult matter to determine. For example, in 1983 the Commonwealth Government used the external affairs power in section 51 to pass legislation which prevented the Hydro-Electric Commission of Tasmania from building a dam on the Franklin River in Tasmania. The Commonwealth Government asserted that it was a signatory to the United Nations Convention for the Protection of the World Cultural and Natural Heritage and, by banning the building of a dam in a World Heritage Area in Tasmania, it was implementing that convention in Australian domestic law and the Commonwealth Act then over-rode the Tasmanian Act that had permitted the building of the dam. The referee in such disputes between the Commonwealth and the States is the High Court of Australia (established under Chapter III of the Constitution). In the landmark High Court case of Commonwealth v Tasmania (the Tasmanian Dams Case) the Commonwealth was successful. Since Federation many disputes between the Commonwealth and the States have been decided by the High Court, leading to an often lively debate within the Australian federal system.

Although the Constitution reserves a relatively limited number of legislative powers to the Commonwealth Parliament, the real situation is somewhat different. The Commonwealth Government collects the vast majority of revenue across all Australian governments. The Commonwealth Parliament also has the power to "grant financial assistance to any State on such terms and conditions as the Parliament thinks fit" (section 96). The Commonwealth uses this constitutional power in concert with its large revenues (relative to the States) to exert de facto control or significant influence in such areas as hospitals, main roads and education that would otherwise be solely within the State's legislative competence.

Head of State

The Constitution does not use the expression "head of state" or assign that role to any person or office. But a number of references in the Constitution make it clear that the authors assumed that the Queen of the United Kingdom, as head of the British Empire, would stand at the head of Australia's constitutional system, although her powers are delegated by the Constitution to the Governor-General of Australia as her representative. With the end of the British Empire, this assumption was no longer automatic, and in 1973, the Monarch was formally designated Queen of Australia, clarifying Australia's status as an independent constitutional monarchy.

Some people argue that since the Governor-General carries out all the functions of a head of state, and is received as a head of state when he travels abroad, the Governor-General ought to be regarded as Australia's head of state. This view is rejected by the Governor-General, who has stated that Queen Elizabeth II is Australia's head of state, and by the Australian government, which continues to put the Queen's head on Australian stamps, coins and banknotes, and otherwise accord her the symbolic status of head of state.

Parliament

Section 1 (of Chapter I) provided that the legislative power was to be vested in Federal parliament, known as the ' Parliament of the Commonwealth', consisting of the Queen, an upper house, called the Senate, and a lower house, called the House of Representatives.

Executive Authority

According to Section 61 (of Chapter II),

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth.

Article 62 provided for a Federal Executive Council to 'advise' the Governor-General in the governance of the Commonwealth. Though the language indicated that the Executive Council was answerable to the Governor-General, in reality it is answerable to the House of Representatives, though the fact that the Senate possesses the power to withdraw Supply complicates the situation, given that loss of Supply in parliamentary democracies has the most severe implications for a government, given that it in theory should either resign or seek a parliamentary dissolution, should Supply be lost or not granted.

The Judiciary

The judicial power of the Commonwealth was vested by Section 71 of Chapter III in a federal supreme court to be called the High Court of Australia. It was to be presided over by a Chief Justice.

The States

Section 106 of Chapter V provided for the continuation of the constitutions of the various states, subject to the provisions of the federal constitution.

Bill of Rights

The Australian constitution does not include a Bill of Rights. The delegates to the 1898 Constitutional Convention were familiar with the Bill of Rights of the United States Constitution, and some delegates favoured a similar section of the proposed Australian Constitution, but the majority of delegates felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create.

Some specific rights were, however, included. Section 80 creates a right to trial by jury for indictable offences against Commonwealth law, although Isaac Isaacs and other liberal delegates pointed out that the Commonwealth could easily evade this provision by changing the definition of indictable offences. In practice this has not been an issue. Section 51 (xxxi) creates a right to just compensation for assets taken by the Commonwealth.

The Victorian radical H.B. Higgins was determined to insert a clause guaranteeing religious freedom in the Constitution. After much debate, the Convention adopted Section 116, based on the First Amendment of the U.S. Constitution, prohibiting the Commonwealth (but not the states) from "making any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion."

Sections 7 and 24 require that both Houses of the Parliament must be "directly chosen" by the people, which was at the time a more democratic system than existed in Britain (which had a hereditary upper house, the House of Lords), or in Canada (where the Senate was, and still is, an appointed house), or in the U.S., where the Senate at this time was chosen by the State legislatures.

In 1988 the Hawke government proposed at a referendum a limited Bill of Rights, but this was rejected by the voters. In 1992 and 1994, however, the High Court of Australia, in a series of cases including the Australian Capital Television case and the Theophanous case, found that the Constitution contained an "implied right" to free speech on political issues, as a necessary part of the democratic system created by the Constitution.

Amendments to the Constitution

Main article Referendums in Australia

Section 128 of Chapter VIII provided that constitutional amendments required

an absolute majority in both houses of the federal parliament

the approval in a referendum of the proposed amendment by a majority of electors nationwide, and a majority in a majority of the states, and the approval of a majority of electors in each state specifically impacted by the amendment.

The 'Other' Constitution

Alongside the Act, other aspects of the Australian constitution include

Letters Patent issued by the Crown

Conventions which evolved over the decades, defining how various constitutional articles should be viewed

While the constitution does not formally create the office of Prime Minister of Australia, such an office developed a de-facto existence as head of the cabinet.

The parliament of the United Kingdom possessed the legal right to make constitutional legislation for the Commonwealth of Australia. From the adoption of the 1931 Statute of Westminster, this could only happen if specifically requested by the Government of the Commonwealth of Australia. This power was only removed by the enactment in 1986 by both Australia and the United Kingdom of the Australia Act, which 'repatriated' the Australian constitution and gave Australia absolute ownership of its lawmaking, to the complete and final exclusion of Britain.

In 1990, the British government passed the Australian Constitution (Public Record Copy) Act 1990 to allow the Australian government to retain the original copy of the Commonwealth of Australia Constitution Act 1900. A copy from the Public Records Office in London was loaned to Australia, and the Australian government requested permission to keep the copy.

The Federal Republic of Australia?

At various times since Federation, debates have raged over whether Australia should become a republic. On 6 November 1999, Australians overwhelmingly rejected a proposal to replace the Queen with a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. There are no current plans for a second referendum. See republicanism in Australia.

Related topics

External links

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The Constitution of Australia consists of a number of documents. The most important of these is the Constitution of the Commonwealth of Australia. The text of the Constitution was originally a schedule to the Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia), an Act of the Parliament of the United Kingdom.

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Australia is a constitutional monarchy. This means that it has a king or queen, but the monarch shares power with the government based on a constitution. A constitution is a set of rules or laws for governing. Although Australia is an independent country, the head of the commonwealth is the British monarch, currently Queen Elizabeth II, known as the head of state. The monarch lives in Great Britain and is usually not in Australia. Therefore, the monarch is represented by a governor-general, who is appointed to the position.

Australia is also a parliamentary democracy. The people of Australia elect representatives to sit in parliament, where laws are made. The head of government is the prime minister. There are three branches of government-legislative, executive, and judiciary. The power to make and manage federal law is divided between these three groups. They are often referred to as the "three arms of government." Each arm has its own powers and responsibilities. Each also has some power over the other two branches. To ensure the government stays fair, no single arm has more authority than another. This is known as the "separation of powers."

Legislative

The Australian Parliament is the legislative body that is central to its democratic system. The constitution gives the Australian Parliament the power to pass laws. Parliament can also authorize the government to spend public money, closely examine government activities, and ensure the government acts in a responsible manner. The Australian Parliament is modeled on both the British Parliament and the United States Congress. It is made up of two chambers, or houses. The upper house is known as the Senate, and the lower house is the House of Representatives. The names of these two chambers came from the United States Congress.

In Australia the House of Representatives is sometimes called "the People's House" or the "house of government." As in the British Parliament, the political party that has a majority in the lower house of the parliament forms the government. The majority can be one political party or a coalition (union) of two or more political parties. The majority party's leader becomes the prime minister. The largest party or coalition without the support of the majority of members in the House of Representatives forms the opposition. Its leader is the leader of the opposition. There are currently 151 members of the House of Representatives, who are elected every three years. Each member represents an electorate (a division of people who can vote). Each state has a number of electorates proportional to its population. The largest state in terms of population is New South Wales and the smallest is Tasmania. Members are elected by a system known as preferential voting. Preferential voting allows a voter to number and rank all candidates for both houses of parliament according to their preferences.

The Senate is the upper house. The Australian Senate consists of 76 senators in total, 12 from each of the six states and 2 from each of the territories. The Senate shares the power to make laws with the House of Representatives. Senators are elected for six-year terms, except for territory senators, who are elected for three-year terms.

Any member can introduce a proposed law (known as a bill), but most bills are introduced by the government. Both the House of Representatives and the Senate have to approve a bill in order for it to become law. A bill may start in either house, but the majority are introduced in the House of Representatives.

Executive

The executive branch has the role of carrying out and upholding the laws. The executive is made up of the monarch (represented by the governor-general), prime minister, and cabinet (senior ministers). The prime minister is the elected leader of the majority party in government. He or she is officially appointed by the governor-general. Once appointed, the prime minister chooses experienced government members to be ministers. There are usually 30 ministers: 20 in the House of Representatives and 10 in the Senate. The ministers are given an area of responsibility (known as a portfolio) and are put in charge of a government department. These cover such areas as health, the environment, education, finance, defence, trade, and immigration. The ministers' roles are to prepare new laws and update or improve existing laws within their department. The prime minister and the ministers are responsible for developing government policy and carrying out laws. The governor-general acts only on the advice of the executive council or the cabinet.

The Cabinet

The cabinet is the main decision-making group of the executive branch. The cabinet consists of the prime minister and a group of the most senior experienced ministers in the government. The cabinet's role is to examine proposed laws, to discuss major national issues, and to determine government policy. The prime minister and the cabinet are not actually mentioned in the Australian Constitution. These roles exist based on tradition and long-established practices.

Federal Executive Council

The Federal Executive Council is a separate body. It consists of all the government ministers and the governor-general. All decisions made by the government need to be confirmed by the Federal Executive Council. It must ensure that the decisions are legal according to the constitution.

Judiciary

The judiciary is the arm of the government that is responsible for interpreting laws under the constitution. The judicial system is made up of federal and state or territory courts. The High Court, as the title suggests, is the highest of all courts in Australia. It is the final court of appeal. The High Court consists of seven judges, one as chief justice and six other members appointed by the governor-general on advice of the prime minister. The judiciary must remain independent from the other two branches of government. It is vital that the judges are impartial (unbiased) in their decisions. They must decide all cases fairly and in accordance with the law. As such, the High Court provides one of the most important checks on the power of the Australian government. The High Court has the power to overrule the decisions of all lower courts and to declare actions of the executive as unlawful.

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On January 1, 1901, the six British colonies of New South Wales, Victoria, South Australia, Western Australia, Queensland, and Tasmania united to create Australia. The...

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Australia is a democracy, which means that its citizens vote at elections for the people who govern them. Australia is also a constitutional monarchy. A monarchy means that the Head of State is a monarch (king or queen) - in Australia's case, the monarch of the United Kingdom.

A monarch is not elected, but inherits the position from either their father or mother. Although the monarch is the Head of State, their powers are limited by what is written in the Constitution.

What is the Constitution?

A constitution is a set of principles about how a nation or organisation will be governed. The Australian Constitution sets out rules of how Parliament acts, what law- making powers it has, and the responsibilities of Federal and State governments. It establishes how the Houses of Parliament-the Senate and House of Representatives-are formed, the length of terms of office of those elected, and how elections are called.
A change to the Constitution can only be made when it passes a referendum, which is a special election when all Australian citizens vote yes or no to a proposed change.

Read more about the Australian Constitution:
https://www.peo.gov.au/learning/closer-look/the-australian-constitution.html There are three levels of government in Australia: Commonwealth, State and Local.
The Commonwealth Government

The Queen is the Head of State of Australia

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Australia is a democracy, which means that its citizens vote at elections for the people who govern them. Australia is also a constitutional monarchy. A monarchy means that the Head of State is a monarch (king or queen) - in Australia's case, the monarch of the United Kingdom.

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The Constitution of Australia is the law that set up the Australian Commonwealth Government and says how it works. It is made up of several documents. The most important is the Constitution of the Commonwealth of Australia. The people of Australia voted in referendums from 1898-1900 to accept the Constitution. The Constitution was then passed as a part of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom. Queen Victoria signed it on 9 July 1900. The Constitution became law on 1 January 1901. Even though the Constitution was an Act of the United Kingdom parliament, the Australia Acts took away the power of the United Kingdom parliament to change the Constitution. Now only the Australian people can change it by referendum.

Two other laws support the Australian Constitution. The first is the Statute of Westminster, as passed by the Commonwealth as the Statute of Westminster Adoption Act 1942. The second is the Australia Act 1986, which was passed by the Parliaments of every Australian state, the United Kingdom, and the Australian Federal Parliament. Together, these Acts had the effect of cutting all constitutional links between Australia and the United Kingdom. Even though the same person, Queen Elizabeth II, is the monarch of both countries, these are now separate countries.

Under Australia's common law system, the High Court of Australia and the Federal Court of Australia have the power to decide what the constitution actually means.

The history of the Constitution of Australia began with moves towards federation in the 19th century. The Australian colonies joined together to form the Commonwealth of Australian in 1901.

Federation.

In the mid- 19th century, the Australian colonies needed to work together on things that affected them all, especially tariffs between the colonies. This cooperation led to plans to join the colonies together in a single federation. The push to do this came mainly from Britain and there was little local support. The smaller colonies thought they would be taken over by the larger ones. Victoria and New South Wales did not agree about the need to protect local industry, as opposed to allowing everyone to trade freely. The then-recent American Civil War also weakened the case for federalism. These difficulties led to the failure of several attempts to bring about federation in the 1860s and 1850s.

By the 1880s Australians were worried about the growing presence of the Germans and the French in the Pacific. Along with a growing Australian identity, this created the opportunity to start the first inter-colonial body, the Federal Council of Australasia, in 1885. This Federal Council could make laws on certain subjects, but did not have a permanent office, an executive, or its own source of income. New South Wales, the largest colony, would not take part.

Henry Parkes, the Premier of New South Wales, pushed for a series of conferences in the 1890s to talk about federalism. The first was in Melbourne in 1890, and another, the National Australasian Convention, in Sydney in 1891. These were attended by colonial leaders. By the 1891 conference, many people wanted a federal system. Most of the discussion was about how this federal system would work. With help from Sir Samuel Griffith, a draft constitution was written. These meetings did not have popular support. The draft constitution also left out important, but difficult, issues, such as tariff policy. The draft of 1891 was given to colonial parliaments but was not supported by New South Wales. Without New South Wales, the other colonies were unwilling to continue.

In 1895, the six premiers of the Australian colonies agreed to set up a new Convention by popular vote. The Convention met over the course of a year from 1897 to 1898. The meetings produced a new Constitution that was the same as the 1891 draft, but with added provisions for responsible government. To get popular support, the draft was voted on by the electors of each colony. After one failed attempt, a changed draft was given to the electors of each colony except Western Australia. Five colonies passed the Bill that was then sent to the Westminster Parliament with a letter requesting the Queen to make it into law.

The British government made one change before the Bill was passed. The Chief Justices of the colonies wanted the right to appeal decisions of the High Court to the Privy Council on constitutional matters. They were worried that the limits of the powers of the Commonwealth or States could be changed by parliament. The British Parliament passed the Commonwealth of Australia Constitution Act in 1900. Western Australia finally agreed to join the Commonwealth in time for it to join the Commonwealth of Australia, which officially began on 1 January 1901.

In 1990, the Public Records Office in London loaned the original copy 1900 of the Commonwealth of Australia Constitution Act to Australia. The Australian government wanted to keep the copy. The British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990.

The Statute of Westminster and the Australia Acts

Although Federation made Australia independent of Britain, legally the Commonwealth was a creation of the British Imperial Parliament, through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia. As a result, there was continued uncertainty as to whether British Imperial laws still applied to the Commonwealth. This was fixed by the Statute of Westminster 1931, adopted by the Commonwealth via the Statute of Westminster Adoption Act 1942. The Statute of Westminster freed the Dominions, including the Commonwealth, from Imperial laws and controls. Legally, this is the moment of Australia's national independence.

However, British laws were still more important in Australian states. This was fixed by the Australia Act 1986, which was passed by the parliaments of Australia, the United Kingdom, and each of the states. This law stopped the British Parliament's power to make laws over Australian states. It also stopped appeals from the Australian courts to the Judicial Committee of the Privy Council. As this was a very important document, Queen Elizabeth II travelled to Australia to sign the proclamation of the law.

One result of these two laws is that Australia is now a fully independent country. The Constitution is now different from the original Act, as the Australian people can change the Constitution, by referendum. However, the original Act remains on the UK's law book with a note saying, "The Constitution is not necessarily in the form in which it is in force in Australia". Even if the United Kingdom Parliament were to remove the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia.

The Commonwealth of Australia Constitution Act 1900 (Imp) contains a Preamble, and nine sections. Sections 1- 8 are the laws to set up the Commonwealth. Section 9, starting with the words "The Constitution of the Commonwealth shall be as follows ...", contains the Constitution of the Commonwealth of Australia. The Constitution itself is in eight chapters, with 128 sections.

The Parliament

Chapter I sets up the Parliament of Australia. This has three parts:

Section 1 says that legislative power belongs to the Parliament. It is the most powerful part of government.

Part II of Chapter 1 is about the Senate. Senators are to be "directly chosen by the people of the State", voting as a single electorate. Each State is to have the same number of senators. Currently, there are 12 senators for each State, and 2 each for the mainland territories, the Northern Territory and the Australian Capital Territory.

Part III of Chapter 1 is about the House of Representatives. Section 24 says the House must have twice as many members as the Senate, each elected by a single electorate. This is called the 'Nexus'. It designed to prevent swamping of the senate's power in the case of a joint sitting (see Section 57 below). The number of electorates in a State is to be based on its share of the national population.

Part IV of Chapter 1 says who can vote, who can be elected to the parliament, how much members can be paid, parliamentary rules and related matters.

Part V of Chapter 1 is about the powers of the parliament. Section 51 deals with powers of the Commonwealth parliament and are called "specific powers". There are also "concurrent powers", and both the Commonwealth and the States can make laws on these subjects. Federal law is more important if the laws are different (Section 109). Of the thirty-nine parts of section 51, a few have become very important in deciding how much power the Commonwealth government has in law. These include the Trade and Commerce Power, the Corporations Power and the External Affairs Power. Section 52 deals with powers that belong only to the Commonwealth parliament. States cannot make laws on these subjects.

The Executive Government

Chapter II sets up the executive branch of government. Executive power is to be exercised by the Governor-General, advised by the Federal Executive Council. The Governor-General is the commander in chief. He or she may appoint and dismiss the members of the Executive Council, ministers of state, and all officers of the executive government. These powers, along with the powers to dissolve (or refuse to dissolve) parliament (Section 5, Section 57), are termed " reserve powers". The use of these powers is by convention. Generally, the Governor-General acts only on the advice of the Prime Minister. There has been only one instance of the Governor-General not taking the Prime Minister's advice. Governor-General Sir John Kerr, acting on his own, dismissed Prime Minister Gough Whitlam in the 1975 Australian constitutional crisis.

Reserve powers in all Westminster nations are only extremely rarely exercised outside of the understood conventions. However, in contrast with the constitutions of other Commonwealth Realms such as Canada, which formally grant extensive reserve powers to the Monarch, even the formal powers of the Queen of Australia are extremely limited, and most powers can be used only by the Governor-General.

Section 68 says that the Command in chief of Australia's naval and military forces "is vested in the Governor General as the Queen's representative". The Commander in chief of the Australian Defence Force is now Her Excellency Quentin Bryce as the Governor General of Australia. The Queen of Australia is not in command of the military.

The Judicature

Chapter III sets up the judicial branch of government. Section 71 gives judicial power to a "Federal Supreme Court" called the High Court of Australia. The Parliament can also make new federal courts or give other courts federal powers. Such courts, called "Chapter III Courts", are the only courts that can use federal judicial power. Sections 73 and 75-78 outline the original and appellate jurisdiction of the High Court. Section 74 explains how an appeal can be made to the Queen in Council. Section 79 allows Parliament to limit the number of judges able to exercise federal jurisdiction and section 80 guarantees trial by jury for indictable offences against the Commonwealth.

Finance and Trade

Chapter IV deals with finance and trade in the federal system. Section 81 says that all Commonwealth revenue shall form the Consolidated Revenue Fund. Parliament can make laws as to the how its money is spent (Section 53). Unlike most other powers of the parliament, laws made under this power cannot usually be challenged. Section 90 gives the Commonwealth exclusive power over duties of custom and excise.

Section 92 provides that "trade, commerce, and intercourse among the States shall be absolutely free". The precise meaning of this phrase is the subject of a considerable body of law.

Section 96 gives the Commonwealth power to give money to States "on such terms and conditions as the Parliament thinks fit". This power is not limited by any other part of the Constitution, such as Section 99 that forbids giving preference to one State or over another State. It is subject only to Section 116, freedom of religion, and possibly other such freedoms. This power, which was only meant to be used ("during a period of ten years ... and thereafter until the Parliament otherwise provides"), has been used by the Commonwealth to encourage cooperation by the States to various extents over the years.

Section 101 sets up an Inter-State Commission, a body which is no longer exists, but which was meant to have a significant role in the federal structure.

Chapter V says what the States can do in a federal system. Sections 106-108 preserve the Constitution, the powers of the Parliament, and the laws in force of each of the States.

Section 109 says that, where a State law is different to a federal law, the federal law applies.

Section 111 says that a State can give up any part of its lands to the Commonwealth. This has happened several times. South Australia gave the Northern Territory to the Commonwealth.

Section 114 stops any state from having its own military force. It also stops the State or the Commonwealth taxing each other's property.

Section 116 sets out "freedom of religion", by stopping the Commonwealth from making any law to start a religion, to impose any religious observance, or to stop a religion, and by stopping religious discrimination for public office.

Chapter VI allows new states to be made, or to join the Commonwealth. Section 122 allows the Parliament to provide for the representation in Parliament of any new territory. Section 123 says that changing the boundaries of a State needs the support of the Parliament of that State and must pass a referendum in that State.

No new states have joined the Commonwealth since federation.

Miscellaneous

Chapter VII says that the seat of government of the Commonwealth (now Canberra) shall be in New South Wales but no less than one hundred miles from Sydney, and that the Governor-General may appoint deputies. Section 127 first said that Aborigines cannot be counted in any Commonwealth or State census. This section was changed in 1967.

Alteration of the Constitution

Chapter VIII sets out how the Constitution can be changed. Section 128 says that changes must be approved by a referendum. A successful change needs:

a majority in both houses of the federal parliament; and

a majority of votes nationally in a referendum.

a majority in a majority of states

The Governor-General must put the referendum bill to the people between two and six months after passing parliament. After the constitutional amendment bill has passed both the parliament and the referendum, it then receives Royal Assent from the Governor-General. This makes it the new law and the wording of the Constitution is changed.

An exception to this process is if the amendment bill is rejected by one house of Federal Parliament. If the bill passes the first house and is rejected by the second, then after three months the first house may pass it again. If the bill is still rejected by the second house, then the Governor-General may choose to still put the bill to the people's vote.

As mentioned above, changing the Constitution requires a referendum in which the "Yes" vote achieves a majority nationally, as well as majorities in a majority of states.

Forty-four proposals to change the Constitution have been voted on at referendums. Eight have been approved. The following is a list of changes that have been approved.

1906- Senate Elections- changed Section 13 to change the length and dates of Senators' terms of office.

1910- State Debts- changed Section 105 to give the Commonwealth power to take over state debts.

1928- State Debts- added Section 105A to make sure the Financial Agreement reached between the Commonwealth and State governments in 1927 was legal.

1946- Social Services- added Section 51 (xxiiiA) to give more power to the Commonwealth government over a range of social services.

1967- Aborigines- changed Section 51 (xxvi) to give power to the Commonwealth government to legislate for people of any race to Aborigines; repealed Section 127 which stated that "In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."

1977

Senate Casual Vacancies- part of the political fallout of the constitutional crisis of 1975; formalised the convention, broken in 1975, that when a casual vacancy arises in the Senate, the relevant state parliament must choose the a new Senator from the same political party as the departing Senator (if that party still exists).

Referendums- changed Section 128 to allow residents of the Territories to vote in referendums, and be counted towards the national total.

Retirement of Judges- changed Section 72 to make judges retire at age 70 from federal courts.

The role of conventions

As well as the written Constitution and Letters Patent issued by the Crown, conventions are an important part of the Constitution. These have developed over the years and define how various constitutional mechanisms work in practice.

Conventions play a powerful role in the operation of the Australian constitution because of its set-up and operation as a Westminster system of responsible government. Some important conventions include:

The constitution includes a Prime Minister of Australia. This position began as the head of the cabinet. The Prime Minister is the head of government.

While there are few constitutional restrictions on the power of the Governor-General, by convention the Governor-General acts on the advice of the Prime Minister.

However, because conventions are not written down, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. One extreme case was the Australian constitutional crisis of 1975, in which the operation of conventions was seriously tested. The ensuing constitutional crisis was resolved dramatically when the Governor-General Sir John Kerr dismissed the Labor Prime Minister Gough Whitlam, appointing Malcolm Fraser as caretaker Prime Minister pending the 1975 general election. A number of conventions were said to be broken during this episode. These include:

The convention that, when the Senator from a particular State vacates his or her position during the term of office, the State government concerned would nominate a replacement from the same political party as the departing Senator. This convention was allegedly broken first by the Lewis government of New South Wales and then by the Bjelke-Petersen government of Queensland, who both filled Labor vacancies with, respectively, an independent and a Labor member opposed to the Whitlam government.

Note: The convention was written into the Constitution after the national referendum of 1977. The change means a new Senator has to be from the same party as the old one. This would have prevented the appointment by Lewis, but not that by Bjelke-Petersen. However, the change also says that if "before taking his seat [the chosen Senator] ceases to be a member of that party...he shall be deemed not to have been so chosen or appointed". Bjelke-Petersen appointee Albert Patrick Field was expelled from the Labor Party before taking his seat and would not have been appointed under the changed Constitution.

The convention that, when the Senate is controlled by a party which does not control the House of Representatives, the Senate would not vote against money supply to the government. This convention was allegedly broken by the Senate controlled by the Liberal-Country party coalition in 1975.

Protection of rights

The Australian Constitution does not include a Bill of Rights. Some people at the 1898 Constitutional Convention wanted a Bill of Rights like the United States Constitution, but the majority felt that the traditional rights and freedoms of British subjects were enough. These would be protected by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for not protecting rights and freedoms.

Some rights were included:

Right to trial by jury- Section 80 creates a right to trial by jury for indictable offences against Commonwealth law. There are serious limits to this right however, since the Commonwealth is free to make any offence, no matter how serious the punishment, triable otherwise than on indictment. As Justice Higgins said in R. v. Archdall & Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128: "if there be an indictment, there must be a jury, but there is nothing to compel procedure by indictment". In practice, however, no major issue of abuse of this loophole has been raised.

Right to just compensation- Paragraph 51(xxxi) creates a right to just compensation for assets taken by the Commonwealth.

Right to freedom of religion- Section 116 creates a limited right to freedom of religion. It stops the Commonwealth (but not the states) from "making any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion." This section is based on the First Amendment of the U.S. Constitution, but is weaker in operation. As the states keep all powers they had as colonies before federation, except for those explicitly given to the Commonwealth, this section does not affect the states' powers to legislate on religion, and, in accordance with High Court interpretations, no Federal legislation on religion, short of establishing an official religion of Australia, would be limited by it either.

Right to freedom from discrimination against out-of-State residents -Section 117 stops disability or discrimination in one state against the resident of another state. This is interpreted widely (Street v Queensland Bar Association), but does not prohibit states from imposing residential requirements where they are required by the State's autonomy and its responsibility to its people.

In 1992 and 1994, the High Court of Australia found that the Constitution gave an "implied" right to freedom of political communication, in a series of cases including the Australian Capital Television case and the Theophanous case. This was seen as a necessary part of the democratic system created by the Constitution. The application of this "implied right" has, however, been restricted in later cases, such as Lange v ABC. It is in no way equivalent to a freedom of speech, and only protects individuals against the government trying to limit their political communication: it offers no protection against other individuals.

In 2007, the High Court of Australia in Roach v Electoral Commissioner said that sections 7 and 24 of the Constitution, by providing that members of the House of Representatives and the Senate be "directly chosen by the people", created a limited right to vote. This means that there is a universal franchise in principle, and limited the Federal Parliament's legislative power to change it. In the case, a legislative change to stop all prisoners from voting (as opposed to only those serving sentences of three years or more, as it was before the amendment) was rejected as breaking that right.

Other attempts to find other "implied rights" in High Court cases have not been successful.

While a pro forma preamble prefaces the Imperial Commonwealth of Australia Constitution Act 1900, the Australian Constitution itself does not have a preamble. There have been some calls to add one to express the spirit and aspirations embodied in the constitution. However, there has been fierce opposition, usually on the basis of the content of the preamble, as well as possible legal ramifications of this text. In 1999, a proposed preamble, written by John Howard, the then Prime Minister, was defeated in a referendum held concurrently with the Republic referendum. The "Yes" vote (in favour of the insertion of the preamble) did not achieve a majority in any of the six states.

Republic proposals

There have been many people who have wanted Australia to become a republic. On 6 November 1999, Australians did not support a law to remove the Queen and replace the Governor-General with a President. The President was to be appointed by a two-thirds majority of the members of the Commonwealth Parliament. Opinion poll results said that the majority of Australians were in favour of some form of a republic. Many voters who voted against the 1999 referendum wanted to be able to vote for a President. In research and polling following the 1999 referendum, people said that an appointed President would not be able to act independently of the Parliament. By being able to appoint the President, rather than having the people elect a President, many felt that too much power was being given to Parliament with no check or balance on that power. Support for holding another referendum in the near future seems to be growing, and another referendum may be held. Former Prime Minister Kevin Rudd said the current (2012) situation "no longer reflects either the fundamental democratic principles that underpin the Australian nation or its diversity". He was thinking about a referendum for an independent, elected President. He went on to say that "over the next year there would be an "accelerated public debate" about the monarchy question".

Commemoration

Constitution Day is celebrated on 9 July, the date the Constitution became law 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 as part of the Centenary of Federation. The celebrations were not big and have not been widely held after 2001. Constitution Day was revived in 2007 and is jointly organised by the National Archives of Australia, which holds the original Constitution documents, and the Department of Immigration and Citizenship.

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Constitution of Australia Facts for Kids

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The Constitution of Australia is the law that set up the Australian Commonwealth Government and says how it works. It is made up of several documents. The most important is the Constitution of the Commonwealth of Australia. The people of Australia voted in referendums from 1898-1900 to accept the Constitution.