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The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia.
The constitution was enacted as an Act of the United Kingdom parliament. It provided the new system of government for the new federation, which consisted at its inception on January 1, 1901 of the former separate colonies of
A Federal System
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 implmenting 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 The 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 sitution 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 Act vested authority in the Queen, but did not explicitly designate her (or anybody else) as the Australian 'head of state'. In 1973, the monarch was formally designated as 'Queen of Australia' (but still not as 'head of state'). The Act made provision for a Governor-General to be the representative of the Queen in Australia. The Governor-General carries out specified functions and exercises certain powers, either in the name of the Queen, or in his own name as representative of the Queen. In effect, the Governor-General normally fulfils most of the roles generally possessed by a head of state, whenever the Queen is not physically present in Australia. For this reason, some Australian commentators consider the Governor-General to be the de facto head of state, and this status has also been acknowledged by some foreign governments. However, others argue it is absurd to have a head of state who is merely a representative of and ultimately subject to a higher authority (the monarch). For example, when the Queen is visiting Australia, the Governor-General assumes a lower profile than he normally adopts, and it is the Queen who has opened a new session of Parliament while she was in Australia, not the Governor-General. Such modesty and deference on the part of the Governor-General does not seem fitting for a '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.
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
-
- and
- 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 Consititution 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? In the 1970s, 1980s and 1990s support grew for the amendment of the Commonwealth of Australia Constitution Act to replace the Queen and Governor-General by a native president. In 1999 a referendum took place to make the change, replacing the monarch and governor-general by an appointed president. For a complex series of reasons, the referendum was defeated. A further referendum may revisit the issue. See republicanism in Australia.
Related topics
External links - Full text (htm file) (http://scaleplus.law.gov.au/html/pasteact/1/641/top.htm). From SCALEplus (http://scaleplus.law.gov.au)
- Full text (PDF file) (http://scaleplus.law.gov.au/html/pasteact/1/641/pdf/Constitution.pdf). From SCALEplus.
- Commonwealth of Australia Constitution Act, 1900 (http://www.foundingdocs.gov.au/places/cth/cth1.htm). Entry on the origins, development, structure and evolution of the Australian constitution at Documenting a Democracy (http://www.foundingdocs.gov.au/).
- Full text (html) file (http://www.aph.gov.au/senate/general/constitution/). From official Parliament of Australia website (http://www.aph.gov.au).
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