An
outline of the Australian Constitution
Form
of the Constitution
The Australian Constitution is contained
in an Act of the British Parliament. This is because,
in 1900 when the Constitution was finalised, the British
Parliament was the only body that could make laws
for the whole of Australia – the parliaments of the
various colonies, as they were, made laws only for
their particular colonies. A law made by the British
Parliament was the only legal way to establish a systemof
government for the whole of Australia.
The Act is described as "An Act to constitute the
Commonwealth of Australia", and is entitled the Commonwealth
of Australia Constitution Act.
The preamble, or lead-in words, of the Act record
that the people of the Australian colonies have agreed
to unite in a Federal Commonwealth. This makes it
clear that the new system of government contained
in the Act was not imposed on the Australian people
by the British Parliament, but was agreed to by them.
In fact, the Constitution was drawn up in Australia
by delegates to Australian constitutional conventions,
and was then forwarded to London with a request that
the British Parliament put it into effect by means
of an Act of Parliament.
There are nine sections in the Act. The first eight
sections are not part of the Constitution as such,
and are usually referred to as the `covering clauses'.
They deal with some formal matters. The most important
is clause 3 which provides that the Commonwealth of
Australia comes into existence on a day appointed
by the Queen by proclamation. After the Act was passed
in July 1900, a proclamation was made appointing 1
January 1901 as the day on which the Commonwealth
of Australia would come into existence.
Section 9 of the Act states the "The Constitution
of the Commonwealth shall be as follows:", and then
follows the Australian Constitution proper, consisting
of 128 sections and divided into chapters and parts.
When we speak of the Constitution, we mean this document
which is contained in section 9 of the Act.
Main
provisions of the Constitution
|
Chapter
1
|
Headed
'The Parliament' and is the only chapter
that is divided into parts.
|
|
Part
1
|
Establishes
the Parliament of the Commonwealth of Australia.
|
|
Section
1
|
Provides
that the legislative power of the Commonwealth,
that is, the power to make laws for the whole
of Australia, is vested in a Federal Parliament
consisting of the Queen, a Senate and a House
of Representatives.
|
|
Section
2
|
Provides that the Queen is to be represented
in the Commonwealth by a Governor-General, and
the remaining sections part deal with the powers
of the Governor-General to summon the Parliament,
that is, to call together the two Houses to
make up the Parliament.
|
|
Part
2
|
Provides for the composition and election of
the Senate, the filling of vacancies
in the Senate and the election of the President
of the Senate.
|
|
Part
3
|
Deals
with the composition and election of the House
of Representatives, the filling of vacancies
in that house and the election of the Speaker
of the House.
|
|
Part
4
|
Contains
provisions applicable to both Houses
of the Parliament, particularly matters relating
to the qualifications of members of the Houses
(1). Section 48 confers upon
each House and its members and committees the
powers, privileges and immunities of the British
House of Commons, until such time as those powers
, privileges and immunities are altered by the
Parliament.
|
|
|
Section
96 empowers the Commonwealth Parliament to grant
financial assistance to the states, a power
which has been most important in allowing the
Commonwealth Government to influence policies
at state level. This chapter also contains Section
105A, which was inserted in the Constitution
by an alteration made in 1929, and which deals
with the Commonwealth taking over states' debts.
|
|
Chapter
5
|
Consists of a number of sections dealing with
the states. The first three sections
provide that the constitutions, the powers of
the parliaments, and the laws of the states
continue in force after the establishment of
the Commonwealth, but subject to the provisions
of the Constitution.
Section
109 provides that where a law of a state is
inconsistent with a law of the Commonwealth,
the Commonwealth law shall prevail and the state
law shall be invalid, that is, ineffective,
to the extent of the inconsistency. This refers
to valid Commonwealth laws, that is, laws which
the Commonwealth Parliament has the power to
make under the Constitution. Other sections
provide that the states may not coin money or
raise armed forces, or discriminate against
the residents of other states, and that the
Commonwealth is to protect the states against
invasion or domestic violence.
|
|
Chapter
6
|
Headed
'New States' and deals with the procedures
for the establishment of new states and the
alteration of boundaries of states with their
consent. There is also provision for the surrender
of territories to the Commonwealth by states.
|
|
Chapter
7
|
Headed 'Miscellaneous' and consists of
only two sections, one dealing with the establishment
of the seat of government, or the capital of
the country, and the other providing for the
appointment of deputies of the Governor-General.
Section
127 was deleted from this chapter by an amendment
to the Constitution in 1967. It related to the
counting of Aboriginals in censuses, and was
removed because it was regarded as discriminatory.
|
|
Chapter
8
|
Entitled Alteration of the Constitution,
and consists of one long section, Section 128,
which provides the procedures for altering the
Constitution. Briefly, the procedure is that
a law altering the Constitution must, to be
effective, be passed by the Parliament and be
approved in a referendum by a majority of voters
Australia-wide and a majority of voters in a
majority of states.
|
|
Schedule
|
The
schedule attached to the Constitution contains
the oath or affirmation to be taken by members
of each House of the Parliament before they
take their seats.
|
Summary
of the Constitution
The
main feature of the Constitution is that it establishes
a government consisting of three branches – the legislative,
the executive and the judicial branch, and it provides
that the legislative, executive and judicial powers
are to exercised by these three branches.
The Constitution does not, however, lay down in detail
the relationship between the three branches and how
they are to operate in practice. In order to appreciate
the practical workings of the Constitution, it is
therefore necessary to supplement a reading of the
text of the Constitution with a knowledge of the way
in which the Constitution has been interpreted and
applied, not only by the High Court in its judgments
upon individual cases, but by all three branches of
government in their practical operations since Federation.
(1) An Act to declare the powers, privileges and immunities
of each House, and of the members and committees of
each House, was passed in 1987: the Parliamentary
Privileges Act1987.
This outline of the Constitution was prepared by the
Parliamentary Education Office.
