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Main article: Constitutional history of Australia The history of the Constitution of Australia began with moves towards federation in the 19th century, which culminated in the federation of the Australian colonies to form the Commonwealth of Australia in 1901. However, the Constitution has continued to develop since then, with two laws having particularly significant impact on the constitutional status of the nation. Federation Main article: Federation of Australia In the mid-19th century, a desire to facilitate cooperation on matters of mutual interest, especially intercolonial tariffs, led to proposals to unite the separate British colonies in Australia under a single federation. However, impetus mostly came from Britain and there was only lacklustre local support. The smaller colonies feared domination by the larger ones; Victoria and New South Wales disagreed over the ideology of protectionism; the then-recent American Civil War also hampered the case for federalism. These difficulties led to the failure of several attempts to bring about federation in the 1850s and 1860s. By the 1880s, fear of the growing presence of the Germans and the French in the Pacific, coupled with a growing Australian identity, created the opportunity for establishing the first inter-colonial body, the Federal Council of Australasia, established in 1889. The Federal Council could legislate on certain subjects, but did not have a permanent secretariat, an executive, or independent source of revenue. The absence of New South Wales, the largest colony, also diminished its representative value. Henry Parkes, the Premier of New South Wales, was instrumental in pushing for a series of conferences in the 1890s to discuss federalism – one in Melbourne in 1890, and another (the National Australasian Convention) in Sydney in 1891, attended by colonial leaders. By the 1891 conference, significant momentum had been built for the federalist cause, and discussion turned to the proper system of government for a federal state. Under the guidance of Sir Samuel Griffith, a draft constitution was drawn up. However, these meetings lacked popular support. Furthermore, the draft constitution sidestepped certain important issues, such as tariff policy. The draft of 1891 was submitted to colonial parliaments but lapsed in New South Wales, after which the other colonies were unwilling to proceed. In 1895, the six premiers of the Australian colonies agreed to establish a new Convention by popular vote. The Convention met over the course of a year from 1897 to 1898. The meetings produced a new draft which contained substantially the same principles of government as the 1891 draft, but with added provisions for responsible government. To ensure popular support, the draft was presented to the electors of each colony. After one failed attempt, an amended draft was submitted to the electors of each colony except Western Australia. After ratification by the five colonies, the Bill was presented to the British Imperial Parliament with an Address requesting Queen Victoria to enact the Bill. Before the Bill was passed, however, one final change was made by the imperial government, upon lobbying by the Chief Justices of the colonies, so that the right to appeal from the High Court to the Privy Council on constitutional matters concerning the limits of the powers of the Commonwealth or States could not be curtailed by parliament. Finally, the Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900. Western Australia finally agreed to join the Commonwealth in time for it to be an original member of the Commonwealth of Australia, which was officially established on 1 January 1901. In 1988, the original copy of the Commonwealth of Australia Constitution Act 1900 from the Public Record Office in London was lent to Australia for the purposes of the Australian Bicentenary. The Australian government requested permission to keep the copy, the British parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990 and the copy was given to the National Archives of Australia. The Statute of Westminster and the Australia Acts Although Federation is often regarded as the moment of "independence" of Australia from 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 by paramount force. As a result, since Australia was still legally a colony, there was continued uncertainty as to the applicability of British Imperial laws to the Commonwealth. This was resolved 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 restrictions. Legally, this is often regarded as the moment of Australia's national independence. However, due to specific exemptions in the Statute of Westminster, Imperial law continued to be paramount in Australian states. This was altered by the Australia Act 1986, which was passed in substantially the same form by the Commonwealth parliament and the British parliament, at the request of each state. In addition to ending the British Parliament's power to legislate over Australian states, the Australia Act also cut the last avenues of appeal from the Australian courts to the Judicial Committee of the Privy Council. As a symbol of the significance of this legislation, Queen Elizabeth II travelled to Australia to personally sign the proclamation of the law. For the Constitution, the impact of these two laws is that the Constitution as in force in Australia is now separate from the text in the original Act. While the British Parliament can amend or repeal the Imperial Act, that would not affect Australia. Instead, the Constitution as in force in Australia can only be amended following the referendum mechanisms set out in the Constitution. Conversely, any amendment to the Constitution in Australia following the referendum mechanisms would not affect the text of the Imperial Act as in force in the United Kingdom. Chapters The Commonwealth of Australia Constitution Act 1900 (Imp) contains a Preamble, and nine sections. Sections 1 – 8 are covering clauses outlining the legal procedures for the establishment of the Commonwealth. Section 9, beginning with the words "The Constitution of the Commonwealth shall be as follows ...", contains the Constitution of the Commonwealth of Australia. The Constitution itself is divided into eight chapters, containing 128 sections. Chapter I: The Parliament Chapter I sets up the legislative branch of government, the Parliament of Australia, which consists of three constituent parts: The Sovereign (King or Queen), who is represented by the Governor-General of Australia; the House of Representatives; and the Senate. Section 1 provides that legislative power is vested in this Parliament, which has paramount power of governance. Part II of this chapter deals with 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 deals with the House of Representatives. As nearly as practicable, Section 24 requires the House to be composed of twice as many members as the Senate, each elected by a single electorate. This is the so-called 'Nexus', which is 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 (roughly) proportional to its share of the national population. Part IV ("Both Houses of the Parliament") deals with eligibility for voting and election to the parliament, parliamentary allowances, parliamentary rules and related matters. Part V deals with the powers of the parliament. Section 51 deals with powers of the Commonwealth parliament and are called "specific powers". These contain "concurrent powers", in the sense that both the Commonwealth and States can legislate on these subjects, although federal law prevails in the case of inconsistency (Section 109). Of the thirty-nine elements of section 51, a few have become critical in determining the scope of Commonwealth government action, including the Trade and Commerce Power, the Corporations Power and the External Affairs Power. Section 52 deals with powers exclusively vested in the Commonwealth parliament. States cannot legislate on these subjects. Chapter II: 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. Under this Chapter, the Governor-General is the commander in chief, and 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", and their use is dictated 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 acting outside the advice of the Prime Minister of the day, when Governor-General Sir John Kerr, acting on his own authority, 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 are only exercisable by the Governor-General. Section 68 states that the Commander-in-Chief of Australia's naval and military forces is the Governor-General as the Queen's representative. Chapter III: The Judicature Main article: Chapter III Court Chapter III sets up the judicial branch of government. Section 71 vests judicial power in a "Federal Supreme Court" to be called the High Court of Australia, and such other federal courts as Parliament creates, and in such other courts as Parliament invests with federal jurisdiction. Such courts are called "Chapter III Courts" are the only courts that can exercise federal judicial power. Sections 73 and 75-78 outline the original and appellate jurisdiction of the High Court. Section 74 provides for the circumstances in which an appeal can be made to the Queen in Council. Section 79 allows Parliament to prescribe the number of judges able to exercise federal jurisdiction and section 80 guarantees trial by jury for indictable offences against the Commonwealth. Chapter IV: Trade Chapter IV deals with finance and trade in the federal system. Section 81 prescribes that all Commonwealth revenue shall form the Consolidated Revenue Fund. Parliament can make laws as to the appropriations of money (Section 53). Unlike most other powers of the parliament, laws made under the appropriations power are not ordinarily susceptible to effective legal challenge. 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. Some of the most recent case law has emphasised that Section 92 is preoccupied with the effect of law on interstate trade, not on the effect law has on individual traders.[5] Section 96 gives the Commonwealth power to make grants to States "on such terms and conditions as the Parliament thinks fit". This power has been held to be unconstrained by any other provision, such as Section 99 which forbids giving preference to one State or part thereof over another State or part thereof. It is subject only to Section 116, freedom of religion, and possibly other such freedoms. This power, although evidently envisaged as a temporary measure ("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 now defunct, but which was originally envisaged to have a significant role in the federal structure. Chapter V: The States Chapter V contains provisions dealing with the States and their role under the federal system. Sections 106-108 preserves the Constitution, powers of the Parliament, and the laws in force of each of the States. Section 109 provides that, where a State law is inconsistent with a federal law, the federal law prevails (to the extent of the inconsistency). Section 111 provides that a State can surrender any part of the State to the Commonwealth. This has occurred on several occasions, most notably the surrender by South Australia to the Commonwealth of the Northern Territory. Section 114 forbids any State from raising a military force, and also forbids the State or the Commonwealth from taxing each other's property. Section 116 establishes what is often called "freedom of religion", by forbidding the Commonwealth from making any law for the establishment of a religion, imposing any religious observance, or prohibiting the exercise of a religion, or religious discrimination for public office. Chapter VI: New States Chapter VI allows for the establishment or admission of new states. Section 122 allows the Parliament to provide for the representation in Parliament of any territory surrendered by the States, or placed by the Queen in the authority of the Commonwealth. Section 123 requires that changing the boundaries of a State requires the consent of the Parliament of that State and approval by referendum in that State. No new states have been admitted to the Commonwealth since federation. Chapter VII: Miscellaneous Chapter VII provides that the seat of government of the Commonwealth (now Canberra) shall be located within New South Wales but no less than one hundred miles from Sydney, and that the Governor-General may appoint deputies. Section 127 previously provided that Aborigines cannot be counted in any Commonwealth or State census; this section was repealed in 1967. Chapter VIII: Alteration of the Constitution Main article: Chapter VIII of the Constitution of Australia Chapter VIII specifies the procedures for amending the Constitution. Section 128 provides that constitutional amendments must be approved by a referendum. Successful amendment requires: 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 states. The referendum bill must be put to the people by the Governor-General between two and six months after passing parliament. After the constitutional amendment bill has passed both the parliamentary stage and the referendum, it then receives Royal Assent. When proclaimed, it will be in effect, and the wording of the Constitution will be 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. Section 128 also provides that any amendment affecting equal representation of a State in the Senate, or minimum representation in the House of Representatives can only be presented for Royal Assent if it is approved in that State. Amendments Main article: Referendums in Australia As mentioned above, successful amendment of 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 amend the Constitution have been voted on at referendums, of which eight have been approved. The following is a list of amendments which have been approved. For a complete list of all referendums and plebiscites held, see Referendums in Australia – Referendums and plebiscites by year. 1906 – Senate Elections – amended Section 13 to slightly alter the length and dates of Senators' terms of office. 1910 – State Debts – amended Section 105 to extend the power of the Commonwealth to take over pre-existing state debts to debts incurred by a state at any time. 1928 – State Debts – inserted Section 105A to ensure the constitutional validity of the Financial Agreement reached between the Commonwealth and State governments in 1927. 1946 – Social Services – inserted Section 51 (xxiiiA) to extend the power of the Commonwealth government over a range of social services. 1967 – Aborigines – amended Section 51 (xxvi) to extend the power of 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 state parliament concerned, if it chooses to fill the vacancy, must choose the replacement from the same party as the departing Senator if that party still exists. Referendums – amended Section 128 to allow residents of the Territories to vote in referendums, and be counted towards the national total. Retirement of Judges – amended Section 72 to create a retirement age of 70 for judges in federal courts. The role of conventions Alongside the text of the Constitution, the Statute of Westminster and the Australia Acts, and Letters Patent issued by the Crown, conventions are an important aspect of the Constitution, which have evolved over the decades and define how various constitutional mechanisms operate 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 notable conventions include: 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 Prime Minister is seen as 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 textually based, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. The most 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 by first the Lewis government of New South Wales and then by the Bjelke-Petersen government of Queensland who both filled Labor vacancies with an independent and a Labor member opposed to the Whitlam government respectively.[6] Note: The convention was codified into the Constitution via the national referendum of 1977. The amendment requires the new Senator to be from the same party as the old one and would have prevented the appointment by Lewis, but not that by Bjelke-Petersen. However, the amendment states of the appointee that if "before taking his seat he 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 therefore have been ineligible under the new constitutional amendment.[7] The convention that, when the Senate is controlled by a party which does not simultaneously 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.[6] The convention that a Prime Minister who cannot obtain supply must either request that the governor general call a general election, or resign. This convention was allegedly broken by Gough Whitlam in response to the Senate's unprecedented refusal.[8] The Constitution of Australia is the supreme law under which the Commonwealth Government of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp),[1] an Act of the Parliament of the United Kingdom. The Commonwealth of Australia Constitution Act 1900 (Imp) became law on 9 July 1900, and entered into force on 1 January 1901. Even though the Constitution was originally given legal force by an Act of the United Kingdom parliament, the Australia Act 1986 removed the power of the United Kingdom parliament to change the Constitution as in force in Australia, and the Constitution can now only be changed in accordance with the prescribed referendum procedures. 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 1986, which was passed in equivalent forms by the Parliaments of every Australian state, the United Kingdom Parliament, and the Australian Federal Parliament. The Statute of Westminster Adoption Act is often regarded as the point at which Australia became, de jure, an independent nation, while the Australia Act severed the last remaining constitutional links between Australia and the United Kingdom (aside from the reserve powers of the monarch). Even though the same person, Queen Elizabeth II, is the monarch of both countries, she acts in a distinct capacity as monarch of each.[2] Under Australia's common law system, the High Court of Australia and the Federal Court of Australia have the authority to interpret constitutional provisions.[3] Their decisions determine the interpretation and application of the constitution. |
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