Simone Lawson
The Australian Constitution is contained within the Commonwealth of Australia Constitution Act 1900, passed by the United Kingdom. It establishes the rules by which Australia is governed and outlines the structure, role, and powers of the Australian Parliament. The Constitution is divided into 8 chapters and 128 sections, detailing the roles of the executive government, the High Court of Australia, and some rights of Australian citizens. It also sets out the division of powers between federal, state, and territory governments, ensuring a predictable and orderly society with checks and balances. The Australian Constitution, unlike others, does not include a bill of rights or an explicit statement of values, deriving its authority from the consent of the Queen and UK Parliament.
| Characteristics | Values |
|---|---|
| Formal source | An act passed by the United Kingdom |
| Authority | Consent of the Queen and the UK Parliament |
| Content | No explicit statement of values, aspirations, or rights |
| Amendments | Requires referendum with double majority |
| Chapters | 8 |
| Sections | 128 |
| Power-sharing | Between Australian and state parliaments |
| Federalism | Division of powers between federal, state, and territory governments |
| Rule of law | Implied principle |
| Rights | Protected by common law and statute law |
| Judicial power | Vested in the High Court of Australia |
| Executive power | Lies with the Prime Minister and Cabinet |
| Commander-in-Chief | Governor-General |
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What You'll Learn
The Australian Constitution's authority
The Australian Constitution is contained within an act passed by the United Kingdom, deriving its authority from the consent of the Queen and the UK Parliament. The Commonwealth of Australia Constitution Act 1900 was passed in Britain in 1900 and came into effect on 1 January 1901. The colonies became Australian states, and a new Australian Parliament was formed.
The Constitution is the set of rules by which Australia is run, outlining the structure, role, and powers of the Australian Parliament. It establishes how the Commonwealth system of government is operated in Australia, defining how laws are made and how power is distributed between the federal, state, and territory governments. This is known as the division of powers.
The Constitution also outlines the role of federal parliament and how powers are shared between the legislature, executive, and judiciary, known as the separation of powers. It sets up the judicial branch, with Commonwealth judicial power vested in the High Court of Australia. The High Court interprets the Constitution, settles disputes between Australian and state governments, and decides the meaning of the Constitution.
The Australian Constitution relies on long-established conventions and practices that support the formal operation of the government. It does not explicitly mention the role of the Prime Minister or Cabinet, although executive power lies with the Prime Minister, who requires the support and confidence of the majority of Parliament to remain in their role. The Crown has a pervasive influence on the day-to-day running of the nation, but its role is mostly ceremonial. The Governor-General exercises the executive power of the Queen as her representative.
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How the Constitution can be changed
The Australian Constitution is contained within an act passed by the United Kingdom, and its authority is derived from the consent of the Queen and the UK Parliament. It is the primary source of Australian constitutional law, but it operates alongside constitutional conventions, state constitutions, the Statute of Westminster 1931, the Australia Acts 1986, prerogative instruments, and judicial interpretations of these laws by the High Court of Australia.
The Australian Constitution can only be changed through a process called a referendum, which requires the approval of the Australian people. Ideas for changes can be proposed by members of parliament, interest groups, or individuals. If an idea gains support in the Australian community, a referendum may be held. A referendum is a vote by Australians to decide whether to support or reject a bill to change the Constitution. For a referendum to be successful, it must be approved by a majority of voters in a majority of states, as well as by a majority of voters across the nation (a double majority). Since 1901, there have been 20 referendums proposing 45 changes to the Constitution, but only 8 of these changes have been approved by the Australian people.
The process for amending the Constitution is outlined in Section 128. A proposed change must first be approved by the Parliament before being voted on by Australians in a referendum. The Australian Electoral Commission (AEC) is responsible for conducting referendums. The vote must take place no sooner than two months and no later than six months after the bill is passed by Parliament.
Some of the ongoing debates around changing the Constitution include the inclusion of a preamble, proposals for an Australian republic, and formal recognition of Indigenous Australians through a Voice to Parliament. The existing preamble, drafted during the 1897-8 constitutional conventions, has been the subject of increasing calls for change since the 1980s. A new preamble could reflect universal values, recognise the special place of Indigenous Australians, and confirm that the Constitution derives its authority from the Australian people.
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The Australian Constitution and Indigenous Australians
The Australian Constitution came into effect on 1 January 1901, establishing the Commonwealth of Australia. It is contained within an act passed by the United Kingdom and its authority is described as deriving from the consent of the Queen and the UK Parliament. The Australian Constitution is a living document that continues to shape Australia and is notoriously challenging to change. Amendments require a referendum, which, to pass, necessitates a double majority: a nationwide majority and a majority of voters in a majority of states. Since 1901, 19 referendums have proposed 44 changes to the Constitution, with only eight amendments being approved.
When the Constitution was established in 1901, it included two sections that referred to Aboriginal and Torres Strait Islander peoples. Section 51 (xxvi) gave the Commonwealth the power to make laws concerning 'people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws'. Section 127 stated that 'in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, Aboriginal natives shall not be counted'. This meant that Aboriginal and Torres Strait Islander peoples were not recognised as part of the Australian population, allowing states to create their own policies for them, leading to dispossession, oppression, and control of their lives.
There have been ongoing debates about changing the Australian Constitution to formally recognise Indigenous Australians. In 1967, a referendum was held, and 90.77% of Australians voted to include Aboriginal and Torres Strait Islander people in population counts and allow the Federal Parliament to legislate specifically for this group. The 1967 referendum, however, did not give Aboriginal and Torres Strait Islander peoples the right to vote. This right was granted in 1962 when the electoral act was amended.
More recently, in 2023, a referendum was held to establish an Indigenous Voice to Parliament, which was rejected, receiving only 39.6% support. The Australian Human Rights Commission has noted that recognising Aboriginal and Torres Strait Islander peoples in the Constitution and eliminating discriminatory provisions will foster stronger relationships of trust and mutual respect between Indigenous and non-Indigenous Australians. The National Indigenous Australians Agency (NIAA) website affirms the Australian Government's commitment to recognising Aboriginal and Torres Strait Islander Australians in the Constitution.
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The Australian Constitution and the British
The Australian Constitution is a document that establishes the rules for governing Australia and protecting its citizens from uncontrolled authority. It outlines the structure, role, and powers of the Australian Parliament, and the distribution of power between federal, state, and territory governments. The Constitution is the primary source of Australian constitutional law, but it operates alongside other laws and conventions.
The Australian Constitution has its roots in British colonialism. From the late 1700s, British colonies were established on the continent. By the late 1800s, these colonies had their own parliaments but were still under the rule of the British Parliament. During the 1890s, representatives from each colony attended a series of meetings called conventions, where the Constitution was drafted. This was driven by a growing sense of Australian identity and a fear of the expanding German and French presence in the Pacific. The draft constitution gained momentum and was put to a vote, which the people of the colonies approved. However, the Constitution also had to be agreed upon by the British Parliament.
The Commonwealth of Australia Constitution Act 1900 was passed in Britain in 1900 and came into effect on 1 January 1901. This act contains the Australian Constitution and includes a preamble drafted during the 1897-8 constitutional conventions. The Australian Constitution derives its authority from the consent of the Queen and the UK Parliament. The Crown has a pervasive influence on the day-to-day running of the nation, but its role is mostly ceremonial. The Governor-General, as the representative of the Queen, exercises executive power.
The Australian Constitution does not include an explicit statement of values, aspirations, or rights, and it does not mention the role of the Prime Minister or Cabinet. This "thin" nature of the Constitution is both celebrated and lamented by commentators. While the Constitution does not detail many rights, Australians' rights are protected by common law and statute law. The Constitution can only be changed with the approval of the Australian people through a referendum.
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The Australian Constitution and the rule of law
The Australian Constitution is the set of rules by which Australia is governed. It is contained within the Commonwealth of Australia Constitution Act 1900, passed in Britain in 1900 and came into effect on 1 January 1901. The Australian Constitution is unique in that its authority is derived from the consent of the Queen and the UK Parliament, unlike other constitutions such as that of the United States, which describes itself as an expression of the national will.
The Constitution outlines the structure and powers of the Australian Parliament, including the roles of the executive government and the High Court of Australia. It also details the rights of Australian citizens, such as the right to religious freedom. The Constitution does not cover all aspects of Australia's system of government, and some key features, such as the role of the Prime Minister and Cabinet, are not explicitly mentioned.
The Australian Constitution operates alongside constitutional conventions, state constitutions, the Statute of Westminster 1931, the Australia Acts 1986, prerogative instruments, and judicial interpretations by the High Court of Australia. It can only be amended by referendum, requiring a nationwide majority as well as a majority of voters in a majority of states.
The Constitution plays a crucial role in ensuring the rule of law in Australia. It establishes the framework for the operation of government, dividing powers between the federal, state, and territory governments, and between the legislature, executive, and judiciary. This division of powers and separation of powers provide the foundation for maintaining the rule of law, protecting Australians from arbitrary power and uncontrolled authority.
The rule of law, as implied in the Constitution, guarantees that all Australians are governed by a clear set of rules applied fairly and equally. It ensures that the powers of the government are exercised in accordance with established laws and procedural steps, promoting justice, fairness, and individual freedom. The High Court interprets the Constitution, settles disputes between governments, and decides its meaning, further supporting the rule of law.
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Frequently asked questions
The Australian Constitution is contained within an act passed by the United Kingdom, deriving its authority from the consent of the Queen and the UK Parliament. The Commonwealth of Australia Constitution Act 1900 was passed in Britain in 1900 and came into effect on 1 January 1901.
The Australian Constitution is a document that establishes rules for the governance of the nation. It sets out the structure, role, and powers of the Australian Parliament, including how the Australian and state parliaments share the power to make laws.
The Australian Constitution can only be amended by referendum, requiring approval from the Australian people. A proposed change must be approved by Parliament and then voted on by Australians in a referendum.
