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AUSTRALIA’S CONSTITUTION
With Overview and Notes by the
Australian Government Solicitor
Produced by the Parliamentary Education Office and
Australian Government Solicitor, Canberra
© Commonwealth of Australia 2010
ISBN 978–1–74229–343–1
First published May 1995
Revised reprint January 1998
Revised reprint October 2001
Revised reprint June 2003
Revised reprint March 2006
Revised reprint June 2007
Revised reprint June 2008
Revised reprint October 2010
This work is copyright. Apart from any use as permitted under the
Copyright Act
1968,
no part may be reproduced by any process without prior written permission.
Requests and inquiries concerning reproduction and rights should be addressed to
Australian Government Solicitor, 50 Blackall Street, Barton ACT 2600,
email ags@ags.gov.au
National Library of Australia Cataloguing-in-Publication entry:
Australia’s Constitution pocket edition : with overview and notes
by the Australian Government Solicitor.
7th ed.
ISBN 9781742293431 (pbk.)
Constitutional law--Australia.
Australian Government Solicitor.
342.94023
Table of Contents
Overview
The Constitution
Contents
Covering clauses
Chapter I—The Parliament
Part I—General
Part II – The Senate
Part III – The House of Representatives
Part IV – Both Houses of the Parliament
Part V – Powers of the Parliament
Chapter II—The Executive Government
Chapter III—The Judicature
Chapter IV—Finance and Trade
Chapter V—The States
Chapter VI—New States
Chapter VII—Miscellaneous
Chapter VIII—Alteration of the Constitution
iv
1
3
6
8
8
8
11
13
14
18
20
22
26
28
29
30
Notes
32
AUSTRALIA’S CONSTITUTION
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Overview
The Australian Constitution has properly been described as ‘the birth certificate of a nation’. It also provides the basic
rules for the government of Australia. Indeed, the Constitution is the fundamental law of Australia binding everybody
including the Commonwealth Parliament and the Parliament of each State. Accordingly, even an Act passed by a
Parliament is invalid if it is contrary to the Constitution.
Background to the Constitution
The Constitution was drafted at a series of conventions held during the 1890s and attended by representatives of the
colonies. Before the Constitution came into effect, its terms were approved, with one small exception, by the people of
New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania.
The Australian Constitution was then passed as part of a British Act of Parliament in 1900, and took effect on 1 January
1901. A British Act was necessary because before 1901 Australia was a collection of six self-governing British colonies
and ultimate power over those colonies rested with the British Parliament. In reality, however, the Constitution is a
document which was conceived by Australians, drafted by Australians and approved by Australians.
Since that time, Australia has become an independent nation, and the character of the Constitution as the fundamental
law of Australia is now seen as resting predominantly, not on its status as an Act of the British Parliament, which no
longer has any power over Australia, but on the Australian people’s decision to approve and be bound by the terms of
the Constitution.
What has been judicially described as ‘the sovereignty of the Australian people’ is also recognised by section 128 which
provides that any change to the Constitution must be approved by the people of Australia.
The Constitution itself is contained in clause 9 of the British Act. The first eight clauses of the British Act are commonly
referred to as the ‘covering clauses’. They contain mainly introductory, explanatory and consequential provisions. For
example, covering clause 2 provides that references to ‘the Queen’ (meaning Queen Victoria, who was British sovereign
at the time the British Act was enacted) shall include references to Queen Victoria’s heirs and successors.
Creation of the Commonwealth of Australia
On the commencement of the British Act on 1 January 1901, the Commonwealth came into being and the six colonies
became the six States of Australia (covering clauses 4 and 6).
The Federal Structure
The Constitution establishes a federal system of government. It is for this reason that the establishment of the
Commonwealth in 1901 is often referred to as ‘federation’. Under a federal system, powers are distributed between a
central government and regional governments. In Australia, that distribution is between the Commonwealth and the
six States. (The relationship between the Commonwealth and the Territories is discussed below.)
Separation of Powers
Chapters I, II, and III of the Constitution confer the legislative, executive, and judicial powers of the Commonwealth
on three different bodies which are established by the Constitution – the Parliament (Chapter I), the Executive
Government (Chapter II), and the Judicature (Chapter III). Legislative power is the power to make laws. Executive
power is the power to administer laws and carry out the business of government, through such bodies as government
departments, statutory authorities and the defence forces. Judicial power is the power to conclusively determine legal
disputes, traditionally exercised by courts in criminal trials and litigation about such things as contracts and motor
accidents.
Despite the structure of the Constitution there is no strict demarcation between the legislative and executive powers of
the Commonwealth. Only the Parliament can pass Acts, but these Acts often confer on the Executive Government the
power to make regulations, rules and by-laws in relation to matters relevant to the particular Acts.
For example, the Parliament may enact in the Customs Act that no person may bring a ‘prohibited import’ into Australia
and then leave it to the Executive to specify in the Customs Regulations what is a ‘prohibited import’. This delegation
of legislative power is not as extreme as it may appear, however, as both Houses of Parliament usually retain the power
to ‘disallow’ (that is, reject), within a specified time, any regulation which has been made by the Executive.
AUSTRALIA’S CONSTITUTION
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The distinction between the Parliament and the Executive Government is further blurred by the fact that the Prime
Minister and the other Government Ministers (who form part of the Executive) must be members of Parliament.
This reflects the principle of responsible government (discussed below) under which Government Ministers must be
members of, and accountable to, the Parliament.
By contrast, the separation between the Judicature on the one hand and the Parliament and the Executive Government
on the other is strict. Only a court may exercise the judicial power of the Commonwealth, so that, for example, the
question whether a person has contravened a law of the Parliament (for example, by bringing a ‘prohibited import’ into
the country) can only be conclusively determined by a court.
The Crown and Responsible Government
As well as being a federation, Australia is a constitutional monarchy. Under this system of government, as the term
suggests, the head of State of a country is a monarch whose functions are regulated by a constitution. The concept of
‘the Crown’ pervades the Constitution. For example, the Queen is part of the Parliament (section 1), and is empowered
to appoint the Governor-General as her representative (section 2). The executive power of the Commonwealth is vested
in the Queen and is exercisable by the Governor-General as her representative (section 61).
Despite the terms of the Constitution, the Queen does not play a day-to-day role in the Commonwealth Government.
Those few functions which the Queen does perform (for example, appointing the Governor-General) are done in
accordance with advice from the Prime Minister.
The Governor-General performs a large number of functions. However, apart from exceptional circumstances
(discussed below), the Governor-General acts in accordance with the advice of Commonwealth Ministers. The reason
for this is the principle of ‘responsible government’ which is basic to our system of government and which underlies
our Constitution. Under this principle, the Crown (represented by the Governor-General) acts on the advice of its
Ministers who are in turn members of, and responsible to, the Parliament. It is for this reason that section 64 of the
Constitution requires Ministers to be, or become, members of Parliament.
There is a small number of matters (probably only four) in relation to which the Governor-General is not required to
act in accordance with Ministerial advice. The powers which the Governor-General has in this respect are known as
‘reserve powers’. The two most important reserve powers are the powers to appoint and to dismiss a Prime Minister. In
exercising a reserve power, the Governor-General ordinarily acts in accordance with established and generally accepted
rules of practice known as ‘conventions’. For example, when appointing a Prime Minister under section 64 of the
Constitution, the Governor-General must, by convention, appoint the parliamentary leader of the party or coalition of
parties which has a majority of seats in the House of Representatives.
There can be circumstances, however, where there is no generally agreed convention to control the exercise of the
Governor-General’s reserve powers. Such a situation arose in 1975 when the Governor-General, Sir John Kerr,
dismissed the Prime Minister, Mr E.G. Whitlam, after the Senate – controlled by Opposition parties – blocked the
passage of the Supply Bill in an attempt to deprive the Whitlam Government of the funds needed to govern.
Some people argue that Sir John acted properly in dismissing Mr Whitlam as it was consistent with a ‘convention’ that
a Prime Minister who cannot obtain supply should either seek a general election or be dismissed. Others contend that
the dismissal of Mr Whitlam breached the convention that a person who retains majority support of the House of
Representatives, as Mr Whitlam did, is entitled to remain Prime Minister.
Representative Government
Another fundamental principle which underlies the Constitution is that of ‘representative government’ – that is,
government by representatives of the people who are chosen by the people. Consistently with this principle, sections 7
and 28 of the Constitution require regular elections for the House of Representatives and the Senate, and sections 7 and
24 require members of the Commonwealth Parliament to be directly chosen by the people.
Commonwealth Parliament
The Constitution established the Commonwealth Parliament comprising the Queen, a House of Representatives and a
Senate (sections 1–60). The people of each of the six States elect the same number of senators (currently 12), regardless
of their State’s population, and the people of the Northern Territory and the Australian Capital Territory are each
currently represented by two senators. This gives a total of 76 senators. In the House of Representatives the number of
seats from each State (and Territory) depends on the population (although each State is guaranteed at least five seats).
The current number of members of the House of Representatives is 150.
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