The Constitution of Australia is the highest law governing the operation of the Commonwealth Government of Australia and its relationship with the States. It includes several documents, with the most important being referred to as the “Constitution.” This Constitution was ratified through a series of referendums held between 1898 and 1900, in which citizens from Australian colonies participated. The final version was then included in the Commonwealth of Australia Constitution Act 1900 (Imp), an Act passed by the Parliament of the United Kingdom.
The Commonwealth of Australia Constitution Act 1900 (Imp) was passed on 9 July 1900 and took effect on 1 January 1901. Although the Constitution originally gained legal validity through a UK parliamentary Act, the Australia Act 1986 removed the UK parliament’s power to modify the Constitution in Australia. Presently, any changes to the Constitution must adhere to the prescribed referendum processes. Numerous other laws carry constitutional importance for Australia.
The Commonwealth gained independence as a nation through the adoption of the Statute of Westminster via the Statute of Westminster Adoption Act 1942. The Australia Act 1986, passed by all Australian state Parliaments, the United Kingdom Parliament, and the Australian Federal Parliament, holds equal importance. This act effectively cuts all remaining constitutional ties between Australia and the United Kingdom.
Although Queen Elizabeth II is the same person, she serves different roles as a monarch in various countries. In Australia, both the High Court and Federal Court play important roles in interpreting constitutional provisions. Their rulings are essential for guiding the application and interpretation of the constitution. The origins of the Australian Constitution can be traced back to efforts towards federation in the 19th century, resulting in the establishment of the Commonwealth of Australia in 1901.
While the Constitution was originally established, it has undergone modifications throughout its history. The nation’s constitutional position has been greatly influenced by both the Federation and another significant law. Created in the mid-19th century, the Federation sought to address common concerns among Australia’s British colonies, particularly intercolonial tariffs. Its objective was to unify these individual colonies into a single federation. However, this initiative was primarily led by Britain with minimal local support.
The smaller colonies showed concern about the larger ones exerting control over them, particularly Victoria and New South Wales had conflicting views on protectionism ideology. Furthermore, obstacles arose for the argument of federalism due to the American Civil War, leading to multiple unsuccessful attempts at federation in the 1850s and 1860s. Nonetheless, as worries of German and French influence in the Pacific arose and a stronger Australian identity developed, an opportunity emerged in the 1880s to establish the Federal Council of Australasia in 1889.
Henry Parkes, the Premier of New South Wales, played a crucial role in advocating for a series of conferences during the 1890s to address federalism. Two conferences were held: one in Melbourne in 1890 and another (known as the National Australasian Convention) in Sydney in 1891, where colonial leaders were present. The federalist movement gained momentum by the time of the 1891 conference, leading to a shift in focus towards determining an appropriate governing structure for a federal state. Sir Samuel Griffith provided guidance and drafted a preliminary constitution. However, despite these efforts, these meetings did not gain widespread public support.
Moreover, the 1891 draft constitution did not cover important issues such as tariff policy. Despite being presented to colonial parliaments, it was rejected in New South Wales, causing other colonies to hesitate in progressing with it. It is worth noting that while Federation is often regarded as the moment Australia achieved “independence” from Britain, legally speaking, the Commonwealth was actually formed by the British Imperial Parliament through the Commonwealth of Australia Constitution Act 1900 (Imp), which held supreme influence within Australia.
Despite Australia’s legal status as a colony, the uncertainty surrounding the applicability of British Imperial laws to the Commonwealth continued. This issue was eventually resolved with the adoption of the Statute of Westminster 1931 through the Statute of Westminster Adoption Act 1942. By releasing the Dominions, including the Commonwealth, from Imperial restrictions, many view this statute as marking Australia’s attainment of national independence. The Commonwealth of Australia Constitution Act 1900 (Imp) comprises a Preamble and nine sections.
The text explains the legal procedure for creating the Commonwealth, encompassing Sections 1-8. Section 9 includes the Constitution of Australia’s Commonwealth, which is divided into eight chapters and consists of a total of 128 sections. Chapter I establishes the Parliament of Australia, comprising three components: the Sovereign (King or Queen), represented by the Governor-General of Australia, as well as the House of Representatives and Senate.
The text details the role of Parliament as the highest governing authority with legislative power. It goes on to explain that the Senate, comprised of Senators elected by each State’s population, forms a unified electorate. Each State has 12 senators and the mainland territories have 2 representatives in the Senate. Additionally, information about the House of Representatives is provided in this section.
Section 24 states that the House of Representatives must have double the number of members compared to the Senate. Each member in the House is elected by one electorate. This rule, called the ‘Nexus’, is meant to avoid overpowering the Senate during joint sittings (explained in Section 57). The number of electorates within a State should be roughly proportional to its portion of the national population. Part IV encompasses different aspects regarding both Houses of Parliament, such as voter eligibility, election to Parliament, parliamentary allowances, rules, and related topics. Part V specifically focuses on Parliament’s powers.
Section 51 of the Commonwealth parliament covers “specific powers” that include “concurrent powers”. This means that both the Commonwealth and States can make laws on these subjects, but federal law prevails in case of inconsistency (Section 109). Some elements within section 51, like the Trade and Commerce Power, the Corporations Power, and the External Affairs Power, play a crucial role in determining the extent of Commonwealth government action. In contrast, Section 52 addresses powers exclusively held by the Commonwealth parliament.
States are prohibited from legislating on these matters. Chapter II, also referred to as “The Executive Government,” establishes the executive branch of government. The Governor-General possesses the authority to exercise executive power, in consultation with the Federal Executive Council. According to this Chapter, the Governor-General assumes the role of supreme military commander and is granted the capacity to appoint or dismiss members of the Executive Council, state ministers, and all other executive government officials. These powers, along with the ability to dissolve or choose not to dissolve parliament (as stated in Section 5 and Section 57), are recognized as “reserve powers” that adhere to convention.
Typically, the Governor-General follows the Prime Minister’s guidance, except for one instance. In 1975, Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam against his advice, leading to the Australian constitutional crisis. As per Section 68, the Governor-General serves as a representative of the Queen and holds the position of Commander in Chief for Australia’s naval and military forces.
The current leader of the Australian Defence Force is Her Excellency Quentin Bryce, who also holds the position of Governor General of Australia. It is worth noting that the Queen of Australia does not command the military.
Chapter III of the Australian government addresses the formation of the judiciary. Section 71 within this chapter provides judicial authority to a “Federal Supreme Court” referred to as the High Court of Australia. Additionally, Parliament possesses the authority to establish additional federal courts and allocate federal jurisdiction to existing ones.
Such courts, known as “Chapter III Courts,” are the exclusive courts that have the authority to exercise federal judicial power. The original and appellate jurisdiction of the High Court is outlined in sections 73 and 75-78. Section 74 specifies the conditions under which an appeal can be made to the Queen in Council. Parliament has the power to determine the number of judges who can exercise federal jurisdiction, as stated in section 79. Additionally, section 80 guarantees a trial by jury for indictable offences against the Commonwealth. Chapter IV focuses on trade.
In Chapter IV, finance and trade in the federal system are discussed. According to Section 81, all Commonwealth revenue must be included in the Consolidated Revenue Fund. Section 53 allows Parliament to create laws regarding the allocation of money. Unlike other parliamentary powers, laws made under this power are usually not easily challenged in court. The Commonwealth has exclusive control over custom and excise duties, as stated in Section 90. Lastly, Section 92 ensures that trade, commerce, and intercourse between the States will be unrestricted.
The meaning of this phrase is the focus of a large amount of legal discussion. Section 96 grants the Commonwealth the ability to provide grants to States “according to whatever terms and conditions the Parliament deems appropriate.” This power is not limited by any other provision, like Section 99, which prohibits showing preference to one State over another. The power is only subject to Section 116, which protects freedom of religion, and potentially other freedoms as well. Despite being intended as a temporary measure for a period of ten years…
Throughout the years, the Commonwealth has utilized Section 101 to promote collaboration among the States to different extents. This particular section creates an Inter-State Commission that initially held a crucial position in the federal structure but is currently inactive. Chapter V primarily revolves around the States and their involvement within the federal system. Sections 106-108 safeguard the Constitution, Parliament’s authorities, and each State’s laws.
The text emphasizes various provisions of the Australian Constitution. Section 109 establishes that if there is a conflict between state and federal laws, the federal law prevails. Additionally, Section 111 permits a state to transfer part of its territory to the Commonwealth, as demonstrated by South Australia’s relinquishment of the Northern Territory. Finally, Section 114 forbids states from establishing armed forces and imposes restrictions on both states and the Commonwealth in terms of taxing each other’s property.
Section 116 of the constitution ensures “freedom of religion” by prohibiting the Commonwealth from enacting laws to establish a religion, impose religious practices, restrict religious exercise, or enforce religious discrimination for public positions. Chapter VI, titled New States, allows for the creation or inclusion of new states. Section 122 grants Parliament the authority to determine the representation in Parliament for territories relinquished by states or placed under Commonwealth authority by the Queen.
The text states that Section 123 requires approval from Parliament and the people of a State via a referendum for any changes to its boundaries. No new states have joined the Commonwealth since federation. Chapter VII, also known as the Miscellaneous Chapter VII, details regulations for establishing the Commonwealth’s seat of government in New South Wales, specifically within a 100-mile radius of Sydney, and grants the Governor-General authority to appoint deputies.
Previously, Section 127 prohibited including Aborigines in national or state censuses. However, this provision was repealed in 1967.
The process for amending the Constitution is outlined in Chapter VIII of the Constitution. Section 128 states that amendments must be approved by a referendum. In order to successfully amend the Constitution, two conditions must be met:
- An absolute majority in both houses of the federal parliament.
- The proposed amendment must be approved by a majority of electors nationwide and in a majority of states.
Once passed by parliament, it is necessary for the Governor-General to present the referendum bill to the people within two to six months.
After the parliamentary stage and referendum process is finished, the constitutional amendment bill will be granted Royal Assent, leading to a change in the Constitution’s wording. However, there is a provision in place if one house of Federal Parliament rejects the amendment bill. If the first house approves it but it is rejected by the second house, the first house can choose to pass it again after three months. If the second house continues to reject it, then the decision whether or not to put the bill up for a public vote rests with the Governor-General.
According to Section 128, any amendment that impacts a State’s equal representation in the Senate or minimum representation in the House of Representatives must be approved within that State before being presented for Royal Assent. As previously mentioned, changing the Constitution requires a nationwide referendum with a majority “Yes” vote and most states also approving it. So far, there have been forty-four proposals for constitutional amendments, of which eight have successfully obtained approval. The following list includes these approved amendments.
The article “Referendums in Australia – Referendums and plebiscites by year” provides a comprehensive list of all referendums and plebiscites held in Australia. Noteworthy examples include:
– In 1906, Senate Elections resulted in an amendment to Section 13, making slight modifications to the length and dates of Senators’ terms of office.
– The State Debts referendum occurred in 1910, leading to changes made to Section 105. These amendments expanded the power of the Commonwealth to assume pre-existing state debts, allowing for any debts incurred by a state at any time to be included.
– Another State Debts referendum took place in 1928, introducing Section 105A into the Constitution. This addition aimed to ensure the constitutional validity of the Financial Agreement reached between the Commonwealth and State governments in 1927.
•1946 – Social Services – included Section 51 (xxiiiA) to broaden the authority of the Commonwealth government regarding various social services. •1967 – Aborigines – modified Section 51 (xxvi) to expand the jurisdiction of the Commonwealth government to create laws for individuals of any race, including Aborigines; abolished Section 127, which specified that “Aboriginal natives shall not be included in the population count of the Commonwealth, a State, or any other part of the Commonwealth.”
In 1977, the Senate Casual Vacancies were introduced as a result of the constitutional crisis in 1975. This formalized the convention that when a casual vacancy occurs in the Senate, the state parliament must choose a replacement from the same party as the departing Senator, if that party still exists. Additionally, referendums were amended to allow residents of the Territories to participate, as stated in the amended Section 128.
Vote in referendums and contribute to the national total. Section 72 has been amended to establish a retirement age of 70 for judges in federal courts. Conventions, along with the Constitution, Statute of Westminster, Australia Acts, and Letters Patent, are crucial components of the Constitution that have developed over time and determine the practical functioning of various constitutional mechanisms.
The Australian constitution operates under a Westminster system of responsible government, making conventions highly influential. Notable conventions include the development of the office of Prime Minister, even though it is not officially created by the constitution. The Prime Minister is considered the head of government. Additionally, the Governor-General’s power is conventionally restricted, as they typically act on the advice of the Prime Minister.
These include: •The convention that, when a Senator from a specific State leaves office before the term ends, the State government would choose a replacement from the same political party as the departing Senator. This convention was reportedly violated by the Lewis administration of New South Wales and later by the Bjelke-Petersen administration of Queensland. Both administrations filled vacant Labor seats with an independent member and a Labor member against the Whitlam government, respectively.
The convention states that if the Senate is controlled by a different party than the House of Representatives, the Senate should not vote against providing money to the government. However, in 1975, this convention was broken when the Senate, controlled by the Liberal-Country party coalition, voted against money supply. Another convention states that if a Prime Minister cannot secure supply, they should either ask the governor general to call a general election or resign.
This convention was supposedly violated by Gough Whitlam when he responded to the Senate’s unprecedented refusal to interpret the law in accordance with the common law tradition in Australia. The law on the interpretation and application of the Constitution in Australia has primarily evolved through judgments by the High Court of Australia in various cases. The High Court has established several doctrines that form the foundation for interpreting the Australian Constitution.
Some examples include:
• Separation of powers – The three separate chapters dealing with the three branches of government implies a separation of powers, similar to that of the United States, but unusual for a government within the Westminster system. Thus, for example, the legislature cannot purport to predetermine the legal outcome, or to change the direction or outcome, of a court case.
• Division of powers – Powers of government are divided between the Commonwealth and the State governments, with certain powers being exclusive to the Commonwealth, others being concurrently exercised, and the remainder being held by the States.
• Intergovernmental immunities – While the Engineers’ Case concluded that there is no overall immunity between State and Commonwealth governments regarding each other’s laws, the Commonwealth cannot create taxation laws that are discriminatory towards the States or different parts of the States (Section 51(ii)). Additionally, the Commonwealth cannot enact laws that discriminate against the States or laws that would hinder a State from functioning and existing as a state (Melbourne Corporation v Commonwealth). Protection of rights.
The Australian Constitution does not contain a Bill of Rights. While some delegates to the 1898 Constitutional Convention desired a provision resembling the United States Constitution’s Bill of Rights, most believed that the existing rights and freedoms of British subjects would be adequately safeguarded by the Constitution’s establishment of a Parliamentary system and independent judiciary. Consequently, the Australian Constitution has frequently faced criticism for its limited defense of rights and freedoms.
Some express rights were included in the Australian constitution. Section 80 specifically grants the right to trial by jury for indictable offenses under Commonwealth law. However, the Commonwealth has the freedom to make any offense triable in a manner other than indictment, regardless of the severity of the punishment. As stated by Justice Higgins in R v Archdall (1928), “If there is an indictment, a jury must be present, but there is no obligation to follow indictment procedures.”
[9] The High Court has been divided in later cases regarding the existence of a right. Some judges believe that no constitutional provision can be interpreted in a way that renders it meaningless, while others argue that this interpretation would go beyond judicial interpretation. The right to just compensation is created by Section 51(xxxi), which states that the Commonwealth must provide compensation “on just terms” for the acquisition of property from any state or person. The High Court has interpreted the term “acquisition of property” broadly, allowing for a wide range of entitlements to compensation.
•Right against discrimination on the basis of out-of-State residence – Section 117 prevents disability or discrimination in one state against a resident of another state, but it does not prohibit states from imposing residential requirements that are necessary for the state’s autonomy and the wellbeing of its residents. This means that while an out-of-state resident cannot be treated more harshly than a resident within the state, states can still enforce residential requirements, such as allowing only residents to vote in state elections.
Freedom of religion is guaranteed by Section 116 of the Australian Constitution. This section prohibits the Commonwealth (but not the states) from passing laws that establish religion, impose religious practices, or limit the free exercise of religion. Section 116 is similar to the First Amendment of the U.S. Constitution, but it has a narrower scope. Unlike the Commonwealth, the states have the power to legislate on religion due to their retained colonial powers. To date, Section 116 has never been successfully invoked.
In addition to the individual rights explicitly written into the Constitution and those found to be implied by its sections, there is another category of rights called ‘structural protections’. Unlike individual rights, these protections are comprehensive safeguards for the entire community, derived from the systems and principles that the Constitution as a whole is built upon. One prominent example of these protections is the community’s right to a parliament that is elected through a democratic process, often referred to as a limited “right” to vote.
Below is a discussion of the implied rights or freedoms:
- Implied freedom of political communication – The High Court, in cases such as Australian Capital Television and Theophanous in 1992 and 1994, determined that the Constitution includes an “implied freedom of political communication”.
- Implied right to vote – In the case of Roach v Electoral Commissioner in 2007, the High Court ruled that Constitution ss7 and 24 establish a limited right to vote by stipulating that members of the House of Representatives and the Senate should be “directly chosen by the people”.
The text highlights the establishment of a universal franchise principle and the limitation of the Federal Parliament’s legislative power to alter it. Specifically, a legislative amendment that sought to exclude all prisoners from voting (as opposed to only those serving sentences of three years or more, as it previously stood) was invalidated for violating this right. Although the Imperial Commonwealth of Australia Constitution Act 1900 features a pro forma preamble, the Australian Constitution itself does not include one.
There have been suggestions to include a section in the constitution to represent the ideals and desires embodied in it. Throughout history, there have been discussions about whether Australia should transition into a republic. On 6 November 1999, Australians voted against a proposition to eliminate the Queen and have a President appointed by two-thirds of the Commonwealth Parliament members take the place of the Governor-General. This event is a significant moment in history.
Constitution Day is observed on 9 July, the day the Constitution was enacted in 1900. While it is not a public holiday, it carries significant historical significance. Initially established in 2000 to celebrate the Constitution’s centenary leading up to the Centenary of Federation, the commemoration was not widely observed after 2001. However, Constitution Day was reintroduced in 2007 and is now co-organized by the National Archives of Australia, custodians of the original Constitution documents, and the Department of Immigration and Citizenship.
Amongst the various proposed amendments to the Constitution over time, two proposals for significant changes have stood out in recent decades. These proposals were carefully considered during the 1999 referendum but ultimately failed. The Constitution of Brazil, known as Constituicao da Republica Federativa do Brasil in Portuguese, serves as the supreme law of the country. It serves as the basis and primary legal authority for the existence of Brazil and its federal government.
The Brazilian Constitution, ratified on October 5, 1988 by the 1988 Constituent Assembly, provides the framework for the organization of the Brazilian government and the relationship between the federal government, states, citizens, and all people within Brazil. It has 250 articles and has been amended 70 times as of March 2012. This seventh and current Constitution was promulgated after a two-year process in which it was written from scratch by a Constituent Assembly elected in 1986.
History: The current Constitution of Brazil was created in response to the military dictatorship era. Its main objective was to safeguard individual rights and limit the state’s power to restrict freedom, enforce penalties, and regulate personal life. The constitution introduced new guarantees such as the errand of injunction and the habeas data. It also anticipated the establishment of a Consumers’ Defence Code (enacted in 1990), a Children’s and Youth Code (1990), and a new Civil Code (2002). Notably, it was the first constitution to advocate for severe punishment for violations of civil liberties and rights.
Therefore, Brazil subsequently passed a law that declared the spread of prejudice towards any minority or ethnic group a crime that is not eligible for bail. This law offered a legal solution against individuals who engage in hate speech or those who do not provide equal treatment to all citizens. This additional provision assisted disabled individuals in securing a reserved portion of employment opportunities in the public sector and major corporations, while allowing Afro-Brazilians to seek compensation for racism through legal means. Additionally, the Constitution introduced numerous methods of direct popular involvement beyond conventional voting, including plebiscites, referendums, and the ability for ordinary citizens to propose new legislation.
Examples of democratic mechanisms in Brazil include the 1993 plebiscite that confirmed the presidential system of government and the 2005 referendum that addressed the prohibition of firearm and ammunition sales. However, leftists criticized the mention of God in the Constitution’s preamble and on the Brazilian currency, arguing that it undermined freedom of religion by not recognizing the rights of polytheists, such as Amerindians, or atheists.
The Supreme Federal Court has determined that the exclusion of the protection of God from the constitution is constitutionally valid. The court stated that the preamble of the constitution serves as an introduction to the constitutional text and reflects the ideological beliefs of the legislator, which are within the realm of political ideology and not legal matters. The preamble of the Federal Constitution is a concise statement that outlines the purpose and principles of the document.
We, the representatives of the Brazilian People, gathered in the National Constituent Assembly with the aim of establishing a Democratic State. Our goal is to guarantee the exercise of social and individual rights, liberty, security, well-being, development, equality, and justice. These values are fundamental in creating a society that is fraternal, pluralistic, and unbiased. Our society is built on social harmony and is committed to resolving disputes in a peaceful manner, both domestically and internationally. With the protection of God, we hereby declare this Constitution of the Federative Republic of Brazil.
Title 1 focuses on the core principles of the Republic. It outlines the foundation of the Republic, declaring the Union’s indissoluble constituents – the States, cities, and Federal District. It also establishes three separate branches – Executive, Legislative, and Judiciary – that work harmoniously. Additionally, it outlines the main objectives of the nation. A pivotal section in this title is Article 1, which asserts that “All power originates from the People, who exercise it either through elected representatives or directly, in accordance with this Constitution.”
Title 2, also known as the Fundamental Safeguards, guarantees essential rights to both citizens and aliens. It includes regulations on capital punishment, citizenship requirements, political rights, and more.
Similarly, Title 3, the State Organization, sets guidelines for the nation’s capital, Brasilia, as well as the rights and responsibilities of the Union, States, Cities, and public personnel.
Lastly, Title 4 addresses the branches of government.
This chapter provides information on the attributes of each government branch and the rules for amending the Constitution. It also includes Title 5, which regulates the Defense of the State and its Democratic Institutions. This title covers the deployment of the armed forces, national security baselines, and declaration of a state of siege. Title 6 pertains to taxation and the nation’s budget, including tax distribution among the Union components and their competencies. Title 7 focuses on the economic and financial order.
Title 7 governs economic activities, agricultural and urban policies, as well as state monopolies in the country. The Brazilian government is mandated by the constitution to expropriate rural property that is not fulfilling its social function for agrarian reform. According to Article 186, a rural property fulfills its social function when it meets the requirements of rational and adequate use, as well as the adequate utilization of available natural resources while preserving the environment.
Compliance with labor relations regulations and welfare-focused exploitation of owners and workers are ensured by Title 8, which discusses the social order. This title includes provisions for the Social Security system, Public Health system, Public Pension system, as well as regulations pertaining to education, culture, science and technology, and sports policies. Title 9 encompasses general constitutional provisions, including some regulations and transitional dispositions. The Constitution of Greece (Greek: ????????) governs these matters.
The Constitution of Greece, also known as the Hellenic Parliament, was established by the Fifth Revisional Parliament of the Hellenes and came into effect in 1975. It has been amended on three occasions, notably in 1986, as well as in 2001 and 2008. The constitutional history of Greece dates back to the Greek War of Independence (1821-1832), during which the initial three revolutionary Greek constitutions were formulated.
