John Kilcullen
Copyright (c), 2000, 2004. R.J. Kilcullen.
The purpose of this page is to guide politics students rapidly
through the Australian Constitution to get the general sense of
it.
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The makers of the Australian constitution intended to establish a [federation], to be called "The Commonwealth of Australia", in which the existing Colonies (NSW, Victoria, Queensland, Tasmania, South Australia, Western Australia) would become States. They intended the Commonwealth Parliament to include a
House of Representatives, which would represent
people as Australians, and a
In the Senate each State, no matter what its population, would have equal representation. In the House of Representatives representation would be by population.
So far the scheme resembled the [United States Constitution]. However the drafters retained two British institutions current in the Australian colonies, namely Monarchy (represented by a Governor-General) and Responsible Government. Though formally the monarch is [head of state], in fact (by virtue of the convention that the Governor-General acts on the Prime Minister's advice) government power is exercised by an elected person (prime minister, premier, chief minister) responsible to Parliament and indirectly to the electors.
Responsible Government, which had developed in Britain and its colonies in the course of the 19th century (i.e. after American independence) rests on the following conventions:
The executive Government (effectively the Prime Minister)
holds office only while it has the confidence of the
lower house of Parliament. If it ceases to have the confidence
of the lower house the government must either resign or
advise the Governor General to dissolve the lower house and
call for a general election.
[Conventions] are rules that are not enforced by the courts of law, but by some other means--by public opinion, by informal sanctions such as uncooperative behaviour, by the consciences of individuals involved. Conventions are not part of the legally-enforcable statute called the Constitution, but they are presupposed to it or grow up afterwards. The conventions of Reponsible Government are presupposed by our Constitution. (You may feel a need for information on the [history of federation]; otherwise, read on.)
The Australian Constitution became law by being passed as an Act of Parliament by the British Parliament. This explains the reference to "Victoria" in the heading (second line in the right frame). Victoria was Queen when the Act was passed by the British Parliament on 9th July 1900.
(See below, “Why is Australia governed under UK law”.)
Read the preamble ("Whereas...") and the eight numbered "covering clauses" ("Short title" etc.), cursorily, i.e. without worrying too much about the meaning of the details.
After these preliminaries we come to the Constitution itself. After a table of contents we come to provisions relating to the Parliament. The sections are numbered continuously throughout the Constitution. .
Read Chapter I Section 1. "Legislative power" is the power to make laws. Notice that Queen Victoria's successor is one of the three components of the Parliament. (Similarly in Britain the Parliament has three components, the Queen, the House of Lords and the House of Commons.) All three component parts of the legislature must agree before something becomes law, i.e. each of the three has a veto.. By virtue of a convention of the constitution the Queen exercises her power of veto only when advised to do so by the Government. (The Government is not the Parliament, but the Prime Minister and Cabinet -- really the Prime Minister alone, in advising the Queen.) Normally the Government advises the Queen (or rather the Governor-General, her representative) to assent to whatever the Senate and House of Representatives both pass, since this is almost always the Government's own legislation.
Read Section 2. By convention, the Queen appoints the Governor-General, and issues the Governor-General's instructions, in accordance with the advice of the Government.
Read Section 3. The phrase "until the Parliament otherwise provides" often occurs in this document, which contains provisions needed for setting up for the first time government institutions that did not exist in 1900. Once the new system is up and running, some of the initial arrangements -- those made "until Parliament otherwise provides" -- can be changed by an ordinary act of the Commonwealth Parliament, but the others are "entrenched", and cannot be changed except by referendum.
Read Section 4. This section makes it possible for someone to be appointed temporarily to act in the Governor-General's place (e.g. if he or she is overseas or sick).
Read Section 5 (in three paragraphs). A "session" is a sitting time, a period of some weeks during which the Parliament meets and does business. Parliament does not "sit" the whole year round. Parliament is "prorogued" to end its last session before an election. The dissolution of the House of Representatives means that a general election is to be held. (A "general election" elects members for every seat of the House of Representatives, a "bye-election" replaces a single member who has died or resigned.) The Governor-General has no power to dissolve the Senate, only the House of Representatives (below there is an exception to this). By convention, the Governor-General exercises the power to dissolve the House of Representatives in accordance with the advice of the Prime Minister.
Read Section 6. In a session of Parliament a government may be questioned or censured or voted out of office (under the conventions of "responsible government" a ministry that loses the confidence of the lower house must resign or call a general election). The point of Section 6 is to to prevent the Government from evading accountability by not summoning any session of Parliament.
The first six sections of Chapter I are about the Parliament as a whole. Sections 7-23, Part II of Chapter I, are about the "upper house", the Senate. The Senate is dealt with first because it is "upper", but the House of Representatives is the political centre of gravity in our system of government since the Government must have its confidence.
Read Section 7 (four paragraphs). "As one electorate": If a single electorate is to elect several members, this can be done in various ways. For example, if three members are to be elected, each voter may get three votes and the three candidates with the most votes can be declared elected. Until 1919 the Senate was elected in this way -- each voter put three crosses beside three names on the ballot paper and the three candidates with more crosses than any of the others were elected. After 1919 there was a preferential voting system for Senate elections, and since 1949 there has been a system of proportional representation. (See note on [Voting Systems]) .
"If that State [Queensland] be an Original State": The term "Original State" was explained above in covering clause 6. When the Constitution was being drafted it was not certain that Queensland would join. (The participation of Western Australia was also doubtful.)
The Original States must have equal representation in the Senate, irrespective of population or area; for example, Tasmania has as many senators as N.S.W. The equal representation of the original States was a vital part of the agreement to form a federation. The smaller States saw this as necessary to protect their interests against the possibility that NSW and Victoria might combine against them. In the House of Representatives, where representation is proportional to population, a majority could be formed from NSW and Victorian members, but their legislative proposals could not become law without the consent of the Senate, in which the smaller States would, if they voted together, outvote the senators from NSW and Victoria. (It is sometimes said that the Senate is no longer a "States' house" but rather a "parties' house". But presumably the fact that the smaller States elect so many senators influences the policies and behaviour of the political parties.)
A new State or territory need not have as many senators as an Original State. (No new States have ever been formed, but two territories, the ACT and NT, have been given Senate representation, 2 senators each.) If a new State is ever formed out of some area within one of the Original States, e.g. in north Queensland or in New England, the remaining part of that State must still have as many senators as any of the other Original States. The point of this was probably to remove an obstacle to the formation of smaller States, namely opposition from the existing State because it did not want a reduction of its Senate representation.
Each senator holds office for six years, approximately twice the term of office of members of the House of Representatives. The purpose of this is to make the Senate a conservative body, not so much swayed by the currents of popular opinion that influence the "popular" house, the House of Representatives. In bi-cameral Parliaments (as in all the Australian States except Queensland) the upper house was originally intended to put a brake on the implementation of new popular ideas.
The Governor who certifies to the Governor-General (last paragraph) is the governor of the State.
Read Section 8. The "qualifications of electors" determine who is entitled to vote. In some of the colonies in 1900 some who were entitled to vote for lower house members did not have the right to vote in elections for the upper house -- the upper house "franchise" (right to vote) was restricted (e.g. by age or wealth). But in the new Commonwealth anyone who can vote in elections for the House of Representatives can also vote in elections for the Senate. Who can vote in House of Representatives elections? This will be defined below in Section 30. That section prescribes a qualification "until the Parliament otherwise provides" (see above), which is why Section 8 says "prescribed by this Constitution, or by the Parliament".
Read Sections 9-12 cursorily, then read Section 13. "Altered by No.1, 1907, s. 2" indicates that this section was amended in 1907, as indicated by the crossing out of old words and insertions in bold type. This section means that half the senators, whose normal term of office is six years, face re-election every three years. The purpose of this Section is to foster continuity of opinion in the Senate, since at each half-Senate election only half of the Senators will face election and afterwards the other half will educate any newcomers -- continuity of opinion is part of the conservative function the Senate was originally intended to have. (In the first Senate, and after each "double dissolution", explained below, half of the senators hold office for only three years, to get the rotation going.)
Read Section 15 (ten paragraphs). This section was also amended, in 1977 (see original wording). The purpose of the amendment was to make sure that a State Government could not replace a senator of the opposite party with someone hostile to that party (as the Bjelke-Petersen National Party Government in Queensland had just done). This is the only place in the Constitution that mentions the existence of political parties. Replacement by a senator of the same party was previously regarded as required by convention, but the Bjelke-Petersen Government had defied the convention so it was made legally enforceable. The complexity of this section illustrates one reason why many things are left to convention -- it is often very difficult to spell out the convention without giving rise to unforeseen consequences.
One of the political consequences of the new version of section 15, unforeseen at least by the public (though perhaps not by party tacticians), has been an increase in casual vacancies (see paper, Senate Casual Vacancies; also here). The political parties now have a means of appointing people to the Senate without their having to face an election until later, when they will enjoy the advantages of incumbency. It works like this: When an existing Senator decides that the time has come to retire, he/she retires after a Senate election, and the party's favoured replacement then moves into the job without an election and serves out the retiring Senator's term.
Read Sections 16-23 cursorily. This brings us to part 3 of Chapter I, which relates to the House of Representatives.
Read Section 24. Each Original State has the same number of senators, but representation in the lower house is proportional to population.
Read Section 25. In 1900 aborigines were not eligible to vote in some colonies. This implied (by virtue of Section 30) that "until Parliament otherwise provides" they would not be eligible to vote in Commonwealth elections. The point of Section 25 is that the white electors in States that disfranchise members of some race or races should not benefit from the exclusion by being over-represented in the House of Representatives. (See Quick and Garran, The Annotated Constitution, p. 456.)
Read Section 26. This is a "spent provision", meaning that it applied at some time in the past (in the case of Section 26, at the time of the first Commonwealth election) but no longer has any application. Spent provisions could now be deleted from the Constitution. Sections now "spent" were of course necessary in 1900 to provide for setting up the new Commonwealth Government.
Read Sections 27 and 28. Section 28 sets the maximum time between elections, but not a minimum. By convention the Governor-General dissolves the House of Representatives only on the advice of the Government. The fact that the Government can force the House of Representatives to an early election (i.e. before the three years is up) but normally cannot force an election of the Senate (see above) increases the political importance of the lower house, since conflict between the Government and the House of Representatives may lead to an early election, and this possibility attracts public attention to such conflicts. (This situation is especially likely to arise if there is dissension within the Government party or when there is a [minority Government], but a government that "controls" both houses -- i.e. its party has a majority in both houses -- may call an early election if it sees a political advantage in doing so. Proposals for "fixed terms" are intended to prevent the calling of early elections for political advantage.)
Read Sections 29-31. All these were to be operative "until the Parliament otherwise provides" (see above). The Commonwealth now has its own [Electoral Act]. "The more numerous house" was in every case the lower house. The main point of Section 30 was to ensure that women who in 1900 had the right to vote in South Australia and Western Australia but not in other colonies would also have it in Commonwealth elections. "Each elector shall vote only once" -- at that time property owners had extra votes in lower house elections in some States.
Read Sections 32-50 cursorily. This brings us to Part V of Chapter 1, on Parliament's power to make laws. Read Section 51. Note that this and the next section are a complete list of the matters on which the Commonwealth Parliament can legislate -- unless something comes under one of these headings the Parliament cannot make laws about it. Section 51(xxvi) in its original form meant that the Commonwealth Parliament could not legislate about aboriginal affairs, which were left exclusively to the States. In 1967 this restriction was removed, and by virtue of Section 109 Commonwealth laws on aboriginal affairs now override State laws if they conflict.
Read Section 52. The "seat of government" is Canberra, in the Australian Capital Territory. See below, Section 125.
The powers listed in Section 52 are exclusive, so that no State can legislate on such matters. The powers listed in Section 51 are not said to be exclusive to the Commonwealth, so the States as well as the Commonwealth might legislate on them. In cases of conflict Commonwealth legislation has priority, by virtue of Section 109.
The allocation of powers between different levels of government is vital to the constitution of a federal state, since overlaps, conflicts and omissions may do considerable damage. There were several possible ways of defining powers.
The Constitution might have given a complete list of
the powers of both States and Commonwealth. But then
some matters might have been accidentally left out altogether,
or as time passed new matters might have needed government
control that could not have been forseen at the end of the
19th century (e.g. aviation, television).
Some powers are given exclusively to the Commonwealth, but with others overlap is allowed, with a provision (Section 109) to decide which legislation prevails if there is conflict. There is also provision to give new powers to the Commonwealth, either by the consent of State Governments (Section 51(xxxvii) or by constitutional amendment (Section 128).
Read Section 53. In this context to "appropriate" means to ear-mark for a specified purpose. Money cannot be spent without first being appropriated (Section 83). Section 53 does not allow the Senate to amend proposed legislation relating to tax and expenditure, but it does not prevent it from rejecting or not passing such legislation. The Senate may also request amendments. This means that the Senate could request amendments and indicate that it will not pass the legislation until the House of Representatives accepts the amendments requested. Thus there is not much practical point in not giving the Senate power to amend or originate.
However, Section 53 does have a point. It gives legal expression to the convention of responsible government that the Government must have the confidence of the House of Representatives. Collecting tax and spending money are essential to government, and by virtue of this Section the House of Representatives takes at least symbolic precedence in such matters over the Senate -- only the House can originate, and the Senate can only suggest amendments.
Read cursorily sections 54-55. Then read Section 56. Since by convention the Governor-General writes such messages (as he does most other things) on the advice of the Government, this section guarantees that legislation on expenditure must conform to Government policy. Sections 53 and 56 are the closest the Constitution comes to saying that our federal system of government follows the conventions of Responsible Government (see above).
Read Section 57. This section provides for a "double dissolution" if the Senate and the House of Representatives cannot agree, i.e. all the members of both the House of Representatives and the Senate are sent out to face re-election. (Except as provided in this section, the Senate cannot be dissolved, but each senator serves out his or her six year term; see above, Sections 5 and 7, last paragraph.)
Note that "the Governor-General may dissolve...", not must. When the Houses disagree double dissolution is an option open to the Government, but it is not compulsory. By convention, there will be a dissolution only if the Government advises the Governor-General to dissolve. Section 57 thus gives the Government a means of exerting pressure on the Senate to pass Government legislation -- the Government can threaten that if the Senate blocks its legislation there may be a double dissolution. This is of course an effective threat only if it seems likely that the Government would win the double dissolution election.
"If after... three months": There is a three-month "cooling off" period. If after that time the disagreement still exists there may be a double dissolution.
After the election following on the double dissolution, if disagreement between the Houses still exists, it can be resolved not by another double dissolution, but by a "joint sitting" of the two houses of Parliament. Since there are twice as many members of the House of Representatives as there are senators (see Section 24), the majority of the House of Representatives will probably get their way in the joint sitting, unless their majority is narrow and the opposition among senators is widespread.
Read Sections 58-60. In 1900 the Queen would have acted on the advice of the British Government, Australia then being a subordinate part of the British Empire. These sections therefore meant that the Governor-General could reject or delay Commonwealth legislation if the British Government wished it. Since the [Imperial Conference of 1926] recognised that Australia was not subordinate to Britain, the Queen, like the Governor-General, now acts on the advice of the Commonwealth Government without reference to the British Government, and there would now be no point in reserving a law for the Queen's pleasure.
This completes Chapter I, on the Parliament. Chapter II deals with the executive Government. Read Sections 61-64. The Constitution may give the impression that the Governor-General is the Government, but bear in mind that by convention he acts in accordance with the advice of the Prime Minister (see above).
Section 61 does not define the full extent of executive power. The phrase "extends to" means "includes", but "extends" does not mean "and no further". The other executive powers come under the heading "the Royal prerogative". (See also "How ministers exercise arbitrary power".)
The "prerogative powers" are the remnant of the original powers of the medieval monarchy that have not yet been removed by parliamentary legislation. They are attributed to the Monarch and exercised by the Governor-General, but by convention usually in accordance with the advice of the Prime Minister, so that in effect they are powers of the Prime Minister. They are the powers the government has that do not derive either from the text of the Constitution or from Laws passed by Parliament. Among the prerogative powers are the power to make war, the power to make treaties with foreign countries, and the power to make some appointments (notably of the Governor-General). Although these matters may be discussed in Parliament, the government does not require Parliamentary approval to go to war, make a treaty, etc.
Where the line is drawn between the powers of representative
assemblies and the power of government differs from time to time
and from one country to another. The US constitution seems to have
been intended to give the executive government less power than
George III had. For example, under the United States Constitution., art. I,
section 8, clause 11, and art. II, section 2, clause 2, the
Congress or the Senate has a role in declaring war and making
treaties and in certain appointments, matters which in countries
in the British tradition currently belong to the royal
prerogative. (However, some American lawyers interpret US
constitution article II, section 1, clause 1, which vests
executive power in the President, and section 2, clause 2, which
makes the President "commander in chief", as giving the President
something like the prerogative powers of the monarchy. In US
politics this is a controversial matter. See for example here
and here.)
In British history the royal prerogative (which was never absolute and unlimited) shrank as Parliament made laws, because the Courts accepted that laws made by parliament overrode the traditional common law. It would be possible to alter the extent of the royal prerogative by simple Parliamentary legislation, without any need for a constitutional amendment. (For example, Parliament could--in my opinion should--make laws that the Parliament must approve overseas deployment of Australian troops and must approve treaties. Such laws would not require constitutional amendment.)
The Federal Executive Council consists of the ministers (section 64, second paragraph). They hold office during the Governor-General's pleasure, i.e. until the Prime Minister advises him to replace them.
Section 64, third paragraph, expresses the founders' decision to reject the US "separation" between executive and congress (the President and the members of the Cabinet do not have seats in Congress) in favour of the British practice. Australians are now in the practice of speaking of "separation of powers" as a feature of the Australian Constitution, but there is not separation in the American sense. (See Bagehot, The English Constitution, "The Cabinet".)
References to "the Governor-General in council" (explained in Section 63) are few -- for examples, see Sections 32, 33. Note that when the phrase "in council" is not included, this does not mean that the Governor-General need not follow the advice of the ministers. As discussion in the Convention that drafted the Constitution shows, the drafters assumed that under the conventions of responsible government the Governor-General would follow the advice of the ministers, whether or not the phrase "in council" was included. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 406.
In the appointment of a Prime Minister, convention allows the Governor-General some limited discretion. Normally the Governor-General appoints the next Prime Minister in accordance with the advice of the outgoing Prime Minister -- e.g. after an election in which the incumbent Government is defeated, the outgoing Prime Minister will offer the Governor-General his or her resignation and advise the Governor-General to call on the leader of the successful party. Similarly, if the Government has lost the confidence of the House of Representatives and the Prime Minister chooses not to call an election but to hand over office to another leader the house has confidence in, the Prime Minister will offer the Government's resignation and advise the Governor-General to call on the other leader to form a Government. But occasionally, if a defeated Government refuses to resign or if there is no clear leader of a majority in the House of Representatives, and perhaps in some other circumstances, the Governor-General may make his or her own choice. (The person so chosen must be able to get the confidence of the House, or there will be another replacement.) The Governor-General will accept the new Prime Minister's advice as to who the other ministers should be. The Constitution does not mention the Prime Minister. The position exists by constitutional convention.
The third paragraph of Section 64 means that the Governor-General could appoint any or all of the ministers from outside the Parliament, but within three months they would need to get elected -- or be replaced by another set of ministers. A Governor-General who used this possibility to appoint a military government (for example) would encounter strong public criticism and would eventually have to come to terms with Parliament because he would need its approval to spend money (see Section 83).
Read cursorily Sections 65-70. Section 68 does not mean that the Governor-General could take personal command of the military forces; this function must also be exercised in accordance with the advice of ministers. (See Quick and Garran, Annotated Constitution, pp. 713-4, and the pages of the Convention Debates there referred to.)
This brings us to Chapter III, on the judiciary. Read Sections 71 and 72. One of the basic principles of our system of government is the independence of the judiciary, i.e. its independence in relation to the Government and in relation to Parliament (subject to 72(ii)). Section 71 ("shall be vested") means that the High Court cannot be abolished by Parliament (though other federal courts can be). Section 72(ii) means that the Government cannot remove a judge except by persuading Parliament that there is proved misbehaviour or incapacity. Section 72(iii) is to make sure that the Government or Parliament cannot punish a judge financially for decisions it does not like. The independence of the judiciary is necessary to "the rule of law", i.e. to ensure that the Government itself acts in accordance with the law.
The paragraphs added by amendment in 1977 were intended to make it possible to make judges retire at a certain age. They are drafted so as not to affect the rights of existing judges, since this might be construed as infringing the independence of the judiciary.
Read cursorily Sections 73-80.
Section 74 was controversial. It is now a dead letter, so perhaps not worth worrying about (by all means move on to section 80). The intention of the 1891 draft of the Constitution was to substitute the new federal High Court for the British Privy Council as court of appeal from the supreme courts of the States, allowing further appeal from the federal High Court to the Privy Council only where certain "public interests" were concerned (which would include constitutional issues), and private interests were excluded. In later drafts (after intensive lobbying by commercial interests) this was reversed -- constitutional issues were excluded from appeal to the Privy Council and appeals concerning private interests were permitted. When the Constitution went to the British Parliament for enactment, the British Government (represented by Joseph Chamberlain, friend to British commercial interests) negotiated a version that gave a right of appeal in private matters, but not (without leave of the High Court itself) on constitutional issues ("the limits inter se" etc. -- inter se means "among themselves"). See Quick and Garran, Annotated Constitution, pp. 748-50. On the subsequent history of appeals to the Privy Council see L. Crisp, Australian National Government, pp. 60-3. The right to appeal to the Privy Council has since been abolished altogether by parallel legislation in Australia and Britain (The Australia Act, 1986); see Zines, The High Court and the Constitution, 3rd edn., p. 263.
The guarantee apparently given by Section 80 of trial by jury is probably illusory, since it is up to Parliament to determine which crimes will be tried on indictment. See Coper, Encounters with the Australian Constitution, p. 324 ff.
This completes Chapters I-III of the Constitution, which relate to what are called the "three branches" of government (in the broadest sense of the term "government"), namely the legislature (Parliament), the executive government ("the Government" in the narrowest sense) and the courts. In our system (like the British, unlike the American), the legislature and executive are not "separate" -- the ministers are members of Parliament, they need the confidence of the House of Representatives, and the Government may bring about a dissolution of the House of Representatives and a new election. Thus the executive and the legislature are distinct but not separate. As in the British and American systems there is an independent judiciary -- the judges cannot be directed or removed by the Government (see above).
Much of Chapter IV relates to financial arrangements necessary because of the transfer of some branches of government activity from the old colonial governments to the new Commonwealth government (see above, Section 69). Many of its provisions are "spent" (see above).
Read Sections 81-83. The point of these is clear enough. Skip over, or read cursorily, Sections 84-91.
Now read Section 92. The point of this Section was (probably) to prevent the States from maintaining customs duties and other similar barriers against one another. However, from the 1930s the High Court interpreted Section 92 so as to prevent both States and Commonwealth from imposing road taxes or establishing schemes for the marketing of primary produce, or doing anything else that could be construed as burdening inter-State trade. In the 1940s Section 92 was used to stop nationalisation of the banks. In 1988 the court went back to something more like the original meaning of Section 92. For discussion see M. Coper, Encounters with the Australian Constitution, chapter 7.
Skip over Sections 93-5, and read Section 96. "And thereafter..." means that this Section is still available. Thus the Whitlam government was able to influence State governments to participate in federal government social policies by offering them conditional grants.
Read cursorily Sections 97-100. Then read Section 101. The Inter-State Commission has never been important, but Premiers and Ministers conferences have been important forums within which intergovernmental relations have been negotiated.
Read cursorily Sections 102-105A.
This brings us to Chapter V, on the States. Read Section 106. Each State has its own constitution -- see, for example, the [NSW Constitution]. The constitution of the State provides some method by which it can be altered -- see, for example, sections 7, 7A and 7B of the NSW Constitution.
Read Section 107. No attempt is made to list the powers of the States (see above). State powers remain whatever they were, less the powers assigned exclusively to the Commonwealth (see Section 52). In areas in which both States and Commonwealth may legislate, Commonwealth law prevails in cases of conflict (see Section 109).
Read cursorily the remaining sections of Chapter V. Section 116 is out of place among sections on the States (since it binds the Commonwealth and not the States). This is the only element our Constitution contains of a [Bill of Rights].
Chapter VI is about the formation of new States (e.g. by subdividing the Original States). This has not so far been done. Read Chapter VI cursorily.
According to Section 125 the seat of government has to be in NSW at least 100 miles from Sydney. The Consitution does not require (as some people believe it does) that the seat of government be a new city, or that it be midway between Sydney and Melbourne. The seat of government could be in Bellingen or in Bombala. On the selection of Canberra see ["Finding a site for Australia's 'Seat of Government'].
Section 127 was repealed in 1967. It read: " 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." States which denied aboriginals the vote had their representation in the House of Representatives reduced already by Section 25, so Section 127 had nothing to do with entitlement to representation. Its purpose was related to the formula adopted for the treatment of customs duties during the transition period (see Section 89, and notice that according to (ii)(b) expenditure is debited in proportion to population). Without section 127, section 89 would not have been acceptable to South Australia, since it had the largest aboriginal population (at that time the Northern Territory belonged to South Australia), and most aboriginals did not buy goods on which customs duties were levied. (See La Nauze, The Making of the Australian Constitution, p. 68.)
It is not true that the repeal of Section 127 in 1967 first recognised aboriginals as persons or first gave them citizenship or first gave them the right to vote. On the 1967 referendum see Parliamentary Library The 1967 referendum: history and myths; See also T. Clarke and B. Galligan, "'Aboriginal Native' and the Institutional Construction of the Australian Citizen 1901-48", Australian Historical Studies 26 (1994-5), pp. 523-43. The repeal of Section 127 seems to have been mainly of symbolic importance. The practically important thing done in the same referendum was to give the Commonwealth power to make laws relating to aboriginals (Section 51(xxvi)), laws which would override State laws in case of conflict. This enabled the Commonwealth Government to take the lead in aboriginal affairs, if it wished.
This brings us to the last Chapter, "Alteration of the Constitution". Read Section 128. The alteration made in 1977 was to include the territories (ACT and NT), as indicated by bold type. The main point of this Section is in the fifth paragraph -- that the Constitution cannot be altered unless the alteration is approved by a majority of voters throughout Australia and also by a majority of voters in at least four States. For a list of the constitutional referendums that have been held with links to articles explaining the issues, see Wikipedia.
The rule for amending the Constitution is similar to the procedure that has made the body of Commonwealth law. At the beginning of the Commonwealth there was no Commonwealth law except what was contained in the Constitution itself, which had been approved by a majority in a majority of States. From that starting point, new laws could be added to the body of Commonwealth law only if passed by the House of Representatives (representing the majority of the Australian people overall) and by the Senate (representing the majority in the majority of States). The federal compact is that the executive Government is to be what the majority of Australians (whereever they live) support through their representatives in the lower house, but that Government must operate within a constitution and body of laws that has been accepted also by people in the smaller States.
"Adult suffrage" (at the end of the fourth paragraph) means voting rights for both men and women. In most of the States in 1900 there was "manhood suffrage", i.e. voting rights for men only, but in South Australia and Western Australia women had the suffrage also. ("Suffrage" or "franchise" here means the right to vote.) The point of this paragraph is that in constitutional amendment South Australia and Western Australia should not get extra weight because of their wider franchise. This is a "spent" provision, since the qualification of electors is now uniform throughout the Commonwealth, namely adult suffrage from age 18.
The Canadian and Australian federations were formed by British Colonies not in a state of rebellion, with the consent (in fact the positive encouragement) of the British government. The obvious way to bring about this change without any break in constitutional and legal continuity was by Act of the British Parliament. Accordingly both the Canadian Constitution of 1867 and the Australian Constitution of 190 were both British Acts of Parliament. However, unlike the British North America Act, the Australian Constitution, in Section 128, provided a process of amendment which would not require any further British intervention. (It was only in 1982 that the Canadian Constitution was "repatriated", or rather "patriated", made amendable in Canada. See [A Comparison of the Australian and Canadian Political Systems].)
History and Current Consent.
Here is part of an email in which I replied to a correspondent who argued that the
Australian Constitution is now invalid becauseAustralia
has become independent of Britain:
"Re: Why is
The legitimacy of constitutions and law does not rest upon any particular historical event, but on the CURRENT consent or acquiescence of the population (which of course may have a lot to do with their beliefs about history).
If circumstances
and attitudes change much, a legal system that has had the consent
of the population might lose it -- they might become so
discontented with it as to support a revolution, or at least a
major restructure. Constitutions the British imposed on some
countries as they left (
There is nothing
wrong with one nation inheriting or borrowing a political or legal
system from another. Inheritance is not incompatible with
independence. The British Parliament a century ago enacted a
constitution that had been drafted by Australians; since then
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Some final observations. There is nothing in the Australian Constitution that anyone would want children at school to learn by heart as a statement of ideals. In not trying to impose their ideals on future generations the drafters of the Constitution exercised commendable restraint. The Constitution did not attempt to sum up the Australian ethos -- just as well, since that has changed considerably over one hundred years. The Constitution is simply a statement of the legal terms on which the Australian colonies agreed to set up a federal government, and it contains nothing that was not needed for that purpose. It does not try to state every rule the drafters expected to be followed, since they believed that many such rules were best left as conventions, not legally enforcable and subject to further development. They dealt with the matters that needed to be settled to establish a new federation, against a background of existing conventions and practices that might change in future but were clear enough for their purpose.
J.A. La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) Macquarie University Library: KTA 1205 .L3
Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (Cambridge University Press, 1999) Macquarie University Library: JQ 4081 .I79
J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth Macquarie University Library: KTA 1203 1901
Official Records of the Debates of the Australasian Federal Convention, 6 vols., 1891-1898. Macquarie University Library: JQ 4015 .O35
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