Creating and changing the Constitution

Prepared for APO by the Gilbert + Tobin Centre of Public Law, this resource page provides links to key documents on the evolution of the Australian Constitution   THE Australian Constitution, which came into force in 1901, created the Commonwealth of Australia. It also established the legislative, judicial and executive arms of the federal government and set out the relationship between the Commonwealth and the Australian States and Territories.   • Australian Constitution • Photo of the original Constitution The Statute of Westminster 1931 (UK) represents a significant moment in Australia’s march towards independence and full sovereignty. The statute (which was an Act of the Imperial Parliament) freed the Imperial Dominions - Australia, Canada and South Africa among them - from various United Kingdom legislative controls. For example, it permitted the Commonwealth of Australia to pass laws that were inconsistent with United Kingdom laws. • Statute of Westminster 1931 (UK) At the request of some the Dominions, the Statute of Westminster 1931 (UK) did not apply immediately but took effect when the Dominions themselves considered it appropriate. For Australia, this occurred with the passage of the Statute of Westminster Adoption Act 1942 (Cth). • Statute of Westminster Adoption Act 1942 (Cth) The Australia Act 1986 was the last significant step in the severing of legal ties between Australia and the United Kingdom. The Act abolished appeals to the Privy Council in London (leaving the High Court at the apex of the Australian judicial system) as well as the capacity of the United Kingdom Parliament to make laws for Australia. • Australia Act 1986 (Cth) Constitutions of the Australian states Each Australian state has its own Constitution: • New South Wales • Queensland • Victoria • South Australia • Tasmania • Western Australia The Australian Capital Territory and the Northern Territory do not have constitutions, but rather have Self-Government Acts enacted by the federal parliament: • Self-Government Acts of Australian Capital Territory and Northern Territory The different constitutional arrangements in countries around the world can be compared on this website: • Constitutions of the world Drafting the Australian Constitution The final form of the Australia Constitution was the outcome of two drafting conventions held during the 1890s. • Debates of the Drafting Conventions of the 1890s Interpreting the Constitution The High Court of Australia is the highest court in the Australian judicial system and has the ultimate responsibility for interpreting the words of the Australian Constitution. • High Court of Australia The judgments of the High Court are available electronically, posted shortly after they are delivered by the court. • Decisions of the High Court of Australia The executive arm of government After the defeat of the 1999 referendum on the republic (see case study and links below), Australia remains a constitutional monarchy. The Queen’s representative in Australia is the Governor-General, who is appointed by the Queen upon the advice of the Prime Minister. The Governor-General performs many symbolic functions as well as constitutional functions such as issuing writs for federal elections and making regulations on the advice of his or her ministers of the government. • Governor-General While the Prime Minister is the most important democratically elected public official in Australia, the office is not referred to in the Constitution. As with many other aspects of our constitutional arrangements, the office of the Prime Minister is an unwritten constitutional convention. • Prime Minister Like the Prime Minister, Cabinet is not referred to in the Constitution. It is the key decision-making body in the executive arm of the federal government and is composed of government ministers. • Department of the Prime Minister and Cabinet Parliament The Commonwealth Parliament is established by Chapter 1 of the Australian Constitution and comprises two houses: a lower house (the House of Representatives) and an upper house (the Senate). • Commonwealth Parliament Human Rights Australia is the only western nation not to have some form of Bill of Rights. Recently, the Australian Capital Territory Parliament enacted the Human Rights Act 2004. It is the first Australian state or territory to introduce a Bill of Rights. • Human Rights Act Changing the Australian Constitution Since Federation, there have been 44 proposals to change the Commonwealth Constitution but only eight have succeeded. This webpage lists the text of all 44 referenda and the results of the ballots: • The Process of change and the outcomes of the 44 referendums Two former Chief Justices of the High Court of Australia, Sir Harry Gibbs and Sir Anthony Mason, discuss the Constitutional Convention of 1998 (see link below) and the mechanisms for constitutional change on Radio National’s The Law Report (17 February 1998): • Former judges of the High Court of Australia discuss constitutional change There has been much debate about the adequacy of Australia’s arrangements for constitutional change and why so few of the proposals for change have been passed by the Australian people. The author of this paper from the Parliamentary Library discuss some of the reasons for this. • What are the mechanisms for amending the Commonwealth Constitution? Why have so many referenda failed? Changing the Australian Constitution - case study: the 1967 referendum The 1967 referendum put the question of whether two references in the Australian Constitution that referred to Aboriginal peoples in a negative light should be removed. The referendum was successful, recording the highest ever ‘yes’ vote in a federal referendum • Fact sheet on the 1967 referendum Douglas Ralph (‘Doug’) Nicholls was an Aboriginal activist heavily involved in the 1967 referendum campaign. In 1976 he became the first Aboriginal person to be appointed a Governor of a state (South Australia). This is an audio file of him addressing a meeting of supporters of the 1967 Referendum • Doug Nicholls speaking at a meeting of supporters of the 1967 referendum The 1967 referendum question received popular support in the community and bipartisan support in the federal parliament. Here are some of the contemporary newspaper reports that give a sense of the issues and views of the day. • A selection of contemporary Queensland newspaper reports on the 1967 referendum This famous poster was produced by the Federal Council for the Advancement of Aborigines and Torres Strait Islanders in support of the ‘yes’ campaign: • Poster: ‘Write wrongs write YES’ Changing the Australian Constitution - case study: the 1999 referendum As part of the national debate about whether Australia should become a republic, a constitutional convention was held in 1998 in which parliamentary and non-parliamentary delegates debated whether Australia should become a republic. • Debates of the 1998 Constitutional Convention The Australian Electoral Commission is the Commonwealth authority responsible for conducting federal elections and referendums. This is a page from their web-site containing detailed reports and nationwide statistics on the 1999 referendum on the republic. • Australian Electoral Commission Referendum Report and Statistics Australians for a Constitutional Monarchy were the leading (and ultimately successful) proponents of a ‘no’ vote in the 1999 referendum on the republic. • Australians for a Constitutional Monarchy The Australian Republican Movement was the leading (and ultimately unsuccessful) proponent of a ‘yes’ vote in the 1999 referendum on the republic. • Australian Republican Movemen