The Commonwealth of Australia Constitution Act 1900 — Overview

Introduction

The Commonwealth of Australia Constitution Act 1900 (63 & 64 Vict, c 12) is the supreme law of the Commonwealth of Australia. Enacted as an Act of the United Kingdom Parliament, it established the Commonwealth of Australia as a federal dominion under the Crown, uniting the six self-governing British colonies of New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania into a single nation. The Constitution came into force on 1 January 1901, following the proclamation of the Commonwealth by the Governor-General, Lord Hopetoun, in Centennial Park, Sydney.

The Constitution is not a single document but comprises the covering clauses of the Imperial Act and the Constitution itself (s 9 of the Act). The covering clauses are nine in number and include the “short title” (clause 1), the “commencement” (clause 2), the “proclamation of the Commonwealth” (clause 3), and the definition of “the Commonwealth” (clause 4). The Constitution itself, contained in clause 9, comprises 128 sections organised into eight chapters.

The Constitutional Conventions

The Constitution was the product of a series of Constitutional Conventions held in the 1890s, at which delegates from the Australian colonies debated and drafted the federal compact. The Sydney Convention (1891), presided over by Sir Henry Parkes, produced the first draft of the Constitution, based on the model of the United States Constitution with significant adaptations reflecting the British tradition of responsible government. Sir Samuel Griffith (later the first Chief Justice of the High Court) was the principal draftsman of the 1891 draft.

The Adelaide Convention (1897) and the Melbourne Session (1898) resulted from the “Corowa Plan,” which called for the election of convention delegates by popular vote. The conventions were presided over by Edmund Barton (later the first Prime Minister and a Justice of the High Court). The final text was largely settled at the Melbourne Session in early 1898.

The draft Constitution was submitted to the electors of the colonies in a series of referendums (1898–1900). The first referendum (1898) achieved a majority in all colonies except New South Wales, which had not required a sufficient majority. After amendments to satisfy New South Wales concerns, the second referendum (1899) was approved in all colonies except Western Australia, which voted to join in 1900 after a further referendum. The Constitution was then enacted by the UK Parliament with minor amendments and received Royal Assent on 9 July 1900.

Covering Clauses

The covering clauses (the preliminary sections of the Imperial Act) establish the legal foundation of the Commonwealth. Clause 1 provides the short title: “The Commonwealth of Australia Constitution Act.” Clause 2 provides that the Act shall bind the Crown. Clause 3 provides for the proclamation of the Commonwealth and the establishment of the federal system. Clause 5 is of particular importance: it declares that the Constitution “shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth,” and that laws made by the Commonwealth Parliament under the Constitution “shall be binding on the courts, judges, and people of every State.” Clause 5 also provides that the Constitution of each State “shall, subject to this Constitution, continue as at the establishment of the Commonwealth.”

The Structure of the Constitution

The Constitution is divided into eight chapters. Chapter I (ss 1–60) establishes the Federal Parliament, comprising the Queen (represented by the Governor-General), the Senate, and the House of Representatives. The Senate is composed of 12 Senators from each State (s 7), representing the interests of the States as equal polities. The House of Representatives is composed of members elected from electoral divisions apportioned according to population, with each State guaranteed at least five members (s 24). Chapter I vests the legislative power of the Commonwealth in the Federal Parliament (s 1) and enumerates the heads of legislative power in s 51.

Chapter II (ss 61–70) establishes the Executive Government, vesting the executive power of the Commonwealth in the Queen and making it exercisable by the Governor-General as the Queen’s representative (s 61). The Governor-General is advised by the Federal Executive Council (s 62) and appoints Ministers of State (s 64). The chapter establishes the system of responsible government: Ministers must be members of Parliament (s 64) and are responsible to the Parliament.

Chapter III (ss 71–80) establishes the Judicature, vesting the judicial power of the Commonwealth in the High Court of Australia and in such other federal courts as Parliament creates, and in such other courts as Parliament invests with federal jurisdiction (s 71). The chapter provides for the appointment of Justices (s 72) and the appellate jurisdiction of the High Court (s 73). Section 75 confers original jurisdiction on the High Court in matters involving the Constitution, treaties, and the Commonwealth; s 75(v) — matters in which a constitutional writ is sought against an officer of the Commonwealth — is the foundation of federal judicial review.

Chapter IV (ss 81–105A) deals with Finance and Trade, including the Consolidated Revenue Fund (s 81), the requirement that taxation not discriminate between States (s 51(ii)), and the guarantee of interstate free trade (s 92). Section 92 provides that “trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” The section has been the subject of extensive High Court litigation.

Chapter V (ss 106–120) deals with the States, providing for the continuation of State Constitutions (s 106), the preservation of State legislative powers (s 107), and the supremacy of Commonwealth law over inconsistent State law (s 109).

Chapter VI (ss 121–122) deals with New States and the admission or establishment of new States and territories.

Chapter VII (ss 123–126) contains Miscellaneous provisions, including the power of the Governor-General to appoint deputies (s 126).

Chapter VIII (ss 127–128) contains the amendment provision (s 128) and (originally) the exclusion of Indigenous Australians from the census (s 127, repealed by the 1967 referendum).

The Statute of Westminster and the Australia Acts

The Constitution initially operated as a UK statute, and the Commonwealth Parliament’s legislative authority was subject to the paramount legislative power of the UK Parliament. The Statute of Westminster 1931 (UK), adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942 (Cth) (retrospectively effective from 3 September 1939), removed the UK Parliament’s power to legislate for the Commonwealth without its request and consent, and confirmed the extraterritorial competence of the Commonwealth Parliament.

The Australia Acts 1986 (the Australia Act 1986 (Cth) and the Australia Act 1986 (UK)) completed Australia’s constitutional independence. The Acts: (a) terminated the remaining legislative authority of the UK Parliament over Australia; (b) abolished appeals from Australian courts to the Privy Council; (c) declared that Australian law shall not be subject to UK legislation; and (d) provided that the ultimate sovereign within Australia resides in the Australian people. The Australia Acts represent the final legal severance of Australia’s constitutional ties with the United Kingdom.

Amendment Under Section 128

Section 128 of the Constitution provides the mechanism for amendment. A proposed amendment must be approved by an absolute majority of both Houses of the Federal Parliament (or, where one House twice rejects the proposal, by the Governor-General) and must then be submitted to a referendum. The referendum must be approved by a double majority: (a) a majority of the electors voting in the Commonwealth as a whole; and (b) a majority of the electors voting in a majority of States (i.e., at least four of the six States).

No amendment has succeeded without bipartisan support. Of the 44 referendums held since 1901, only eight have been approved, including the 1967 referendum (which amended s 51(xxvi) to permit the Commonwealth to legislate for Indigenous Australians and repealed s 127) and the 1977 referendum (which provided for the retirement of High Court Justices at age 70).

The Supreme Law

Section 109 provides that Commonwealth laws prevail over inconsistent State laws. The Constitution itself is the supreme law of the Commonwealth: all Commonwealth and State laws are subordinate to the Constitution. The High Court has the power of judicial review: the power to declare legislation invalid for inconsistency with the Constitution. This power is not expressly conferred by the Constitution but was held to be implied from the nature of a federal constitution and the vesting of judicial power in the High Court: Australian Communist Party v Commonwealth (1951) 83 CLR 1.

Constitutional Conventions

The written Constitution is supplemented by constitutional conventions — unwritten practices and understandings that regulate the exercise of constitutional power. These conventions include: the requirement that the Governor-General act on the advice of Ministers; the requirement that the Prime Minister have the confidence of the House of Representatives; and the requirement that the government maintain majority support in the House. The conventions are not legally enforceable but are binding in practice. The 1975 constitutional crisis, in which Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam, raised important questions about the content and enforceability of constitutional conventions.

State Constitutions

Each State of Australia has its own Constitution, which (subject to the Commonwealth Constitution) governs the structure and powers of the State’s Parliament, Executive, and Judiciary. State Constitutions are contained in a combination of Imperial legislation, State Acts, and conventions. The State Constitutions are not “supreme law” in the same sense as the Commonwealth Constitution; they may be amended by ordinary legislation (subject to any manner and form requirements: Attorney-General (NSW) v Trethowan (1932) 47 CLR 97).