Australia’s Constitutional Arrangements


Two types of constitution

A constitution is the body of rules that structures and regulates the system of government within a nation. Any discussion of Australia’s constitutional arrangements must begin with two very different constitutional systems: the British Constitution and the Constitution of the United States of America.

The British Constitution is a diffuse, evolving and flexible body of rules. At the heart of the British Constitution is the doctrine of parliamentary sovereignty: What the King or Queen in Parliament enacts is law. According to this doctrine, Parliament can enact or repeal any law. The courts have no authority to strike down parliamentary enactments for violating either moral or legal principles. There are no fundamental constitutional laws that Parliament cannot change other than doctrine of parliamentary sovereignty itself. (Albeit, Britain’s decision to join the European Union (EU) in 1971 has resulted in loss of legislative sovereignty from the Westminster Parliament to the EU. Union laws can override British laws in areas within the Union’s powers. Disputes over law-making powers are decided in the Union’s own Court of Justice.)

More broadly, the British Constitution is found in the key Acts of the Westminster Parliament that cover matters of constitutional significance. These matters include the relationship between the Crown and the Parliament, the relationship between the two Houses of Parliament, the judiciary and the legal system, electoral matters, the rights of individuals, matters of territoriality, and the United Kingdom’s relationship with its constituent countries and territories, former colonies and the European Union.

Case law and judicial precedents are another source of the British Constitution; for example, the principle of parliamentary sovereignty and the royal prerogative derive in part from the common law, that is to say the decisions of the courts.

A further source of the British constitution is the non-legal conventions and customs that apply to the operation of parliament and the royal prerogative, most notable of which are the conventions of responsible government.

Finally, the British constitution includes the writings of learned constitutional lawyers - such as Bagehot, Erskine-May, and Dicey - whose authoritative commentaries on the operation of the constitution have become part of the constitution itself.

In contrast, the body of rules that structures and regulates the system of government in the United States of Americans is the single 1787 document (as amended) that begins with the preamble,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Unlike the British constitution, the American Constitution is a single document. This document constituted or created the United States. It lays claim to an external authority and is superior to all other laws within the nation. The American Constitution is also entrenched, requiring a more rigorous process for amendment than that which applies to normal laws.

Australia: British or American?

At this point you might be tempted to ask, which approach - the British or American - best describes Australia’s constitutional arrangements?

The answer is a bit of both. The Australian system of government is a hybrid that combines aspects of both the British parliamentary and the American federal models of government into something uniquely Australian. Australia’s constitutional arrangements combine the traditions of an unwritten constitution from the United Kingdom and a written constitution from the United States into a partially written constitution. Consequently, Australia’s constitutional arrangements can be explained in the language of both the United States and the United Kingdom.

The Constitution of the Commonwealth

In the American sense, the Australian Constitution is the single document (as amended) originally contained in section 9 of the Commonwealth of Australia Constitution Act 1900 (UK). The Australian Constitution is officially known as “the Constitution of the Commonwealth” and provides for the broad framework for government within Australia. It is a superior law, with which all other Australian laws must comply. It is an entrenched law, and it can only be amended by referendum that has been passed by a majority of voters overall, and a majority of voters in a majority of states, an even more stringent requirement than that which operates in the United States.

The Constitution Act

However, unlike the Constitution of the United States of America, the Australian Constitution did not create or constitute Australia. Australia was created by a royal proclamation of 17 September 1900, made under sections 3 and 4 of the Commonwealth of Australia Constitution Act 1900 (UK) with effect from 1 January 1901. While most of that Constitution Act is now obsolete, section 5 continues to have a vital place in regulating Australia’s system of government. Therefore, it is often argued that the Constitution Act also forms part of the Australian Constitution. Not surprisingly, the Constitution Act appears in every official reprint of the Australian Constitution. To avoid confusion with the sections of the Australian Constitution, the sections of the Constitution Act are often referred to as the covering clauses to the Constitution.

The original Commonwealth of Australia Constitution Act 1900 (UK), as signed into law by Queen Victoria, has been repatriated to Australia. The Australian Government requested it, and the British Government agreed to release it under the Australian Constitution (Public Record Copy) Act 1990 (UK).

Statute of Westminster and the Australia Acts

There are two other Acts of the Westminster Parliament that are entrenched in Australian law and which have legal supremacy over all legislation passed by the Federal and State Parliaments. These Acts have force in Australian law because of the (pre 1986) supremacy of the Westminster parliament over the Australian parliament.

  • The Imperial Statute of Westminster 1931 gave legislative effect to the decisions of the 1926 and 1930 Imperial Conferences. It was adopted in Australia in 1942 with the date of effect backdated to the commencement of the Second World War in 1939.
  • The Australia Acts of 1986, which were passed in essentially identical forms by the state, Commonwealth and Westminster parliaments, completed the process of Australia’s independence from the United Kingdom.

Both acts implicitly amend the Commonwealth of Australia Constitution Act 1900 (UK) and the Australian Constitution. Therefore, it can also be argued that Australia’s constitutional arrangements are contained in three Acts of the Westminster parliament, and not just the 1900 Constitution Act alone. Again it is worth noting that the official copies of the Australian Constitution published by the government almost always include a copy of both the Statute of Westminster Adoption Act 1942 and the Australia Act 1986.

Under section 15 of the Australia Act, the Australia Act 1986 and the Statute of Westminster Adoption Act 1942 can be amended, but only with the agreement of all Australian Parliaments (State and Federal).

The state constitutions

Because of Australia’s federal nature, in addition to the Australian Constitution each of the six Australian states has their own constitution, which provides a framework for its system of government. In most states a single Constitution Act contains the main (but not necessarily all of the) rules of a constitutional kind. The State Constitution Acts are:

  • Constitution Act 1902 (NSW)
  • Constitution Act 1975 (Vic)
  • Constitution Act 1867 (Qld)
  • Constitution Act 1934 (SA)
  • Constitution Act 1889 (WA)
  • Constitution Act 1934 (Tas)

Unlike the text of the Commonwealth Constitution, much of each State’s constitution can be amended by an ordinary Act of the State Parliament. Nevertheless, each State constitution provides for a special procedure (such as a referendum requirement) for the alteration of some key parts of that constitution.

Westminster conventions

Although the Australian Constitution provides the broad framework for the Australian system of government, it is not a detailed description of the Australian system of government. According to Winterton (1983), the Australian founding fathers sought to draft a constitution that reflected the reality of a constitutional monarchy, where the Queen’s powers are only exercised on the advice of her ministers and where the power to veto Bills has fallen into disuse. However, they feared that British lawyers would ridicule an Australian attempt to codify the real position of the Crown in 1900.

They were concerned that references to Prime Minister and Cabinet would make them appear gauche, uneducated and ignorant of constitutional practice in the eyes of the British. Consequently, and notwithstanding the misgivings of some, the founding fathers codified the formal powers of the Crown that had remained largely unchanged from the 17th century. Because they had also codified some of the key features of representative and responsible government, they did not believe any constitutional lawyer would suggest that the powers conferred on the Queen and her representative, the Governor-General, were to be taken literally.

The most important Westminster convention not mentioned in the Australian Constitution is the principle of responsible government. Under this principle, the Queen and the Governor-General only act in accord with the advice of the Prime Minister and his/her Cabinet of government ministers, all of whom are members of and accountable to the parliament. The parliament is, in turn, representative of and accountable to the people. This convention mediates the language of an all-powerful monarch, which is found in the Australian Constitution.

Decisions of the High Court of Australia

A consequence of federalism the High Court of Australia is the final arbiter of constitutional disputes. It is the High Court that ultimately decides the meaning and shape of Australia’s constitutional arrangements. The High Court has held that a number of the central Westminster constitutional conventions that apply in the United Kingdom also apply in Australia.

Ordinary legislation and resolutions of the houses of parliament

Just like Great Britain, a number of the important features of our system of Government are only found ordinary legislation and resolutions of one or both Houses of parliament.

In summary

Although Australia has a written constitution, the bare text of the Australian Constitution is deceptive. Read in isolation, the Australian Constitution provides a misleading and inadequate description of our system of government. The text of the Australian Constitution cannot be understood without reference to:

  • the Commonwealth of Australia Constitution Act 1900 (UK), the Statute of Westminster 1931 (UK), and the Australia Act 1986 (UK);
  • Australian legislation which provides the detail to the framework set out in the Australian Constitution;
  • the Westminster customs and conventions inherited from the United Kingdom; and
  • key judicial decisions of the High Court of Australia.

As a result, Australia has some of its constitutional arrangements in a series of entrenched superior laws like the Constitution of the United States of America. However just like the British constitution, a significant proportion of the Australia’s constitutional arrangements are found in unwritten conventions, and an evolving body of ordinary legislation and judicial decisions. Thus Australia has a partly codified and partly entrenched constitution augmented by a diffuse, evolving and flexible body of rules that work together to structure and regulate the Australian system of government.

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