Overarching Principles of the Constitution

The Constitution is a document of the Australian people which establishes rules for the governance of our nation.

The Constitution protects the Australian people from arbitrary power and uncontrolled authority. It provides a predictable and orderly society with important checks and balances promote justice, fairness, and individual freedom. The Constitution guarantees that all Australians enjoy essential protections based on the principles of the rule of law. It does this by establishing a framework for the operation of government with their powers clearly articulated into Chapters and Sections: 

• How the Federal Parliament works and what powers it has (Chapter I)  
• The composition of the Australian Parliament (Chapter I)  
• How the Federal and State Parliaments share power (Chapters V & VI)  
• The role of the executive government (Chapter II) 
• The role of the High Court of Australia (Chapter III)  
• How the Constitution can be changed (Chapter VIII) 

By limiting power, it ensures each body works within its area of responsibility. This acts as a check and balance on the governing authorities to ensure that a single person does not hold power but is instead shared between three different bodies. The Constitution provides that the Commonwealth government will be both a representative and responsible government operating under the rule of law.

The ‘rule of law’ rather than the ‘rule of men’:  Clause 5

The rule of law is a principle which is implied in our Constitution.

It is the idea that all Australians should be governed by a clear set of rules applied fairly and equally to everyone, regardless of their status. This supports the idea that a person cannot be punished or have their rights adversely affected other than in accordance with the law and only after a breach of the law has been established. Effective governance includes practicing principles derived from the rule of law; such as, the legal system should be easily understood and accessible to all citizens. This principle aims to ensure that the powers of government will be exercised in accordance with pre-existing laws. Laws that are written, publicly disclosed, administered justly and fairly, and in accordance with established procedural steps, and which are consistently adopted and enforced.  Similarly, the Constitution imposes limits on government to protect against the use of arbitrary power. 

Clause 5 in the Constitution states: 

‘all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth..…’  

This clause states that everyone will be governed by and bound by the laws of Australia. No one is above the law, and everyone is entitled to due process if they are potentially subject to Commonwealth law, including institutions, corporations, government agencies, and individuals.

To facilitate this, the Constitution ensures that judicial power is independent and impartial. The separation of powers allows laws to be applied fairly, and if a legal wrong occurs, a remedy can be sought from an independent judiciary. Specifically, Clause 75 of the Constitution states:

‘(v)  in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.’  

This ensures that the actions (or failures to act) of Members of Parliament are subject to judicial review, at least in the original jurisdiction of the High Court. This accountability ensures they act within their lawful powers, meaning they are subject to the law and do not exceed the authority that the law or Constitution grants them.

Furthermore, the Constitution protects the independence of the judiciary by outlining the tenure and terms of service for judges. These provisions maintain the judiciary’s independence, which is crucial for ensuring that laws made by the Legislature and actions of the Executive are lawful and consistent with the Constitution.

Despite the structure of the Constitution and the ideal of the doctrine of separation of powers, there is no strict demarcation between the legislative and executive powers of the Commonwealth. Only Parliament can pass laws, which are then conferred on the Executive government to make regulations and rules (or by-laws) in relation to matters relevant to the particular laws. 

Division of Powers between Federal, State and Local: Chapters V & VI

There are express provisions in the Constitution for managing and resolving disputes which can arise between the Commonwealth, state and territory, or local governments regarding areas of responsibility, such as Health and Education. Specifically, while the Constitution guarantees the continued existence of the states and territories and preserves each of their constitutions and law-making powers, Section 109 provides that they are ultimately bound by the Constitution and their constitutions must be read subject to the Commonwealth Constitution. This means, that in the event of a state or territory law being inconsistent with a federal law, the Commonwealth law will override any other law. 

Furthermore, if a disagreement arises between the federal and a state or Territory government regarding the division or separation of powers, the High Court of Australia is empowered to resolve disputes. 

The Australian Constitution has a small handful of express protections regarding human rights contained within it. These include: 

1.  Acquisition of property, which must be ‘on just terms’ (section 51(xxxi));
2. Trial by jury in relation to indictable Commonwealth offences (section 80;
3. Freedom to exercise any religion (section 116);
4. Freedom of trade between the states (section 92); 
5. Non-discrimination on grounds of residence in a state or territory (section 117).

 ‘Australians believe in peace, respect, freedom and equality.  An important part of being Australian is respecting other people’s differences and choices … it is about treating people fairly and giving all Australians equal opportunities and freedoms’      Australian Home Affairs Office

Ultimately, the High Court of Australia has the final say on the protection of human rights, based on an interpretation of the Australian Constitution. 

“The strength of our constitutional arrangement lies not just in the very boring, technical language of our constitution, which says nothing about rights, but in the unstated assumptions of the law that the judges understand and apply when they have to, and that the people of Australia understand and believe in”

– Walter Sofronoff KC

Responsible Government

A responsible government is an idea based on the Westminster system, where the Executive government of the day is drawn from the political party that commands a majority of votes in the House of Representatives and is accountable to the Parliament.

The Australian Constitution relies on long established conventions and practices that support the formal operation of government. It does not specifically mention the role of the Prime Minister or Cabinet, even though this is where the executive power of the federal government lies.  Under the Westminster system, responsible government implies that as long as the Prime Minister continues to have the support and confidence of the majority of the Parliament, they can keep their job. The Crown has pervasive influence in the day to day running of our nation; however, it does not play a vital role in the operation of the federal government.  Instead, the role is mostly ceremonial.  Section I of the Constitution gives the strong impression that the Crown oversees the operations of Federal Parliament, when in fact, it is the Governor-General who exercises the executive power of the Queen as her representative (see Section 61).  

Governor General

Appointed by the Queen on the advice of the Australian Prime Minister. The Governor-General is a member of the Executive and exercises power and acts in accordance with the conventions of responsible government.