The Australian Constitution

 The Australian Constitution is a plan that provides the legal framework for how Australia is governed.

The Constitution establishes how the Commonwealth system of government is operated in Australia. It defines how laws are made and how power is distributed between the federal, state and territory governments. This is known as the division of powers. The Constitution also outlines the role of federal parliament and how the powers are shared between the legislature, executive and judiciary. This is called the separation of powers. The division of powers and the separation of powers provide fundamental foundations in establishing and maintaining the rule of law for all citizens living in Australian society.

Human rights are protected by democracy with only a few express rights in the Constitution

With the First Fleet in 1788 came the ‘invisible and inescapable cargo of English Law.’ The Governors ruled the fledgling colony according to the English system of law, as stipulated in the First Charter of Justice.

As more colonies were established across the land, each one fought for recognition and independence of representative governance. By 1852, the colonies of New South Wales, Victoria, Queensland, South Australia, Tasmania, and Western Australia were granted permission by the British Government to become self-governing and thereby develop their own constitution. Democratic principles such as, universal suffrage, one man one vote, and payment for members of parliament began to emerge in state constitutions.

In 1889, Henry Parkes began a campaign to unite the colonies. After rigorous and extensive debate, an agreement was reached creating an overarching national constitution, written in 1900.

As part of a British Act of Parliament, Federation took effect on 1 January 1901. The new Commonwealth of Australia Constitution Act (1901) has its foundation in principles that are derived from the Westminster system of governance, the United States Constitution, and principles from each colony’s constitution. Under this model, powers were distributed between a central government and various state governments to prevent one person, or group from dominating the nation.

The Australian Constitution is structured so that the Australian people hold the ultimate power. It is structured into chapters to create a legal and political system that divides power through the Separation of Powers and Division of Powers.

The below resources provide further detail about the development of democratic principles in Australia.

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.

By putting limits on power, it ensures each body works within their area of responsibility. This acts as a check and balance on the governing authorities to ensure that power is not held by a single person but is instead shared between three different bodies.

The Constitution outlines how authority is structured, such as forming representative legislatures for the people; it states how power will be shared across all groups responsible for governance and law-making; and it provides a set of rules that determines how government will be set into effect. For these reasons, it is the supreme law of Australia and ensures that Australian governance operates under the rule of law.

The Constitution establishes the Commonwealth Parliament (legislature), the Executive, and the Judiciary. These three branches of government form an integral part of the federal framework and outlines how these branches will operate, including how federal and state power will be dispersed. Detailed instructions and limitations for governance are expressed through additional Acts or laws.

The Constitution provides that the Commonwealth government will be both a representative and responsible government.  

One significant feature is that it is not easily susceptible to amendment or repeal.  This means, that not only does a proposed law to alter the Constitution have to be approved by an absolute majority in both Houses of the Commonwealth Parliament, it is also required to be submitted to a Referendum. (Section 128). This key requirement gives the people a say in how governance will be organised and operated.

The value of having an Australian Constitution lies in its potential to limit the influence of legislators, ministers of parliament and other powerful corporations, lobby groups and individuals. It ensures that all decisions regarding the governance of Australia are subject to the same set of rules and keeping the process transparent and open to public scrutiny.

Outlined in Sections 8 and 30, fair and even representation for elections included ‘each elector shall vote only once’ and eligibility is open to all citizens where elected representatives will be paid for their service. Elected representatives appear in Parliament and carry out a number of responsibilities including: 

• Making representations on behalf of their constituents to Parliament;
• Debating issues and ensuring elected representatives remain accountable and subject to public scrutiny;
• Making laws;
• Monitoring the expenditure of public money. 

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.

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.  

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 and bound by the laws of Australia. No one is above the law and everyone will be granted due process in the event they are potentially made subject to Commonwealth law; including  institutions, corporations, government agencies or individuals. To enable this, the Constitution creates a framework which brings our legal system into being.  

The rule of law also requires the separation of powers, which enable laws to be applied fairly and where a legal wrong has been done, a remedy can be sought from an independent judiciary.  To enable this,  Clause 75  in 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.’  

which ensures the (in)actions of Members of Parliament are amenable to judicial review, if nowhere else, in the original jurisdiction of the High Court. Thereby ensuring they act within their lawful powers (ie they are under the law) and do not exceed any jurisdiction that the law or Constituion confers on them.

The Constitution further protects the independence of the judiciary by stipulating the tenure and terms of service.

These clauses ensure the judiciary remaining independent, which is critical in ensuring laws made by the Legislature, and actions of the Executive, are lawful and consistent with the Constitution.

In essence, the rule of law within the Constitution gives us a predictable and ordered society. Important checks and balances promote justice, fairness and individual freedom. Without the rule of law, arbitrary rule would take over in the form of authoritarianism, or anarchy resulting in corruption, violence, and dangerous or unpredictable societies.

The Constitution ensures that all Australians enjoy important protections through principles based on the rule of law.

Separation of Powers: Chapters I to III

The Australian Constitution divides power between three branches of government referred to as the separation of powers.

Chapters I to III of the Constitution outlines the legislative, executive and judicial powers of the Commonwealth as the three separate branches of government.  The Constitution includes checks and balances for the exercise of government power to ensure the powers of one branch are not in conflict with those of the other branches. The doctrine of separation of powers ensures that power isn’t vested in a single set of hands, but is disbursed across three branches of government:

Judiciary

Has the power to interpret law and conclusively determine legal disputes.  Courts and judges are independent of parliament and government.

The law-making power of Federal government is outlined in Sections 51 and 52 of the Constitution. Parliament makes laws in areas, such as Australian trade and commerce, defence, postal and telecommunications services, and international foreign policy. In total, Section 52 lists 39 areas where Parliament has the power and responsibility to make laws for the nation.  

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. Both Houses of Parliament retain the power to disallow any regulations that may be made by the Executive. Alternative political parties to that of the government, free media, and organised interest groups also play major roles in checking any excesses of government. 

NZYQ and the Separation of Powers
In NZYQ, the High Court considered the constitutional validity of laws that allowed the Australian Government to indefinitly detention ‘NZYQ’, an unlawful, non-citizen convicted of child sexual assault who had completed a prision sentence but, due to his criminal record and statelessness, had no reasonable prospect of deportation back to his home country or any other country.indefinitely detain unlawful immigrants. Click here.

Love v Commonwealth; Thoms v Commonweath
This controversial majority decision of (4:3) in the Australian High Court, found that the ‘aliens’ power under section 51 (xi) did not apply to non-citizen Aboriginal Australians because they are subject to a new category of ‘non-citizen, no-alien’. Click here.

Parliament (Legislature): Chapter I

Chapter I of the Constitution establishes the Federal Parliament, which includes the Crown represented by the Governor General, the Senate and the House of Representatives (Chapter I, Parts I–III of the Constitution). 

Members of the Lower House (House of Representatives) are chosen by the number of seats from each state and territory. A seat is a geographically defined area which is equally apportioned by population and represented by a single member of Parliament. At the federal level, seats are called divisions and at state and territory levels, they are called electorates. In the Upper House (Senate), members are allocated by a system of proportional representation, which ultimately ensures the composition of the Senate more accurately reflects the votes of the electors.  

Section 51 of the Constitution contains a list of topics that Parliament can legislate on. While the states can also legislate on these topics, in the event of any overlap between the laws of the Commonwealth versus the states, federal law will always prevail. Section 52 contains a brief list of topics that only the Commonwealth can legislate upon. 

Before a proposed law (Bill) can become an Act of Parliament, it must be passed through both the House of Representatives and the Senate. The Bill is then presented to the Governor General who assents to it in the Queen’s name (Section 5).  The Bill becomes an Act of Parliament after it has been given this assent. 

Section 57 provides a mechanism for resolving any irreconcilable differences between the House of Representatives and the Senate, as disputes can arise on whether a Bill should be passed in its current form. If this occurs, Constitutional power has been specifically created for the Governor General to call a dissolution.

A ‘dissolution’ refers to the act of dissolving something. A double dissolution dissolves both Houses of Parliament and is declared by the Governor-General. This means that all positions become vacant.

An election for both Houses usually follows a double dissolution. If the Bill, or Bills are still not passed after an election, then a joint sitting of the two Houses may be called. This event has only happened once in Australia, in 1974.

Interpretation of Section 44 of the Constitution.
In 2017,  six members of Parliament were found to be dual citizens and therefore disallowed to hold office under s. 44 of the Constitution. Click here to for case summaries and our analysis of the Dual Citizenship debate.

Executive: Chapter II

The executive power of the Commonwealth is vested nominally in the Crown; however, in reality it is exercised by the Executive Government of the Commonwealth. The Prime Minister and selected ministers are part of the executive government through a council called the Cabinet. Whilst the Constitution gives the Queen executive power, the Prime Minister and ministers perform the work of executive government. 

The Cabinet is a central point of decision making in Federal government, but it is not mentioned anywhere in the Constitution. It exists purely as a matter of administrative convenience for government decision making.

The Federal Executive Council (FEC) is comprised of all ministers of State and advises the Crown, represented by the Governor-General.  Its principal functions are to receive advice and approve the signing of formal documents, such as regulations and statutory appointments. While certain decisions of government may be made by the Cabinet, those decisions can only be formally implemented by the Federal Executive Council. 

Section 64 of the Constitution provides for the appointment of ministers and the creation of government agencies, to administer the business of the Commonwealth government. Ministers must become members of Parliament and also members of the political party or coalition of parties which holds a majority of seats in the House of Representatives. The Prime Minister must be a member of the House of Representatives, while other ministers can either be members of the House of Representatives or members of the Senate. 

Ministers are required to sit in Parliament and adhere to the concept of responsible government. The wording of Section 64 ensures a necessary connection between the executive and the legislature. Any person can be appointed as a minister, but their appointment lapses if they do not gain a seat in either houses of the Parliament. This ensures that only current ministers can take part in executive council business.   

In summary, the principle of responsible government supports the executive powers of the federal government, which are almost always exercised on the advice of the Prime Minister and Cabinet. Furthermore, according to political convention, the executive powers of the Governor General are exercised on the advice of the Federal Executive Council (FEC).      

In some situations, the Governor General may exercise reserve powers. It is generally accepted that the Governor General’s reserve powers include the power to appoint a Prime Minister if an election results in a hung parliament; the power to dismiss a Prime Minister when the House of Representatives has passed a motion of no confidence against the Prime Minister; and the power to refuse to dissolve the House of Representatives contrary to ministerial advice.  Click here to read our post about the Gough Whitlam dismissal and reserve powers.

Judiciary: Chapter III

The High Court of Australia ensures judicial power is kept separate from legislative and executive powers. The High Court and state and territory appeal courts, exercise power of judicial review so legislative and executive branches do not overstep the constitutional and legal limits of their authority.   

Chapter III of the Constitution establishes the federal judiciary and empowers the High Court to review government actions. The Constitution provides a key principle of the rule of law in that government should be held accountable and be subject to scrutiny. 

Chapter III of the Constitution vests power to federal courts and the courts of the states and territories to exercise judicial review. Section 75 provides for the High Court’s jurisdiction and Section 80 guarantees trial by jury for indictable offences against the Commonwealth. 

Section 72 outlines the two pillars of judicial independence – tenure and conditions of service. The remuneration and length of service must remain independent of the executive and legislature to safeguard impartial administration of the law.

Kables Case article by former Federal Court of Australia, Judge Kevin Lindgren outlining the legal basis upon which the High Court was able to invalidate NSW legislation and appeared to be specifically designed to confer non-judicial functions to a court and be directed against a single person alone. Click here

Communist Party Case Resource  details one of the most significant High Court cases that demonstrates the work of the High Court and how important the Australian Constitution is in preventing the abuse of government power.

The story of the Communist Party, Communist Party Dissolution Act, and the role of the High Court relayed in newspaper format. This case highlights how an independent judiciary, free of political influence can interpret the law and act as a check on the power of government. Click here

Retrospective Legislation: Read the Case Note for the 2013 Keating case highlighting how the High Court ruling against retrospective legislation.

Poland and the Independence of the Judiciary: Resource considering the Polish Prime Minister attempted to reduce the retirement age of the judiciary. This raised serious concerns about the state of the rule of law in Poland, particularly regarding the independence and impartiality of the judges and courts.

The High Court’s power of judicial review ensures that the Commonwealth government cannot exercise arbitrary legislative power. The Australian Constitution limits power to the Commonwealth government or any other organisation, or person by invalidating the law as determined by the High Court. Arguably, jurisdiction and procedure go hand in hand. Judicial power is not the power to determine a dispute in any manner, but to resolve it in the judicial manner. 

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

Before 1901, Australia was made up of six separate colonies each one with its own constitution and laws relating to areas such as defence, immigration, postage, trade, and transport.

The Constitution provides a mechanism for resolving any dispute regarding areas that may overlap.  

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. 

Commonwealth funding of Chaplaincy Programs: Case note that considers the Williams case and whether there are limits on the extent to which the Commonwealth can take over and direct operations over which the states, not the Commonwealth have power.

Human Rights under the Constitution

The Constitution does not expressly guarantee many rights or freedoms.  Rather, it puts faith in the process of democracy. 

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).

The Constitution does not expressly guarantee many rights or freedoms; however, it puts faith in the process of democracy. This can be explained by  how the Constitution came into being. It was drafted at a series of conventions which were held during the 1890s and its aim was to establish a federal system of government. Many representatives of the colonies attended the conventions and before the Constitution came into effect, its terms had to be approved by the people of each state. On its commencement on 1 January 1901, the Federal Constitution became the fundamental law of Australia. 

 ‘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

 Australia was founded on principles encompassing the rule of law. Its system of government represents a strong tradition and respect for the rights and freedoms of every individual. Human rights are recognised and protected by virtue of a range of laws at the federal, state and territory levels, and the common law. The sum total of all of these laws results in the strong protection of peoples’ rights and freedoms, including freedom of speech, religion, association and movement. Ultimately, the High Court of Australia has the final say on the protection of human rights, based on an interpretation of the Australian Constitution. 

While there is no explicit provision that protects freedom of speech, the High Court has held in a series of decisions that an implied freedom to communicate exists.  This was first recognised in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, when the High Court declared a Commonwealth law that tried to limit the broadcasting of political advertising and declare invalid. This High Court decision did not establish a right of free speech generally: it simply declared invalid a Commonwealth law which attempted to restrict the broadcasting of political advertising.  The Court held the restrictions imposed by that law were inconsistent with a necessary aspect of representative government entrenched in the Constitution – specifically, the right to freedom of communication on political matters. 

The closest any Australian jurisdiction has come to adopting a comprehensive protection of human rights are the Human Rights Act 2004 (ACT) and the Charter of Rights and Responsibilities Act 2006 (Vic).  However, it should be noted that at best, these Acts provide modest protection to human rights.  While these state-based Acts mandate Parliament to consider human rights when passing statutes, they do not empower the courts to strike down laws which are inconsistent with human rights. The protection of human rights ultimately relies on the simple definition of democracy: government by the people.

Professor Helen Irving, University of Sydney Law School, describes this as a

“tendency to respect rights and freedoms, to protect them negatively from interference but not to declare them positively”.  

In comparing the United States and Australian Constitutions, Sir Owen Dixon, a former Chief Justice of Australia attributed the omission of a Bill of Rights to a readiness on the part of the framers of the Constitution to leave the protection of rights to the legislature and the processes of responsible government. Australia’s system of human rights protection has evolved according to its own unique history alongside the international human rights system. Central to the Australian system of government is the idea that the rights and freedoms which underpin Australia’s democracy should not be taken for granted. Everyone has the responsibility to respect the human rights of others and ensure these rights and freedoms are protected and promoted. 

Read about three recent cases that consider Implied freedom of communications and download our A3 Poster on Implied Freedom of Political Communication.

Walter Sofronoff KC, previously Solicitor-General of Queensland and President of the Queensland Court of Appeal, looks at how Australia’s Constitution and its unstated assumptions protect our human rights and hold our government accountable.

Mr Sofronoff KC examines one of the more well-known unstated assumptions (or implied freedoms) established in Lange v Australian Broadcasting Corporation (ABC) (1997) 189 CLR 520. The unstated assumption of the implied freedom of political communication is not specifically written in the Constitution, but provisions such as the Parliaments of Australia should be elected by the Australian people, imply there is a freedom for the Australian people to know and be aware of the Government, and its ministers, and the most common way for this to occur is through a free press.

“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