Constitutional history of Australia

Constitutional history of Australia
History of Australia

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Emergence of the Commonwealth of Australia

After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all. By the middle of the 19th century, these had achieved virtually complete internal self-government under their own colonial Parliaments, with the "mother country" looking after their defence and such foreign relations as they had, and making only the occasional more direct intervention in their affairs. (These arrangements were confirmed by the Colonial Laws Validity Act 1865) One result of this was that they each had their own laws, and applied customs duties at the borders between them, which was a significant impediment to Australia's overall economic development.

Following the formation of the Federal Council of Australasia in 1885 (a weak non-executive, non-legislative federation of Western Australia, Fiji, Queensland, Tasmania and Victoria) the movement for full Federation developed in the late 19th century, proposing that the six colonies join together as one federation of several States and territories (it was envisaged that New Zealand might join).

In the 1890s, two constitutional conventions were called, which ultimately adopted a constitution based on a combination of British, American and other models (monarchy and parliamentary government from Britain, federalism from the United States, the use of the referendum from Switzerland). This constitution was then approved by the voters in each of the six colonies. (At the time women had the vote in only one of them: South Australia, and Aboriginal Australians in South Australia and Queensland only).

It was then passed (with an amendment allowing for some appeals to the Privy Council in London) as an Act of the British Parliament: the Commonwealth of Australia Constitution Act 1900. The Act entered into force on 1 January 1901, at which point the Commonwealth of Australia came into being.

The Commonwealth is born

The establishment of the Commonwealth of Australia is commonly taken as the date of Australia's independence from the British, but matters are more complicated than that. The Constitution provided the Commonwealth with all the powers associated with a sovereign state, including the power to engage in foreign affairs and to raise its own army. But the United Kingdom still retained the power to engage in foreign affairs on behalf of Australia, and to make laws for it. In the early years Australia continued to be represented by the United Kingdom as part of the British Empire at international conferences.

The Constitution provided that the British monarch be represented in Australia by a Governor-General, who was originally appointed on the advice of the British, not the Australian, government, and was generally a British aristocrat. Finally, the Constitution provided that any law of the Australian Parliament could be disallowed within a year by the British monarch (acting on the advice of British ministers), though this power was never in fact exercised. In summary, the constitutional position of the Commonwealth as a whole in relation to the United Kingdom was, originally, the same as that of the individual colonies before Federation.

From a united empire crown to a shared monarch

A fundamental change in the constitutional structures of the British Commonwealth (formerly the British Empire, and not to be confused with the Commonwealth of Australia) did occur, however, in the late 1920s. Under the British Royal and Parliamentary Titles Act 1927, which implemented a decision of an earlier Commonwealth conference, the unified Crown that had heretofore been the centre point of the Empire was replaced by multiple crowns worn by a shared monarch.

Before 1927, King George V reigned as king in Australia, New Zealand, Canada, the Irish Free State, South Africa, etc., each of these states, in effect, as dominions, amounting to a subset of the United Kingdom. After 1927, he reigned as King of Australia, New Zealand, Ireland, South Africa, etc.

The form of use in the royal title as issued by King George V[1] did not mention the dominions by name, except 'Ireland', which changed from being referred to as Great Britain and Ireland to Great Britain, Ireland, indicating that it was no longer part of the United Kingdom, but a separate state of which the monarch was now directly the head, rather than through linkage with Great Britain. Though unnamed, except through reference to the 'British Dominions beyond the Seas', the ground-breaking move shattered the previous concept of the shared monarch to one of multiple monarchies, all held by the one monarch.

Though this principle was implicit in the Act and in the King's new titles, and came out of a Commonwealth Conference, neither the British government nor the dominion governments seemed initially to grasp its significance. So while the Irish immediately put the principle into effect by assuming the right to select their own governor-general and to demand a direct right of audience with the King (excluding British ministers), other dominions were much slower to go down this path, and when they did so, they were faced with determined, though ultimately futile, attempts to block such evolution in London.

Whereas before 1927, it was correct in law to talk about the British monarch reigning in the dominions, after 1927, there was technically a King of Australia, etc., even if that title was never used formally, with the only link being that that monarch was also monarch of the UK and resident outside the Commonwealth of Australia. Curiously, while the Irish asserted the title King of Ireland by having King George V sign an international treaty on behalf of his Irish realm as early as 1931 (where he was formally advised by the Irish Minister for External Affairs who formally attended His Majesty, with no British minister present), the formal title Queen of Australia was only adopted through the Royal Style and Titles Act[2] enacted by the Parliament of Australia in 1973.

The Australia Act

The power under the Statute of Westminster to request the British Parliament to make laws for Australia was used on several occasions, primarily in order to enable Australia to acquire new territories. But its most significant use was also its last. This was when the procedure was used to pass the Australia Act 1986. The Australia Act effectively terminated the ability of the British Parliament or Government to make laws for Australia or its States, even at their request; and provided that any law which was previously required to be passed by the British Parliament on behalf of Australia could now be passed by Australia and its States by themselves.

Final Independence

Final independence was achieved 3 March 1986 with the passing of the Australia Act 1986. Independence of Australia from the United Kingdom, rather than occurring as a single event in history, has, in legal terms, been a continuing process. Some of the significant milestones discussed above have been the following:

  • mid-19th century: acquisition of substantial internal self-government by the colonies
  • 1901: establishment of the Commonwealth of Australia
  • 1927: development of the "shared" monarchy
  • 1931: passing of the Statute of Westminster
  • 1986: passing of the Australia Act

Since the Australia Act, the only remaining constitutional link with the United Kingdom (if it is one) is in the person of the monarch (see Queen of Australia). But even that connection may not be automatic. In an important constitutional case (Sue v Hill (1999) 163 ALR 648), three justices of the High Court of Australia (the ultimate court of appeal) expressed the view that if the British Parliament were to alter the law of succession to the throne, such a change could not have any effect on the monarchy in Australia, because of the Australia Act: succession to the throne would continue in Australia according to the existing rule, unless and until that was altered in Australia. None of the other four justices in that case disagreed with this reasoning. (Because it was not strictly necessary to decide the case at hand, this is not strictly a binding judicial determination; but it is almost certainly correct given the precedent of the Abdication Crisis of 1936.)

The same case decided (and on this point the decision is binding) that the United Kingdom is a "foreign power" within the meaning of the Constitution, and therefore that holders of British citizenship are ineligible for election to the Federal Parliament (though a special "grandfathering" arrangement merely phases out the right of British citizens to vote).

Crisis in 1975

Further information: 1975 Australian constitutional crisis

The elections of the Australian Labor Party in 1972 and 1974 under its leader Gough Whitlam forced several constitutional issues to be tested. For two weeks in 1972, the Government had only two ministers, Whitlam and Lance Barnard. Although it had a majority in the lower House, the ALP faced a hostile Senate, and the defeat of Government bills led to a double dissolution and a consequent joint sitting and the passing of the bills into law as allowed under section 57. The political situation however was not improved much by the 1974 election, and the Senate later failed to provide "supply" (i.e. to pass tax and expenditure acts). The resulting Australian constitutional crisis of 1975 raised a series of issues:

  • Must a State Governor appoint a party's nomination as a replacement in the Senate?
  • Should the Senate refuse supply or refuse to discuss supply?
  • Should the Prime Minister resign in such a situation?
  • If he does not, should the Governor-General dismiss him?
  • How can the Governor-General and Prime Minister have a sensible discussion when each is able to have the other dismissed immediately provided that the other has not already acted?

Of these, only the first has been partly resolved; an amendment in 1977 changed the procedure for casual appointment. while the State Parliaments can still require a state Governor to appoint somebody who is not the party's nominee, by stripping that nominee of their party membership the party can deny them appointment to the Senate. Under Section 11 of the Constitution a State parliament can still refuse to appoint the party's nominee; in this case, a standoff can develop where the vacancy goes unfilled. This occurred in 1987, when the Tasmanian state parliament refused to appoint the Labor Party's nominee for a casual vacancy ([3], reference 99).

Two time-honoured constitutional principles were in conflict during the crisis. The first is that a ministry drawn from the majority of the lower house may continue to govern until it has lost the confidence of the House. The second is that a ministry may not continue to govern once supply has been exhausted. The potential of conflict has been resolved in the United Kingdom, where the House of Lords no longer has the power to block money bills. To date it has not been resolved in Australia. The crisis of 1975 may be repeated in the future, though it is unlikely.

Towards an Australian republic?

As already seen, the only remaining constitutional connection with the United Kingdom is through the monarch, who is the monarch not only of the UK, but also of Australia and of each of its States. The main function of the monarch is to appoint and dismiss the Governor-General and the State Governors, and this function is exercised on the advice of the Prime Minister or the relevant State Premier. (The monarch is also sometimes asked to perform some function, such as giving the Royal Assent to an Act of Parliament, for ceremonial purposes during a Royal visit.)

On recent moves to replace the current constitution with a republic, and the defeat of the referendum for this purpose in 1999, see Australian republicanism.

See also


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