| Note: This edited text is intended as a basic guide to the Australian political system, using the words of the primary source - the Constitution. The provisions that are shown describe the main institutions of the Commonwealth government and the place of the States in the federation. Many of the omitted details are still relevant and important (eg, the first business of a new House of Representatives, or when there is no Speaker, is to elect a Speaker) but most of them (like the example) are only important for the internal workings of the government institutions. To see all of the provisions that still have any current effect see my "Working Parts" edit.
This version should, of course, not be relied upon as an authoritative source of law - I don't even need to tell you that do I? |
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
Act to extend to the Queen's successors.
2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.
Operation of the constitution and laws.
5. This Act, and 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, notwithstanding anything in the laws of any State;
Definitions.
6. ["The Commonwealth", "The States" and "Original States" are defined here]
Constitution
9. The Constitution of the Commonwealth shall be as follows:-
Governor-General.
2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth
Yearly session of Parliament.
6. There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.
The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.
The senators shall be chosen for a term of six years
Rotation of senators.
13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service, and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.
For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election.
Voting in the Senate.
23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.
The number of members chosen in the several States shall be in proportion to the respective numbers of their people
But notwithstanding anything in this section, five members at least shall be chosen in each Original State.
Duration of House of Representatives.
28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.
Voting in House of Representatives.
40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.
(i.) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
(ii.) ..has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable...out of.. the revenues of the Commonwealth: or
(v) Has [an].. interest in any agreement with the Public Service of the Commonwealth otherwise than as a member... of [a].. company consisting of more than twenty-five persons:
| I have selected the most relevant legislative powers and collected them into related groups here. This first group is the powers relating to the regulation and promotion of business matters. |
(i.) Trade and commerce with other countries, and among the States:
(xii.) Currency, coinage, and legal tender:
(xiii.) Banking... and the issue of paper money:
(xiv.) Insurance
(xv.) Weights and measures:
(xvi.) Bills of exchange and promissory notes:
(xvii.) Bankruptcy and insolvency:
(xviii.) Copyrights, patents of inventions and designs, and trade marks:
(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:
(xxi.) Fisheries in Australian waters beyond territorial limits:
(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
| The next group is the powers relating to the Commonwealth's management of its own and the nation's affairs. |
(ii.) Taxation; but so as not to discriminate between States or parts of States:
(iv.) Borrowing money on the public credit of the Commonwealth:
(v.) Postal, telegraphic, telephonic, and other like services:
(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:
(ix.) Quarantine:
(xi.) Census and statistics:
(xix.) Naturalisation and aliens:
(xx.) Immigration and emigration:
(xxix.) External affairs:
| The next group is the Commonwealth's few "social" powers. |
(xxi.) Marriage:
(xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
(xxiii.) Invalid and old-age pensions:
(xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances:
(xxvi.) The people of any race for whom it is deemed necessary to make special laws
| And then there are some powers which extend, and in the first case also limit, all the other powers. |
(xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
(xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
Powers of the Houses in respect of legislation.
53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the government.
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.
Disagreement between the Houses.
57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it... and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law... and the Senate rejects or fails to pass it... the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.
If after such dissolution the House of Representatives again passes the proposed law... and the Senate rejects or fails to pass it... the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives... and if the proposed law... is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent.
Royal assent to Bills.
58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent...
Federal Executive Council.
62. There shall be a Federal Executive Council to advise* the Governor-General in the government of the Commonwealth...
| * These sections are written in a formal and deferential way which is quite misleading. In fact major policy decisions are made by the Ministers sitting in "Cabinet" and, subject to those policy decisions and to the law, executive power is really exercised by individual Ministers and by the whole array of public servants working for them. The Governor-General presides over meetings of the Executive Council (see section 64) which formalises decisions already made by Cabinet - ie, we have a system of "Cabinet government". Except when exercising the "reserve powers" (dissolving Parliament and/or dismissing the Prime Minister) the Governor-General always acts on the "advice" given to him (or her) - so it is rather more than mere advice. For the reasons behind this, see the next box. |
Ministers of State.
64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General*. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
Ministers to sit in Parliament After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
| * Actually, the Ministers hold office as long as they are supported by the majority of Members of the House of Representatives. This is why "cabinet government" is also known as "responsible government" - for its history see Chapter 5 of my e-text, Government Under a Book of Rules. The rules about responsible government are sometimes referred to as conventions, but there is solid constitutional law behind them - if the Queen or Governor-General appointed Ministers who were not supported by the majority of their fellow-members they would not be able to lawfully spend money - see section 83, below. |
Command of naval and military forces
68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General* as the Queen's representative.
| * As with sections 61-2 above, this expresses a deferential myth rather than the reality. The real ultimate command of the defence forces is exercised by the Minister for Defence; see Defence Act 1903 section 8. (Of course the crucial decisions made by the Minister will generally have been aprpoved by the Prime Minister and the rest of the Cabinet.) Although the next section of the Act (s 9) seems to complicate matters by referring back to this section of the Constitution, anything done by the Governor-General will be on the "advice" of the Executive Council, which, as we have seen above, is rather more than advice. |
Judges' appointment, tenure and remuneration.
72. The Justices of the High Court and of the other courts created by the Parliament--
(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years...
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament
Appellate jurisdiction of High Court.
73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders, and sentences--
(i.) Of any Justice or Justices exercising the original jurisdiction of the High Court:
(ii.) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State...
Additional original jurisdiction.
76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter--
(i.) Arising under this Constitution, or involving its interpretation:
Trial by jury.
80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury...
Money to be appropriated by law.
83. No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.
Exclusive power over customs, excise, and bounties.
90. ...the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall [be] exclusive.
Trade within the Commonwealth to be free.
92. ...trade, commerce, and intercourse among the State, whether by means of internal carriage or ocean navigation, shall be absolutely free.
Financial assistance to States.
96. ...the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.
Saving of Power of State Parliaments.
107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth...
Inconsistency of laws.
109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
States may surrender territory.
111. The Parliament of a State may surrender any part of the State to the Commonwealth...
States may not raise forces. Taxation of property of Commonwealth or State.
114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.
Commonwealth not to legislate in respect of religion.
116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Rights of residents in States.
117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
Protection of States from invasion and violence.
119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
Government of Territories.
122. The Parliament may make laws for the government of any territory surrendered by a State to and accepted by the Commonwealth, ..., and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Formation of new States.
124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law should be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.
No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives... shall become law unless the majority of the electors voting in that State approve the proposed law.