Edited by John Pyke,
Faculty of Law,
Queensland University of Technology
(j.pyke@qut.edu.au)
There have been many comments in the last few years about lack of public knowledge of the Commonwealth Constitution - but perhaps the Constitution itself is partly to blame for this. It is not an easy thing to read.
The trouble is not so much that the Constitution is written in technical language. It is fairly formal but the sections that still have effect are generally easy enough to read. But it is confused by the inclusion of many sections which only had a transitional effect, in the early years of the Commonwealth.
In order to get the Commonwealth going it was necessary to transfer some Colonial government departments to it. There are a few sections dealing with this. Arrangements for the phasing in of uniform customs duties were included, with transitional arragements lasting up to ten years. On the assumption that the new government would not spend all that it raised from these duties, other sections were included to deal with the "surplus revenue". Commonwealth expenditure is now far greater than the drafters imagined, and in any case the Commonwealth quickly found a way to run its accounts so that no revenue was "surplus" within the meaning of the Constitution.
The trouble is that after these sections lost their effect, they stayed there, cluttering up the text of the Constitution. No government has ever asked us to remove them by referendum.
There are some other sections which refer to Privy Council appeals, and the right of the Queen, on the advice of her British Ministers, to disallow Acts of Parliament. They may not have been intended to be temporary, but they have become obsolete because of Australia's independence from Great Britain.
Even worse, there are many sections which have a mixed permanent and temporary effect. They granted the Commonwealth Parliament power to make laws on various topics, and made some temporary provisions on the same topic, all rolled into the same section or paragraph. In some of them the temporary provisions are so lengthy that they make it quite hard to find the topic of the permanent grant of power. For example, this is section 31:
Application of State laws
31. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.
This was a transitional provision to tell the authorities how to run the first elections for the Commonwealth Parliament; once the Commonwealth Franchise Act and the first Commonwealth Electoral Act were passed in 1902, most of the words in the section became irrelevant. Still operative, however, but buried among the other words, is a grant of power to the Commonwealth Parliament to make laws about elections. Many of the other "mixed" sections also deal with matters of electoral law (eg, who can vote, who can stand for Parliament), and the emphasis in the drafting on the prescription of specific rules for 1900-1903 tends to disguise the fact that Parliament is given power to make any law it likes on these matters - which are matters that many people might expect to be dealt with directly in the Constitution.
So I present here a version of the Constitution which has been edited so
as to show only the current working parts. It has been edited in two
ways:
31. The Parliament [may make laws] relating to elections... of members of the House of Representatives.[Click here for a more detailed explanation of this example.]
Each section is annotated to show if it has been edited or not, and deletions are indicated. Where any change has been made, and in other cases where I felt explanation was necessary, there is a link to a comment.
There are a few provisions that seem to be pretty much dead letters at the moment but can be argued, at least in theory, to still have some potential effect. I have made some perhaps arbitrary decisions as to whether to leave them in or not, but have explained the reasons for my decision in the linked comments. Though this is not an Annotated Constitution - that could be one of my future projects - a few of the comments include a link to a High Court case in the Australian Legal Information Institute database, where the case has a bearing on the question of whether a section has any current relevance.
All editorial changes are explained in the comments, but to compare this edited version at a glance with the full text of the Constitution, you can get that in print from the Australian Government Publishing Service, at $3.50 for the pocket-sized version in very small print or $8.95 for the normal edition - or get a copy off the Web.
The editing has reduced the length of the Constitution itself (not counting the covering clauses or Schedule, or any of the headings) from just under 11,000 words to about 7,000 words.
It seems to me that many more people could participate in the debate about revision of the Constitution if it was easier to get an understanding of its real, current, effect by reading it. Perhaps we should first have a referendum to strip out all the obsolete bits and rewrite the temporary/permanent mixed sections, pretty much as I have done in this edited version? Then we would have updated the 1900 Constitution to reflect what has been Constitutional reality for the last 20 years or so. With a simpler text as the starting point, we could more easily discuss what we want it to say in the year 2000 and beyond.
If you agree with this suggestion, I suggest you send a fax saying so (politely) to the Attorney-General on (02) 6273 4102 or the Prime Minister's office on 02 6273 4100. [Neither of these modern politicians seems to accept email from the public yet.]
In some of the reprints of the Constitution, the Commonwealth government claims copyright in its text. In my opinion, however, this claim is groundless.
David Solomon of the Brisbane Courier-Mail discussed the editing with me and provided useful suggestions, which I gratefully acknowledge. However, the choice of words in this version is my own. I accept responsibility for any errors in the work - though I am confident that there are no significant ones. [Please email me if you find any errors - or to send any praise.]
I assert the right to be identified as the editor of this work if it is copied as a whole or where significant variations or omissions from the Constitutional text are quoted.
This is (of course) not an official source of law, and should not be used in legal proceedings or for the provision of legal advice.
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