Constitutional history of Australia
Encyclopedia
Emergence of the Commonwealth of Australia
After European settlement in 1788, AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
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
Colonial Laws Validity Act 1865
The Colonial Laws Validity Act 1865 is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws"....
) 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
Federal Council of Australasia
The Federal Council of Australasia was a forerunner to the current Commonwealth of Australia, though its structure and members were different. It consisted of the then British colonies of New Zealand, Victoria, Tasmania, South Australia, Fiji, and others. However, the largest colony in the region,...
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
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
in London) as an Act of the British Parliament: the Commonwealth of Australia Constitution Act
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
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 BritishUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, 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 1927Royal and Parliamentary Titles Act 1927
The Royal and Parliamentary Titles Act 1927 [17 & 18 Geo. 5 c. 4] was an Act of Parliament of the United Kingdom that authorised the alteration of the British monarch's royal style and titles, and altered the formal name of the British Parliament, in recognition of much of Ireland separating from...
, 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
George V of the United Kingdom
George V was King of the United Kingdom and the British Dominions, and Emperor of India, from 6 May 1910 through the First World War until his death in 1936....
reigned as king in Australia, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
, South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
, 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
George V of the United Kingdom
George V was King of the United Kingdom and the British Dominions, and Emperor of India, from 6 May 1910 through the First World War until his death in 1936....
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
King of Ireland
A monarchical polity has existed in Ireland during three periods of its history, finally ending in 1801. The designation King of Ireland and Queen of Ireland was used during these periods...
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 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 ActAustralia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
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
Sue v Hill
Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election...
), three justices of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
(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
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
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
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
in 1972 and 1974 under its leader Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
forced several constitutional issues to be tested. For two weeks in 1972, the Government had only two ministers, Whitlam and Lance Barnard
Lance Barnard
Lance Herbert Barnard AO , Australian politician, was Deputy Prime Minister of Australia for most of the Labor government of Gough Whitlam....
. 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
Joint Sitting, Australian parliament, 1974
A joint sitting of the Australian parliament was convened in 1974, in which members of the Senate and House of Representatives sat together as a single legislative body...
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
Australian constitutional crisis of 1975
The 1975 Australian constitutional crisis has been described as the greatest political crisis and constitutional crisis in Australia's history. It culminated on 11 November 1975 with the removal of the Prime Minister, Gough Whitlam of the Australian Labor Party , by Governor-General Sir John Kerr...
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 .
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
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
- Constitutional lawConstitutional lawConstitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
- Constitutional conventionConstitutional convention (political meeting)A constitutional convention is now a gathering for the purpose of writing a new constitution or revising an existing constitution. A general constitutional convention is called to create the first constitution of a political unit or to entirely replace an existing constitution...