Constitution of Australia facts for kids

The Constitution of Australia is the main law that created the Australian Government. It also explains how the government works. The most important part is the Constitution of the Commonwealth of Australia.

Australians voted in special elections called referendums between 1898 and 1900 to agree to this Constitution. Then, the Parliament of the United Kingdom passed it as part of a law called the Commonwealth of Australia Constitution Act 1900. Queen Victoria signed it on 9 July 1900. The Constitution officially became law on 1 January 1901.

Even though the UK Parliament passed the original law, only Australians can change their Constitution now. This happened because of later laws called the Statute of Westminster and the Australia Acts. These laws cut all legal ties between Australia and the United Kingdom. So, even though Queen Elizabeth II is the monarch of both countries, they are now completely separate.

Australia uses a legal system called common law. This means that courts help decide what laws mean. The High Court of Australia and the Federal Court of Australia have the power to explain what the Constitution means.

How did Australia get its Constitution?

The idea for Australia's Constitution started in the 19th century. Back then, Australia was made up of several separate colonies. These colonies joined together to form the Commonwealth of Australia in 1901. This joining was called Federation.

Why did the colonies join together?

In the mid-1800s, the Australian colonies needed to work together. They especially needed to agree on rules about trade between them. This led to ideas about joining all the colonies into one country.

At first, many people in Australia weren't keen on the idea. Smaller colonies worried that bigger ones would take over. Also, Victoria and New South Wales disagreed about trade rules. These problems meant early attempts to unite the colonies failed.

By the 1880s, Australians became worried about other countries, like Germany and France, becoming powerful in the Pacific Ocean. This, along with a growing sense of being Australian, helped create the first group for cooperation. It was called the Federal Council of Australasia and started in 1885. This Council could make some laws, but it wasn't very strong. New South Wales, the biggest colony, didn't even join.

Who helped create the Constitution?

Henry Parkes, who was the leader of New South Wales, pushed for meetings in the 1890s. These meetings were to discuss joining the colonies. The first big meeting was in Melbourne in 1890. Another, the National Australasian Convention, was in Sydney in 1891. Leaders from all the colonies attended.

At the 1891 meeting, many people wanted a federal system. They talked a lot about how this system would work. With help from Sir Samuel Griffith, a first draft of the Constitution was written. However, these early meetings didn't have much public support. The draft also avoided difficult issues like trade rules. New South Wales didn't support the draft, so the other colonies stopped trying for a while.

In 1895, the leaders of the six Australian colonies agreed to try again. This time, they decided to let the public vote for people to attend a new meeting. This meeting happened between 1897 and 1898. They created a new Constitution. It was similar to the 1891 draft but added rules for how the government would be responsible to the people.

To get public support, the draft Constitution was put to a vote in each colony. After one try failed, a slightly changed draft was voted on again. Five colonies passed the new draft. Only Western Australia didn't vote yes at first. The approved draft was then sent to the British Parliament with a request for the Queen to make it law.

The British government made one small change. They wanted to make sure that important legal appeals could still go to the Privy Council in London. The British Parliament then passed the Commonwealth of Australia Constitution Act in 1900. Western Australia finally agreed to join just in time. The Commonwealth of Australia officially began on 1 January 1901.

In 1990, the original copy of the Commonwealth of Australia Constitution Act was loaned to Australia from London. The Australian government wanted to keep it. The British Parliament agreed by passing a special law.

How did Australia become fully independent?

Even though Federation made Australia a new nation, it was still legally connected to Britain. This was because the UK Parliament had passed the Commonwealth of Australia Constitution Act 1900. This caused some confusion about whether British laws still applied to Australia.

This problem was solved by the Statute of Westminster 1931. Australia officially adopted this law in 1942. The Statute of Westminster made countries like Australia, called Dominions, free from British laws and control. Legally, this is when Australia became truly independent.

However, British laws could still affect Australian states. This was fixed by the Australia Act 1986. This law was passed by the parliaments of Australia, the United Kingdom, and each Australian state. It stopped the British Parliament from making laws for Australian states. It also stopped appeals from Australian courts going to the Judicial Committee of the Privy Council in Britain. This was a very important moment. Queen Elizabeth II even traveled to Australia to sign the official announcement of this law.

Because of these two laws, Australia is now a completely independent country. The Australian people can now change their Constitution through a referendum. The original Act is still in the UK's law book, but it has a note saying it's not necessarily the same as the Constitution in Australia. Even if the UK Parliament removed their Act, it would not affect Australia.

What are the main parts of the Constitution?

The Commonwealth of Australia Constitution Act 1900 has a short introduction and nine sections. Sections 1 to 8 are about setting up the Commonwealth. Section 9, which begins "The Constitution of the Commonwealth shall be as follows...", contains the actual Constitution of Australia. The Constitution itself has eight chapters and 128 sections.

The Parliament (Chapter I)

Chapter I sets up the Parliament of Australia. This Parliament has three parts:

• The Sovereign (King or Queen) of Australia, who is represented by the Governor-General of Australia.
• The House of Representatives.
• The Senate.

Section 1 says that the Parliament has the power to make laws. This makes it the most powerful part of the government.

Part II of Chapter I is about the Senate. Senators are chosen directly by the people of each State. Each State has the same number of senators. Currently, there are 12 senators for each State. The Northern Territory and the Australian Capital Territory each have 2 senators.

Part III of Chapter I is about the House of Representatives. Section 24 says the House must have twice as many members as the Senate. Each member is elected by people in a specific area called an electorate. This rule, called the 'Nexus', helps balance power between the two houses. The number of electorates in a State depends on its population.

Part IV of Chapter I talks about who can vote and who can be elected to Parliament. It also covers how much members are paid and how Parliament makes its own rules.

Part V of Chapter I explains the powers of the Parliament. Section 51 lists the specific powers of the Australian Parliament. These are called "specific powers." There are also "concurrent powers," which both the Australian Parliament and the States can make laws about. If a State law is different from a federal law, the federal law is more important (Section 109). Some parts of Section 51, like the Trade and Commerce Power and the Corporations Power, have become very important. Section 52 lists powers that only the Australian Parliament has. States cannot make laws on these topics.

The Executive Government (Chapter II)

Chapter II sets up the executive part of the government. This is the part that carries out the laws. The Governor-General uses this power, with advice from the Federal Executive Council. The Governor-General is also the commander-in-chief of the armed forces.

The Governor-General can appoint and dismiss members of the Executive Council, government ministers, and other executive officers. These powers, along with the power to dissolve Parliament (Sections 5 and 57), are called "reserve powers." Usually, the Governor-General only acts on the advice of the Prime Minister.

There has only been one time when the Governor-General did not follow the Prime Minister's advice. This was in 1975, when Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam during a political crisis.

Section 68 says that the command of Australia's naval and military forces "is vested in the Governor General as the Queen's representative." The Commander-in-Chief of the Australian Defence Force is the Governor-General of Australia. The Queen of Australia is not in command of the military.

The Courts (Chapter III)

Chapter III sets up the judicial branch of government, which interprets laws. Section 71 gives judicial power to a "Federal Supreme Court" called the High Court of Australia. Parliament can also create other federal courts or give existing courts federal powers. These courts are the only ones that can use federal judicial power.

Sections 73 and 75-78 explain the High Court's original and appeal powers. Section 74 explains how appeals could be made to the Queen in Council (this power has since been removed). Section 80 guarantees a trial by jury for serious crimes against the Commonwealth.

Money and Trade (Chapter IV)

Chapter IV deals with money and trade in the federal system. Section 81 says that all money the Australian Government collects goes into the Consolidated Revenue Fund. Parliament can make laws about how this money is spent.

Section 92 states that "trade, commerce, and intercourse among the States shall be absolutely free." This means there should be no barriers to trade between states.

Section 96 gives the Australian Government power to give money to States. This power is not limited by other parts of the Constitution. It has been used by the Australian Government to encourage States to work together on various issues.

The States (Chapter V)

Chapter V explains what the States can do in the federal system. Sections 106-108 protect the Constitution, the powers of the Parliament, and the laws of each State.

Section 109 is very important. It says that if a State law is different from a federal law, the federal law is more important and applies.

Section 111 says that a State can give up any part of its land to the Australian Government. This has happened several times. For example, South Australia gave the Northern Territory to the Commonwealth.

Section 114 stops any State from having its own military force. It also stops the State or the Australian Government from taxing each other's property.

Section 116 sets out "freedom of religion." It stops the Australian Government from making any law to start a religion, force religious practices, or stop a religion. It also stops religious discrimination for public jobs.

New States (Chapter VI)

Chapter VI allows new states to be created or to join Australia. Section 122 allows Parliament to make rules for new territories to be represented in Parliament. Section 123 says that changing the borders of a State needs the support of that State's Parliament and a referendum in that State.

No new states have joined Australia since Federation.

Other Important Rules (Chapter VII)

Chapter VII says that the capital city of Australia (now Canberra) must be in New South Wales. It also says it must be at least 100 miles from Sydney. This chapter also says the Governor-General can appoint deputies. Section 127 originally said that Aboriginal people could not be counted in any census. This section was changed in 1967.

How the Constitution can be Changed (Chapter VIII)

Chapter VIII explains how the Constitution can be changed. Section 128 says that changes must be approved by a referendum. For a change to succeed, it needs:

• A majority of votes in both the House of Representatives and the Senate.
• A majority of votes from people across Australia in a referendum.
• A majority of votes in a majority of states (at least four out of six states).

The Governor-General must put the referendum bill to the people between two and six months after Parliament passes it. If the bill passes both Parliament and the referendum, the Governor-General gives it Royal Assent. This makes it a new law, and the Constitution is changed.

If one house of Parliament rejects the amendment bill, there's an exception. If the first house passes it, and the second house rejects it, the first house can pass it again after three months. If the second house still rejects it, the Governor-General can choose to put the bill to the people's vote anyway.

Changes to the Constitution

As mentioned, changing the Constitution requires a referendum. The "Yes" vote needs a national majority and majorities in at least four states.

Forty-four proposals to change the Constitution have been voted on in referendums. Only eight have been approved. Here are the changes that have been approved:

• 1906 – Senate Elections – Changed Section 13 about the length of Senators' terms.
• 1910 – State Debts – Changed Section 105 to give the Australian Government power to take over state debts.
• 1928 – State Debts – Added Section 105A to make a financial agreement between the Australian and State governments legal.
• 1946 – Social Services – Added Section 51 (xxiiiA) to give the Australian Government more power over social services.
• 1967 – Aborigines – Changed Section 51 (xxvi) to give the Australian Government power to make laws for Aboriginal people. It also removed Section 127, which said that Aboriginal people should not be counted in the census.
• 1977
  • Senate Casual Vacancies – This change made it a rule that if a Senator leaves their job early, the new Senator must be from the same political party.
  • Referendums – Changed Section 128 to allow people living in Australia's Territories to vote in referendums.
  • Retirement of Judges – Changed Section 72 to make federal judges retire at age 70.

The role of traditions (Conventions)

Besides the written Constitution, there are also unwritten rules called conventions. These are important traditions that have developed over time. They explain how different parts of the Constitution work in real life.

Conventions are very important because Australia uses a Westminster system of government. Some key conventions include:

• The Constitution mentions a Prime Minister of Australia. This position started as the head of the cabinet and is now the head of the government.
• The Governor-General of Australia has many powers in the Constitution. However, by tradition, the Governor-General usually acts only on the advice of the Prime Minister.

Because conventions are not written down, people can sometimes disagree about them. When conventions are broken, it can cause political problems. A famous example is the Australian constitutional crisis of 1975. During this time, the Governor-General Sir John Kerr dismissed the Prime Minister Gough Whitlam. Many conventions were said to have been broken during this event.

One convention that was broken was about replacing Senators. If a Senator left their job early, the State government was supposed to choose a replacement from the same political party. This rule was broken in 1975. After this, the convention was written into the Constitution in 1977.

Another convention that was broken was about money. The Senate usually doesn't vote against money for the government if the government doesn't control the Senate. This convention was broken in 1975 by the Senate.

What are some criticisms of the Constitution?

Protecting people's rights

The Australian Constitution does not have a special section called a Bill of Rights. Some people at the 1898 meeting wanted one, like the United States Constitution. But most felt that the traditional rights of British people were enough. They believed these rights would be protected by Parliament and the independent courts. Because of this, the Australian Constitution is sometimes criticized for not protecting rights and freedoms enough.

However, some rights are included:

• Right to trial by jury – Section 80 says you have a right to a trial by jury for serious crimes against federal law.
• Right to fair payment – Section 51(xxxi) says you have a right to fair payment if the Australian Government takes your property.
• Right to freedom of religion – Section 116 gives a limited right to freedom of religion. It stops the Australian Government (but not the states) from creating a religion or stopping people from practicing their religion.
• Right to freedom from discrimination between states – Section 117 stops discrimination against people from other states.

In the 1990s, the High Court of Australia found that the Constitution has an "implied" right to freedom of political communication. This means that people can talk freely about politics. This was seen as a necessary part of Australia's democratic system. However, this "implied right" is not the same as full freedom of speech. It only protects people from the government trying to limit their political communication.

In 2007, the High Court of Australia said that Sections 7 and 24 of the Constitution create a limited right to vote. This means that almost everyone has the right to vote. The court ruled that a law stopping all prisoners from voting was against this right.

Other attempts to find "implied rights" in the Constitution have not been successful.

Republic proposals

Many Australians want Australia to become a republic. This would mean removing the Queen as head of state and replacing the Governor-General with a President. On 6 November 1999, Australians voted in a referendum on this idea. They voted against it. The proposal was for a President to be chosen by a two-thirds majority of Parliament members.

Opinion polls showed that most Australians wanted a republic. However, many who voted "No" in 1999 wanted to be able to vote for a President themselves. They felt that if Parliament appointed the President, the President might not be independent enough. Support for another referendum seems to be growing. Former Prime Minister Kevin Rudd said that the current situation "no longer reflects either the fundamental democratic principles that underpin the Australian nation or its diversity." He was thinking about a referendum for an independent, elected President.

When is Constitution Day?

Constitution Day is celebrated on 9 July. This is the date the Constitution became law in 1900. It is not a public holiday. Constitution Day was first held on 9 July 2000 to celebrate 100 years of the Constitution. The celebrations were not very big after 2001. Constitution Day was started again in 2007. It is organized by the National Archives of Australia, which keeps the original Constitution documents.

Related pages

• Constitutionalism

• Official text of Commonwealth of Australia Constitution Act 1900 (c. 12): http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1066401 as amended and in force today within the United Kingdom, from the UK Statute Law Database

Images for kids

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  Photo of the Australia Act 1986 (United Kingdom) document located in Parliament House, Canberra

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  Chapter III establishes the High Court as Australia's highest court.

See also

In Spanish: Constitución de Australia para niños