Constitutional history of Australia facts for kids

The Constitutional history of Australia is the story of how Australia's main laws and government rules came to be. Australia started as a group of British colonies. Its first laws were based on a British idea that the land was empty, even though Indigenous people lived there. This idea was called terra nullius. Over time, Australia slowly became more independent. This journey ended with the Australia Act 1986, which formally cut most legal ties with the United Kingdom.

Australia's First European Settlements

Before Europeans arrived in 1788, they had only explored Australia. In 1770, James Cook sailed along the east coast. He claimed this land for Britain, but it's not clear why. Indigenous peoples were not asked, and no treaties were made. Later, the idea of terra nullius was used to explain this claim. It meant the land belonged to no one.

British officials decided to set up a colony at Botany Bay in 1785. Arthur Phillip was chosen as the first Governor in 1786. He planned for English laws to be used in the new colony of New South Wales. He also wanted to make sure there would be no slavery. The first group of 11 ships, called the First Fleet, arrived in Botany Bay, New South Wales in January 1788. They brought 1044 people, including 696 convicts. The actual settlement was built at Sydney Cove. Governor Phillip officially started the colony on 7 February 1788. Even though it was a military prison, it had a civil government and courts.

The idea of terra nullius was first tested in a court case called R v Tommy. The court said that English law only applied to Indigenous people if the case involved both Indigenous people and settlers. This was because Aboriginal groups already had their own legal systems. Later cases, R v Ballard and R v Boatman, supported this idea.

In 1835, Governor Bourke made a special announcement. It showed what terra nullius really meant. He said that Indigenous Australians could not sell or give away land. No person or group could own land unless the Crown (the British government) gave it to them. This announcement was approved by the British Colonial Office. It was made after some farmers tried to buy land from Indigenous tribes in Port Philip. This event is known as Batman's Treaty.

During the 1800s, new British colonies were formed in Australia. Tasmania became a separate colony from New South Wales in 1825. Western Australia was set up in 1832. New Zealand was part of New South Wales for a short time. Then it became its own colony in 1841. South Australia was formed in 1836. Victoria became a separate colony in 1851, and Queensland in 1859. Queensland got its own government and constitution. South Australia was founded as a "free province," meaning it never had convicts. Victoria and Western Australia also started free but later accepted convicts. Convict transportation to New South Wales ended in 1848.

Gaining Self-Government

Between 1855 and 1890, the six Australian colonies gained "responsible government." This meant they could manage most of their own affairs. They were still part of the British Empire. However, the British government in London still controlled things like foreign affairs, defence, and international shipping. New South Wales and Victoria got self-government in 1855. Tasmania followed in 1856, Queensland in 1859, and Western Australia in 1890. These changes were confirmed by a British law called the Colonial Laws Validity Act 1865.

The Colonial Laws Validity Act 1865 was a British law. It explained how local laws in the colonies related to British laws. It said that colonial laws were fully valid within the colony. The only limit was if they went against a British law that also applied to that colony. This law made colonial governments stronger. But it also reminded them that the British Parliament was still in charge.

Before this Act, some colonial laws were cancelled by local judges. They said these laws went against English laws. This was a big problem in South Australia. A judge there, Benjamin Boothby, often cancelled local laws.

Moving Towards a United Australia

The first step towards uniting the colonies was the Federal Council of Australasia in 1885. But this Council was not very strong. It couldn't make laws or enforce them. The idea of a full federation grew stronger in the late 1800s. This led to the six Australian colonies joining together to form a federation of States. People even thought New Zealand might join too.

In the 1890s, two special meetings were held. These were called constitutional conventions. They created a constitution for Australia. It combined ideas from British, American, and other systems. For example, it used a monarchy and parliamentary government from Britain. It took the idea of federalism (sharing power between states and a central government) from Canada and the United States. It also used the idea of a referendum (where people vote on a law) from Switzerland. The people in each of the six colonies then voted to approve this constitution.

The British Parliament then passed this constitution as a law. It was called the Commonwealth of Australia Constitution Act 1900. This law came into effect on 1 January 1901. On that day, the Commonwealth of Australia was born.

The Australian Constitution decided how power would be shared. It divided power between the new states (the old colonies) and the federal parliament. Most powers, like foreign affairs and defence, were shared. If a federal law and a state law clashed, the federal law would win. But the United Kingdom still had the power to handle foreign affairs for Australia. It could also make laws for Australia. In the early years, Australia was represented by the UK at international meetings. But in 1919, Australian Prime Minister Billy Hughes insisted that Australia have its own representatives at the peace conference in Versailles.

The Constitution also said that the British monarch would have a representative in Australia called a Governor-General. At first, the British government chose the Governor-General. They were usually British aristocrats. But in 1930, the Australian government insisted that an Australian, Isaac Isaacs, be appointed. The British government finally agreed that Australia should choose its own Governor-General.

Finally, the Constitution said that the British monarch could cancel any Australian law within a year. This power was never actually used. So, at first, Australia's relationship with the UK was similar to how the individual colonies had been.

A Shared Monarch for Many Nations

A big change happened in the late 1920s for the British Commonwealth. This was a group of countries that used to be part of the British Empire. A British law in 1927 changed the idea of one single Crown. Instead, the King became a "shared monarch" for many different countries.

Before 1927, King George V was seen as King in Australia, Canada, and other places. These places were like smaller parts of the United Kingdom. After 1927, he became King of Australia, King of Canada, and so on.

The King's new title didn't name all the countries. But it showed that he was now directly the head of each separate state. This was a big step. It changed the idea of one shared monarch to many monarchies, all held by the same person.

Even though this was a big change, neither the British nor the other governments fully understood it at first. Ireland quickly used this new idea. They chose their own Governor-General. They also asked to speak directly with the King, without British ministers present. Other countries were slower to do this.

Before 1927, it was correct to say the "British monarch" ruled in Australia. After 1927, there was technically a King of Australia. This title wasn't used formally until 1973. That's when Australia passed the Royal Style and Titles Act.

The Statute of Westminster 1931

By the mid-1920s, the British government agreed that countries like Australia should have full power to make their own laws. This was made official in 1931 by the Statute of Westminster 1931. This law came into effect in Australia in 1942. It was made active from 3 September 1939, when World War II started.

When Australia adopted this law, it meant the Colonial Laws Validity Act 1865 no longer applied to federal laws. However, the Colonial Laws Validity Act 1865 still applied to individual Australian states. This continued until the Australia Act 1986 came into effect in 1986.

The 1975 Constitutional Crisis

In 1972 and 1974, the Australian Labor Party (ALP) won elections. Its leader was Gough Whitlam. His government faced some big constitutional challenges. The ALP had a majority in the lower house of Parliament. But the Senate (the upper house) often blocked their laws. This led to a "double dissolution" election. After that, both houses met together to pass the laws.

The political situation didn't get much better after the 1974 election. The Senate later refused to pass "supply" bills. These bills are needed to allow the government to spend money and collect taxes. This led to the Australian constitutional crisis of 1975. It raised several important questions:

• Should a State Governor always appoint the party's choice for a Senate replacement?
• Should the Senate refuse to pass money bills?
• Should the Prime Minister resign in such a situation?
• If the Prime Minister doesn't resign, should the Governor-General fire them?

Only the first question has been partly answered. A change in 1977 made it harder for states to refuse a party's nominee for a Senate vacancy. But a state parliament can still refuse to appoint someone. This happened in 1987.

Two old constitutional rules clashed during the crisis. First, a government that has the support of the lower house should be able to keep governing. Second, a government cannot keep governing if it runs out of money (supply). In the United Kingdom, the House of Lords can no longer block money bills. This problem has not been fully solved in Australia. The crisis of 1975 could happen again, though it's not very likely.

The Australia Act

The power from the Statute of Westminster was used a few times. For example, it helped Australia gain new territories. But its most important use was also its last. This was when the Australia Act 1986 was passed.

The Australia Act officially ended the power of the British Parliament or Government to make laws for Australia or its States. This was true even if Australia asked them to. It also said that any law that used to need British approval could now be passed by Australia and its States on their own.

Since the Australia Act, the only remaining link with the United Kingdom is the monarch. The monarch is the Queen or King of Australia, as well as the UK. But even this connection might not be automatic. In a big court case called Sue v Hill in 1999, some judges said something important. They believed that if the British Parliament changed the rules for who becomes monarch, it might not affect Australia. Australia's rules for succession would stay the same unless Australia changed them itself. This shows how independent Australia has become.

That same court case also decided that the United Kingdom is a "foreign power" under Australia's Constitution. This means that British citizens cannot be elected to the Australian Parliament.

Thinking About an Australian Republic

As we've seen, the only remaining constitutional link Australia has with the United Kingdom is through the monarch. The monarch is the head of state for both the UK and Australia. The monarch's main job in Australia is to appoint and dismiss the Governor-General and the State Governors. This is done on the advice of the Australian Prime Minister or the State Premiers. Sometimes, the monarch also performs ceremonial duties during a Royal visit.

Because of this, some people in Australia believe the country should become a republic. This would mean Australia would have its own head of state, instead of the British monarch.

Images for kids

• Arthur Phillip.jpg

  Arthur Phillip, the first Governor of New South Wales.

• First Fleet.jpg

  The First Fleet arriving at Botany Bay in 1788.