Commonwealth of Australia Constitution Act 1900
The Commonwealth of Australia Constitution Act 1900 is the primary constitutional text of the Commonwealth of Australia.
The constitution was enacted as an Act of the United Kingdom parliament. It provided the new system of government for the new federation, which consisted at its inception on 1 January 1901 of the former separate colonies of
Head of State?
The Act vested authority in the Queen, but did not explicitly designate her (or anybody else) as the Australian 'head of state'. In 1973, the monarch was formally designated as 'Queen of Australia' (but still not as 'head of state'). The Act made provision for a Governor-General to be the representative of the Queen in Australia. The Governor-General carries out specified functions and exercises certain powers, either in the name of the Queen, or in his own name as representative of the Queen. In effect, the Governor-General normally fulfils most of the roles generally possessed by a head of state, whenever the Queen is not physically present in Australia. For this reason, some Australian commentators consider the Governor-General to be the de facto head of state, and this status has also been acknowledged by some foreign governments. However, others argue it is absurd to have a head of state who is merely a representative of and ultimately subject to a higher authority (the monarch). For example, when the Queen is visiting Australia, the Governor-General assumes a lower profile than he normally adopts, and it is the Queen who has opened a new session of Parliament while she was here, not the Governor-General. Such modesty and deference on the part of the Governor-General does not seem fitting for a 'head of state'.
Parliament
Section 1 (of Chapter I) provided that the legislative power was to be vested in Federal parliament, known as the 'Parliament of the Commonwealth', consisting of the Queen, an upper house, called the Senate, and a lower house, called the House of Representatives.
Executive Authority
According to Section 61 (of Chapter II),
- The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth.
Article 62 provided for a Federal Executive Council to 'advise' the Governor-General in the governance of the Commonwealth. Though the language indicated that the Executive Council was answerable to the Governor-General, in reality it is answerable to the House of Representatives, though the fact that the Senate possesses the power to withdraw Supply complicates the situation, given that loss of Supply in parliamentary democracies has the most severe implications for a government, given that it in theory should either resign or seek a parliamentary dissolution, should Supply be lost or not granted.
The Judiciary
The judicial power of the Commonwealth was vested by Section 71 of Chapter III in a federal supreme court to be called the High Court of Australia. It was to be presided over by a Chief Justice.
The States
Section 106 of Chapter V provided for the continuation of the constitutions of the various states, subject to the provisions of the federal constitution.
Amendments to the Constitution
Section 128 of Chapter VIII provided that constitutional amendments required
- an absolute majority in both houses of the federal parliament
- and
- the approval in a referendum of the proposed amendment by a majority of electors nationwide, and a majority in a majority of the states.
The 'Other' Constitution
Alongside the Act, other aspects of the Australian constitution include
- Letters Patent issued by the Crown
- Conventions which evolved over the decades, defining how various constitutional articles should be viewed
While the constitution does not formally create the office of Prime Minister of Australia, such an office developed a de-facto existence as head of the cabinet.
The parliament of the United Kingdom possessed the legal right to make constitutional legislation for the Commonwealth of Australia. From the adoption of the 1931 Statute of Westminster, this could only happen if specifically requested by the Government of the Commonwealth of Australia. This power was only removed by the enactment in 1986 by both Australia and the United Kingdom of the Australia Act, which 'repatriated' the Australian constitution and gave Australia absolute ownership of its lawmaking, to the complete and final exclusion of Britain.
In 1990, the British government passed the Australian Constitution (Public Record Copy) Act 1990 to allow the Australian government to retain the original copy of the Commonwealth of Australia Consititution Act 1900. A copy from the Public Records Office in London was loaned to Australia, and the Australian government requested permission to keep the copy.
The Federal Republic of Australia?
In the 1970s, 1980s and 1990s support grew for the amendment of the Commonwealth of Australia Constitution Act to replace the Queen and Governor-General by a native president. In 1999 a referendum took place to make the change, replacing the monarch and governor-general by an appointed president. For a complex series of reasons, the referendum was defeated. A further referendum may revisit the issue. See republicanism in Australia
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