What is in the Australian Constitution?
The Australian Constitution came in to force on 1 January 1901, creating a new British Dominion: Australia. This foundational document, creating a new nation, was the culmination of over fifty years of debates and proposals. The first formal steps to federation of the colonies started in 1885, with the creation of the Federal Council of Australasia in recognition of a growing national identity.
Serious momentum was built in the early 1890’s when some of the leading legal minds of the colonies gathered to draft and debate a potential constitution. In 1891, the first constitutional convention was held in Sydney, bringing together 46 politicians, lawyers and prominent citizens to develop a constitutional framework for the new nation. While the colonial Parliaments failed to give effect to that proposal it provided a foundation for subsequent work. Towards the end of the 1890s, a second constitutional convention – the Australasian Federal Convention 1897–98 – was held in stages first in Adelaide, then Melbourne and finally Sydney. This time proposal was endorsed by the colonies, the people (through a series of referendum) and ultimately the Imperial British Parliament.
In 1901, a new nation was born.
The model which ultimately was adopted was a constitution based on a combination of British, American and other models. Its defining characteristics include:
Taken together, these basic components set out creating a vision of a new country that would sufficiently entice the colonies and the population to commit to creating a new nation. This constitutive role is critical in understanding our contemporary relevance of what is, and is not, in our constitution.
Serious momentum was built in the early 1890’s when some of the leading legal minds of the colonies gathered to draft and debate a potential constitution. In 1891, the first constitutional convention was held in Sydney, bringing together 46 politicians, lawyers and prominent citizens to develop a constitutional framework for the new nation. While the colonial Parliaments failed to give effect to that proposal it provided a foundation for subsequent work. Towards the end of the 1890s, a second constitutional convention – the Australasian Federal Convention 1897–98 – was held in stages first in Adelaide, then Melbourne and finally Sydney. This time proposal was endorsed by the colonies, the people (through a series of referendum) and ultimately the Imperial British Parliament.
In 1901, a new nation was born.
The model which ultimately was adopted was a constitution based on a combination of British, American and other models. Its defining characteristics include:
- Federalism: The Constitution created a nation with two levels of government: the States and the Commonwealth. The colonies were converted to States, and retained broad powers. The new Commonwealth government was given discrete and limited powers. Authority of a range of matters were concurrent (both State and Commonwealth could regulate them), with any conflict resolved in favour of the Commonwealth.
- Separation of Powers: The constitution created a unique form of separation of powers, melding the UK Westminster model of parliamentary sovereignty with US style institutional separation. While the executive (Chapter II) was drawn from Parliament (Chapter I), the courts (Chapter III) were to be institutionally independent, and have the final say on the interpretation of all law (including the constitution)
- Limited Rights: The Australian constitution did not attempt to create an extensive constitutional set of basic rights. In this regard it is in stark contrast to the US Bill of Rights, or the Canadian Charter of Rights and Freedoms. Only limited discrete rights were explicitly included in the constitution: a degree of religious freedom (s116); requirements that property could only be acquired by the Commonwealth on just terms (s51(xxxi)); and the right to jury trials for serious Commonwealth crimes (s80).
- Large focus on issues of commerce and trade: Significant parts of the constitution are directed to matters of trade and commerce, and the protection of economic interests. This reflects a focus on making an economic case for the new nation, and convincing the colonies that nationalisation was in their interests.
Taken together, these basic components set out creating a vision of a new country that would sufficiently entice the colonies and the population to commit to creating a new nation. This constitutive role is critical in understanding our contemporary relevance of what is, and is not, in our constitution.
A Product of Its Time, But Designed for Change
Ultimately, the Australia Constitution is a product of its time, and of the culture and social conditions of the late 19th century from which it emerged.
This was an inherently elitist exercise: the core of the constitution was developed by Sir Samuel Griffith, Charles Kingston and Sir Edmond Barton over the Easter weekend cruising on the SS Lucinda up the Hawkesbury River in 1891.
Australians were, first and foremost, British Subjects, and the new political entity a Dominion under the authority of the British Crown and British Imperial Parliament. The idea of Australian independence emerged slowly over the course of the 20th century, and was not formalised until the 1980s.
But one key thing that the Framers of the Australian constitution got right is that they recognised that change was inevitable, and that they need to provide for change in society by allowing change in the Constitution
- Notably, this is a document that was created by wealthy male colonists. Not a single woman was a delegate in any of the conventions: the closest women came was the unsuccessful campaign of Catherine Helen Spence in 1897 to be one of SA’s delegates (notable SA was the first jurisdiction to give women the vote in 1894).
This was an inherently elitist exercise: the core of the constitution was developed by Sir Samuel Griffith, Charles Kingston and Sir Edmond Barton over the Easter weekend cruising on the SS Lucinda up the Hawkesbury River in 1891.
- Secondly, the new constitution was not seeking to establish a new and independent nation.
Australians were, first and foremost, British Subjects, and the new political entity a Dominion under the authority of the British Crown and British Imperial Parliament. The idea of Australian independence emerged slowly over the course of the 20th century, and was not formalised until the 1980s.
But one key thing that the Framers of the Australian constitution got right is that they recognised that change was inevitable, and that they need to provide for change in society by allowing change in the Constitution
Our Constitution was never meant to be a static document. It is designed to respond to changing social condition and needs through a process of procedurally regulated change: through formal referendum. |
It has always been core to our constitution’s designed that it could evolve and change, and thereby remain effective and responsive in regulating our society and acting as a potent symbol of our national identity.
Further Information
- For an excellent overview of the various provisions and parts of the Constitution, have a look at the summary of the Australian Constitution produced by the Parliamentary Education Office.
- The Parliament of Australia has produced a useful short Infosheet on the Constitution and its core provisions and their meaning.
Podcast: It’s Not Just the Vibe, It’s the Constitution
Kim Rubenstein and James Blackwell
In 2023 Australians are being asked to change the Constitution. If we are being asked to change something, shouldn’t we know what is in it already? Sure, we know something about ‘the vibe’ of it from the Castle, but what else?
In this 8-part podcast series, It’s Not Just the Vibe, it’s the Constitution! Kim Rubenstein and James Blackwell talk about just that – how the Constitution came to be, what is in it already, and what the 2023 referendum is about! |
Available:
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