The Constitution


Contributor: Joseph A Barravecchio

The Constitution is the fundamental rules by which Australia is governed. The Constitution is Australia’s supreme law and may only be amended by referendum. The Constitution outlines the basis for relations between the Commonwealth and the States of Australia.

The head of state in Australia is the Queen of Australia, who is also the Queen of England. The Governor-General and state-based governors are her representatives. All legislation passed by the parliaments must be signed by the Queen’s representative before it comes into operation. The parliament has authority because the Queen says it has authority over her subjects.

Many people think this is no longer appropriate for a modern country like Australia. However, a referendum to remove the role of the monarchy (the Queen) and become a republic failed when put to the test in 1999. Supporters of a republic have promised to continue with their efforts in the future.

The extent of the power of Australian parliaments to make laws is detailed in the Commonwealth of Australia Constitution Act 1900 (“the Constitution”) and state constitutions, for example the Constitution Act 1975 (Vic). The Commonwealth and state parliaments have different powers, which are listed in their separate constitutions. The powers of the Commonwealth Government are listed in section 51 of the Constitution and include defence, taxation, marriage, trade and commerce, immigration and lighthouses.

If a parliament makes a law (Act) that is outside the powers set out in the relevant constitution, then the validity of that law can be challenged. Sections, whole parts, or a complete Act can be declared invalid if the courts find it unconstitutional; that is, the Constitution did not give parliament the power to make that law.

Where an Act is made by a state parliament and covers subjects over which the Commonwealth Parliament has exclusive power, the state Act is said to be inconsistent. The Commonwealth Act applies and the state Act – or at least the part of it that is inconsistent – is of no effect (as in the Tasmanian dam example).

Disputes about interpreting the Constitution can only be resolved in the High Court.

The state parliaments have power to pass Acts on all areas not given to the Commonwealth in its Constitution, as well as on some subjects that are in both the state and Commonwealth constitutions. An area where power has been left to state parliaments is trade and commerce within a state; in contrast, the Commonwealth Parliament has been given power to make laws about trade between the states.

Despite these apparently sharp differences in their powers, the state and Commonwealth governments are often involved in the same projects. Their degree of involvement varies according to their constitutional power, their political will and the amount of money involved.