The constitutions

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 Governor-General and the state governors

The head of state in Australia is the Queen of Australia, who is also the Queen of the United Kingdom and the head of the Commonwealth of Nations (formerly called the British Commonwealth). The Governor-General and state governors are her representatives. They are appointed by the Queen, but she does so on the basis of advice provided by the relevant head of government (i.e. the prime minister or premier).

The Commonwealth and state constitutions appear to provide extensive powers to the Queen’s representatives. However, these powers are exercised in accordance with ministerial advice (except in relation to a very narrow range of issues known as the “reserve powers”).

The reserve powers are generally accepted to be:

the power to appoint a government;

the power to reject advice to dissolve parliament;

the power to dismiss a government.

State governors and the Governor-General appoint governments, usually from the party that has won an election or has the confidence of the lower house (Victoria: the Legislative Assembly; federal: the House of Representatives).

The power to dismiss a government is subject to dispute as a result of that power being used in 1975 to dismiss the federal Labor Whitlam government; some argue that the power to dismiss a government does not exist or should not exist. However, in the absence of that power, most constitutions have no alternative power to remove a government from office, even when it has lost the confidence of the lower house or lost an election.

State governors and the Governor-General play an important role with their “three rights”:

the right to be consulted;

the right to encourage;

the right to warn.

The right to warn should be exercised when a state governor or the Governor-General considers that the government is taking an unwise course of action, and if a governor or the Governor-General intends to dismiss a government. As the former Governor of Victoria, Richard McGarvie, put it:

It is a cardinal principle that a governor should never “ambush” a premier – should never exercise the reserve power without having given the premier adequate warning that it may be exercised.

Parliaments

The federal parliament and the parliament of each state (other than Queensland) is made up of two houses. All Commonwealth and state legislation must be passed by each House of Parliament and be approved by the Queen’s representative before becoming a law.

The extent of the power of Australian parliaments to make laws is detailed in the Commonwealth of Australia Constitution Act 1900 (Cth) (“Commonwealth constitution”) and state constitutions, such as the Constitution Act 1975 (Vic).

The Commonwealth legislative powers are listed in the Commonwealth constitution and most are not exclusive to the Commonwealth. The Commonwealth legislative powers include defence, taxation, marriage, trade and commerce, immigration and lighthouses.

The states do not have a list of legislative powers, but their constitutions provide the legislative power to make laws “for the peace, order and good government of the state” or, in Victoria’s case, “in and for Victoria in all cases whatsoever”. These are broad powers to make laws about all matters relating to the state. Also, despite what appears to be the limiting or qualifying nature of the words “peace, order and good government”, the High Court decided in Union Steamship Co of Australia v King (1998) 166 CLR 1 that those words do not have a qualifying effect.

There is, therefore, an overlap between Commonwealth and state legislative powers, which can lead to inconsistent Commonwealth and state laws. If a state law is inconsistent with a Commonwealth law, section 109 of the Commonwealth constitution states that the Commonwealth law prevails. Section 109 also states that where there is an inconsistency between state and Commonwealth law, the state law is “invalid”. However, the High Court has interpreted this to mean that the state law is not, in fact, invalid, but is only inoperative while the inconsistency remains (see Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 577).

If a parliament makes a law 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 relevant constitution did not give parliament the power to make that law.

There are also some implied restrictions on legislative power that the courts have derived from the terms of the Commonwealth constitution; the most significant being the implied freedom of political communication. This covers “political discussion”, which includes “discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office” (Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104).

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

Each minister must be a member of one of the Houses of Parliament, so they can be subject to scrutiny from, and be responsible to, parliament. This is an essential element of the Westminster system and is expressly required in many of the Australian constitutions, as in section 64 of the Commonwealth constitution.

Changing constitutions

The Commonwealth constitution is “entrenched” and can only be changed by the successful passage of a referendum by a majority of voters and a majority of voters in a majority of states (s 128 Commonwealth constitution). This makes changing the Commonwealth constitution very difficult. There have been 44 attempts to amend the Commonwealth constitution and only eight have been successful.

However, most state constitutions are Acts of parliament that are changeable by normal legislation. Some states have introduced forms of entrenchment for some of the constitutional provisions. Of the states, Victoria has the greatest degree of entrenchment; many of the provisions in Victoria’s constitution are only alterable by a referendum, some provisions require a 60 per cent majority in both Houses of Parliament, while other provisions require an absolute majority of each house (s 18 Constitution Act 1975 (Vic)).