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Our federation: 2. The constitution

2.1 What is the Australian Constitution?

A constitution is a set of rules by which a country or state is governed.

The Australian Constitution was created by a British Act called the Commonwealth of Australia Constitution Act 1901. Section 9 of this Act is headed ‘Constitution’ and contains eight chapters and 128 sections that make up the Australian Constitution. The following table provides a brief chapter by chapter summary:

THE AUSTRALIAN CONSTITUTION
Chapter & section Contents
Chapter 1: The Parliament Sections 1 to 60 describe the composition and power of the federal Parliament.
Chapter 2: The Executive Government Sections 61 to 70 describe the power of the most formal elements of executive government including the Queen, Governor-General and the Federal Executive Council.
Chapter 3: The Judicature Sections 71 to 80 describe the composition and power of the High Court, federal court and state courts.
Chapter 4: Finance and trade Sections 81 to 105 describe rules for money, property and interstate trade.
Chapter 5: The states Sections 106 to 120 describe the rights and powers of the states.
Chapter 6: New states Sections 121 to 124 deal with various issues regarding states and territories.
Chapter 7: Miscellaneous Sections 125 to 127 deal with miscellaneous issues.
Chapter 8: Alteration of the Constitution Section 128 describes a basic procedure for altering the Australian Constitution.

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2.2 How was the Australian Constitution agreed?

Before 1901 Australia did not exist as a nation. It was a collection of six British colonies which were partly self-governing, but under the law-making power of the British Parliament.

During the 1890s representatives of the colonies came together at special meetings called constitutional conventions to try to agree on how to form a new level of national government under a federal constitution. Eventually the conventions agreed on the draft constitution and the people of the colonies voted to accept it.

The constitution was then taken to the British Parliament. Queen Victoria signed the Commonwealth of Australia Constitution Act 1901 containing section 9 which stated that on and after 1 January 1901, the colonies of New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia would be united and known as the Commonwealth of Australia. The colonies became states of Australia and the new federal Parliament of the Commonwealth (now also known as the Parliament of Australia) was formed.

Western Australia was not a party to the initial agreement but joined soon after.

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2.3 What are the main features of the Australian federal system?

The key features of the Australian federal system are:

  • a federal constitution which provides the basic rules for the operation of the federation and sets out the powers of the federal Parliament
  • power and authority that is shared between federal and state parliaments, governments and courts
  • a national government, located in Canberra, which governs the nation
  • six state governments and two territory governments, located in the capital cities of each state or territory and which govern many activities in that state or territory
  • a bicameral system:
    • with single member representation for the House of Representatives. This system is designed to elect major parties and support efficient government
    • with multi-member representation for the Senate. This system elects 12 senators for each state and is designed to protect the interests of the states and minority groups.
  • the High Court of Australia, which is the final court of appeal and which interprets the Australian Constitution, and resolves legal disputes between the Australian Parliament or Government and the states.

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2.4 Can the Australian Constitution be changed?

The Australian Constitution can be changed by referendum according to the rules set out in section 128 of the Constitution.

A referendum is a national ballot on a question to change a part of the Australian Constitution. In a referendum the Parliament asks each Australian on the electoral roll to vote. If a majority of people in a majority of states, and a majority of people across the nation as a whole, (called a double majority) vote yes, then the part of the Constitution in question is changed. Otherwise the Constitution remains unchanged.

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2.5 How many referendums have been held in Australia?

Since 1906, when the first referendum was held, Australia has had 19 referendums in which 44 separate questions to change the Australian Constitution have been put to the people. Only 8 changes have been agreed.

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