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Learning

Written constitution

Closer Look – Parliament and Congress [PDF 1.59Mb, 16 pages]

Commonwealth of Australia Constitution Act, 1900: Original Public Record Copy (1900)

Parliament House Art Collection, Art Services Parliament House

A constitution is a set of rules by which a country is run. The Australian Constitution took effect on 1 January 1901. It includes details on the composition of the Australian Parliament, how Parliament works, what powers it has, how federal and state parliaments share power, and the roles of the executive government and the High Court.

The US Constitution took effect on 21 June 1788, after it was ratified by the required nine states. It is the framework for the organisation of the US federal government, and its relationship with the US states and all its citizens. It contains 10 amendments which were incorporated into the document in 1791 in response to concerns about the rights of individuals. These amendments are known collectively as the 'Bill of Rights'. The US Constitution is the oldest written constitution still in use by any nation.

The constitutions of Australia and the US both contain details about the three major branches of governance: the legislature (law-makers), the executive (high-ranking government decision-makers) and the judiciary (the federal courts). The power to make and manage federal law is divided between the three branches of governance. This division is known as the 'separation of powers'. Under this principle, the power to make and manage laws is shared to avoid any one branch misusing or having too much power.

The US Constitution creates three distinct and separate branches of national governance: a legislature known as Congress (made up of the House of Representatives and the Senate)that makes the law, an executive led by the President that administers the law and a judiciary headed by the Supreme Court that interprets the law. The US Constitution specifies the powers and duties of each branch.

The Australian Constitution describes the roles of the legislature known as the federal Parliament (made up of the House of Representatives and the Senate), the Executive (government ministers) and Judiciary (made up of all federal courts, including the High Court). However, Australia has a limited separation of powers because some of the roles of Parliament and the Executive overlap. For example, the Executive is chosen from members of the Parliament, and members of the Judiciary (High Court judges) are appointed by the Governor-General on the advice of the Executive.

The following table provides an overview of the distinguishing features of both nations' constitutions.

Constitution
AustraliaUnited States

Origins

  • The Constitution was drafted at conventions held in 1891, 1897 and 1898 by representatives from the six British colonies that joined together to become Australia.
  • Approved by popular referendum and introduced under an Act of the British Parliament in 1900 as the Commonwealth of Australia Constitution Act 1900.
  • Gained royal assent on 9 July 1900 and took effect on 1 January 1901.

Origins

  • The Constitution was written by 55 state delegates at a convention in Philadelphia in 1787. It was adopted and approved by all 13 states represented at the convention.
  • The Constitution came into effect on 21 June 1788.

Executive power

  • The Constitution vests executive power in the Queen, which is exercised by the Governor-General. In practice, executive power is exercised by the Prime Minister and Cabinet (high-ranking ministers).
  • The Governor-General presides over the Federal Executive Council, which advises the Governor-General on the administration of the government. The Prime Minister and all ministers are members of the council, which is not a forum for policy debate.
  • The Prime Minister and Cabinet are not mentioned in the Constitution. By convention, the Prime Minister leads the party or parties with the support of the majority of the members in the House of Representatives and is commissioned by the Governor-General to form a government.

Executive power

  • The Constitution vests executive power in the President.
  • The President is elected through an indirect ballot system involving citizens across the US.
  • The President nominates the members of their Cabinet (known as executive department secretaries) and other senior executive branch officials, many of whom must be confirmed (agreed to) by the Senate.

Separation of powers

  • The Constitution describes the legislative, executive and judicial arms of Australian governance.
  • Australia has a limited separation of powers. The Executive is drawn from the legislature, or Parliament. Members of the Judiciary (High Court judges) are appointed by the Governor-General, on the advice of the Executive.

Separation of powers

  • The Constitution describes the separate legislative, executive and judicial arms of US governance.
  • Members of the House of Representatives and senators are prohibited from holding executive office.
  • Members of the Cabinet cannot be members of the Legislature, meaning that the President and secretaries cannot be members of Congress.

Amending the Constitution

  • A proposed amendment (change) to the Constitution must first be approved by the Parliament.
  • The proposal must then be taken to Australian voters in a referendum.
  • For the change to be agreed, there must be a double majority. This means a majority of voters in a majority of states and a majority of all voters nation-wide, must agree to the proposal.

Amending the Constitution

  • A proposed amendment to the Constitution must first be agreed to by:
    • two-thirds of both houses of Congress, or
    • two-thirds of the state legislatures calling a convention to consider it (this option has never been used).
  • The proposal is then passed if it is approved by three-quarters of the state legislatures or by three-quarters of the states at state conventions.
Similarities

Both systems:

  • are federations
  • were created by states handing over some of their power to a central government
  • have written constitutions that describe the functions of the executive, legislative and judicial branches.