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AUSTRALIAN GOVERNMENT -
CONSTITUTIONAL BACKGROUND
URL: http://www.spatialgovernance.com/governance/government/610-1A.htm
© John S. Cook - Created on 11 May 1997
Last modified
09/03/06 17:09
Australian EST |
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THE AUSTRALIAN
CONSTITUTION AS A DOCUMENT |
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The
Constitution as an Act of the British Parliament
The powers of the Australian Government derive mainly from the Commonwealth
of Australia Constitution Act 1900. This Act of the British
Parliament is also known by the reference (63 & 64 Vic., c.12) and
refers to the 12th Act passed during the
parliamentary session occurring in 63rd and 64th
years in the reign (or regnal years) of Queen Victoria. The
British Parliament passed this Act on 9 July 1900. An
index
to the provisions and the
full
text of the Constitution in Rich Text Format (RTF) are
available on-line from the
Australian Legal Information Institute (AUSTLII).
SCALEplus, the legal
information retrieval system of the Australian Attorney-General's
Department, also contains a copies of the Constitution under the
title of the Commonwealth of Australia Constitution Act.
The Constitution and
Constitutional Monarchy
The Act at Section 1 gives its long title as: 'An Act to
constitute the Commonwealth of Australia'. The
Preamble
includes the words:
Be it therefore enacted by the
Queen's most Excellent Majesty, by and with the advice of the
Lords Spiritual and Temporal, and the Commons, in this present
Parliament assembled, and by the authority of the same, as
follows:-
These words show clearly how
Queen Victoria’s assent to the legislation occurred with the
'authority' and on the 'advice'
of both houses of the Parliament. This accords with the
principles of a constitutional monarchy established in
seventeenth century Britain. In the absence of authority, advice
and consent of the parliament, the Queen could not assent to legislation
on any material issue without bringing the whole idea of a
participative democracy into question.
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Bringing
the Constitution into Effect
Clause 3 of the Act gave authority for the Queen to bring
the Constitution into operation by Proclamation. This authority
was subject to the fulfillment of certain conditions and the advice of the Privy
Council. One of these conditions foreshadowed the possible
inclusion of Western Australia. The Proclamation appeared in the Commonwealth of
Australia Gazette 1901, p.1. It set the date for
commencement of the Act as 1 January 1901 being the first day of
the twentieth century. The text of this proclamation includes
Western Australia as part of the new Commonwealth of Australia and appears at
p.70 of a
PDF
copy of the Constitution with other constitutional documents
and explanatory notes.Democratic Self Government
The Preamble
also refers indirectly to the referenda held and democratic
processes followed in the separate colonies prior to federation
in the following terms:
WHEREAS the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on the
blessing of Almighty God, have agreed to unite in one
indissoluble Federal Commonwealth under the Crown of the
United Kingdom of Great Britain and Ireland, and under the
Constitution hereby established:
This compares with the leading statement 'We the people' in
the US
Constitution, ( The words ' we the people' are something
like a rallying call in the US - Examples include the We
the People Foundation for Constitutional Education -
We the People Organization - see also
www.google.com.au
using
we
the people as an exact phrase )
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References:
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THE EVOLUTION OF A CONSTITUTIONAL DEMOCRACY |
The Culture of an
Absolute Monarchy
The Australian Constitution embodies constitutional principles
that evolved out more than a thousand years of English history. A major theme in this history is the change from the
absolute monarchy that existed at the time of the Norman Conquest
in 1066 to the constitutional monarchy that existed when the
Australian Constitution came into being.
A prevalent idea in ancient
times was that an absolute authority resided in a king. Support
for this idea depended partly on persuasive philosophical ideas
about the natural order of things and the stratification of
society into social groups. However, practical
politics depended also on coercive elements of political power and
that relied ultimately on being able to amass
sufficient military force to deter any coalition of forces that
might upset a king's authority.
The Idea of a Divine Right of
Kings
The idea of an inherent or god-given natural
law in human affairs has prevailed since ancient times. Of
similar ancient origin is the idea of a king as either being
god-like or having a particular covenant with god. The
Judeo-Christian tradition makes frequent reference to the good and
bad kings of ancient times. The ceremony of the Coronation
reinforces the idea of the monarch as defender of the law and a
deliverer of justice and mercy. The style
and title of Queen Elizabeth II under law in the UK refers to her position as:
Queen Elizabeth II by the Grace of God, Queen
of this Realm and of Her other Realms and Territories, Head of
the Commonwealth, Defender of the Faith.
In Australia, the royal style and
title underwent some change during the Whitlam Government (See
historical notes). The
Royal Style and Titles Act 1973 refers to the Queen as:
Elizabeth the Second, by the
Grace of God Queen of Australia and Her other Realms and
Territories, Head of the Commonwealth.
Magna Carta
King John first issued the Magna Carta (or Great Charter) at
Runnymede in 1215. The Charter made a formal declaration ensuring
the rights of feudal lords; and extended guarantees concerning
freedom of the church and respect for the customs of the towns. It
also referred to human rights in trial by jury and
habeas
corpus. (Habeas corpus guards against arbitrary arrest and
detention. It requires anyone detaining or holding person in
custody to produce that person before a court to decide whether
they are held according to the law).
In effect, Magna Carta imposed
an obligation on the King to maintain particular standards in
dealing with his Lords. Breach of this obligation provided a moral
justification for the Lords to negate any oaths of
allegiance and defy the authority of the King. Thus, Magna Carta
became a rallying call whenever the actions of a reigning monarch
brought revolution or rebellion into contemplation, as in the
English and American Revolutions.
The Stuart Kings and Divine
Right
When Queen
Elizabeth I died without a direct heir, the succession
passed in 1603 to the King James VI of Scotland who also became King
James I of England. Some of the far reaching consequences were
a merged or united kingdom between the English and Scottish
realms. This union highlighted religious and cultural differences
between England and Scotland.
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The
Monarch as a Dispenser of Justice
Historically, monarchs were seen as god-like in dispensing
justice, as in the example of King Solomon. English law sees the
monarch as the fount of justice. Criminal trials in particular
invoke the name of the Queen although she herself
has no direct role in any of them. The idea of the Queens Courts
where Crown
Prosecutors bring criminal actions in the name of the Crown is
still present in the UK. Similarly, prisons are Her Majesty's Prisons,
prisoners may be detained at
Her Majesty's pleasure and prisoners may be granted
Royal pardons. Judicial
appointments occur on the advice of Ministers of the Crown. The
terms 'coroner' and 'coronial inquiry' referred originally to the
English Crown notwithstanding the words retain usage in republics
such as the US.
The Monarch and Taxation
Under the feudal system, occupation of land occurred in exchange
for a fee or rent paid in either or both money and service to the
king. During the 14th century, a practice developed of summonsing
commoners to sound out the acceptability of taxation proposals.
Over time, commoners sought explanation of the purposes to which
money would be put and auditing to see that past allocations were
expended as agreed. Therein lies the origins of the approach in
modern government where money bills originate in the lower house,
the budget session deals with appropriation bills and the auditor
general is a servant of the Parliament rather than the Executive.
Excesses of Absolute Rule
Abuses in raising finance led to a rallying call of 'no
taxation without representation' .
The Customs service grew to impose import taxes on
foreigners as distinct from citizens, or so it was argued. This argument
is now unsustainable
under modern theory about the incidence of taxation, since
citizens as consumers probably do pay indirectly though increased
costs on imported items. Similarly, territorial aggrandizement through the the prosecution
of foreign wars was difficult to justify as defence of the realm.
A monarch could use the resources
of the Crown or State to corrupt the way in which the parliament
can represent the voice of the people. Some of the avenues for
abuse of power involved:
 | rigging electoral boundaries |
| buying political favours by
offering sinecures to particular members of parliament in
exchange for favourable votes in Parliament |
| attempting to silence members
from criticising the executive by threats of arrest or
litigation |
| proroguing and refusing to call
parliament to stifle parliamentary discussion on performance
of the executive and to prevent any opportunity for the parliament
to pass new laws |
A monarch could could also interfere with judicial processes through avenues such as:
| intimidating judicial offers by
interference with their terms of employment or payment |
| manipulating the jury system to intimidate
jurors or get favoured
people appointed as jurors |
| granting pardons to favoured persons who might
receive sentences through a parliamentary or judicial process |
The constitutional principles embodied in the
doctrine of the separation of powers are aimed mainly at checking
abuses of executive powers and asserting a principle of the
supremacy of parliament. |
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References:
| Southern Methodist University, Dallas, Texas
- Home Page > B.
Wheeler > Chivalry
Encyclopedia > Ceremony
> Coronation |
| Magna Carta: US National
Archives and Record Administration (NARA),
Magna
Carta, Magna
Carta and its American Legacy, Declaration
of Independence, Constitution
of the United States, US
Bill of Rights |
| English Revolution - the Civil
War and the Restoration (1642-1660 ): Dr.
E.L. Skip Knox,
History of Western Civilization, Early
Modern Europe, Boise State University, English
Civil War | English
Civil War resource pages | The English Civil War Society (ECWS)
| European Enlightenment - The
Case of England |
| The Glorious Revolution (1688): The
Australian Capital Territory Legislation Register contains a copy
of the Bill
of Rights 1688. The Bill lists grievances against King James II
and the remedies to these grievances provided the basis for
constitutional reform that remain relevant to the present day. | UK Parliament -
Home Page >
House of
Commons Information Office >
Fact Sheets > Fact Sheet G4 -
The
Glorious Revolution |
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THE
DOCTRINE OF THE SEPARATION OF POWERS
AS A CONSTITUTIONAL PRINCIPLE |
Origins
of the Separation of Powers
Under the doctrine known as the separation of
powers, special constitutional checks and balances exist to
counter abuse of power, especially by executive government.
Montesquieu
(1689-1755) popularised the idea of a separation of powers as a
constitutional principle in The
Spirit of Laws (1748). However, the idea has earlier
origins that may go back to antiquity.
The English
Revolution (often called the
Glorious
Revolution of 1688) revived interest in constitutional
principles. A break with the constitution of the past occurred
when James II absented himself from the seat of government and
performed in a way that was deemed tantamount to abdication. John
Locke (1632-1704), an ideologue for the revolutionary
movement, published his Two Treatises on Civil Government
anonymously in 1690. In his Second Treatise, Locke argued for
government based on the sovereignty of the people. These ideas
gained considerable popularity among an intelligentsia, coming
as they did in an age of Enlightenment. The ideas were taken up
vigorously in the British Crown Colonies in North America and
provided a rationale for the American and French Revolutions and
the overthrow of monarchical government.
The Glorious Revolution and the Separation
of Powers
Many of these principles derive from
when Parliamentary leaders invited William and Mary of
Orange to take over the throne and rule according to a new form
of government that closely resembles the constitutional form of
monarchy that exists today. Important enactments included the
Bill of Rights and the Act of Settlement 1701.
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The Separation Of
Powers Doctrine within the Structure of the Australian
Constitution
The structure of the Australian Constitution (as shown in the
List of Sections)
follows the Separation of Powers as a constitutional doctrine.
This separation identifies three branches of government as
follows:
| the Parliament – to make the laws -
(refer to Chapter I) |
| the Executive – to administer the laws
(refer to Chapter II |
| the Judicature – to adjudicate in the
event of uncertainty, inconsistency, incoherence or
ambiguity in the laws (refer to Chapter III) |
A number of provisions exist to prevent undue
influence of the Executive on members of parliament and members
of the judiciary. The Constitution at
s.44 provides that members of parliament
are not to hold an office of profit under the Crown (excepting Ministers of
the Crown and former members of the defence forces on whole or
part pensions). The Electoral Act
1918 at s.65
describes the quota of members from a State or Territory and s.66
allows a deviation of 3.5% from the average in fixing the size
of electorates. In effect this follows a 'one vote - one value'
principle for representation in the lower house. Members have a
parliamentary privilege against liability and defamation
for things said in parliament.
Members of the judiciary have protection from
arbitrary dismissal by an Executive. Provision exists at
s.72 for dismissal of a judge by Governor General in Council on an
address from both Houses of Parliament asking for the removal on
grounds of proved misbehaviour or incapacity. Trial by jury applies for all indictable
offences against any law of the Commonwealth. |
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References:
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CONSTITUTIONAL
MONARCHY AND VICE REGAL REPRESENTATION
IN AUSTRALIAN GOVERNMENT |
Monarchical
Succession and the Constitution
Section 2 of the Constitution provides that references to
the Queen extend to her heirs and successors in the sovereignty
of the United Kingdom. The official head of state is Queen
Elizabeth II following the line of succession from Queen
Victoria. The British Parliament determines the line of
succession by the passing of statutes.
Monarchical Appointment of a
Governor-General
Section
3 of the Constitution requires that the Queen shall appoint
a Governor-General during her pleasure, and assign powers and
functions to that Office subject to the Constitution. In
practice, the Queen acts on the advice of the Prime Minister in
appointing the Governor-General. The Parliamentary Library
maintains a list
of Governors-General since 1901.
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Role of the
Governor-General
The
role of the Governor-General derives largely from the
Constitution. Under democratic institutions inherent in a
constitutional monarchy, the Governor-General usually acts on the advice
of the prime Minister or a responsible minister. The prime
minister's
authority derives from:
| the vote of the people that
determines the parliamentary majority, and |
| the selection processes within
the majority party or coalition that elects the party
leader. |
Absence from the Jurisdiction
Protagonists of King James II claimed that his absence
from the jurisdiction was tantamount to abdication. The
Australian Constitution allows the Governor-General to appoint
deputies to act in his absence. Continuity of authority in
government means that these requirements need strict observance.
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References:
British Monarchy -
Official
Web Site - see especially
The
Monarchy Today: The Queen's Role in the Modern State
Australia - Australian
Parliamentary Library - The
Role of the Governor General,
Governors
General since 1901, Birthplaces
of Governors General -
Australian Parliament -
Home > Senate
> Publications -
Index >
The
Constitution and Convention Debates
Australian Monarchist League
- Home Page >
Articles and
papers on constitutional monarchy
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VICE
REGAL FUNCTIONS IN AUSTRALIAN GOVERNMENT
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Governor-General
and the Parliament |
Governor-General
and the Executive |
Governor-General
and the Judiciary |
The Governor
General has a number of duties associated with the running of
Parliament as an institution. These duties arise as a direct
requirement of the constitution or the operation of conventional
practices and include:
| Issuing writs for House of
Representatives elections (s.32)
(State governors issue writs for elections in the Senate being
the 'States House' (s.12) |
| Summonsing newly elected members
to the first sitting of a new parliament (s.5) |
| Opening a new parliament -
addressing a new parliament on the direction of the newly-formed
government's legislative program |
| proroguing - temporary suspensions
(s.28) |
| Dissolving parliament in preparation for calling
elections and forming a new government (s.28)
- the Senate should normally continue but may be dissolved under a
double dissolution (s.57) |
| Assenting (or refusing assent) to
proposed legislation, or reserving a law for the Queen's
pleasure (s.58). |
| Commissioning of officers with
special duties to the parliament (as distinct from the
Executive) such as the auditor general and Ombudsman |
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In Australia, the Governor-General is
responsible for the Great Seal of the Commonwealth under the Letters
Patent of 29 October 1900.
The Governor
General has duties in relation to Executive Council involving a
number of formal requirements under the Constitution and various
Acts of Parliament. These duties include:
| Appointing and dismissing members
of the Executive Council (s.62) (
Under
s.64,
ministers of state shall be members of Executive Council) |
| Acting as Commander in Chief of
the Army and Navy (s.68) |
| Appointing and removing
non-statutory public servants (ss.32,
64
and
67) |
| Appointing judges (s.72) |
| Issuing proclamations,
orders-in-council, by-laws, ordinances and other delegated
legislation in accordance with specific authorities contained in
various Acts of Parliament |
| Awarding honours on behalf of the
Australian Government |
In making appointments, the Governor
General carries out the formal act of appointing whereas Ministers
of the Crown carry out the political act of choosing and advising
the Governor general who to appoint. In appointing the Prime
Minister, the Governor General relies on representations of the
person claiming to lead the party having the majority in the lower
house of parliament.
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Historically,
the monarch was seen as someone responsible for delivering justice
to the people. The Governor-General in Council acts on the advice of
ministers in the following:
| Appointing judges (s.72) |
| Issuing pardons |
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Reserve Powers of
the Governor-General |
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Arguably, the Governor General has a discretion
of not accepting advice of a minister and even dismissing a prime minister.
However, the stability and authority of government depends on the
reasons being powerfully convincing to the voting public at large.
If a Governor-General refuses to
accept the advice of a prime minister, the prime minister can
resign. An alternative political personage may be unable
to command a majority in parliament to enable the government to
function. The Governor-General could appoint a care-taker government
pending elections. However, if the electorate re-elects the prime
minister who resigned, the position of the Governor-general becomes
untenable.
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References:
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DIVISION
OF POWERS BETWEEN COMMONWEALTH AND STATES |
Problems in a Division of Powers
Matters that are clearly important beyond state boundaries include interstate and international
commerce, transport and communication, customs, quarantine,
external relations with other nations and national defence. Under
the Australian Constitution,
s.51
sets out the various matters
that were seen at the time as appropriate powers for a central government in 1900.
While
s.51 may appear to be relatively discrete in separating federal and
state powers, more complex issues may overlap to require
consideration by both State and Federal Governments. As an
example, plaintiffs in the the Murphyores
decision of the High Court in 1976 held mining leases under
Queensland laws allowing extraction of mineral sands concentrates
on Fraser Island. The responsible federal minister refused issue
of an export license for the minerals pending enquiry involving
environmental impact assessment of the mining operation.
The High Court held that statutes passed by the
Commonwealth Government were within the powers conferred by
s.51 of the Constitution. They allowed ministerial discretion in
permitting or prohibiting an export. It was thus within the
federal power and the proper exercise of a ministerial discretion
to consider criteria or conditions for giving an export approval.
Whether the criteria involved environmental impact assessment or
some other matter was irrelevant in so far as the validity of the
federal powers were concerned.
The effect in the Murphyores
case was not so much to invalidate any Queensland law as
to show that permission by both State and Federal authorities was
necessary to ensure economic viability of the mining operation.
The increasing complexity and sophistication of modern
developments makes it more likely that developers will need to
deal with governments at various levels. Moreover, appeals against
decisions of governments may be available in more than one
direction within the State and Federal court systems. |
The Increasing Need
for Federal/State Cooperation
Increasingly, matters are no longer easily confinable within the
borders of a State. Seemingly local matters such as road drainage
may have national and international ramifications if it leads to
pollution beyond the State borders and into international waters.
Dealing with other nations becomes an external power and is
clearly a federal matter. Matters that have involve both Federal
and State authorities and include:
| microeconomic reform - involving Australia as
a member of the World Trade organisation and membership
obligations involving microeconomic reform with far reaching
implications for State and local governments, in providing
physical public infrastructure, for example |
| environmental issues - where matters such as
Australia ratifying the Kyoto protocols on greenhouse gas
emissions has important implications for local and regional
development and, arguably, also for Australia's reputation as
a trading nation and responsible citizen of the world |
| human rights - in anti-discrimination
legislation of various kinds; in rights to community participation
including access to government information; and rights of
privacy in personal information |
The available mechanisms for increasing
Federal/State cooperation seem to reside in:
| Unanimous and workable
agreement between the Commonwealth and States (usually arrived
at in Australia by protocols established within the Council of
Australian Governments (COAG)) |
| Constitutional change that requires
referenda according to rules set out in
the Constitution |
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References:
Open Learning Australia, Civics
> Citizenship
and Australian Democracy > Australian
Democracy: Rights, Responsibilities, Resources > |
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PROBLEMS
OF MERGING WESTMINSTER TRADITIONS WITH FEDERALISM |
The Upper
House in the Westminster Tradition
In the Westminster tradition, the House of Lords as the Upper House
of the British Parliament cannot claim to be democratically elected.
Some of its members inherit their positions as hereditary peers. The
monarch appoints other members to life peerages on the basis of
advice from the Prime Minister representing the government of the
day.
Supposedly, the upper house serves to
review and pass legislation initiated in the House of Commons.
However, tension arises if a lower house elected on a popular
mandate to implement a particular legislative program finds its
efforts frustrated by obstructionism in an upper house that is not
democratically elected. In the absence of constitutional limits on
the number of members who can sit in the upper house, the government
of the day could recommend that the monarch appoint members to the
upper house. These appointments could be persons whose political
views may find sympathy with the government of the day. However,
this merely exacerbates the problem with each change in political
persuasion of the government of the day. The workability of this
system depends on the upper house maintaining its respectability as
a house of review and exercising moderation in dealing with
legislation initiated by a government with a mandate from the
electorate. This glosses over questions of what mandate is actually
given, given the multifarious nature of the platforms on which
parties win elections.
Section 53 of the Constitution makes
it clear that bills related to government finance are to originate
in the lower house. This follows a Westminster convention with
origins dating back to fourteenth century England.
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The Upper House in the United
States Tradition
Originally, the United States of America involved a federation of thirteen
former British Crown Colonies. Over time, the US acquired additional
territories and constituted new states. Nowadays, there are 50
states in the Union. The Congress or upper house comprise two
senators from each state. Under this system, the upper house has
some claim to democracy, notwithstanding its concession to smaller
states to make the federal compact workable. Giving Senators a voting power
based on equality of states makes the Senate a 'states house'.
However, the
tendency is for state issues to take second place to party political
issues.
In so far as the American
Constitution related to a federal system, it created an Upper House
that differed from the English House of Lords.
Influences on the Australian
Constitution
The Australian federation involved six former self governing Crown
Colonies. The concern was that a franchise involving 'one vote one
value' applied uniformly across Australia would advantage the more
populous states at the expense of less populous states. The remedy
adopted in the Constitution was to give each State an equal number
of Senators. Perhaps the expectation was that Senators would vote
along State lines. However, the reality is that disciplined voting
occurs along party lines. Moreover, differences in the systems that
elect members to the upper and lower houses gives no guarantee that
the majorities in upper and lower houses will follow the same
political persuasion.
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References:
US Senate -
Home >
Reference Home >
Virtual Reference Desk >
Constitution
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