the australian constitution our foundation document 1

The Australian ConstitutionOur Foundation Document

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Commonwealth Constitution

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Commonwealth Constitution

Parliament hasLegislative power

Cabinet hasExecutive power

The Courts haveJudicial power

The Ministry High Court

House ofRepresentatives

Senate

Other federal courts

Doctrine of separation of powers

Commonwealth Constitution

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Division of Power

Specific PowerSection 51 contains this

information

Concurrent Power

S109 allows that if a conflict occurs, the Commonwealth

shall prevail

Residual Power

S106 and s107 allows that any areas not

specifically mentioned in the Constitution is

State’s Power

Exclusive Power

Examples are; s111 and s112 defence and

Currency

The Commonwealth’s Power The State’s Power

An outline of the Australian ConstitutionChaptersI. The ParliamentII. The Executive GovernmentIII. The JudicatureIV. Finance and TradeV. The StatesVI. New StatesVII. MiscellaneousVIII. Alteration of the Constitution

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The Australian Constitution is an Act of the British Parliament Section 9 of “An Act to Constitute the Commonwealth of Australia”.

The first 8 sections of the Act record that the people of the Australian colonies have agreed to unite in a federal commonwealth and that the new system of government was not imposed on the Australian people by the British Parliament.

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Chapter One: Parliament: Specific Powers

Chapter I vests the legislative power of the Commonwealth in a Federal Parliament.

This consists of the Queen, a Senate and a House of Representatives, and provides for the establishment of the Houses, the significant procedures and the powers of the Parliament.

It is broken into five parts. They contain the following information.

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Part 1 establishes its legislative power in Australia and provides for a Governor-General, representing the Queen, with power to summon Parliament.

Part 2 provides for the composition and election of the Senate, and the filling of Senate vacancies. It details quorums, voting arrangements and the procedure for election of a President of the Senate.

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Part 3 provides for the composition and

election of the House of Representatives and the filling of House vacancies. It details quorums, voting arrangements and the procedure for election of a Speaker of the House of Representatives.

Part 4 deals with matters applicable to both houses of Parliament, particularly the qualification of members and the privileges of the Parliament.

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Part 5 deals with the powers of the Parliament and provides a list of 40 paragraphs of specific powers.

This part also deals with the joint powers of the houses and the means of resolving disagreements between the houses.

Section 51The Parliament shall, subject to this constitution,

have power to make laws for the peace, order and good governance of the Commonwealth with respect to [39 specific heads of power].

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Chapter Two – The Executive GovernmentThis chapter deals with the Executive Government, the branch of

government which carries out and enforces the laws. It provides for the exercise of executive power by the Governor-General advised by an Executive Council.

Section 62 There shall be a Federal Executive Council to advise the Governor-General in the Government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

Section 64 stipulates that Ministers are to be Members of Parliament, the only section of the Constitution that refers to the system of Responsible Government.

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Chapter Three: The JudicatureThis chapter provides for the establishment of the

Judicature, the branch of government dealing with the courts of law.

Section 71 provides that the judicial power of the Commonwealth is vested in the High Court of Australia and other federal courts established by the Parliament.

Other sections deal with the appointment, tenure and removal from office of judges of the High Court and other courts.

Section 76 gives power to the Parliament to determine the jurisdiction of the High Court.

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Chapter Four: Finance and TradeThis chapter deals with finance and trade. One of

the most important sections is Section 83 which provides that no money is to be drawn from the Treasury except under an appropriation by law.

Other sections deal with customs duties, requiring that they be uniform throughout the Commonwealth.

Section 92 requires that trade and commerce amongst the states shall be absolutely free.

Section 96 empowers the Commonwealth Parliament to grant financial assistance to the States.

Section 105A, inserted by referendum in 1929, deals with the taking over by the Commonwealth of States’ debts.

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Chapter Five: The StatesThis chapter deals with the States, providing for the

continuance of their constitutions, parliamentary powers and laws.

Other sections prohibit the States from coining money, raising armed forces or discriminating against the residents of other States.

This section also requires that the Commonwealth is to protect the states against invasion or domestic violence.

Section 109 provides for Commonwealth law to prevail over State law, but only in those cases where State law is inconsistent with Commonwealth law.

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Section 109 deals with conflicts between Commonwealth and State laws.Section 109

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The test applied by the courts is to determine whether or not the Federal Parliament expressly or impliedly intended to cover the whole field, and if so any State law entering upon that field is invalid.

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Chapter Six: New StatesThis chapter deals with the procedures for

the establishment of new States and provides for the surrender of territories to the Commonwealth by States.

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Chapter Seven: Miscellaneous

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This Miscellaneous chapter has two sections, one dealing with the establishment of the seat of government, the other providing for the appointment of deputies of the Governor-General.

Section 127, dealing with the counting of Aborigines in censuses, was deleted by referendum in 1967.

Chapter Eight: Alteration of the Constitution

This chapters deals with Alteration of

the Constitution. It provides that

proposals for constitutional alteration be initiated by the Parliament and

approved in a referendum by a majority of voters Australia-wide and a majority of voters in a majority

of States.

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Section 128 provides the procedure by which the constitution may be amended.

The amendment must be passed:by both Houses of Parliamentby a majority of votersby a majority of States.

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Does our Constitution contain rights?The Australian Constitution is a document to

establish the division of power between states and the Commonwealth. It contains a limited amount of rights. These rights are either expressly or explicitly stated or implied.

The Australian Constitution contains 5 expressly protected rights and, currently, one implied right.

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1. Freedom of Religion

Section 116 provides that no law may establish a state religion, impose any religious observance, prohibit the free exercise of any religion, or require a religious test as a requirement for Commonwealth office.

Section 116 also protects non-believers by indirectly providing for the ‘right of a man to have no religion’. However, the section prohibits only Commonwealth laws from restricting religious freedom in these ways; it does not to apply to state laws.

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2. Interstate Trade and Commerce Section 92 states that interstate trade and

commerce is to be free. This right is more a structural underpinning of the economy to prevent parochial restrictions on economic activity, rather than a fundamental democratic or human right.

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3. Discrimination It is unlawful for state and Commonwealth

governments to discriminate against someone on the basis of that person’s state residence (s.117).

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The Commonwealth must provide ‘just terms’ when acquiring property, as per Section 51(xxxi). This means that the Commonwealth can acquire someone’s property, but must pay fair compensation. It does not apply to acquisition of property by state governments.

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5. Jury trial There must be a jury trial for indictable

Commonwealth offences (s.80). However, this is a very limited right because: most indictable offences are crimes under state law, and s.80 only applies to Commonwealth offences

The High Court has ruled that ‘indictable’ means ‘crimes tried on indictment’. Hence, the government can avoid a jury trial for a particular offence by legislating for the offence to be a summary offence.

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The High Court and One Implied Right

The High Court has found that the Constitution contains an implied right to free political communication. As our Constitution established a system of representative government, free political communication is necessary for that system to operate properly. The court has not found that a general right to free speech is implied by the Constitution, but only a right in regard to matters which can be described as “political communications”.

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