Talk:Constitution of Australia

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[edit] Queen of Australia

Memo to the recent Anon user: You are are not the first to assert that the title Queen of Australia was created in 1953. But this is incorrect. The Queen's Australian style and title from 1953 to 1973 was:

"Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith."

Since 1973 it has been:

"Elizabeth the Second, by the Grace of God, Queen of Australia and her other Realms and Territories, Head of the Commonwealth."

Thus you can see that the expression "Queen of Australia" only appears in 1973. Of course she was Queen of Australia from 1952 to 1973, but only in the sense that she was Queen of a wider constitutional entity which included Australia - the British Empire (which was gradually turning into the Commonwealth). There was no intention in 1953 to separate the Crowns of the United Kingdom and Australia - Menzies would rather have cut off his hand than sign something that severed the constitutional link between Australia and Britain. Adam 12:53, 5 May 2005 (UTC)

[edit] Federal republic.

I'm just a student, but according to my textbook, the referendum calling for the republic of Australia had the population majority (something like 54% voted in the affirmative) but not the state majority. Something to double-check.

Either your textbook is wrong, or you read it incorrectly. The referendum lost the popular vote and lost in all states. Xtra 10:56, 25 October 2005 (UTC)
See our article on Australian republicanism.--Cyberjunkie | Talk 14:28, 25 October 2005 (UTC)
The referendum itself did not win any majorities. But polls close to the referendum, and since then, has consistently shown an overwhelming support for a republic. blame John Howard?--Sumple 23:31, 21 December 2005 (UTC)

[edit] New Zealand

Irredentism states:

Australia While not an irredentist claim, Section 6 of the Commonwealth of Australia Constitution Act names New Zealand as a State. "The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia. New Zealand was part of the colony of New South Wales until 1841.

Is this right? If so (or even if not) a comment might be helpful. Thincat 10:00, 4 November 2005 (UTC)

That is not actually part of the Constitution; that is the British act which constituted it. You'll note that the preamble to the Constitution doesn't include Western Australia, that's because it wasn't certain whether WA would join the federation when the Constitution was drafted. Similarly, when the British act was drafted, it was thought that New Zealand would join. Fiji was considering joining at one point. Furthermore, if you read the section carefully (see it here) it qualifies the list by saying that those colonies "for the time being are parts of the Commonwealth". So really this doesn't mean much at all. --bainer (talk) 11:59, 4 November 2005 (UTC)
That's very helpful. This is very clearly not a feature of the Australian constitution. It seems to me it was not worth mentioning in irredentism either, except in a highly qualified way. Also, the quotation from the Act is unsatisfactorily incomplete. I think I might try deleting the paragraph in irredentism (a word I'd never come across until today!). Thincat 12:48, 4 November 2005 (UTC)

I do rather like the idea that New Zealand is Australia Irridenta though. Adam 22:03, 5 November 2005 (UTC)

Lets be frank. Many Australians regard New Zealand as the original failed state.

[edit] Common currency

"This means that Australia has a single currency, which was not the case prior to Federation."

Surely the British pound was the common currency before federation? Avalon 20:04, 5 November 2005 (UTC)

no. There were numerous diferent Australian coins including the dump and the holey dollar. Xtra 21:52, 5 November 2005 (UTC)

Those coins were in very early colonial NSW only - there was also an Adelaide Pound (now very rare and valuable). After about 1820 British currency circulated throughout the colonies. Gold sovs and half sovs were minted in Australia, but they were identical to British coins except for a tiny mintmark (M for Melbourne or P for Perth) and indeed were exported for use in the UK and the Empire. Adam 22:03, 5 November 2005 (UTC)

but although the coins were different, the actual currency that they represented was still the British Pound?? --Sumple 23:33, 21 December 2005 (UTC)

In theory the currency of the colonies was always the pound sterling, even at times when there was no actual British currency circulating. The use of the Spanish coins etc were only expedients. From the 1820s to 1910 British coins were the standard currency throughout Australia.

[edit] Streamline this page?

I think this page needs to be streamlined. THere is another page, Australian constitutional law that deals with the concepts of federal constitutional law. I think this page should be a breif outline of the Constitution, divided textually (chap I, II, III etc), with links to the relevant concepts if required. --Sumple (Talk) 06:27, 19 April 2006 (UTC)


[edit] Australia not completely severed from the UK

Australia was granted independence by the United Kingdom parliament through several Acts (Constitution, Statute of Westminster and the Australia Act).

In each of these constitutional Acts, the UK parliament (and the Australian parliament where relevant) included provisions to the effect that the UK could not repeal or amend the laws without Australia's permission.

This is a legal nicety but does not reflect the legal reality.

It is long established that the UK parliament cannot "bind its own hands". That is, a parliament cannot restrict its ability to repeal or amend laws it has passed, provisions to the contrary notwithstanding. Basically, this is because future laws inconsistent with past laws effectively repeal the past laws and any provision restricting repeal.

Theoretically, the UK could repeal or amend the constitution or ANY law passed by any Australian parliament. Whether this power would be exercised (or whether Australia would recognise the UK's new laws!) is another matter. However, it is an important and fundamental constitutional point that is quite well established and recognised; it should not be glossed over or denied.

Ah, but the Mother of Parliaments is not 'binding its own hands' - the Australian federal and state parliaments have renounced this power as well. Therefore, any residual technical ability to amend these laws would have no effect within the provenance of Australian constitutional law. I can't imagine a circumstance where the UK parliament would exercise this non-power any more than it would amuse itself by amending repealed statutes. Slac speak up! 05:14, 17 May 2006 (UTC)

The UK has every right to ammend any Act that it passed and that will have the full force and validity in the UK. However, at this point in time and given the effects of the Australia Act etc, no ammendment in the UK would have any constitutional significance in Australia. At the point the Australia Acts where passed, the UK gave up any rights they would have to create an Act such as the Australia Act. Xtra 06:33, 17 May 2006 (UTC)

This reminds me once again that I need to write an article on Sue v Hill. I'll quote the key passages from that case (from the judgment of Gleeson CJ, Gummow & Hayne JJ). They are discussing the Australia Act 1986, specifically s 1 which removes the power of the UK parliament to legislate for Australia:
"Provisions such as s 1 may present doctrinal questions for the constitutional law of the United Kingdom, in particular for the dogma associated with Dicey's views as to the sovereignty of the Parliament at Westminster. Professor Sir William Wade pointed out more than 40 years ago that Dicey never explained how he reconciled his assertions that Westminster could destroy or transfer sovereignty and the proposition that it could not bind future Parliaments."
So the issue about binding hands is still open even in the UK in this instance, but even so they continue to say that the issue is irrelevant in Australia:
"The effect in the United Kingdom of any amendment or repeal by the United Kingdom Parliament of s 1 would be for those adjudicating upon the constitutional law of that country. But whatever effect the courts of the United Kingdom may give to an amendment or repeal of the 1986 UK Act, Australian courts would be obliged to give their obedience to s 1 of the statute passed by the Parliament of the Commonwealth."
Sue v Hill is still good law in Australia. So unless the High Court changes its mind, that is the legal reality. --bainer (talk) 13:14, 17 May 2006 (UTC)
The courts of Australia would probably consider any U.K. law, like abolishing Austrlalia, invalid, but this is still an interesting question in Australia, and from where Australian laws derive their power - it can't be U.K. Parliamentry Sovereignity, although it would once have been.

As for in the U.K., there would be no question at all - parliament could pass a law abolishing Australia, or making Siberia part of the U.K., and these laws would be valid - it is just a practical matter of whether thes laws would have any effect, or could be enforced. The U.K. could always send an army to invade Australia (or Siberia) - the U.K. courts would no disalow this (it can invade Iraq after all), but exactly how Austrlalian courts would treat the question is what is interesting. Matthew238 04:55, 4 June 2006 (UTC)

The British doctrine that "Parliament cannot bind its own hands" can only relate to domestic law. Clearly once a colonial power has legally renounced sovereignty over another country, that decision cannot be reversed. And even if this were not the case, British Parliamentary doctrine is irrelevant. Once a country is independent, it is beyond the reach of another country's law. An Act of the UK Parliament reclaiming sovereignty over (say) Pakistan would have no legal effect in Pakistan. This situation in Australia is a little more complicated, because there was no single date on which Britain renounced sovereignty over Australia - it was a cumulative process. But sovereignty was nevertheless renounced eventually, certainly once the Australia Acts were passed. Australia is thus now beyond the reach of British law. The single exception to this is law relating to the succession to the throne, since this is an institution shared by the UK and Australia. Australia has apparently accepted that British law relating to the succession will apply in Australia, although what would happen if the British Parliament legislated unilaterally to change the law of succession has never been tested. Adam 02:06, 15 June 2006 (UTC)

That's why "final" in the relevant part of Australia is dangerous. I suggest that it be reworded to avoid such as definitive sense. Tony 03:25, 31 October 2006 (UTC)
Except that even that "single" exception is not, in the expressed opinion of three High Court judges, an exception. Given all references provided so far indicate that "final" is the correct term, rewording would at best be the application of original research. --Michael Johnson 04:01, 31 October 2006 (UTC)
"Clearly once a colonial power has legally renounced sovereignty over another country, that decision cannot be reversed" - practically, that may be the case, but legally, from the colonial powers point of view, it isn't. If Britian wanted to invade Ireland, would the U.K. courts overule Parliament, because it had "bound its own hand". The U.K. would then ironically be free to invade all the countries that were not ever its colonies, but forbiden by law to invade its previous possessions. - Matthew238 22:48, 8 November 2006 (UTC)
Except that this article is about the constitution of Australia, not the United Kingdom. If the UK decides to invade Ireland, or Australia, or the US, or Iraq, well that is something the invadee has to deal with. However as far at the US or Ireland or indeed Australia is concerned, the UK has no residual powers. So as far as the constitution of Australia is concerned the UK can legislate what they want, it would not have any effect here unless the Brits suceed in invading and conquering the country (or we do what Newfoundland did in the 1930's, and hand ourselves back by choice). Two further examples. Many English kings also claimed to be King of France. According to the law of England they were King of France. Didn't make them so. Both the UK and Argentina claim the Faukland Islands. The law of either country dosn't affect the other - the status quo is maintained by force, as we know.--Michael Johnson 23:27, 8 November 2006 (UTC)

[edit] Rewrite in progress

I'm doing a re-write of this article at User:Sumple/Constitution of Australia. All comments are welcome. --Sumple (Talk) 11:34, 4 August 2006 (UTC)

Why in your opinion does this article require a rewrite? Adam 11:57, 4 August 2006 (UTC)

Sorry should have elaborated. See Wikipedia talk:WikiProject Australian law#Constitution of Australia. --Sumple (Talk) 12:11, 4 August 2006 (UTC)

[edit] New version - any objections?

I'm proposing to substitute this article with a new version, as at User:Sumple/Constitution of Australia. If there are any objections, comments, or suggestions, please post them below. If nobody objects, I will change over to the re-written version in a week. Thank you for your attention. --Sumple (Talk) 06:22, 2 September 2006 (UTC)

  • Support Good rewrite, alot clearer and with a better structure. But we need a view point from a regular contributor to this article before changeover, just to prevent reversion without discussion. MojoTas 04:38, 5 September 2006 (UTC)
Thanks I'll ask around for comments. --Sumple (Talk) 07:54, 5 September 2006 (UTC)

It looks much better in summary style. Well done Sumple.--cj | talk 10:16, 6 September 2006 (UTC)

Thanks cj! --Sumple (Talk) 00:35, 7 September 2006 (UTC)

[edit] References ARE required for the second para in the lead

Tony 00:34, 31 October 2006 (UTC)

Please inidicate which statements you think need referencing:

The Constitution of Australia is the law under which the government of Australia operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referenda held over 1898 - 1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an act of the Parliament of the United Kingdom. The Constitution came into force on 1 January 1901. Even though the Constitution was orginally given legal force by an act of the United Kingdom parliament, as Australia is now an independent country, the text of the Constitution is now independent of the text appended to the original Act, and only the Australian people can amend it (by referendum). Letters patent issued by the Crown, on the advice of Australian ministers, are also part of the Constitution of Australia.
Certain other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986, which was passed in equivalent forms by the Parliaments of every state, the United Kingdom, and the Commonwealth. These Acts had the effect of severing all constitutional links between Australia and the United Kingdom, except for the fact that the same person, Queen Elizabeth II, is the head of state of both countries.

Adam 01:53, 31 October 2006 (UTC)

Well, to start with, "the United Kingdom parliament has no power to change the Constitution"—the edit comment is e.g. B&W(3ed) p.168); Can this be spelt out and inserted as an inline citation? It's such an important and apparently contentious point that full referencing is required. I hope that the reference will be authoritative. Tony 03:26, 31 October 2006 (UTC)
Tony, the Blackshield & Williams reference (B&W) I quoted is a counter-point to the previous version which talked about the "texts being separate". Specifically, the reference says that the texts are not separate. As to why the UK parliament can't change the Constitution, I think it's spelt out in the section below about the Statute of Westminster and the Australia Acts. --Sumple (Talk) 03:49, 31 October 2006 (UTC)

It's uncertain to me whether "the Commonwealth" at the start of Para 2 refers to the Australian Federal Parliament or to the British Commonwealth of Nations. Please avoid the term in this context unless you want to spell it out. Tony 03:23, 31 October 2006 (UTC)


[edit] type of consitiuion

To Sumple:: this is in palce as it is a key an foundational atribute of the Australian constituion, all sections/heads of power are predicated on thhis fact. —The preceding unsigned comment was added by JUBALCAIN (talk • contribs) 00:28, 25 January 2007 (UTC).JUBALCAIN 00:29, 25 January 2007 (UTC)


For the record: by this diff [1] and subsequent edits User:JUBALCAIN sought to insert the following section immediately after the "Articles" paragraph:

==Limited Powers== The Australia Constitution is a limted powers constituion as opposed to plenary powers constituion that for example the (Australian) states have, excepting in limited areas of residual perogative powers and the war power which may wax and wane with the prosecution of war.

I have reverted this change because of the following reasons:
  1. The division of powers is already mentioned Constitution of Australia#Interpretation, and is dealt more fully in various articles: Section 51 of the Australian Constitution, Australian constitutional law, Federalism in Australia and, more generally, Division of powers.
  2. The added paragraph, which is about the specific interpretation of section 51, and, to a lesser extent, s 106-108, is out of place as a separate section and as a general header to the summary of the articles.
  3. The addition of this new section destroys the existing organisation by cutting the Constitution of Australia#Articles into two, and inserting an inappropriate header for the summary of the articles.
  4. The content is inaccurate. The Australian constitution is a federal constitution, and all federal constitutions feature division of powers. The paragraph in general, and the terms "limited powers constitution" as opposed to a "plenary powers constitution" in specific, are imprecise and misleading.
  5. It is also not logical: it says that "The Australian consitution is a limited powers constituion [sic], [...] excepting in limited areas [...] How can it be a "limited powers constitution" except in some areas?
If you would like to contribute more material as to the division of powers under the federal system, please add to Constitution of Australia#Interpretation. --Sumple (Talk) 01:31, 25 January 2007 (UTC)
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