Lecture Two - The Australian Constitution
Reception of English Laws
Eighteenth century international law required that states could acquire foreign land and sovereignty by three methods:
1. Conquest - by military force 2. Cession - by treaty
3. Occupation - of vacant land
- Australia was considered to be terra nulls at the time of the First Fleet in 1788
- Australia was not empty at that time but it was deemed that Indigenous peoples were to primitive to be regaded as the actual owners and sovereigns of the land
- The consequence was that English settled Australia as a colony by occupation.
- Under the international law, the logic behind “occupation” is that the colonised territory does not have a pre-existing legal system that the colonising nation has to adopt which allowed for the automatic reception of English laws
- Colonies were established - Australian states
- Colonial Parliaments comprising two houses were established under the English law and empowered to legislate albeit not in a manner inconsistent with the English law directly on point
Background to Federation
• 1891 The first national convention was held in Sydney
• 1897 Conventions in Adelaide, Sydney and Melbourne considered a draft Constitution
• 1899 The Constitution was put to referendum and approved
• 1900 The British Parliament passed the Commonwealth of Australia Constitution Act 1900 (UK_
• 1901 -The Commonwealth of Australia came into existence on 1 January 1901 -The colonies (states) gave up powers, rights and duties to the new central government but retained their individual identities and a great deal of legislative authority
Australian Constitution
- The Commonwealth Constitution united the colonies in a federation - The states did not give all their powers to the Commonwealth
- Federation involves a division of powers between the states and the commonwealth - The Commonwealth Constitution is divided into eight chapters
– Chapter 1 – The Parliament
– Chapter II – The Executive Government – Chapter III – The Judicature
– Chapter IV – Finance and Trade – Chapter V – The States
– Chapter VI – New States – Chapter VII – Miscellaneous
– Chapter VIII – Alteration of the Constitution
Division of Powers
Amending the Australian Constitution To amend the Commonwealth Constitution under s128 requires:
- The proposed amendment is passed by an absolute majority (over 50%) of all elected members in both houses of parliament
- The proposal is put to a referendum of all Australian votes
- The proposal is approved by a majority of voters in a majority of states at least 4) - The Governor-General gives royal assent
Separation of powers
• Legislative power - Parliament
• Executive power - cabinet/ministers
• Judicial powers – courts
