Talk:Constitution of Australia

/Archive 1

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)

Not so sure about that. Divisibility of the crown came about as a result of a meeting of commonwealth Prime Ministers in 1952 following the death of King George VI. In the UK, some MP's opposed the new Royal Styles and Titles act on the grounds that it constituted divisibility of the crown. Menzies was probably opposed to it as well, and that would explain Australia's choice to ignore it until 1973. David Tombe (talk) 16:24, 17 November 2008 (UTC)

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)

There is a wikipedia section on australia republican vote and associated issues.Ern Malleyscrub (talk) 09:15, 15 November 2009 (UTC)

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.

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.

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)

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)

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)

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)

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)

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)

So. Many. Holes.

Such a crappy constitution... -Viva43 00:26, 15 May 2007 (UTC)

Preamble

I have reverted edits by User:IndependenceFreedom relating to preambles. The edits which I removed argued that the first 8 clauses of the Commonwealth of Australian Constitution Act 1900 constituted a "preamble" to the constitution. This is not the accepted view.

The Commonwealth of Australia Constitution Act is strctured as follows:

• short title: "Commonwealth of Australia Constitution Act"
• "(63 & 64 Victoria, Chapter 12)"
• long title: "An Act to constitute the Commonwealth of Australia"
• a preface: "WHEREAS the people of New South Wales...", etc, "And whereas it is expedient to provide for..." etc, "Be it therefore enacted by the Queen ... as follows: -"
• eight covering clauses providing for definitions, proclamation, commencement etc.
• the Constitution: section 9: "The Constitution of the Commonwealth shall be as follows: -"

Generally, only the preface is called the "Preamble" (see, e.g. Blackshield & Williams (2002); Winterton (1995); Constitutional commission report (1988)). The first eight sections are called "covering clauses". The preface is a "preamble" to the Imperial Act, not the Constitution itself. The Constitution itself has no preamble. The relationship between the Imperial Act and the Constitution post-Westminster and Australia Acts is explained in the History section.

Claims that the preface and covering clauses constitute a "preamble" to the Constitution itself are novel, and need to be backed up by reliable sources. --PalaceGuard008 (Talk) 02:57, 4 August 2007 (UTC)

Agreed. enochlau (talk) 05:00, 4 August 2007 (UTC)

I disagree. It seems the Australian Government also disagrees. Sometimes. Whilst your argument is at best perhaps semantically correct, the preamble to ANY constitution is regarded as any introduction found prior to the body of the sections making up the constitution. That is why it is called a 'preamble' of course. Whilst this creates some confusion, it is definitely not uncommon in Australia to refer to the initial clauses of the Constitution Act as the preamble. By definition the preamble does have to come before the actual Constitution. [2], the Australian Government's own Parliament website refers to what you call the "covering clauses" as the preamble. The Discovering Democracy Units website, a project of the Australian Government's Department of Education, Science and Training also describes the parts of the Act that come prior to Clause Nine as the "preamble". [3] The Australian Legal Information Institute website also refers to the preamble in its discussion at numerous places including [4] and [5], although they only quote the Introduction prior to all nine clauses as the preamble. Whilst there may be doubt as to what actually constitutes the preamble, at no time does the ALII question the existence of a preamble in these discussions, in fact clearly referring numerous times to the "Preamble to the Australian Constitution". Again, the ALII actually entitles this discussion as "The Preamble". AT no time does it suggest there is no preamble. Instead it begins its discussion with the words "The <<preamble to the Australian Constitution>> makes reference to the Queen." I could go on for hours quoting official government sources or other non-government sources that carry considerable authority. The overwhelming indication is that there is in fact a preamble. May I ask what is the source of the suggestion that there is no preamble? I am interested to know more about why you are so certain of your opinion. Is it personal opinion or do you have any reference supporting that opinion higher than the Senate website?

As I have noted before, you've confused a preamble to the Act, as a preamble to the Constitution. The Act is not the Constitution. The Constitution forms part of the Act, and that part does not have a preamble. Your links in fact show this: e.g. [6] labels that section as the "preamble" to the Act; [7] says quite clearly "A <<Preamble>> precedes this and the other eight covering clauses, and thus forms part of the British Act rather than part of the <<Constitution>> itself". It is the preamble to the Act. In any case, (university-level) academic references as cited by User:PalaceGuard008 (such as Winterton) are contrary to your claims. You might remember the 1999 referendum: that was to add a preamble to the Constitution: you cannot add a preamble when one exists (it was not a bill to amend any such preamble). enochlau (talk) 17:14, 4 August 2007 (UTC)

Yes, The distinction between the British Act and the text of the Constitution needs to be made clear. They are two different things, and sections 1-8 of the Act could be termed its preamble, but they are not the preamble to the Constitution. The fact that the 1999 referendum was to add a preamble is definitive here I think. Also, the High Court has paid scant notice to ss1-8 of the Act in interpreting the Constitution in a manner that suggests it is not a prefacing clause to the Constitution. Kewpid 17:29, 4 August 2007 (UTC)

Wouldn't it be reasonable to argue then that the whole constitution needs to be rewritten? It is, after all, the same constitution that was used when we were still a colony until we were finally recognized as a sovereign nation in 1919. The other three former colonies, or dominions if you prefer, have made clear and extensive changes to their constitutions since becoming internationally recognized as sovereign nations. Why not us? Why do you think we have chosen to continue using an Act of British Parliament that states (controversially) that the use of the act does not change our nature as a colony other than we become a 'self-governing' colony? In fact it would seem reasonable to suggest that the first point of business for any nation receiving ultimate sovereignty would be the redrafting of a new Constitution.

Regarding the preamble, whilst I accept your argument, it still does not justify why the Wikipedia states so adamantly that there is no Preamble. Especially in light of the fact that the same government that is empowered by the constitution refers to a preamble. Wouldn't it be more accurate and truthful to say something along the lines that whilst academic debate concerning what constitutes the preamble continues, the fact is that the Australian Senate, along with other government departments, regards the introduction and Clauses 1 to 8 as being a preamble, whilst some other authoritative sources regard just the introduction. No matter how you look at it, it seems it is reasonable enough to suggest at least both sides of the argument.

Thanks for your responses too by the way. I am enjoying the exchange.

Truth IndependenceFreedom 17:55, 4 August 2007 (UTC)

Covering clause vs preamble The Senate website is a bit ambiguous. Remember, also, that the Senate website isn't the Australian government's authoritative repository of laws - it isn't very authoritative at all, certainly much less authoritative than Williams or Winterton. It's got that label "(Preamble)" in brackets, but it is ambiguous whether that label attaches to only the preface or to the preface together with the covering clauses. With Austlii, it doesn't even have the preface at all.

The Commonwealth government's official database of legislation, ComLaw (Commonwealth of Australia Constitution Act 1900) labels the first 8 section "covering clauses", and does not label the preface at all. This is the same version that you will see if you buy a hard copy published by the government or an academic publisher.

Remember, also, that the preface is a very standard recitation in any British legislation - "Whereas blah blah be it therefore enacted by the Queen..." is a standard form preamble to any piece of legislation. That this particular statute has special significance for Australia doesn't change the way its structural members are identified: specifically, the sections are not part of the "Preamble".

Two sides to the argument On the one hand, we have the unambiguous opinions of the leading Constitutional law authorities in this country, and the usual custom for reading legislations; on the other hand, we have a rather ambiguous label on the Senate website. Unless there is some reliable source (academic work or official legislative material) that unambiguously contradicts Blackshield & Williams or Winterton and says that "the preface and the covering clauses together constitute the preamble", it would be irresponsible for Wikipedia to propagate such a view.

This is a quote from Blackshield and Williams:

“

The new preamble was to be inserted at the beginning of the Constitution, rather than at the head of the Commonwealth of Australia Constitution Act. The preamble that currently prefaces that Act, and the covering clauses that precede the Constitution, would not have been deleted or changed by either the republic or the preamble proposal ...

”

Clearly, B&W draw a distinction bewteen 1) the preface/preamble versus the covering clauses, and 2) the proposed preamble to the Constitution versus the existing preamble to the Act.

In the interest of dispelling doubt, however, I think we could add something to the "Preamble" section that says, "While the Commonwealth of Australia Constitution Act 1900 contains a standard-form preamble, the Constitution itself has no preamble". What do you think?

As a postscript, if you are interested in the academic debate surrounding the method of changing the preface and covering clauses (whether it is to be changed by referendum, by an act of the British parliament, or by the Federal parliament alone), George Winterton's "The STates and the Republic: A Constitutional ACcord?" (1995) 6 Public Law Review 107 has a good discussion.--PalaceGuard008 (Talk) 00:52, 5 August 2007 (UTC)

I think your suggestion to add something relating to a Preamble/Constitution introduction is good. One other thought is that as the Act remains an act of British Parliament, and Section 128 ONLY permits us to make changes to Clause nine, we couldn't change the intro clauses anyway. So this may have influenced the referendum wording too. I am truly confused why we continue to place out ultimate legal authority in an act of a foreign power. We can't change the Act through referendum, we can only request British Parliament to do that.

I'm glad we all agree. I agree with you about the confused constitutional situation in Australia - it is certainly a shock when you find out how cnofused it really is! --PalaceGuard008 (Talk) 00:36, 10 August 2007 (UTC)

To the post above and before PalaceGuards - don't be confused - the UK has no ultimate legal authority over Australia . In fact even a request to change the Constitution by Australia would have no effect in Australia - see S1. of the Australia Act 1986 ( Cth ) . In fact S1. of the Aust Act ( in my opinion ) actually validates the Constitution Act and the Constitution by specifying that only British Law passed AFTER 1986 is not valid in Australia . Implying that British Laws passed before 1986 pertaining to Australia are valid .Also S15. of the Aust Act (CTH ) gives the Commonwealth Govt. the power to amend or repeal both the Aust Act and the Statute of Westminster 1931 - if s8. of the Statute of Westminster was repealed the Commonwealth Govt. would then be able to amend or repeal both the Constitution Act and or the Constitution itself .The only restriction on the Commonwealth Government is that it would require the agreement of the States of Australia for it to take such an action . Note - via this procedure no referendum would be required to change the Constitution ! Lejon (talk) 03:09, 29 April 2008 (UTC)

On this subject it may be worthy of note that the Western Australian petition to overturn the Constitution Act was rejected by the British Parliament in 1935 on the grounds that it would need the consent of the Commonwealth Parliament to do so. That was of course after the Statute of Westminster (but before it had legal effect in Australia).--Gazzster (talk) 04:19, 17 July 2008 (UTC)

Constitution Act

This article says little about the Commonwealth of Australia Constitution Act 1900 (Imp), even thought that links to here. What, for example, effect does it have (excluding, of course, those parts which make up the Constitution)? How can it be amended - by referendum like the constitution, by act of parliament, by the U.K. parliament? What about the specification of who the monarch will be. This may have some implication for the independence of Austarlia from the U.K. - what law(s) determine succession to the throne, and how could Australia affect them? - Matthew238 (talk) 03:48, 24 September 2008 (UTC)

I think the UK Parliament could repeal or amend the Act, but it would have no legal effect in Australia, since after 1986 no new UK legislation applies to any part of Australia.The Australian Parliament could, I suppose,repeal or amend the Act, but the Constitution itself cannot be changed except by consent of the States and the People. The Constitution mentions the rights of the heirs and successors to Queen Victoria, and UK laws of succession govern the succesion in Australia. What is more troublesome to talk about is the question of whether these are UK laws that govern Australia or Australian laws patriated from UK law (in which case Australia could change them unilaterally). I believe that the Statute of Westminster 1931 requires unanimous consent amongst the nations sharing the UK monarchy as their own before amending the succession.But it's a difficult point. Could the UK technically change it's own law (as Gordon Brown has been talking about recently)with legal effect in the UK, and consult the other nations afterwards as a fait accompli? --Gazzster (talk) 21:40, 24 September 2008 (UTC)

The imperial legislation remains in force and can be changed by the Westminster parliament in the normal way. However, since the passage of the Statute of Westminster and the Australia Acts, such an act of legislation by the Westminster parliament does not bind Australia, and the Constitution as in force in Australia would not be changed.

The way I analogise it, the Constitution, having been borne and then given birth by the British Act, has become a separate piece of law. The two pieces of law are now separate and lead separate "lives". The British can do what they like to the British Act, but the Constitution, now with a separate existence, will not be affected.

Australia can and has amended received statutes, and both statute and the common law in some areas has significantly diverged because of either Australian or British developments.

Nothing in the Statute of Westminster makes any special provision for succession. Thus, British succession law applies to the Australian monarchy simply because it was received. The "shared monarchy" is a common law constitutional principle, and it is competent for Australia and any other realm to legislate to change that position - though convention would currently stand against such a move. --PalaceGuard008 (Talk) 04:15, 26 October 2008 (UTC)

Which Parliament of the UK passed the Act?

I removed and Hamiltonstone restored the "27th" to the "parliament" field of the infobox. My reason was because it generated a redlink, which I couldn't see how to fix, so I assumed that it must be wrong. Hamiltonstone's reason was that "it DOES matter which one ... passed the act". I don't have a legal or political background, so I don't know the significance of a specific parliament. We have an article List of Parliaments of the United Kingdom that lists them, but that doesn't explain why the number is important (except perhaps for easy reference) - presumably an Act passed by any of them is as valid as one passed by another. The Constitution of Australia article of course tells us when it happened. So:

• Why does it matter which particular numbered parliament passed the Act?
• If it does matter, should the infobox be changed to support this? We don't appear to have specific articles for each parliament - and certainly there are no links from the List article.
• The infobox documentation says that "the name of the parliament which made the legislation. This will be linked", but doesn't tell us whether the "name" includes the number.
• I did a quick survey of the first 10 pages that link to the template, and none of them included a number.

I'm happy to accept that the number is important, if that is the case, but perhaps the infobox template and its documentation need updating. Mitch Ames (talk) 12:05, 6 November 2010 (UTC)

I can't see why it is important or relevant. All anyone needs to know is that the act was passed by the UK parliament in 1900. It is of no moment whether it happened to be the 27th, the 375th or the 658th Parliament. -- Jack of Oz ... speak! ... 12:26, 6 November 2010 (UTC)

Agreed.

On a related point, I also feel the infobox needs to be moved down, since the infobox is about the Imperial Act, while the article is mostly about the Australian Constitution as in force in Australia, and only tangentially about the Imperial Act as passed. As explained in the article, the Imperial Act has historical but no continued significance for the Constitution as in force in Australia. Every time that the Constitution is amended, it is the Constitution as in force in Australia which is amended, the Imperial Act has remained the same for 110 years, and is not (quite) the creature being described in the article. Perhaps it needs to be moved into the History section. --PalaceGuard008 (Talk)

OK, I've removed the number again. Although I notice that since I started this discussion, the number has changed from 27 to 26, and the latter does redirect to a different article (List of MPs elected in the United Kingdom general election, 1895). Mitch Ames (talk) 23:55, 3 December 2010 (UTC)

Please keep up with judicial interpretation

I have recently reverted good faith edits by users who have been reading the Australian Constitution literally. Please: one can take many views and that happens, but in terms of what the Australian Constitution means as a text to be obeyed in Australia it means what it has been interpreted to mean by the High Court of Australia (HCA). Right now, especially, what is a "Chapter III court", and indeed a "court" within what is increasingly seen by the HCA as a national judicial system, is a matter of intense focus by the HCA: latest, Wainohu 2011. --Wikiain (talk) 12:12, 2 July 2011 (UTC)

"Australian Constitution" and "Constitution of Australia"

Hi yorli,
Could we possibly distinguish between the "Australian Constitution" and the "Constitution of Australia"? The "Australian Constitution" is arguably a body of UK and Australian legislation and common law, including The 1931 "Statute of Westminster", the Australia Act 1986, and "received" conventions and maybe lots more. The "Constitution of Australia" though, is purely legislation.
Your thoughts about this? --Shirt58 (talk) 12:41, 22 July 2011 (UTC)

We could, but I don't think we should. The distinction that you make is very important, but even within Australia it is not usually, or at least consistently, expressed in that way. The "Constitution" in the narrow sense is called, in the Commonwealth of Australia Constitution Act 1900 (Imp), the "Commonwealth of Australia Constitution" (in and after that title) or, more briefly, the "Constitution of the Commonwealth" (cl 9) and, still more briefly, "the Constitution" (later and s 128). The leading textbook, covering all that you mention and more, is titled Australian Constitutional Law and Theory. The distinction that you make might be expressed as that between (narrow) "Constitution" and (broad) "constitutional law". But the latter is termed, in the UK, the "British Constitution". German legal theory sometimes distinguishes between (narrow) "constitution in the formal sense (Verfassung im formellen Sinne)" and (broad) "constitution in the substantive sense (Verfassung im materiellen Sinne)". I'm happy to leave be, here, consistently with articles on the "constitution of" other countries, e.g. Constitution of Canada. This phrasing gets the reader of WP efficiently to each country's material, which is the main thing. --Wikiain (talk) 17:54, 22 July 2011 (UTC)