Department of Modern History, Politics and International Relations - Politics and International Relations

A First Reading Of The Australian Constitution

 

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A reading guide

John Kilcullen

Macquarie University
Copyright (c), 2000, 2004. R.J. Kilcullen.


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The text of the Constitution should appear in the right frame. The purpose of this page is to guide readers rapidly through the Australian Constitution to get the general sense of it.   Links within [square brackets] should not be followed until a later reading.



The makers of the Australian constitution intended to establish a [federation], to be called "The Commonwealth of Australia", in which the existing Colonies (NSW, Victoria, Queensland, Tasmania, South Australia, Western Australia) would become States. They intended the Commonwealth Parliament to include a

  • House of Representatives, which would represent people as Australians, and a
  • Senate, which would protect their interests as Victorians, Queenslanders, Tasmanians, etc.

In the Senate each State, no matter what its population, would have equal representation. In the House of Representatives representation would be by population.

So far the scheme resembled the [United States Constitution]. However the drafters retained two British institutions current in the Australian colonies, namely Monarchy (represented by a Governor-General) and Responsible Government. Though formally the monarch is head of state, in fact (by virtue of the convention that the Governor-General acts on the Prime Minister's advice) government power is exercised by an elected person (prime minister, premier, chief minister) responsible to Parliament and indirectly to the electors.

Responsible Government, which had developed in Britain and its colonies in the course of the 19th century (i.e. after American independence) rests on the following conventions:

  • The executive Government (effectively the Prime Minister) holds office only while it has the confidence of the lower house of Parliament. If it ceases to have the confidence of the lower house the government must either resign or advise the Governor General to dissolve the lower house and call for a general election.
  • With a few, contested, exceptions, the Governor-General must act on the advice of the executive Government.

[Conventions] are rules that are not enforced by the courts of law, but by some other means--by public opinion, by informal sanctions such as uncooperative behaviour, by the consciences of individuals involved. Conventions are not part of the legally-enforcable statute called the Constitution, but they are presupposed to it or grow up afterwards. The conventions of Reponsible Government are presupposed by our Constitution. (You may feel a need for information on the [history of federation]; otherwise, read on.)

THE CONSTITUTION

The Australian Constitution became law by being passed as an Act of Parliament by the British Parliament. This explains the reference to "Victoria" in the heading (second line in the right frame). Victoria was Queen when the Act was passed by the British Parliament on 9th July 1900.

(See below, "Why is Australia governed under UK law".)

Read the preamble ("Whereas...") and the eight numbered "covering clauses" ("Short title" etc.), cursorily, i.e. without worrying too much about the meaning of the details.

After these preliminaries we come to the Constitution itself. After a table of contents we come to provisions relating to the Parliament. The sections are numbered continuously throughout the Constitution. .

Parliament

Read Chapter I  Section 1. "Legislative power" is the power to make laws. Notice that Queen Victoria's successor is one of the three components of the Parliament. (Similarly in Britain the Parliament has three components, the Queen, the House of Lords and the House of Commons.) All three component parts of the legislature must agree before something becomes law, i.e. each of the three has a veto.. By virtue of a convention of the constitution the Queen exercises her power of veto only when advised to do so by the Government. (The Government is not the Parliament, but the Prime Minister and Cabinet -- really the Prime Minister alone, in advising the Queen.) Normally the Government advises the Queen (or rather the Governor-General, her representative) to assent to whatever the Senate and House of Representatives both pass, since this is almost always the Government's own legislation.

Read Section 2. By convention, the Queen appoints the Governor-General, and issues the Governor-General's  instructions, in accordance with the advice of the Government.

Read Section 3. The phrase "until the Parliament otherwise provides" often occurs in this document, which contains provisions needed for setting up for the first time government institutions that did not exist in 1900. Once the new system is up and running, some of the initial arrangements -- those made "until Parliament otherwise provides" -- can be changed by an ordinary act of the Commonwealth Parliament, but the others are "entrenched", and cannot be changed except by referendum.

Read Section 4. This section makes it possible for someone to be appointed temporarily to act in the Governor-General's place (e.g. if he or she is overseas or sick).

Read Section 5 (in three paragraphs). A "session" is a sitting time, a period of some weeks during which the Parliament meets and does business. Parliament does not "sit" the whole year round. Parliament is "prorogued" to end its last session before an election. The dissolution of the House of Representatives means that a general election is to be held. (A "general election" elects members for every seat of the House of Representatives, a "bye-election" replaces a single member who has died or resigned.) The Governor-General has no power to dissolve the Senate, only the House of Representatives (below there is an exception to this). By convention, the Governor-General exercises the power to dissolve the House of Representatives in accordance with the advice of the Prime Minister.

Read Section 6. In a session of Parliament a government may be questioned or censured or voted out of office (under the conventions of "responsible government" a ministry that loses the confidence of the lower house must resign or call a general election). The point of Section 6 is to to prevent the Government from evading accountability by not summoning any session of Parliament.

The first six sections of Chapter I are about the Parliament as a whole. Sections 7-23, Part II of Chapter I, are about the "upper house", the Senate. The Senate is dealt with first because it is "upper", but the House of Representatives is the political centre of gravity in our system of government since the Government must have its confidence.

Read Section 7 (four paragraphs). "As one electorate": If a single electorate is to elect several members, this can be done in various ways. For example, if three members are to be elected, each voter may get three votes and the three candidates with the most votes can be declared elected. Until 1919 the Senate was elected in this way -- each voter put three crosses beside three names on the ballot paper and the three candidates with more crosses than any of the others were elected. After 1919 there was a preferential voting system for Senate elections, and since 1949 there has been a system of proportional representation. (See note on [Voting Systems]) .

"If that State [Queensland] be an Original State": The term "Original State" was explained above in covering clause 6. When the Constitution was being drafted it was not certain that Queensland would join. (The participation of Western Australia was also doubtful.)

The Original States must have equal representation in the Senate, irrespective of population or area; for example, Tasmania has as many senators as N.S.W. The equal representation of the original States was a vital part of the agreement to form a federation. The smaller States saw this as necessary to protect their interests against the possibility that NSW and Victoria might combine against them. In the House of Representatives, where representation is proportional to population, a majority could be formed from NSW and Victorian members, but their legislative proposals could not become law without the consent of the Senate, in which the smaller States would, if they voted together, outvote the senators from NSW and Victoria. (It is sometimes said that the Senate is no longer a "States' house" but rather a "parties' house". But presumably the fact that the smaller States elect so many senators influences the policies and behaviour of the political parties.)

A new State or territory need not have as many senators as an Original State. (No new States have ever been formed, but two territories, the ACT and NT, have been given Senate representation, 2 senators each.) If a new State is ever formed out of some area within one of the Original States, e.g. in north Queensland or in New England, the remaining part of that State must still have as many senators as any of the other Original States. The point of this was probably to remove an obstacle to the formation of smaller States, namely opposition from the existing State because it did not want a reduction of its Senate representation.

Each senator holds office for six years, approximately twice the term of office of members of the House of Representatives. The purpose of this is to make the Senate a conservative body, not so much swayed by the currents of popular opinion that influence the "popular" house, the House of Representatives. In bi-cameral Parliaments (as in all the Australian States except Queensland) the upper house was originally  intended to put a brake on the implementation of new popular ideas.

The Governor who certifies to the Governor-General (last paragraph) is the governor of the State.

Read Section 8. The "qualifications of electors" determine who is entitled to vote. In some of the colonies in 1900 some who were entitled to vote for lower house members did not have the right to vote in elections for the upper house -- the upper house "franchise" (right to vote) was restricted (e.g. by age or wealth). But in the new Commonwealth anyone who can vote in elections for the House of Representatives can also vote in elections for the Senate. Who can vote in House of Representatives elections? This will be defined below in Section 30. That section prescribes a qualification "until the Parliament otherwise provides" (see above), which is why Section 8 says "prescribed by this Constitution, or by the Parliament".

Read Sections 9-12 cursorily, then read Section 13. "Altered by No.1, 1907, s. 2" indicates that this section was amended in 1907, as indicated by the crossing out of old words and insertions in bold type. This section means that half the senators, whose normal term of office is six years, face re-election every three years. The purpose of this Section is to foster continuity of opinion in the Senate, since at  each half-Senate election only half of the Senators will face election and afterwards  the other  half will educate any newcomers -- continuity of opinion is part of the conservative function  the Senate was originally intended to have. (In the first Senate, and after each "double dissolution", explained below, half of the senators hold office for only three years, to get the rotation going.)

Read Section 15 (ten paragraphs). This section was also amended, in 1977 (see original wording). The purpose of the amendment was to make sure that a State Government could not replace a senator of the opposite party with someone hostile to that party (as the Bjelke-Petersen National Party Government in Queensland had just done). This is the only place in the Constitution that mentions the existence of political parties. Replacement by a senator of the same party was previously regarded as required by convention, but the Bjelke-Petersen Government had defied the convention so it was made legally enforceable. The complexity of this section illustrates one reason why many things are left to convention -- it is often very difficult to spell out the convention without giving rise to unforeseen consequences.

One of the political consequences of the new version of section 15, unforeseen at least by the public (though perhaps not by party tacticians), has been an increase in casual vacancies (see paper, Senate Casual Vacancies; also here). The political parties now have a means of appointing people to the Senate without their having to face an election until later, when they will enjoy the advantages of incumbency. It works like this: When an existing Senator decides that the time has come to retire, he/she retires after a Senate election, and the party's favoured replacement then moves into the job without an election and serves out the retiring Senator's term.

Read Sections 16-23 cursorily. This brings us to part 3 of Chapter I, which relates to the House of Representatives.

Read Section 24. Each Original State has the same number of senators, but representation in the lower house is proportional to population.

Read Section 25. In 1900 aborigines were not eligible to vote in some colonies. This implied (by virtue of Section 30) that "until Parliament otherwise provides" they would not be eligible to vote in Commonwealth elections. The point of Section 25 is that the white electors in States that disfranchise members of some race or races should not benefit from the exclusion by being over-represented in the House of Representatives. (See Quick and Garran, The Annotated Constitution, p. 456.)

Read Section 26. This is a "spent provision", meaning that it applied at some time in the past (in the case of Section 26, at the time of the first Commonwealth election) but no longer has any application. Spent provisions could now be deleted from the Constitution. Sections now "spent" were of course necessary in 1900 to provide for setting up the new Commonwealth Government.

Read Sections 27 and 28. Section 28 sets the maximum time between elections, but not a minimum. By convention the Governor-General dissolves the House of Representatives only on the advice of the Government. The fact that the Government can force the House of Representatives to an early election (i.e. before the three years is up) but normally cannot force an election of the Senate (see above) increases the political importance of the lower house, since conflict between the Government and the House of Representatives may lead to an early election, and this possibility attracts public attention to such conflicts. (This situation is especially likely to arise if there is dissension within the Government party or when there is a [minority Government], but a government that "controls" both houses -- i.e. its party has a majority in both houses -- may call an early election if it sees a political advantage in doing so. Proposals for "fixed terms" are intended to prevent the calling of early elections for political advantage.)

Read Sections 29-31. All these were to be operative "until the Parliament otherwise provides" (see above). The Commonwealth now has its own [Electoral Act]. "The more numerous house" was in every case the lower house. The main point of Section 30 was to ensure that women who in 1900 had the right to vote in South Australia and Western Australia but not in other colonies would also have it in Commonwealth elections. "Each elector shall vote only once" -- at that time property owners had extra votes in lower house elections in some States.

Read Sections 32-50 cursorily. This brings us to Part V of Chapter 1, on Parliament's power to make laws. Read Section 51. Note that this and the next section are a complete list of the matters on which the Commonwealth Parliament can legislate -- unless something comes under one of these headings the Parliament cannot make laws about it. Section 51(xxvi) in its original form meant that the Commonwealth Parliament could not legislate about aboriginal affairs, which were left exclusively to the States. In 1967 this restriction was removed, and by virtue of Section 109 Commonwealth laws on aboriginal affairs now override State laws if they conflict.

Read Section 52. The "seat of government" is Canberra, in the Australian Capital Territory. See below, Section 125.

The powers listed in Section 52 are exclusive, so that no State can legislate on such matters. The powers listed in Section 51 are not said to be exclusive to the Commonwealth, so the States as well as the Commonwealth might legislate on them. In cases of conflict Commonwealth legislation has priority, by virtue of Section 109.

The allocation of powers between different levels of government is vital to the constitution of a federal state, since overlaps, conflicts and omissions may do considerable damage. There were several possible ways of defining powers.

  • The Constitution might have given a complete list of the powers of both States and Commonwealth. But then some matters might have been accidentally left out altogether, or as time passed new matters might have needed government control that could not have been forseen at the end of the 19th century (e.g. aviation, television).
  • The Constitution might have listed the powers that would remain with the States and given all other power without restriction to the Commonwealth. Thus the Canadian constitution (the British North America Act, now referred to as The Constitution Act, 1867) in sections 91-2, gave "residual" power to the Dominion Government.)
  • A third method, the one actually followed in the Australian Constitution, was to list the powers given to the Commonwealth and otherwise leave the powers of the States unspecified and unrestricted.  (Compare the Tenth Amendment to the US Constitution.)

Some powers are given exclusively to the Commonwealth, but with others overlap is allowed, with a provision (Section 109) to decide which legislation prevails if there is conflict. There is also provision to give new powers to the Commonwealth, either by the consent of State Governments (Section 51(xxxvii) or by constitutional amendment (Section 128).

Read Section 53. In this context to "appropriate" means to ear-mark for a specified purpose. Money cannot be spent without first being appropriated (Section 83). Section 53 does not allow the Senate to amend proposed legislation relating to tax and expenditure, but it does not prevent it from rejecting or not passing such legislation. The Senate may also request amendments. This means that the Senate could request amendments and indicate that it will not pass the legislation until the House of Representatives accepts the amendments requested. Thus there is not much practical point in not giving the Senate power to amend or originate.

However, Section 53 does have a point. It gives legal expression to the convention of responsible government that the Government must have the confidence of the House of Representatives. Collecting tax and spending money are essential to government, and by virtue of this Section the House of Representatives takes at least symbolic precedence in such matters over the Senate -- only the House can originate, and the Senate can only suggest amendments.

Read cursorily sections 54-55. Then read Section 56. Since by convention the Governor-General writes such messages (as he does most other things) on the advice of the Government, this section guarantees that legislation on expenditure must conform to Government policy. Sections 53 and 56 are the closest the Constitution comes to saying that our federal system of government follows the conventions of Responsible Government (see above).

Read Section 57. This section provides for a "double dissolution" if the Senate and the House of Representatives cannot agree, i.e. all the members of both the House of Representatives and the Senate are sent out to face re-election. (Except as provided in this section, the Senate cannot be dissolved, but each senator serves out his or her six year term; see above, Sections 5 and 7, last paragraph.)

Note that "the Governor-General may dissolve...", not must. When the Houses disagree double dissolution is an option open to the Government, but it is not compulsory. By convention, there will be a dissolution only if the Government advises the Governor-General to dissolve. Section 57 thus gives the Government a means of exerting pressure on the Senate to pass Government legislation -- the Government can threaten that if the Senate blocks its legislation there may be a double dissolution. This is of course an effective threat only if it seems likely that the Government would win the double dissolution election.

"If after... three months": There is a three-month "cooling off" period. If after that time the disagreement still exists there may be a double dissolution.

After the election following on the double dissolution, if disagreement between the Houses still exists, it can be resolved not by another double dissolution, but by a "joint sitting" of the two houses of Parliament. Since there are twice as many members of the House of Representatives as there are senators (see Section 24), the majority of the House of Representatives will probably get their way in the joint sitting, unless their majority is narrow and the opposition among senators is widespread.

Read Sections 58-60. In 1900 the Queen would have acted on the advice of the British Government, Australia then being a subordinate part of the British Empire. These sections therefore meant that the Governor-General could reject or delay Commonwealth legislation if the British Government wished it. Since the [Imperial Conference of 1926] recognised that Australia was not subordinate to Britain, the Queen, like the Governor-General, now acts on the advice of the Commonwealth Government without reference to the British Government, and there would now be no point in reserving a law for the Queen's pleasure.

Executive government

This completes Chapter I, on the Parliament. Chapter II deals with the executive Government. Read Sections 61-64. The Constitution may give the impression that the Governor-General is the Government, but bear in mind that by convention he acts in accordance with the advice of the Prime Minister (see above).

Section 61 does not define the full extent of executive power. The phrase "extends to" means "includes", but "extends" does not mean "and no further". The other executive powers come under the heading "the Royal prerogative". (See also "How ministers exercise arbitrary power".)

The "prerogative powers" are the remnant of the original powers of the medieval monarchy that have not yet been removed by parliamentary legislation. They are attributed to the Monarch and exercised by the Governor-General, but by convention usually in accordance with the advice of the Prime Minister, so that in effect they are powers of the Prime Minister. They are the powers the government has that do not derive either from the text of the Constitution or from Laws passed by Parliament. Among the prerogative powers are the power to make war, the power to make treaties with foreign countries, and the power to make some appointments (notably of the Governor-General). Although these matters may be discussed in Parliament, the government does not require Parliamentary approval to go to war, make a treaty, etc.

Where the line is drawn between the powers of representative assemblies and the power of government differs from time to time and from one country to another. The US constitution seems to have been intended to give the executive government less power than George III had. For example, under the United States Constitution., art. I, section 8, clause 11, and art. II, section 2, clause 2, the Congress or the Senate has a role in declaring war and making treaties and in certain appointments, matters which in countries in the British tradition currently belong to the royal prerogative. (However, some American lawyers interpret US constitution article II, section 1, clause 1, which vests executive power in the President, and section 2, clause 2, which makes the President "commander in chief", as giving the President something like the prerogative powers of the monarchy. In US politics this is a controversial matter. See for example "Justice department memo" and "The Election and the Constitution".)

In British history the royal prerogative (which was never absolute and unlimited) shrank as Parliament made laws, because the Courts accepted that laws made by parliament overrode the traditional common law. It would be possible to alter the extent of the royal prerogative by simple Parliamentary legislation, without any need for a constitutional amendment. (For example, Parliament could--in my opinion should--make laws that the Parliament must approve overseas deployment of Australian troops and must approve treaties. Such laws would not require constitutional amendment.)

The Federal Executive Council consists of the ministers (section 64, second paragraph). They hold office during the Governor-General's pleasure, i.e. until the Prime Minister advises him to replace them.

Section 64, third paragraph, expresses the founders' decision to reject the US "separation" between executive and congress (the President and the members of the Cabinet do not have seats in Congress) in favour of the British practice. Australians are now in the practice of speaking of "separation of powers" as a feature of the Australian Constitution, but there is not separation in the American sense. (See Bagehot, The English Constitution, "The Cabinet", go to p. 4.)

References to "the Governor-General in council" (explained in Section 63) are few -- for examples, see Sections 32, 33. Note that when the phrase "in council" is not included, this does not mean that the Governor-General need not follow the advice of the ministers. As discussion in the Convention that drafted the Constitution shows, the drafters assumed that under the conventions of responsible government the Governor-General would follow the advice of the ministers, whether or not the phrase "in council" was included. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 406.

In the appointment of a Prime Minister, convention allows the Governor-General some limited discretion. Normally the Governor-General appoints the next Prime Minister in accordance with the advice of the outgoing Prime Minister -- e.g. after an election in which the incumbent Government is defeated, the outgoing Prime Minister will offer the Governor-General his or her resignation and advise the Governor-General to call on the leader of the successful party. Similarly, if the Government has lost the confidence of the House of Representatives and the Prime Minister chooses not to call an election but to hand over office to another leader the house has confidence in, the Prime Minister will offer the Government's resignation and advise the Governor-General to call on the other leader to form a Government. But occasionally, if a defeated Government refuses to resign or if there is no clear leader of a majority in the House of Representatives, and perhaps in some other circumstances, the Governor-General may make his or her own choice. (The person so chosen must be able to get the confidence of the House, or there will be another replacement.) The Governor-General will accept the new Prime Minister's advice as to who the other ministers should be. The Constitution does not mention the Prime Minister. The position exists by constitutional convention.

The third paragraph of Section 64 means that the Governor-General could appoint any or all of the ministers from outside the Parliament, but within three months they would need to get elected -- or be replaced by another set of ministers. A Governor-General who used this possibility to appoint a military government (for example) would encounter strong public criticism and would eventually have to come to terms with Parliament because he would need its approval to spend money (see Section 83).

Read cursorily Sections 65-70. Section 68 does not mean that the Governor-General could take personal command of the military forces; this function must also be exercised in accordance with the advice of ministers. (See Quick and Garran, Annotated Constitution, pp. 713-4, and the pages of the Convention Debates there referred to.)

The judicature

This brings us to Chapter III, on the judiciary. Read Sections 71 and 72. One of the basic principles of our system of government is the independence of the judiciary, i.e. its independence in relation to the Government and in relation to Parliament (subject to 72(ii)). Section 71 ("shall be vested") means that the High Court cannot be abolished by Parliament (though other federal courts can be). Section 72(ii) means that the Government cannot remove a judge except by persuading Parliament that there is proved misbehaviour or incapacity. Section 72(iii) is to make sure that the Government or Parliament cannot punish a judge financially for decisions it does not like. The independence of the judiciary is necessary to "the rule of law", i.e. to ensure that the Government itself acts in accordance with the law.

The paragraphs added by amendment in 1977 were intended to make it possible to make judges retire at a certain age. They are drafted so as not to affect the rights of existing judges, since this might be construed as infringing the independence of the judiciary.

Read cursorily Sections 73-80.

Section 74 was controversial. It is now a dead letter, so perhaps not worth worrying about (by all means move on to section 80). The intention of the 1891 draft of the Constitution was to substitute the new federal High Court for the British Privy Council as court of appeal from the supreme courts of the States, allowing further appeal from the federal High Court to the Privy Council only where certain "public interests" were concerned (which would include constitutional issues), and private interests were excluded. In later drafts (after intensive lobbying by commercial interests) this was reversed -- constitutional issues were excluded from appeal to the Privy Council and appeals concerning private interests were permitted. When the Constitution went to the British Parliament for enactment, the British Government (represented by Joseph Chamberlain, friend to British commercial interests) negotiated a version that gave a right of appeal in private matters, but not (without leave of the High Court itself) on constitutional issues ("the limits inter se" etc. -- inter se means "among themselves"). See Quick and Garran, Annotated Constitution, pp. 748-50. On the subsequent history of appeals to the Privy Council see L. Crisp, Australian National Government, pp. 60-3. The right to appeal to the Privy Council has since been abolished altogether by parallel legislation in Australia and Britain (The Australia Act, 1986); see Zines, The High Court and the Constitution, 3rd edn., p. 263.

The guarantee apparently given by Section 80 of trial by jury is probably illusory, since it is up to Parliament to determine which crimes will be tried on indictment. See Coper, Encounters with the Australian Constitution, p. 324 ff.

This completes Chapters I-III of the Constitution, which relate to what are called the "three branches" of government (in the broadest sense of the term "government"), namely the legislature (Parliament), the executive government ("the Government" in the narrowest sense) and the courts. In our system (like the British, unlike the American), the legislature and executive are not "separate" -- the ministers are members of Parliament, they need the confidence of the House of Representatives, and the Government may bring about a dissolution of the House of Representatives and a new election. Thus the executive and the legislature are distinct but not separate. As in the British and American systems there is an independent judiciary -- the judges cannot be directed or removed by the Government (see above).

Finance and Trade

Much of Chapter IV relates to financial arrangements necessary because of the transfer of some branches of government activity from the old colonial governments to the new Commonwealth government (see above, Section 69). Many of its provisions are "spent" (see above).

Read Sections 81-83. The point of these is clear enough. Skip over, or read cursorily, Sections 84-91.

Now read Section 92. The point of this Section was (probably) to prevent the States from maintaining customs duties and other similar barriers against one another. However, from the 1930s the High Court interpreted Section 92 so as to prevent both States and Commonwealth from imposing road taxes or establishing schemes for the marketing of primary produce, or doing anything else that could be construed as burdening inter-State trade. In the 1940s Section 92 was used to stop nationalisation of the banks. In 1988 the court went back to something more like the original meaning of Section 92. For discussion see M. Coper, Encounters with the Australian Constitution, chapter 7.

Skip over Sections 93-5, and read Section 96. "And thereafter..." means that this Section is still available. Thus the Whitlam government was able to influence State governments to participate in federal government social policies by offering them conditional grants.

Read cursorily Sections 97-100. Then read Section 101. The Inter-State Commission has never been important, but Premiers and Ministers conferences have been important forums within which intergovernmental relations have been negotiated.

Read cursorily Sections 102-105A.

The States

This brings us to Chapter V, on the States. Read Section 106. Each State has its own constitution -- see, for example, the [NSW Constitution]. The constitution of the State provides some method by which it can be altered -- see, for example, sections 7, 7A and 7B of the NSW Constitution.

Read Section 107. No attempt is made to list the powers of the States (see above). State powers remain whatever they were, less the powers assigned exclusively to the Commonwealth (see Section 52). In areas in which both States and Commonwealth may legislate, Commonwealth law prevails in cases of conflict (see Section 109).

Read cursorily the remaining sections of Chapter V. Section 116 is out of place among sections on the States (since it binds the Commonwealth and not the States). This is the only element our Constitution contains of a [Bill of Rights].

Chapter VI is about the formation of new States (e.g. by subdividing the Original States). This has not so far been done. Read Chapter VI cursorily.

According to Section 125 the seat of government has to be in NSW at least 100 miles from Sydney. The Consitution does not require (as some people believe it does) that the seat of government be a new city, or that it be midway between Sydney and Melbourne. The seat of government could be in Bellingen or in Bombala. On the selection of Canberra see ["Finding a site for Australia's 'Seat of Government'].

Section 127 was repealed in 1967. It read: " In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted." States which denied aboriginals the vote had their representation in the House of Representatives reduced already by Section 25, so Section 127 had nothing to do with entitlement to representation. Its purpose was related to the formula adopted for the treatment of customs duties during the transition period (see Section 89, and notice that according to (ii)(b) expenditure is debited in proportion to population). Without section 127, section 89 would not have been acceptable to South Australia, since it had the largest aboriginal population (at that time the Northern Territory belonged to South Australia), and most aboriginals did not buy goods on which customs duties were levied. (See La Nauze, The Making of the Australian Constitution, p. 68.)

It is not true that the repeal of Section 127 in 1967 first recognised aboriginals as persons or first gave them citizenship or first gave them the right to vote. On the 1967 referendum see Parliamentary Library [background paper]. See also T. Clarke and B. Galligan, "'Aboriginal Native' and the Institutional Construction of the Australian Citizen 1901-48", Australian Historical Studies 26 (1994-5), pp. 523-43. The repeal of Section 127 seems to have been mainly of symbolic importance. The practically important thing done in the same referendum was to give the Commonwealth power to make laws relating to aboriginals (Section 51(xxvi)), laws which would override State laws in case of conflict. This enabled the Commonwealth Government to take the lead in aboriginal affairs, if it wished.

Amending the Constitution

This brings us to the last Chapter, "Alteration of the Constitution". Read Section 128. The alteration made in 1977 was to include the territories (ACT and NT), as indicated by bold type. The main point of this Section is in the fifth paragraph -- that the Constitution cannot be altered unless the alteration is approved by a majority of voters throughout Australia and also by a majority of voters in at least four States.

The rule for amending the Constitution is similar to the procedure that has made the body of Commonwealth law. At the beginning of the Commonwealth there was no Commonwealth law except what was contained in the Constitution itself, which had been approved by a majority in a majority of States. From that starting point, new laws could be added to the body of Commonwealth law only if passed by the House of Representatives (representing the majority of the Australian people overall) and by the Senate (representing the majority in the majority of States). The federal compact is that the executive Government is to be what the majority of Australians (whereever they live) support through their representatives in the lower house, but that Government must operate within a constitution and body of laws that has been accepted also by people in the smaller States.

"Adult suffrage" (at the end of the fourth paragraph) means voting rights for both men and women. In most of the States in 1900 there was "manhood suffrage", i.e. voting rights for men only, but in South Australia and Western Australia women had the suffrage also. ("Suffrage" or "franchise" here means the right to vote.) The point of this paragraph is that in constitutional amendment South Australia and Western Australia should not get extra weight because of their wider franchise. This is a "spent" provision, since the qualification of electors is now uniform throughout the Commonwealth, namely adult suffrage from age 18.

The Canadian and Australian federations were formed by British Colonies not in a state of rebellion, with the consent (in fact the positive encouragement) of the British government. The obvious way to bring about this change without any break in constitutional and legal continuity was by Act of the British Parliament. Accordingly both the Canadian Constitution of 1867 and the Australian Constitution of 190 were both British Acts of Parliament. However, unlike the British North America Act, the Australian Constitution, in Section 128, provided a process of amendment which would not require any further British intervention. (It was only in 1982 that the Canadian Constitution was "repatriated", or rather "patriated", made amendable in Canada. See [A Comparison].)

 

Here is part of an email in which I replied to a correspondent who argued that the Australian Constitution is now invalid becauseAustralia has become independent of Britain:

"Re: Why is Australia 'governed' under UK law

The legitimacy of constitutions and law does not rest upon any particular historical event, but on the CURRENT consent or acquiescence of the population (which of course may have a lot to do with their beliefs about history).

If circumstances and attitudes change much, a legal system that has had the consent of the population might lose it -- they might become so discontented with it as to support a revolution, or at least a major restructure. Constitutions the British imposed on some countries as they left (Nigeria, for example) have long since been torn up. This has not happened in Australia. I don't think there is any doubt that the Australian legal and constitutional system has now, and has had all along, the consent of the great majority of the population. If that is true, then what Queen Victoria thought when she assented to the Australian constitution, or what Billy Hughes said in 1919, etc. etc., simply does not matter. CURRENT consent is the basis of legitimacy, not historical origin.

There is nothing wrong with one nation inheriting or borrowing a political or legal system from another. Inheritance is not incompatible with independence. The British Parliament a century ago enacted a constitution that had been drafted by Australians; since then Australia's relationship with Britain has changed enormously, but we are content to keep the constitution we have inherited from the earlier period. That constitution provides for the possibility of amendment. It has been amended, not by the British Parliament but by the Australian process the constitution provides, and it will be amended further in the future. We might amend it out of all recognition, so that it becomes a new constitution, but we have not so far done that and probably never will. We are independent, but we choose to retain substantially unchanged a constitution inherited from a time when we were not independent. That is a matter of free choice, not something imposed on us by a foreign power."

------

Some final observations. There is nothing in the Australian Constitution that anyone would want children at school to learn by heart as a statement of ideals. In not trying to impose their ideals on future generations the drafters of the Constitution exercised commendable restraint. The Constitution did not attempt to sum up the Australian ethos -- just as well, since that has changed considerably over one hundred years. The Constitution is simply a statement of the legal terms on which the Australian colonies agreed to set up a federal government, and it contains nothing that was not needed for that purpose. It does not try to state every rule the drafters expected to be followed, since they believed that many such rules were best left as conventions, not legally enforcable and subject to further development. They dealt with the matters that needed to be settled to establish a new federation, against a background of existing conventions and practices that might change in future but were clear enough for their purpose.

Further Study on the Australian Constitution

Links to Australian politics sites

Griffith University Civics
Souter's net resources on the Australian Constitution
 

Books on the Australian Constitution

J.A. La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) Macquarie University Library: KTA 1205 .L3

Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (Cambridge University Press, 1999) Macquarie University Library: JQ 4081 .I79

J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth Macquarie University Library: KTA 1203 1901

Official Records of the Debates of the Australasian Federal Convention, 6 vols., 1891-1898. Macquarie University Library: JQ 4015 .O35

Return to Politics, Philosophy and Medieval Studies

THE CONSTITUTION

(63 & 64 VICTORIA, CHAPTER 12)

An Act to constitute the Commonwealth of Australia.

[9th July 1900]


 
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:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

Short title.
1. This Act may be cited as the Commonwealth of Australia Constitution Act.

Act to extend to the Queen's successors.
2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

Proclamation of Commonwealth
3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.

Commencement of Act.
4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

Operation of the constitution and laws.
5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

Definitions.
6. "The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"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, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State."

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.

Repeal of Federal Council Act.48 & 49 Vict. c. 60.
7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

Application of Colonial Boundaries Act. 58 & 59 Vict.c. 34.
8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

Constitution.
9. The Constitution of the Commonwealth shall be as follows:

THE CONSTITUTION.

This Constitution is divided as follows:

Chapter I.The Parliament:

 

Part I.General:
Part I.The Senate:
Part III.The House of Representatives:
Part IV.Both Houses of the Parliament:
Part V.Powers of 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.
The Schedule.

CHAPTER I.

THE PARLIAMENT.

Part I .- General.

Legislative power.
1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth."

Governor-General.
2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

Salary of Governor-General.
3. There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered during his continuance in office.

Provisions relating to Governor-General.
4. The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.

Sessions of Parliament.
Prorogation and dissolution.
5. The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

Summoning Parliament.
After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.

First session.
The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.

Yearly session of Parliament.
6. There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

Part II. - The Senate.

7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.

Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.

The Senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.

Qualification of electors.
8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

Method of election of senators
9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Times and places.
The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

Application of State laws.
10. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.

Failure to choose senators.
11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

Issue of writs.
12. The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution.

Rotation of senators. (Altered by No.1, 1907, s. 2.)
13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of the third year three years, and the places of those of the second class at the expiration of the sixth year six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.

The election to fill vacant places shall be made in the year at the ex-piration of which within one year before the places are to become vacant.

For the purposes of this section the term of service of a senator shall be taken to begin on the first day of January July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of January July preceding the day of his election.

Further provision for rotation.
14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation..

Casual vacancies. (Substituted by No., 82, 1977, s.2.)
15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens.

Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.

Where

(a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and
(b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist),
he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution.

The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General.

If the place of a senator chosen by the people of a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at the commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement.

A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement.

Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State.

If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled "Constitution Alteration (Simultaneous Elections) 1977" came into operation, a senator holding office at the commencement of that law who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a Senator chosen by the people of the State shall be deemed to have been chosen to hold office

(a) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight--until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or

(b) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one--until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation or, if there is an earlier dissolution of the senate, until that dissolution.

Qualifications of senator.
16. The qualifications of a senator shall be the same as those of a member of the House of Representatives.

Election of President.
17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President.

The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.

Absence of President.
18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

Resignation of senator.
19. A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Vacancy by absence.
20. The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate

Vacancy to be notified.
21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

Quorum.
22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

Voting in the Senate.
23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

Part III. - The House Of Representatives.

Constitution of House of Representatives.
24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.

The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

(i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators:
(ii.) The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.

But notwithstanding anything in this section, five members at least shall be chosen in each Original State.

Provisions as to races disqualified from voting.
25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

Representatives in first Parliament.
26. Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows:

New South Wales twenty-three;
Victoria twenty;
Queensland eight;
South Australia six;
Tasmania five;

Provided that if Western Australia is an Original State, the numbers shall be as follows:

New South Wales twenty-six;
Victoria twenty-three;
Queensland nine;
South Australia seven;
Western Australia five;
Tasmania five.

Alteration of number of members.
27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives.

Duration of House of Representatives.
28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.

Electoral divisions.
29 Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States.

In the absence of other provision, each State shall be one electorate.

Qualification of electors.
30. Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.

Application of State laws.
31. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.

Writs for general election.
32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives.

After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

Writs for vacancies.
33. Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

Qualifications of members.
34. Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:

(i.) He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen:
(ii.) He must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

Election of Speaker.
35. The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker.

The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.

Absence of Speaker.
36. Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

Resignation of member.
37. A member may by writing addressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Vacancy by absence.
38. The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.

Quorum.
39. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

Voting in House of Representatives.
40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

Part IV. - Both Houses Of The Parliament.

Right of electors of States.
41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

Oath or affirmation of allegiance.
42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

Member of one House ineligible for other.
43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.

Disqualification.
44. Any person who-

(i.) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

Vacancy on happening of disqualification.
45. If a senator or member of the House of Representatives-

(i.) Becomes subject to any of the disabilities mentioned in the last preceding section: or
(ii.) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or
(iii.) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State:

his place shall thereupon become vacant.

Penalty for sitting when disqualified
46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

Disputed elections.
47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House or Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.

Allowance to members.
48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

Privileges, & c. of Houses.
49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Rules and orders
50. Each House of the Parliament may make rules and orders with respect to
(i.) The mode in which its powers, privileges, and immunities may be exercised and upheld:
(ii.) The order and conduct of its business and proceedings either separately or jointly with the other House.

Part V. - Powers Of The Parliament.

Legislative powers of the Parliament
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(i.) Trade and commerce with other countries, and among the States:
(ii.) Taxation; but so as not to discriminate between States or parts of States:
(iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:
(iv.) Borrowing money on the public credit of the Commonwealth:
(v.) Postal, telegraphic, telephonic, and other like services:
(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:
(vii.) Lighthouses, lightships, beacons and buoys:
(viii.) Astronomical and meteorological observations:
(ix.) Quarantine:
(x.) Fisheries in Australian waters beyond territorial limits:
(xi.) Census and statistics:
(xii.) Currency, coinage, and legal tender:
(xiii.) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money:
(xiv.) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:
(xv.) Weights and measures:
(xvi.) Bills of exchange and promissory notes:
(xvii.) Bankruptcy and insolvency:
(xviii.) Copyrights, patents of inventions and designs, and trade marks:
(xix.) Naturalization and aliens:
(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:
(xxi.) Marriage:
(xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
(xxiii.) Invalid and old-age pensions:

(Inserted by No. 81, 1946, s. 2.)
(xxiiiA.)The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:
(xxiv.) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:
(xxv.) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:

(Altered by No. 55, 1967, s. 2.)
(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws:
(xxvii.) Immigration and emigration:
(xxviii.) The influx of criminals:
(xxix.) External affairs:
(xxx.) The relations of the Commonwealth with the islands of the Pacific:
(xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
(xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:
(xxxiii.) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:
(xxxiv.) Railway construction and extension in any State with the consent of that State:
(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
(xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides: 
(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:
(xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:
(xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

Exclusive powers of the Parliament.
52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to-

(i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes:
(ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth:
(iii.) Other matters declared by this Constitution to be within the exclusive power of the Parliament.

Powers of the Houses in respect of legislation.
53. Proposal laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Apropriation Bills.
54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

Tax Bill.
55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

Recommendation of money votes.
56. A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

Disagreement between the Houses.
57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent.

Royal assent to Bills.
58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure.

Recommendations by Governor-General.
The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

Disallowance by the Queen.
59. The Queen may disallow any law within one year from the Governor-General's assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

Signification of Queen's pleasure on Bills reserved.
60. A proposed law reserved for the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent.

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CHAPTER II.

THE EXECUTIVE GOVERNMENT.

Executive power.
61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Federal Executive Council.
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.

Provisions referring to Governor-General.
63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

Ministers of State.
64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

Ministers to sit in Parliament.
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

Number of Ministers.
65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.

Salaries of Ministers.
66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

Appointment of civil servants.
67. Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

Command of naval and military forces.
68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.

Transfer of certain departments.
69. On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:-

Posts, telegraphs, and telephones:
Naval and military defence:
Lighthouses, lightships, beacons, and buoys:
Quarantine.

But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

Certain powers of Governors to vest in Governor-General.
70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.

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CHAPTER III.

THE JUDICATURE.

Judicial power and Courts.
71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Judges' appointment tenure and remuneration
72. The Justices of the High Court and of the other courts created by the Parliament-

(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

(Paragraph added by No.83 1977, s.2.)
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

(Paragraph added by No. 83, 1977, s.2.)
The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

(Paragraph added by No. 83, 1977, s.2.)
Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.

(Paragraph added by No. 83, 1977, s.2.)
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.

(Paragraph added by No.83, 1977, s.2.)
A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General.

(Paragraph added by No.83, 1977, s.2.)
Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.

(Paragraph added by No.83, 1977, s.2.)
A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.

Appellate jurisdiction of High Court.
73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders, and sentences

(i.) Of any Justice or Justices exercising the original jurisdiction of the High Court:
(ii.) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:
(iii.) Of the Inter-State Commission, but as to questions of law only:

and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the Hight Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

Appeal to Queen in Council.
74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

Original jurisdiction of High Court.
75. In all matters-

(i) Arising under any treaty:
(ii) Affecting consuls or other representatives of other countries
(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:
(iv) Between States, or between residents of different States, or between a State and a resident of another State:
(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.

Additional original jurisdiction
76. The Parliament may make laws conferring original jurisdiciton on the High Court in any matter-

(i.) Arising under this Constitution, or involving its interpretation:
(ii.) Arising under any laws made by the Parliament:
(iii.) Of Admiralty and maritime jurisdiction:
(iv.) Relating to the same subject-matter claimed under the laws of different States.

Power to define jurisdiction
77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws-

(i.) Defining the jurisdiction of any federal court other than the High Court:
(ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:
(iii.) Investing any court of a State with federal jurisdiction.

Proceedings against Commonwealth or State.
78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

Number of judges.
79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

Trial by jury.
80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

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CHAPTER IV.

FINANCE AND TRADE

Consolidated Revenue Funds.
81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

Expenditure charged thereon.
82. The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth.

Money to be appropriated by law.
83. No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament.

Transfer of officers.
84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth.

Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office.

Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer.

Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

Transfer of property of State.
85. When any department of the public service of a State is transferred to the Commonwealth

(i.) All property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary:
(ii.) The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth:
(iii.) The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament:
(iv.) The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred.

86. On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth.

87. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure.

The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth.

Uniform duties of customs.
88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth.

Payment to States before uniform duties.
89. Until the imposition of uniform duties of customs-

(i.) The Commonwealth shall credit to each State the revenues collected therein by the Commonwealth.
(ii.) The Commonwealth shall debit to each State-

(a) The expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth;
(b) The proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth.

(iii.) The Commonwealth shall pay to each State month by month the balance (if any) in favour of the State.

Exclusive power over customs, excise, and bounties.
90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive.

On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise.

Exceptions as to bounties.
91. Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods.

Trade within the Commonwealth to be free.
92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

Payment to States for five years after uniform tariffs.
93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides-

(i.) The duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State:
(ii.) Subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period preceding the imposition of uniform duties of customs.

Distribution of surplus.
94. After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth.

Customs duties of Western Australia.
95. Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth.

But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties.

If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth.

Financial assistance to States.
96. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

Audit.
97. Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned.

Trade and commerce includes navigation and State railways.
98. The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

Commonwealth not to give preference.
99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

Nor abridge right to use water.
100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

Inter-State Commission.
101. There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

Parliament may forbid preferences by State.
102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority consituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.

Commissioners' appointment, tenure, and remuneration.
103. The members of the Inter-State Commission-

(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.

Saving of certain rates.
104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.

Taking over public debts of States. (Altered by No.3, 1910, s.2.)
105. The Parliament may take over from the States their public debts as existing at the establishment of the Commonwealth, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States.

Agreements with respect to State debts. (Inserted by No. 1.1929, s.2.)
105A.-(1.) The Commonwealth may make agreements with the States with respect to the public debts of the States, including-

(a) the taking over of such debts by the Commonwealth;
(b) the management of such debts;
(c) the payment of interest and the provision and management of sinking funds in respect of such debts;
(d) the consolidation, renewal, conversion, and redemption of such debts;
(e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and
(f) the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States.

(2.) The Parliament may make laws for validating any such agreement made before the commencement of this section.

(3.) The Parliament may make laws for the carrying out by the parties thereto of any such agreement.

(4.) Any such agreement may be varied or rescinded by the parties thereto.

(5.) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwith- standing anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.

(6.) The powers conferred by this section shall not be construed as being limited in any way by the provisions of section one hundred and five of this Constitution.

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CHAPTER V.

THE STATES.

Saving of Constitutions.
106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Saving of Power of State Parliaments.
107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Saving of State laws.
108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

Inconsistency of laws.
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.

Provisions referring to Governor.
110. The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

States may surrender territory.
111. The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

States may levy charges for inspection laws.
112. After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

Intoxicating liquids.
113. All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

States may not raise forces.

Taxation of property of Commonwealth or State.
114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

States not to coin money.
115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

Commonwealth not to legislate in respect of religion.
116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Rights of residents in States.
117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Recognition of laws, &c. of States
118. Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

Protection of States from invasion and violence
119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

Custody of offenders against laws of the Commonwealth.
120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

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CHAPTER VI.

NEW STATES.

New States may be admitted or established.
121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

Government of territories.
122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Alteration of limits of States.
123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

Formation of new States.
124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

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CHAPTER VII.

MISCELLANEOUS.

Seat of Government.
125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney.

Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

The Parliament shall sit at Melbourne until it meet at the seat of Government.

Power to Her Majesty to authorise Governor-General to appoint deputies.
126. The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function. 

Section 127 repealed by No.55, 1967, s. 3.

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CHAPTER VIII.

ALTERATION OF THE CONSTITUTION.

Mode of altering the Constitution. (Paragraph altered by No. 84, 1977, s. 2.)
128. This Constitution shall not be altered except in the following manner:-

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

(Paragraph altered by No. 84, 1977, s. 2.)
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment to which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approved the proposed law, it shall be presented to the Governor-General for the Queen's assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

(Paragraph added by No. 84, 1977, s. 2.)
In this section, "Territory" means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.
 


 

SCHEDULE.

OATH.

I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!

AFFIRMATION.

I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.

(NOTE.-The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)

 


 

NOTES

8. Section 15, before its substitution by the Constitution Alteration (Senate Casual Vacancies) 1977, provided as follows:

"15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election of a successor, whichever first happens.

"At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.

"The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-General."