I SS U E 1 .

CONSTITUTIONAL FORM AND

V ALUES
Fact Sheet 1.6 Just Before You Reach the

Constitution...

What is the difference between the Constitution and the

Commonwealth of Australia Constitution Act?
What is in the preamble?
What is in the covering clauses?
Can the preamble and the covering clauses be changed?

WHAT IS THE DIFFERENCE BETWEEN THE CONSTITUTION AND THE

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT?
The Commonwealth Constitution was drafted in Australia by two Conventions, in
1891 and 1897-8. The second of these was directly elected. The draft which it
produced eventually was approved by popular referendum in all six Australian
colonies. That process alone, however, did not make the Constitution law. At that
stage, Australia was a colony within the British Empire. The Constitution had to be
enacted by the British Parliament, to ensure its validity and to give it overriding
force.
This happened in 1900, when the Commonwealth of Australia Constitution Act was
passed. The Australian Constitution itself is section 9 of that Act. The rest of the
Act is made up of a preamble, which is an opening statement setting out the
principles and the scope of the Act, and eight other sections. These are known as
the "covering clauses" to distinguish them from the Constitution's own sections.
It is often suggested now that the Constitution gets its legal force from the original
and continuing agreement of the Australian people. Politically that may be so.
Strictly speaking, however, the legal force of the Constitution comes from its
origins and status as an Act of the once sovereign British Parliament.
This reflects Australia's position in the world at the time the Constitution was
drafted. Any attempt to make the Constitution a completely Australian document
would raise questions about whether the preamble and the covering clauses
should be kept and brought into the Constitution itself or abandoned, as having no
further use. If the preamble was abandoned, it would be necessary to decide
whether a new preamble should be written for the Constitution and, if so, what
should be in it.
WHAT IS IN THE PREAMBLE NOW?

Preambles to Constitutions often refer to the things which give the Constitution its
authority, or legitimacy. The present preamble to the Commonwealth of Australia
Constitution Act makes statements about:

the agreement of the people of the colonies;

their reliance on the blessing of God;
an intention to unite;
the "indissoluble" character of the union;
the federal character of the union;
the fact that the union is formed under the Crown;
the submission of government to the Constitution;
the expediency of admitting other colonies as States.

These statements suggest that the Constitution derives its authority from a
number of sources: the people, the States, God, the Imperial Sovereign. Each can
be explained by Australia's own history. They reflect the mixed legal foundations of
the Constitution.
WHAT IS IN THE COVERING CLAUSES?
Covering Clause 1
This clause provides the name of the Act. If the
Constitution was re-enacted it might be useful to include a new section which
states the name of the Constitution.
For example, Constitution of the
Commonwealth of Australia'.
Covering Clause 2
This clause explains references to the Queen in the
Constitution and the Act.
Covering Clause 3
This clause authorised the Queen to proclaim the
Commonwealth of Australia and to appoint the first Governor-General.
Its
provisions are now only of interest historically.
Covering Clause 4
This clause set the date on which the Commonwealth of
Australia was established and the Constitution took effect. It helps to explain the
meaning of section 51(38) of the Constitution, which gives the Commonwealth the
power, with the agreement of all the States, to do anything in Australia which the
British Parliament could have done at the time of federation. These provisions
again are now of historical interest only.
Covering Clause 5
This is the most significant covering clause. It provides
that the Commonwealth of Australia Constitution Act, including the Constitution
itself and the laws made under it, are binding on judges and people throughout
the Commonwealth. It therefore overrides State laws, as well as Commonwealth
laws. There is some overlap with section 109 of the Constitution, which makes a
Commonwealth law prevail over a State law where there is any disagreement
between them.
Covering Clause 6
This clause defines the Commonwealth, the States and
"Original States". The reference to the "Northern Territory of South Australia" is
now out of date. The definition of 'Original States' is important in some parts of
the Constitution. For example, section 7 sets out the number of Senators which
can be drawn from each original State'.

Covering Clause 7
This clause makes arrangements for Acts passed by an
earlier institution through which joint action was taken before federation, called
the Federal Council of Australasia. Again, it is of largely of historical interest.
Covering Clause 8
This clause deals with alteration of Commonwealth and
State boundaries and in practice is outdated. The provisions of the Constitution
itself provide an adequate framework for alteration of boundaries.
CAN THE PREAMBLE AND THE COVERING CLAUSES BE CHANGED?
There are some legal questions about how the preamble and covering clauses
might be changed or removed. The debate is quite technical.
The Constitution itself can be changed by referendum. But the section which lays
down the requirement (section 128) does not appear to apply to the rest of the
Act. In 1900, when the Act was passed, it would certainly not have been intended
that the covering clauses could be altered in Australia, by referendum or any other
method. On the other hand, it is now equally clear that the British Parliament can
no longer make laws for Australia, because the Australia Acts 1986 expressly say
so. (A copy of the Australia Acts is bound in with most published versions of the
Constitution.)
Two possible ways of altering the preamble and the covering clauses have been
suggested. The first requires joint legislation of the Commonwealth and the all
State Parliaments, using section 15 (1) of the Australia Acts. The second would
need a referendum to change the Constitution to confer power to alter the
covering clauses and the preamble. Given the fact that the Australian people
usually are involved in constitutional change, the second way seems preferable in
principle. But whatever the answer, there can be no doubt that, one way or
another, the preamble and the covering clauses can now be altered by
Australians, within Australia.
SUMMARY
In strictly legal terms, the Australian Constitution gets its authority from the
British Parliament, because the Constitution is part of the Commonwealth of
Australia Constitution Act, a British Act. There is also an argument which says
that the power of the Constitution comes from the original and continuing
agreement of the Australian people to be bound by it.
The rest of the Commonwealth of Australia Constitution Act is made up of a
preamble and what are called covering clauses.
The preamble sets out some of the main principles accepted by the framers of
the Constitution.
The covering clauses deal with a range of matters. Most of these are now of
historical interest only and so, have no legal effect.
There are is a technical legal debate over how changes could be made to the
preamble and the covering clauses, but there can be little doubt that it can be
done.

FURTHER READING
J Quick and R R Garran, Annotated Constitution of the Australian Commonwealth
(1901), Legal Books, Sydney, reprinted 1976.
Advice of the Acting Solicitor-General, "Establishment of a Republic", Republic
Advisory Committee, An Australian Republic: the Options, Canberra, AGPS, 1994,
Appendices, volume 2, appendix 8, page 296.
C Saunders, The Preamble of the Future European Constitution, or the
Foundations of Sovereignty, 1994.
We the people of Australia, Ideas for a New Preamble to the Australian
Constitution.
The best reference is the Australian Constitution itself. Copies can be purchased
from the Australian Government Bookshop in each capital city.
An annotated
version of the Australian Constitution with notes on each section is available from
the Foundation. Your public library will also have a copy.

C o n s t it ut i o n al Ce nt e na ry Fo u nd at io n
L e vel 2 / 7 23 Sw an s t o n St ree t , Car lt o n V I C 3 05 3
Te l:
( 03 ) 93 49 1 84 6
Fax :
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Fre e call: 1 80 0 62 2 0 01
E ma il:
c cf 2 00 1 @ib m .ne t
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The Constitutional Centenary Foundation is an independent organisation which
was established to encourage and assist public debate on the Australian system
of government during the lead-up to the centenary of the Constitution in 2001.
May 96
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