AUSTRALIAN CONSTITUTION: INTRODUCTION, HISTORICAL BACKGROUND AND SALIENT/UNIQUE FEATURES

OVERVIEW OF THE
PRESENTATION
The presentation will cover the following topics-
1. Australia and its States and Territories
2. Legal System and its structure
3. History and Making of the Constitution
4. Constitution covering:
a) General Features
b) British Act of Parliament giving force to the
Constitution of Australia
c) Structure of the Constitution
d) Salient features list with comparison to India
e) Salient features explained.
AUSTRALIA
1. Australia derives its name from the Latin term
‘Terra Australis’ which means ‘Southern
land.’
2. Officially known as ‘Commonwealth of
Australia.’
3. The SIX States: New South Wales, Queensland,
South Australia, Victoria, Tasmania, Western
Australia.
4. It has 3 Internal Territories: Northern
Territory, Australian Capital Territory (ACT),
The Jervis Bay Territory and 7 External
Territories. A total of 10 Territories.
MAP OF AUSTRALIA
LEGAL SYSTEM OF AUSTRALIA
Despite the similarities and dissimilarities, all
countries have a unique legal system. The legal
system of any country consists of those set of laws
which may be written down as statutes or remain
unwritten or uncodified. Legal system describes the
laws a country has and the processes by which those
laws are made, executed and interpreted.
The Australian legal system is based upon its basic
document known as the Australian Constitution and
originates from the legal system of Britain. There is
one National Parliament and one National Court but
each of the 6 states also have their own Parliaments
and Court systems.
 Nominal Heads
Head of the State, Queen elects:
1. National representative: Governor General.
2. 6 state representatives for each state: Governor.

 Real Heads
1. Nation’s Political leader: Prime Minister, appointed by
Governor-General.
2. Political leader of each state: Premier, appointed by
Governor.
HISTORY AND MAKING OF THE
CONSTITUTION OF AUSTRALIA

The history and the process leading to the

development of the Australian Constitution is
divided into three stages:
1. Early Australia
2. Colonial Australia
3. Australian Federation
 Early Australian Era
a. An indigenous Australian legal system existed which served all
purposes of law, was effective, appropriate, maintained social
order, restrained the abuse of power and was a system for resolving
disputes.

b. In August 1770: James Cook formally arrived in Australia and

claimed an area today known as the New South Wales.

c. In late 18th century, deporting criminals and convicts to far away

places in order to keep them away from the general population had
become a prevalent custom in Europe and due to which in August
1786, the British decided to use Australia as a Penal Colony and this
deportation continued till 1867. In this way, the British had entered
Australia.
d. The first governors appointed by the British Crown enjoyed
wide ranging legislative and executive powers and there existed
no institution to check the governor’s powers within Australia.

e. The British did not recognise the indigenous Australian legal

system as a legitimate one.

f. When the Britishers arrived, they considered Australia to be

an empty land and gave it the legal position of a land where no
one lived and declared it as ‘terra nullius’ meaning an empty
land or a land belonging to none.

g. Since the year 1788, January 26 is celebrated as Australia Day

because it was on this day that Governor Arthur Phillip landed in
Sydney. However, the Scotsman Governor Macquarie is known as
the Creator of Australia and not the first Governor (Arthur
Phillip).
 Colonial Australian Era

a. In less than a 100 years from the date, Australia had become
the fastest growing economy. The free settlers had begun
pouring in.

b. The British brought British law in Australia and this is k/as the
Doctrine of Reception. Hence, the foundation of Australian law is
British law and not indigenous law.

c. Australia never began as a single nation. It was earlier a group

of many colonies more than 200 in number. The first colony was
in NSW followed by colonies in Queensland, Victoria, Tasmania,
South Australia and Western Australia and these colonies were
controlled by British government represented in each colony by a
Governor.
d. With settlements and colonies coming up, locally framed
constitutions were encouraged. In 1852, the Colonies of
Victoria, South Australia and Tasmania were invited to draw
up their own constitutions’ which were approved in 1855-56.
These constitutions provided for bicameral parliaments. The
upper house was called the legislative council and the lower
house, the legislative assembly. However, franchise was
property-based and not universal. Similar constitutions were
approved for Queensland (that separated from the New
South Wales) in 1859 and West Australia in 1890.

e. The Colonies gradually enhanced their powers in

comparison to the Governor. The universal suffrage for
males was introduced in 1900 and for females, in 1908.
Thus, Australia adopted universal adult franchise in 1908.
f. Eventually, these colonies started becoming
independent from Britain one by one and had their own
sophisticated legal system. Each colony had a
constitution of its own which said how that colony’s legal
system functioned and each colony was set up with a
similar structure.

g. In the 1980s, in the famous Mabo Case, the High Court

of Australia overturned the categorisation of the country
as ‘terra nullius’ and acknowledged the existence of
indigenous legal system prior to British settlement.

h. Nevertheless, the land was seen to be settled by the

British rather than conquered by them.
 Federation
The efforts to form an Australian federation began in the 1840’s when
the need for a central government was felt. However, it took 60 years
of constant efforts to form the Australian federation and to adopt a
federal constitution.

Each colony had an independent legal system but it created problems.

Initially based upon British Law but as time later passed, each colony
followed the British law to suit its own circumstances being absolutely
inconsistent with what was happening in other colonies. Trade became
difficult with each other. With time, people wanted the colonies to
unite to form a single nation in order to seek uniformity and
consistency between colonial laws. After many negotiations between
the colonial governments, agreement was reached. The six colonies
would unite to form a single nation. The commonwealth of Australia
came into existence on 1st January, 1901.
The colonies and their legal system were not replaced,
rather retained to exist as States. Each colonial Parliament
became State Parliament. Each Colonial Court System
became State Court System and each Colonial Governor
became State Governor. The six colonial governments
remained in place as state governments and a new
seventh, federal form of government was born known as a
Federal or National government. It was created to regulate
National matters and this new government was again set
up from a system adopted from Britain and as per system
within colonies. Australia became a federation and
everything changed but one thing remained common: The
Queen. They still share the Queen.

The detailed creation is as follows:

1. Formation and Cessation of Federal Council:
 In the year 1883, a meeting of the premiers of the colonies
adopted a resolution in favor of a ‘Federal Council of
Australia’. Two years later, a council was formed. An Act of
the British Parliament passed in 1885 duly established a
Federal Council for Australia.
 New South Wales had failed to join the Council and there
were many factors like physical remoteness from each other,
self interests, lack of contact and colonial exclusiveness
which went against the formation of the Australian
federation. The colonies had deliberately developed their
economic and fiscal policies independently of each other.
 As it is, the Federal council had no executive and financial
powers. Its decisions had to be approved by the colonial
government. After holding eight biennial sessions in 1899, the
council ceased to function.
2. Constitutional Conventions of 1890s

a. Constitutional Convention, 1891 - In 1890, the Conference of

Premiers and Ministers of Melbourne led to the creation of the
National Constitutional Convention in 1891 attended by the six
colonies. This resulted in a draft constitution which was to be
approved by the six colonies but New South Wales failed to approve
the draft and hence, the federation project was kept aside for
three years.

b. Constitutional Convention of 1897-98: The 1897 representatives

who constituted the 1897 Convention had an average of twelve
years of parliamentary experience. The sittings took place and the
outcome was a new draft constitution. The draft was approved by
the electorates of Victoria, South Australia and Tasmania in 1898.
But New South Wales failed to approve the draft again.
c. The Premiers’ Conference, 1899 made more
concessions to New South Wales. The second
referenda in New South Wales and Queensland
okayed the draft constitution.

d. Queen Victoria gave her assent to the Constitution

Bill on July 9, 1900.

e. It took three weeks and strong British persuasion

for the West Australian electorate to finally approve
the constitution on July 9, 1900. The new federation
known as the Commonwealth of Australia was finally
born on January 1, 1901.
FLAG OF AUSTRALIA
The Australian Flag came into being after the federation of
the Australian States into the Commonwealth of Australian
on 1 January, 1901. It is known as The Commonwealth
Blue Ensign. It consists of 3 main elements:
1. The UNION JACK denoting Australia’s historical and
past links with the Great Britain.
2. The SOUTHERN CROSS is the second element. It
includes the 5 stars namely
Alpha/Beta/Gamma/Delta/Epsilon-Crucis in a more or
less kite-like pattern. The constellation of
the Southern Cross is a significant navigational feature
of the southern hemisphere, strongly places Australia
geographically and has been associated with the
continent since its earliest days.
3. The Commonwealth Star or Star of Federation, has
seven points denoting the six states and the combined
territories of the Commonwealth.
CONSTITUTION OF
AUSTRALIA
GENERAL FEATURES
1. The Constitution of Australia is the Supreme Law of
Australia.
2. Written Constitution
3. Commonly known as ‘The Birth Certificate of
Australia.’
4. Title: Commonwealth of Australia Constitution Act,
1900 (Act of Britain, Clause 9 is the Constitution).
5. Ratified on: 9th July, 1900
6. Enforced on: 1st January, 1901
7. The three branches: Legislature, Executive, Judiciary.
8. The two chambers: House of Representatives and
Senate.
9. Procedure of Amendments: Referendum/Polls.
10. Basic Source of the constitution: Constitutional
Conventions of the 1890s.
11. Supersedes: The Australian Colonies Government
Act, 1850.
12. Combination of UK and USA Constitution. Ex. It is
like UK, a Constitutional Monarchy and has a
Parliament. It is a Federation, like USA.
13. The Australian Constitution was then passed as
part of a British Act of Parliament in 1900, and took
effect on 1 January 1901. A British Act was necessary
because before 1901 Australia was a collection of six
self-governing British colonies and the ultimate power
over those colonies was with the British Parliament.
Contd..
 The British Act was necessary as mentioned but the
Ultimate Control over the people of Australia and
their decisions rests with the Constitution which they
have made, drafted and approved by their own will.
 Australia has become an independent nation now and
the fact that the Australian Constitution is the
country’s most basic and fundamental law is now
seen as the main element and not the fact that it has
been made as a part of a British Act. The constitution
binds the Australian people to approve their
decisions and be bound by the terms of the
Constitution. The Constitution itself is contained in
clause 9 of the British Act. The first eight clauses of
the British Act are commonly referred to as the
‘covering clauses’. They contain mainly introductory,
explanatory and consequential provisions.
BRITISH ACT OF PARLIAMENT GIVING
FORCE TO THE AUSTRALIAN CONSTITUTION
STRUCTURE
It is passed as a BRITISH ACT OF PARLIAMENT
contained in VIII Chapters, 128 Articles and 32
pages.
SALIENT FEATURES OF AUSTRALIA
WITH COMPARISON TO INDIA
AUSTRALIAN CONSTITUTION INDIAN CONSTITUTION

1. Written and Enacted 1. Same

Constitution 2. REPUBLIC
2. CONSTITUTIONAL 3. Same
MONARCHY
4. Same
3. PARLIAMENTARY
FORM OF GOVERNMENT 5. Same
4. SECULAR
CONSTITUTION
5. DEMOCRATIC
CONSTITUTION
 AUSTRALIAN CONSTITUTION
6. OFFICE OF GOVERNOR
GENERAL
7. STATE GOVERNORS
8. REAL HEAD OF STATE:
PREMIER
9. FEDERAL STRUCTURE
10. SEPARATION OF
POWERS: Liberal
demarcation b/w
Legislature and Executive
while strict demarcation of
both of them combined with
Judiciary.
INDIAN CONSTITUTION
6. NO
7. Same
8. REAL HEAD OF STATE:
CHIEF MINISTER
9. Same
10. Separation of power
between all the three
organs of the government
with exceptions to it.
 AUSTRALIAN CONSTITUTION
11. PRINCIPLE OF
RESPONSIBLE GOVERNMENT:
The Queen and the Gov-
Gen for most of its
functions acts on the advice
of Ministers who are
members themselves of the
Parliament and are
responsible to it
12. Commonwealth
Parliament: Comprises of a
Queen, a House of
Representatives and a
Senate.
INDIAN CONSTITUTION
11. It is nowhere expressly
mentioned that India
follows this principle at
present. However, we know
that this concept was
followed in India at the
time of British India
included by Edwin Montagu
in the Montagu-Chelsmford
Reform in 1919.
12. Indian Parliament:
Comprises of President, a
House of People and
Council of States.
 AUSTRALIAN CONSTITUTION
13. HIERARCHY OF COURTS:
Highest Court of Australia is
High Court of Australia. It is
the highest and the final court
of appeal.
14. STATE CONSTITUTIONS:
Apart from having a national
constitution, each of the six
states of Australia have their
own separate constitution.
15. AMENDMENT: Majority of
electors must vote in favour of
change and majority of votes
from four out of six states.
INDIAN CONSTITUTION
13. Highest court and the
final court of appeal is the
Supreme Court of India.
14. One Supreme National
Constitution.
15. Amendments: The bill
must pass in each house by
the majority of the total
membership of that house
and by majority of 2/3rd
members of that house
present and voting.
 AUSTRALIAN CONSTITUTION
16. FUNDAMENTAL RIGHTS
of citizens of Australia not
expressly mentioned in the
Constitution.
17. NO PREAMBLE
INDIAN CONSTITUTION
16. Fundamental Rights
expressly mentioned under
Part III of Indian
Constitution.
17. PREAMBLE through
inception.
SALIENT/UNIQUE FEATURES
EXPLAINED
1. Written and Enacted Constitution: Australia has a written and
enacted constitution like India and USA and unlike UK. It is
covered under VIII chapters, 128 Articles and 32 pages.

2. Constitutional Monarchy: Australia is a Constitutional Monarchy

like UK and unlike India and USA. This means that the head of
State of a country is a monarch whose functions are regulated by
the constitution. The British Monarch is also the formal head of
state and nominal head of the government of Australia. The
monarch is known as the King/Queen of Australia, which means
that he/she acts only on the advice of the Commonwealth
Ministers. The Monarch is supposed to rule in accordance with the
Australian Constitution. In India, on the other hand, the head of
the state is elected and not hereditary. India is a Republic.
3. Parliamentary Form of Government: As in India and UK and unlike USA,
Australia has a parliamentary form of government. It includes the Queen
and the two chambers: House of Representatives and Senate. This form of
government means that the head of state is nominal and the real power
rests with the Prime Minister who is responsible to the Parliament of the
country.

 The Queen is the nominal Head of State who exercises her powers and
functions through the Governor-General and the Australian bicameral
Parliament.

 The House of Representatives has 148 members and the Senate consists
of 76 members.

 Four of the six states constituting Australia also have bicameral

legislatures. In these states, the lower house is called the Legislative
Assembly. This is the case in New South Wales, Victoria, Queensland and
West Australia. It is called the House of Assembly in South Australia and
Tasmania. The Governors of each state are the formal and the nominal
heads and represents the Queen. In India, the President replaces the
Queen of Australia as the nominal head of the country.
4. Democratic Constitution: Australia is a democratic country
where free, fair, independent elections and referenda are held on
the basis of universal adult franchise and secret ballot. The people
of Australia directly elect the members of both their houses and
that is why Australia is said to have a democratic constitution. The
Parliamentarians are elected for a term of 3 years. India shares
this feature.

5. Secular Constitution: The British Act giving legal force to the

Constitution of Australia mention the words ‘Almighty God.’ Article
116 of their constitution strengths the concept of secularism. It
states that: ‘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.’ India has also embodied the
concept of secularism as mentioned in its Preamble.
6. Office of Governor-General: The governor general is the
representative of the Queen to exercise the powers and
functions on her behalf. He is one of the nominal heads of the
State . The Governor-General performs a large number of
functions and acts in accordance with the advice of
Commonwealth Ministers except for certain exceptional
circumstances. There is a small number of matters in relation
to which the Governor-General is not required to act in
accordance with Ministerial advice and these powers are
known as ‘reserve powers’. One such powers is the power to
appoint and to dismiss a Prime Minister. This office is unique
to the Australian legal system.

7. State Governor: He is the nominal head of the state and is

subordinate to the Premier in each state who is the political
head of the state. Each Governor has an executive council to
advice him.
8. Principle of Responsible Government:
This is a basic concept to the Australian system of government and
underlies their Constitution. Responsible Government is not the same as
government with responsibility. The principle of Responsible government
means that the leaders of the executive branch of government, called
the cabinet are also to be members of the legislature.
In Australia, the Crown or the Governor-General acts on the advice of its
Ministers who following the principle of responsible government and Article
64 of the Constitution should be, or become, members of Parliament.
Countries that use responsible government usually have a parliamentary
form of government and examples apart from Australia include UK and
Canada. Some examples of countries that do not have a system of
responsible government are the US and France.

9. Federal Structure: Australia has a federal structure like USA and India
but unlike UK. Under a federal system, powers are distributed between a
central government and regional governments. In Australia, that
distribution is between the Commonwealth and the six States.
10. Commonwealth Parliament: The Constitution established
the Commonwealth Parliament comprising the Queen, a House
of Representatives and a Senate. The people of each of the six
States elect the same number of senators regardless of their
State’s population. In the House of Representatives the number
of seats from each State (and Territory) depends on the
population. Each state has its own Parliament too.

11. Hierarchy of Courts: The High Court of Australia is the final

court as is the Supreme Court in India. Besides this, there are
State and territorial Courts and Commonwealth Courts
subordinate to the High Court of Australia based in the
Australian Capital Territory. Commonwealth Courts include:
Federal Court of Australia, Family Court of Australia and the
Federal Circuit Court of Australia. Each state has its own
separate court system.
12. State Constitutions: One of the unique features of Australian Constitution
is that each state has its own separate constitution which functions in that
particular state apart from having a national constitution.

13. Separation of Powers: Chapters I, II, and III of the Constitution confer the
legislative, executive, and judicial powers on the three organs. Legislative
power is the power to make laws. Executive power is the power to administer
laws and carry out the business of government, through such bodies as
government departments, statutory authorities and the defence forces.
Judicial power is the power to conclusively determine legal disputes. Despite
the structure of the Constitution there is no strict demarcation between the
legislative and executive powers of the Commonwealth.
 Only the Parliament can pass Acts, but these Acts often confer on the
Executive Government the power to make regulations, rules and by-laws in
relation to matters relevant to the particular Acts which is a legislative
function.
  The distinction is further blurred by the fact that the Prime Minister and

the other Government Ministers who form part of the Executive must also
be members of Parliament.  
 The separation between the Judicature on the one hand and the Parliament

and the Executive Government on the other is strict. Only a court may
exercise the judicial power of the Commonwealth.
14. Preamble: Australian Constitution had no
preamble at the time of its inception and even
still, it does not have a preamble but there
have been proposed changes in the concept. On
the urge and desire of the people of Australia
to have a preamble in their constitution, the
then Prime Minister John Howard in the year
1999, proposed to insert a preamble under
section 125A through the Constitutional
Alteration (Preamble), 1999 but the proposed
preamble was defeated in a referendum. The
conclusion is that Australia has never really had
any preamble in its constitution.
THANK YOU

-Shivani Misra
 Surbhi Anand
 - Priyanshi Gupta
 -Ketki Jha
 Lovika Deepak Hingorani
 - Karnika Jain