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Background
Document
1. STATE CONSTITUTIONS GENERALLY
Each of the six Australian States has a Constitution, which provides a framework for its system of government. In most States a single Constitution Act contains the main rules of a constitutional kind. The State Constitution Acts are:
Some States spread important rules of a constitutional kind over several Acts, only one of which is called the Constitution Act. In Queensland, for example, the Constitution Act Amendment Act 1934 requires a referendum to re-establish a Legislative Council or to extend the term of the Legislative Assembly (itself set at 3 years in another Act, the Constitution Act Amendment Act 1890). The Constitution (Office of Governor) Act 1987 also includes provisions of a constitutional kind. The question whether the most important rules concerning government should be brought together in a single Constitution is presently under consideration in Queensland, and may be relevant in other States as well. Each State Constitution Act is divided into parts, or chapters. While the detail of the various Constitutions is quite different, typically each deals with:
Most State Constitutions begin with a preamble, which sets out the history of the Constitution. A set of State Constitutions will be available to each of the working groups. 1.2 The Origins of State Constitutions Each Australian State acquired its original Constitution before federation, while it was still a colony. The Constitution accompanied self-government, or the right of the colony to govern itself on local matters. The authority for the original Constitutions was laid down in legislation of the British (or Imperial) Parliament, which a colonial Constitution could not exceed. One British Act, called the Colonial Laws Validity Act 1865, had a particular influence on the development of State Constitutions. It was passed after 5 of the 6 colonial Constitutions already were in operation. One effect of the Act was to confirm that the colonies had power to alter the constitution, powers and procedures of their own Parliaments (or legislatures). Most colonial Constitutions had assumed this power and prescribed special procedures for its use. The Colonial Laws Validity Act protected these procedures by requiring them to be followed. This section later became important as a source of authority for the States to impose special "manner and form" requirements for changing these parts of their Constitutions (see 1.3, below). The Australian colonies came together in a federation in 1901 under the Australian Constitution. The Constitution became law as part of a British Act, the Commonwealth of Australia Constitution Act 1900. The six colonies became the six original States. The new national government was called the Commonwealth of Australia. It was important for the new Constitution to ensure that there was no break in the continuity of the systems of government and law of the colonies that became States. To assist this, section 106 of the Australian Constitution continued the operation of these Constitutions "until altered in accordance with the Constitution of the State" (see 1.4, below). Neither the States nor the Commonwealth was independent at the time of federation. The signs of continuing colonial status that are relevant for present purposes included the following:
During the course of the twentieth century, Australia gradually achieved independence. The Commonwealth formally was freed of colonial restrictions well before the States. The most important steps for the Commonwealth were as follows:
The States were not involved in any of these steps towards independence. By convention (or long-standing practice), however, it gradually became accepted that the British Parliament no longer would make laws for any part of Australia without being asked to do so. The British government remained the formal channel of communication between the States and the Crown. But, gradually again, another practice developed by which the Queen always appointed as Governor the person recommended by the Premier. The independence of the States was formalised in 1986, in the Australia Acts. Those Acts:
There are two identical Australia Acts. One was enacted by the British Parliament and one by the Commonwealth Parliament, with the request or concurrence of the States, under section 51(38) of the Australian Constitution. Given that the British Parliament can no longer legislate for Australia, the most important Australia Act within Australia is the one passed by the Commonwealth Parliament. It may be that in time this is the only Australia Act that will be recognised here. 1.3 Amendment of State Constitutions The Australian Constitution can be altered only by a bill that is passed by the Commonwealth Parliament with absolute majorities in each House (or in one House twice) and is approved at referendum. For most purposes, approval at referendum requires a national majority of voters and a majority of voters in a majority of (at least 4) States. Unlike the Commonwealth Constitution, parts of each State Constitution can be changed by an ordinary Act of the State Parliament. Special Constitution alteration procedures are an exception, rather than the rule. Nevertheless, each State Constitution provides a special procedure for the alteration of some parts of it. These provisions are described as "entrenched". Typically, the section which lays down the special procedure is "entrenched" itself, to prevent ordinary State legislation from first changing the procedure and then changing the other constitutional provisions. The special Constitution alteration procedures used by States are:
Table 1 shows the procedures used by each State and the parts of the Constitution which are entrenched. Table 1 Procedures for the Alteration of State Constitutions
Source: Western Australia, Commission on Government, State Constitution, Discussion Paper no. 15. There is some uncertainty about the extent to which States can entrench parts of their Constitutions and how. The aspect of the doctrine of parliamentary sovereignty which says that Parliament can always change what an earlier Parliament has done, has been assumed to mean that it is necessary to find a source of authority for making State Constitutions more difficult to change than ordinary Acts of Parliament. The original authority came from British legislation, while the States were still colonies. It was confirmed by the Colonial Laws Validity Act 1865, which gave colonial Parliaments power to make laws respecting their "constitution, powers and procedure" but provided, at the same time, that "such laws shall have been passed in such manner and form as may from time to time be required…." This was reinforced by the Australian Constitution, at the time of federation. Section 106 of the Constitution preserved the Constitutions of the colonies as Constitutions of the States "until altered in accordance with the Constitution of the State". The Australia Acts 1986 formally ended the authority of the British Parliament in Australia and provided that the Colonial Laws Validity Act should no longer have effect. Sections were included in the Australia Acts themselves, however, to make it clear that the States still had the power to entrench their Constitutions, at least to the extent recognised by the Colonial Laws Validity Act. The most relevant provisions are:
This legal framework for the alteration of State Constitutions raises several problems:
While the answers are far from clear, the current position probably is as follows.
1.4 Relationship with the Commonwealth Constitution The Australian Constitution is the highest law in Australia. All other laws, including the State Constitutions, must be consistent with it. State Constitutions also must be consistent with valid Commonwealth laws. It may be easier to understand the position of State Constitutions from the following diagram. Diagram 1 Position of State Constitutions in the Australian Law Hierarchy
Constitutions and Acts of Parliament (or statutes) are interpreted by courts. The interpretation becomes part of the statute or of the Constitution unless changed by a valid procedure. Everyone in Australia, including all Australian governments, must obey all the laws which, properly interpreted, apply to them. The impact of the Australian Constitution on State Constitutions is limited by the fact that, at present, there is relatively little in the Australian Constitution which directly affects State Constitutions. And while a Commonwealth law can override a State Constitution, Commonwealth legislative powers themselves are limited. The precise relationship between the different categories of laws depends in part on section 106 of the Australian Constitution. That section says: 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. The section was effective for its immediate purpose, which was to ensure that the Constitutions of the six Australian colonies became the Constitutions of the six Australian States after they had joined in a federation in 1901. The section made it clear that the State Constitutions would be subject to the new Australian Constitution. It also made it clear that the State Constitutions would not be frozen at the date of federation but could be altered in the future in accordance with the procedure that each State Constitution laid down. Over the intervening 100 years, however, a range of more difficult questions have been raised about the relationship between the Australian Constitution, Commonwealth laws and State Constitutions, in the light of section 106:
There are different views on some of these questions and the issues are not yet finally settled. The most likely position, however, is as follows:
1.5 The Constitutions of the Territories The position of the Territories is different. A Territory is a part of Australia that is not a State. Depending on its circumstances, a Territory may have self-government or may be administered by the Commonwealth Government. Self-governing territories are closest to the States in terms of organisation and operation. One important difference, however, is that there are no constitutional restrictions on the subject matter of Commonwealth power in the Territories, if the Commonwealth chooses to exercise it. The States, on the other hand, are the constituent units of the federation. The Constitution limits the power of the Commonwealth when it is operating within a State. Both the two mainland territories of Australia, the Northern Territory and the Australian Capital Territory, have self-government. The Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988 are, in a sense, the constitutions for those Territories. Formally, however, both are Acts of the Commonwealth Parliament and can be changed by that Parliament. They cannot be changed by the Territories themselves. In preparation for possible Statehood, there have been discussions in the Northern Territory over the past ten years about the form of a new State Constitution. The Legislative Assembly of the Northern Territory adopted a proposed Constitution in 1998. A referendum seeking approval for a move to Statehood on the basis of that Constitution was, however, rejected at a Northern Territory referendum. It is not clear at this stage if and when the movement for Statehood for the Northern Territory will revive.
Nevertheless, the work done on a new State Constitution for the Territory may be of interest to the Queensland Constitutional Convention. The Final Report from the Sessional Committee of the Northern Territory Assembly will be available to working groups. |
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