Proclaimed on 1st January 1901, the Commonwealth of Australia has its constitutional roots in the British colonies of Australia. Beginning with the foundation of the first Australia colony (New South Wales, 1788), each colony was initially founded as a Crown colony under the autocratic rule of a Governor.
Reflecting the tide of Liberal reform within 19th Century Britain, the colonies were granted progressively the right to establish their own parliaments modelled on that at Westminster. However, the first parliamentary institutions possessed strong conservative influences. For example, an appointed legislative council to advise the governor was established in the Colony of New South Wales in 1824. Later, an electoral system was introduced to elect some of the members of that council – with the eligible voters limited to adult men who owned property within the colony. During the 1850s, the council was progressively reformed into a bi-cameral legislature elected by adult male residents of the colony with the property qualification requirement discontinued.
The foundation of parliamentary institutions in New South Wales and the other Australian colonies (Western Australia, South Australia, Victoria, Tasmania and Queensland) was authorised by legislation passed by the British Parliament with effect in the Australian colonies. This legislation granted legitimacy to the colonial parliaments, and defined the scope of the autonomy that they could exercise within their jurisdictions.
The following table chronicles Australian Constitutional history through the passage of successive British and Australian pieces of legislation.
|Colonial Laws Validity Act (1865)||Type||Legislation|
|Overview||The Act formally recognised the autonomy of colonial parliaments established within the British Empire. By 1865, a number of British colonies had been granted the right to establish their own parliaments and to manage their own local affairs modelled on that of the British system. However, any laws passed by such parliaments could (and had been) struck down if they conflicted with legislation passed by the British Parliament.The Act removed much of the ambiguity over local parliamentary powers by recognising that any laws passed by a colonial parliament were to have full force within that colony. This local parliamentary authority was limited by two conditions:
The Act remained in effect within those colonies later termed Dominions (Australia, Canada, the Irish Free State, New Zealand, Newfoundland, and the Union of South Africa) until well into the 20th Century:
|Sources||Colonial Laws Validity ActDiscussion|
|Commonwealth of Australia Constitution Act (1900)||Type||Legislation|
|Date||Passed – 5 July 1900Royal Assent – 9 July 1900 (Queen Victoria)
Proclaimed – 1st January, 1901 at Centennial Park, Sydney (by Lord Hopetoun, first Governor-General).
|Overview||The Act formally unified the Australian colonies into the ‘Commonwealth of Australia’. The individual colonies had been founded progressively from 1788 (NSW), Tasmania (1825), Western Australia (1832), South Australia (1836), Victoria (1851), and Queensland (1859). Each of the colonies grew at different rates, based upon population growth (driven largely by British-born migration) and economic vitality (such as the discovery of gold or the export of agricultural products).By the late 19th Century, self-government had been declared in each colony (symbolised by parliamentary government and local defence forces). Imbued by a sense of frontier optimism, growing social sophistication and 19th Century British liberal ideals, political leaders in the respective colonies began debating and agitating for a federation of Australian colonies. Following a decade of inter-colonial conferences and wrangling, the Commonwealth of Australia Act was passed by the British Parliament and later promulgated in Australia in a spirit of optimism and liberal political fervour.
The Commonwealth of Australia Act created a constitution that was based on British parliamentary principles and practices, codifying in a single document (in contrast the multiplicity of documents in the British system) the structure of the new national polity. The Act specifies:
In the decades since its promulgation, the Constitution has been modified in a number of ways – both formally (through the power of referendums and statute changes), and in terms of how it is practiced (party politics, and shifts in the balance of power between the federal government and the states).
|Sources||Commonwealth of Australia Constitution ActDiscussion|
|Royal and Parliamentary Titles Act (1927)||Type||Legislation|
|Overview||The Act was intended to recognise significant changes that had occurred with the status of the respective Dominions and their relationships with the British Crown and British Parliament.Amongst the provisions of the Act, the British Crown was permitted to change its royal styles and titles. The text itself is rather bland and easy to pass over. However, its impact was revolutionary – the British Crown was (in effect) multiplied. Previously, there was a single Crown entity reigning over the entire Empire. The new revised titles specified the individual Dominions – King (or Queen) of Australia, King (or Queen) of New Zealand etc. The new titles, in effect, recognised the existence of separate countries within the Empire.|
|Sources||Royal and Parliamentary Titles ActDiscussion|
|Statute of Westminster (1931)||Type||Legislation|
|Date||11 December, 1931|
|Overview||The Statute of Westminster granted legislative equality between the British Parliament (Westminster) and the parliaments of each of the Dominions. Interestingly, there was little enthusiasm on the part of the Dominions to take up the full autonomy specified in the Act.
|Sources||Statute of WestminsterDiscussion|
|Statute of Westminster Adoption Act (1942)||Type||Legislation|
|Date||9 October 1942 (Royal Assent)3 September 1939 (retrospective effective date)|
|Overview||The Act formally adopted the provisions of the British Statute of Westminster by the Australian Parliament. Similar Acts were passed in different Dominions at different times.The waging of WW2 had required the Australian Parliament to enact a host of wartime measures. In hindsight, it was realised that some of these measures may have exceeded the powers of the Australian Parliament as defined by earlier British Acts of Parliament.
Not least of which had been the necessity to engage in direct communications with the US Government and Military in order to prosecute a joint war against the Japanese. In early 1942, Allied territories in Asia and Pacific had been overrun, leaving the Japanese poised to invade Australia to the south and US to the west. The effect of the Act was backdated to Australia’s entry into WW2 on 3 September 1939.
|Sources||Statute of Westminster Adoption ActDiscussion|
|Australia Act (1986)||Type||Legislation|
|Overview||The Act was intended to eliminate the last vestiges of subordination of the Australian federal and state parliaments to the British parliament. Statute of Westminster Adoption Act (1942), for example, had adopted the British Statute of Westminster ensuring almost complete Australian parliamentary autonomy. However, several key areas of subordination continued which required the Australia Act to eliminate:
|Sir Garfield Barwick’s Advice to Sir John Kerr||Type||Legal Opinion|
|Author||Sir Garfield Barwick, Chief Justice of the High Court|
|Date||9 November, 1975|
|Overview||November 1975 was the climax of the Whitlam government, the first ALP federal government in 23 years.Gough Whitlam’s government had been elected in 1972 on a wave of popular enthusiasm for political change. By 1975, however, the popular enthusiasm for his government had curdled. His political reform agenda had stumbled, and his government reeled from one scandal or crisis to another. He had sought a fresh mandate in 1974. While he was returned as PM, the Opposition retained control of the Senate.
The Opposition in 1975 announced its intention to block ‘supply’, the annual government appropriations bill. Under a Westminster parliamentary system, a government unable to pass supply must resign.
Whitlam, (constitutionally) confident in his position as PM, was determined to remain in office. Sir John Kerr, however, felt differently. As Governor-General, Kerr was cognisant that he retained ‘reserve’ powers to dismiss a federal government that was unable to perform its duties. With the government unable to pass Supply, and unable to find its way out of its other problems (such as its embarrassment over the Khemlani affair, a failed attempt to raise government credit from a non-traditional lender), Kerr felt obligated to act.
Kerr approached a number of leading Australian judges seeking a legal opinion to support his position. Sir Garfield Barwick (Chief Justice of the High Court) provided an opinion that was unequivocal in its position: a government that could not pass Supply must resign; if it did not resign of its own accord, the Governor-General must dismiss it. Kerr used Garfield’s opinion as legal justification for his subsequent actions on 11 November 1975 – to dismiss the ALP government, to appoint the Opposition as an acting government, and to accept the recommendation of the new PM to dissolve parliament and hold elections.
|Sources||Sir Garfield Barwick’s AdviceDiscussion|
|Gough Whitlam’s speech of 11 November 1975||Type||Speech|
|Author||Gough Whitlam, delivered on the steps of (old) Parliament House following his dismissal.|
|Date||11 November, 1975|
|Overview||Following the dismissal of the Whitlam government earlier that afternoon, and the appointment of an interim government headed by the leader of the Opposition (Malcolm Fraser), the Governor-General’s Official Secretary formally read the proclamation that dissolved both Houses of the federal parliament and called fresh elections.The Official secretary’s words were largely drown out by the angry crowd of ALP supporters and staffers. Once the proclamation had been read, Gough Whitlam delivered a speech of his own to the assembled crowd – in which he announced: ‘…Well may we say, “God Save the Queen”, for nothing will save the Governor-General!… ’
At the subsequent elections on 13 December 1975, the interim government of Malcolm Fraser was re-elected with a clear majority in both Houses of Parliament. The Australian people had spoken – despite the divisive political atmosphere, Whitlam’s dismissal was confirmed by the electorate.
|Sources||Gough Whitlam’s speech (video from Australia online)Discussion|
|Title: The first Prime Minister of Australia, Sir Edmund Barton.
Source: Wikipedia Commons
This image is of Australian origin and is now in the public domain because its term of copyright has expired.