Australian Constitution

The Australian Constitution provides the legal framework for which Australia is governed. It describes how each branch of government operates and the powers that it has. It also establishes an independent court system. The Australian Constitution is an Act of the British Parliament and was enacted through the Commonwealth of Australia Constitution Act 1900 (UK).

The Australian Constitution was created in 1901. Within the Australian legal system, the constitution is the most important piece of law that exists.  All legislation and jurisdiction made in Australia must abide by the Constitution.

The constitution established a federal system of government, known as Australia’s ‘federation’. The Australian federal system divides the power of the colonial states between six states and one central federal government.  (Patmore, 2009).

The constitution is upheld by the ‘executive government of the commonwealth’ (Constitution, s 61). The Executive is made up of Ministers from the party that hold majority of seats in the House of Representatives and is the recognisable government that functions day to day.

The constitution can only be amended by a referendum. To succeed, a proposed change must be approved by a majority of votes in a majority of states (Constitution, s 128). Since 1901, there have been 19 referendums held in Australia, for which there have been 44 changes proposed (PEO). Of those 44, only 8 proposals have been successful (PEO). Therefore, since its commencement in 1901 to today, the Constitution remains largely the same.

In addition to its legal significance, the Constitution has symbolic significance as the ‘birth certificate of a nation’ (Constitution, p. iv). The intention of the Constitution was to unite all Australians. However, First Nations people were not referenced or recognised in the document (AHRC, 2020).

Background

The terms of the Constitution were approved through a series of conferences and referendums. In 1895, the six premiers of the Australian colonies agreed to create a new constitutional convention. The convention was agreed to by popular vote (Pritchard, 2011).

The Constitution was then passed as a British Act of Parliament in 1900, and took effect on 1 January 1901 (Australian Government, 2020).

A British Act was necessary as before 1901 Australia was a collection of six self-governing British colonies, and ultimate power over these colonies (New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania) was held by the Great British Parliament (Pritchard, 2011; Patmore, 2009).

1967 Referendum

On May 27, 1967, Australians voted in a referendum to change the Constitution. The Constitution Alteration (Aboriginals) Bill 1967 (Cth) sought to allow all Aboriginal people to be included in National censuses and to give the Commonwealth parliament power to make laws for Aboriginal people across the country.

The referendum was the most successful in Australian history and the impacts of the changes were particularly significant to the modern land rights movements.

The changes to the Constitution were made by deleting part of s 51(xxvi) and repealing s127.

Citizenship

Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 considered the application of s 51(xix) (the alien’s power) of the Constitution to Aboriginal peoples. The Court was asked to determine whether an Aboriginal person who held foreign citizenship was an alien under the alien's power. Therefore, could Mr Love or Mr Thoms be legally deported under the Migration Act 1958 (Cth).

In February 2020, by a majority of 4-3, the High Court found that an Aboriginal person who was not an Australian citizen, but held foreign citizenship, could not be described as an ‘alien' within the meaning of section 51(xix) of the Constitution. As such, Aboriginal Australians who do not hold formal Australian citizenship are capable of being recognised as a category of 'non-citizen, non-alien' [112], independent of both the Citizenship Act 2007 (Cth) and the Migration Act 1958 (Cth).

The High Court’s judgment means Aboriginal Australians cannot be 'aliens' to Australia, and the Commonwealth Government does not have the legal right to deport non-citizen Aboriginal Australians.

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