The Australian Constitution Our Foundation Document

Commonwealth Constitution Parliament has Legislative power Cabinet has Executive power The Courts have Judicial power The Ministry High Court Other federal courts House of Representatives Senate Doctrine of separation of powers

Commonwealth Constitution Division of Power Specific Power Section 51 contains this information Residual Power Concurrent Power S109 allows that if a conflict occurs, the Commonwealth shall prevail S106 and s107 allows that any areas not specifically mentioned in the Constitution is State’s Power Exclusive Power Examples are; s111 and s112 defence and Currency The Commonwealth’s Power The State’s Power

An outline of the Australian Constitution Chapters The Parliament The Executive Government The Judicature Finance and Trade The States New States Miscellaneous Alteration of the Constitution

Preamble The Australian Constitution is an Act of the British Parliament Section 9 of “An Act to Constitute the Commonwealth of Australia”. The first 8 sections of the Act record that the people of the Australian colonies have agreed to unite in a federal commonwealth and that the new system of government was not imposed on the Australian people by the British Parliament.

The amendment must be passed: Section 128 provides the procedure by which the constitution may be amended. The amendment must be passed: by both Houses of Parliament by a majority of voters by a majority of States.

Does our Constitution contain rights? The Australian Constitution is a document to establish the division of power between states and the Commonwealth. It contains a limited amount of rights. These rights are either expressly or explicitly stated or implied. The Australian Constitution contains 5 expressly protected rights and, currently, one implied right.

1. Freedom of Religion Section 116 provides that no law may establish a state religion, impose any religious observance, prohibit the free exercise of any religion, or require a religious test as a requirement for Commonwealth office. Section 116 also protects non-believers by indirectly providing for the ‘right of a man to have no religion’. However, the section prohibits only Commonwealth laws from restricting religious freedom in these ways; it does not to apply to state laws.

2. Interstate Trade and Commerce Section 92 states that interstate trade and commerce is to be free. This right is more a structural underpinning of the economy to prevent parochial restrictions on economic activity, rather than a fundamental democratic or human right.

3. Discrimination It is unlawful for state and Commonwealth governments to discriminate against someone on the basis of that person’s state residence (s.117).

4. Just terms when acquiring property The Commonwealth must provide ‘just terms’ when acquiring property, as per Section 51(xxxi). This means that the Commonwealth can acquire someone’s property, but must pay fair compensation. It does not apply to acquisition of property by state governments.

5. Jury trial There must be a jury trial for indictable Commonwealth offences (s.80). However, this is a very limited right because: most indictable offences are crimes under state law, and s.80 only applies to Commonwealth offences The High Court has ruled that ‘indictable’ means ‘crimes tried on indictment’. Hence, the government can avoid a jury trial for a particular offence by legislating for the offence to be a summary offence.

The High Court and One Implied Right The High Court has found that the Constitution contains an implied right to free political communication. The court has not found that a general right to free speech is implied by the Constitution, but only a right in regard to matters which can be described as “political communications”.