Essay Paper on Australian Constitution

In the nineteenth century the history of the Constitution of Australia began with the moves towards federation where Australian colonies form the Commonwealth of Australia in 1901. The Constitution of Australia is the law under which the government of Australia operates. It consists of several documents, the most important of which is the Constitution of the Commonwealth of Australia.

Australia is a constitutional monarchy. Although the term “Head of State” is not used in the Constitution, it was intended that the Commonwealth would continue to recognize the British Sovereign. Nowadays role of the Queen is even more circumscribed, and amounts only to appointing a Governor-General on the advice of the Prime Minister as well as performing certain ceremonial functions when she is personally present in Australia. On the other side, the importance of constitutional conventions is that Australia cannot operate entirely under a written constitution, but has to some extent a system like the British unwritten constitution (Leslie, 1997). In addition, the text of the Constitution assigns sweeping powers to the Governor-General; for example, to dismiss Parliament to refuse assent to Bills passed by Parliament and to appoint and dismiss government Ministers. However, this reliance on constitutional convention, rather than the constitutional text, means the limits of the Governor-General’s powers are unclear. Powers that can be exercised without or against ministerial advice are considered as “reserve powers”.

According to John Quick and Robert Garran, the constitution features a distinct separation of powers. Legislative power is described in Chapter I, executive power is in Chapter II while the judicial is in Chapter III accordingly. However, the Queen is an element of the Parliament as well as head of the executive. The Ministers of State who “advise” the Governor-General are actually required to be or become members of Parliament. On the other side, the Constitution required direct election of members to both Houses of Parliament from the beginning. At the same time, the Constitution sets up the Commonwealth of Australia as a federal polity with enumerated limited specific powers conferred on the Federal Parliament. Although the list of powers assigned to the Federal Parliament is quite similar to that assigned by the United States Constitution to the Congress, it is actually broader. For instance, it includes “astronomical and meteorological observations”, “weights and measures”, marriage and divorce, and interstate industrial relations. In addition, the constitution provides some opportunities for federal-state co-operation: any state can “refer” a “matter” to the Commonwealth Parliament, and the Commonwealth Parliament can exercise.

Freedom of religion may be a good point in the Australian Constitution because the Constitution states that the Commonwealth “shall not make any law for establishing any religion or for imposing any religious observance”. Though, the prohibition on establishing any religion has nothing like the impact that the corresponding ban on making a law “respecting an establishment of religion” in the First Amendment to the United States Constitution.

As Blackshield mentioned, trial by jury in the Australian Constitution guarantees that a trial on indictment for a federal offence must be by jury, because the High Court has decided that it is only applicable to a trial which proceeds formally by way of indictment. On the other hand, the Court has been willing to impose some content on that notion where Parliament has prescribed jury trial.

For the freedom of economic regulation, the constitutional requirement that “trade, commerce, and intercourse amongst the States … shall be absolutely free” was for a considerable time interpreted as a guarantee of some degree of freedom from government regulation. The implied of rights the political and civil freedoms that necessarily underlie the actual words of the constitution, but are not themselves expressly stated directly in the constitution. In addition, some protections of civil liberties have been the result of the High Court’s zealous attempts to safeguard the independence of, and confidence in, the Federal judiciary.

Australia’s position is unique, in being the only industrialized federal state. It is also clear that the Australian Constitution has often been criticized for its scant protection of rights and freedoms, human and civil rights are probably protected in Australia in the same way as it is in any other country…

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