Wednesday, January 6, 2010

An Overview of The Commonwealth of Australia Constitution Act (UK) 1900

The Commonwealth of Australia Constitution Act 1900 (UK)
Consists of 8 Chapters and the Schedule.
I. The Parliament
consisting of the Queen, a Senate & a House of Representatives
Governor General appointed by the Queen as her representative
Before taking their seat, they must all swear and Oath or Affirmation of Allegiance.
II. The Executive Government
Executive power is vested in the Queen and can be exercised by the Governor General
The Governor General chooses the members of the Federal Executive Council, who advise him/her.
All references to the Governor General in Council refer to the Governor General acting on the advice of the Federal Executive Council.
III. The Judicature
Judicial power of the Commonwealth is vested in the Federal Supreme Court, called the High Court of AustraliaJustices are appointed by the Governor General in
IV. Finance and Trade
V. The States
VI. New States
VII. Miscellaneous
VIII. Alteration of the Constitution
The proposed law for the alteration must be passed by an absolute majority of each House of the Parliament and not less than two or more than six months must be submitted to a referendum of the voters in each State and Territory .
If, the referendum is approved by a majority of the States and a majority of the voters, the Governor-General may approve the proposed law.
The Schedule
The Oath & Affirmation of the new parliamentarian.

Protection of Rights
There is no Bill of Rights in the Australian Constitution, because the majority of the people felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Separation of Powers and the 2 houses of Parliament.
And as the Act itself is British law, our access was therefore provided to the Magna Carta, Habeus Corpus, Bill of Rights 1649 and etc.

However the Constitution did include the following rights –
* Right to Trial by Jury in s80 for indictable offences against Commonwealth Law.
* Right to Just Compensation in s51 (xxxi) for assets taken by the Commonwealth.
* Right to Freedom of religion in s116, wherein the Commonwealth can not make laws to do with religion.
* Right to Freedom from Discrimination against residents of another state in s117.
The High Court have also established an implied Right to Freedom of Political Communication and a limited Right to Vote in s7 & s24.

Separation of Powers
Refers to the separation of the Executive (the Ministry), the Legislature (the Parliament) and the Judiciary (the Courts), with none of the three branches of government able to exercise total power.
Legislative power means the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government.
Judicial power gives the High Court power to decide whether laws are legal according to the Constitution.
The essence of the doctrine of separation of powers is thus based on the idea of checks and balances.

Prime Ministers, Premiers & Political Parties
The Constitution does not mention any of these entities in any manner.
The intent of the Constitution was that each person entering the House of Representatives & the Senate would be entirely independent, answerable only to the electors.

Referendums & Plebiscites
At all times, the only manner in which the Constitution could be altered were by binding polls called referendums.
To pass a referendum the final vote had to consist of a majority of states and a majority of the voters agreement.A Yes vote in a referendum would change that section of the Constitution. This would then be presented to the Governor - General for Royal Assent. This then becomes a binding and entrenched alteration to the Constitution.
A No vote was as lawful, in that it meant that there could be no change to the relevant section.
A Plebiscite is an optional voting structure to do with decisions that do not alter the Constitution.
Because the general feeling toward the Constitution is that it is fine the way it is, only 5 Federal referendums out of 21 have received a Yes vote.
* In 1916 & 1917, the people voted No to allow govt to conscript Australians for war.
* 1n 1944, the people voted No when govt wanted to extend its wartime powers into peace times.
* In 1951 the people voted No to banning communism – because it infringed on Freedom of Choice.
* In 1967, 89% of the People voted Yes to include Aboriginal people in the Constitution.
* In 1988, the Federal govt tried to introduce a Bill of Rights which, by stealth, gave govt greater powers. 70% of the people voted No, preferring less govt control.
* In 1999, over 50% of the people voted No against a Republic.
* The people have voted No to allowing govt to further extend their powers into trade, finance, corporations, industrial matters, disputes, aviation, marketing, democratic rights, pricing, incomes and more.
* Important referendums in which the people voted No twice, were in 1974 & 1988, where the People refused to allow Local Councils to be recognized in the Constitution.

Chapter III Court
Under the Constitutional Judicial structure, a constitutional court of law is known as a Chapter III Court.
The judicial power of the Commonwealth can only be exercised by a Chapter III court.
No other body, such as a panel, tribunal, commission, etc can render and enforce a judgment.
This has been upheld by the High Court in
* NSW v Commonwealth (1915) the Wheat Case
* Harry Brandy v Human Rights & Equal Opportunities Commission 1995
* Lane v Morrison 2009

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