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The Conversation

  • Written by Ryan Goss, Senior Lecturer in Law, Australian National University

The Conversation is running a series of explainers on key moments in Australian political history, looking at what happened, its impact then, and its relevance to politics today.

Since coming into effect in 1901, Australia’s Constitution has shaped – and been shaped by – our political history.

The Constitution is the highest law in Australia. It shapes the laws the federal parliament may pass, how it administers those laws, the way our courts work, and how the federal government interacts with the state and territory governments.

What happened?

In the late 1800s, there were six British colonies on the Australian continent. These stand-alone colonies had their own parliaments and governments, their own colonial constitutions, and even their own militaries.

When travelling from one colony to another, people had to pass through a customs check before crossing the border. And they had to pay taxes on goods they were carrying.

In the 1880s and 1890s, representatives of the colonies began the discussions that would lead to federation. They wanted to join together to create a national government while maintaining political power for each colony’s own government.

These discussions, which culminated in the Constitution we have today, were driven by many factors. Among these were the need to make trade easier within Australia, a desire to control immigration, and to improve defence arrangements for the continent.

In part, the Australian Constitution’s drafters were inspired by the United States and its Constitution; the structure of our Constitution looks quite similar to the Americans’.

But, crucially, Australian Federation did not involve a revolution against Britain. Instead, at Federation, Australia would maintain close links to the parliament in London, the British courts and the British monarchy.

Aside from some discriminatory provisions, the Constitution would not include acknowledgement or recognition of Indigenous Australians. Our system of government became a mixture of British-inspired elements, American-inspired elements and uniquely Australian elements.

Voters were asked to approve the draft Constitution at referendums held in all the colonies. All the colonies eventually voted in favour – though some only narrowly, and with most women and Indigenous Australians excluded from voting.

After being passed into law by parliament in London, the Constitution came into effect on January 1, 1901.

image Edmund Barton and Alfred Deakin are considered founding fathers of Australia’s federation. National Library of Australia

What was its impact?

All this history has shaped our Constitution, and continues to shape our political history. Our Constitution establishes:

But it’s also important to remember that much goes unmentioned in our Constitution. Many key elements of our system of government don’t appear in the text of the Constitution. The prime minister, for instance, doesn’t rate a mention.

To help make up for the omissions, our political and legal history has been guided by rules known as constitutional conventions. These conventions are shaped by British history and by Australian history, and have occasionally proven very controversial.

Unlike many constitutional systems, Australia lacks any form of comprehensive bill of rights protections. Instead, Australia’s constitutional system was built on the principle that:

… the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.

Nonetheless, the text of our Constitution shapes what our governments can do, and the way in which they can do it. The Constitution affects how governments spend money, the position of Indigenous Australians, and policy in areas ranging from industrial relations and marriage to the environment and asylum seekers.

Significantly, the Constitution also protects our role as citizens in choosing our representatives and in holding them accountable.

What are its contemporary implications?

The Constitution is hard to change. The federal parliament first must approve any proposed amendment. The amendment must then pass a referendum by a “double majority”: approved by a majority of voters as well as a majority of voters in a majority of states.

In 116 years, 44 attempts have been made to change the Constitution. Only eight have succeeded.

The failed attempts have included efforts to switch parliamentary terms from three years to four years, multiple efforts to protect basic civil rights, and the unsuccessful republic referendum to replace the monarch with an Australian. The last time the Constitution was successfully amended was in 1977.

Some may see this inflexibility as a strength: the Constitution is stable and enduring. But it also makes the Constitution very hard to update in response to changing times and changing values.

As a result, the Constitution is a document that reflects the priorities of the late 19th century more than the early 21st century.

Unsurprisingly, after 116 years of federation, there are many contemporary debates about the Constitution. Some are about how we should interpret the Constitution we have. Others are about finding ways to update our system of government without having to amend the Constitution.

But there are also debates about changing the Constitution, such as whether Indigenous Australians should be recognised in symbolic or substantive ways, whether the role of local government should be enshrined, or whether to replace the monarchy with an Australian head of state.

Or should we undertake a much more serious overhaul?

These questions reflect our history, and the answers to them will shape our future. But they also raise broader questions for all Australians: what do we expect from our politics? And what do we expect from our Constitution?

Authors: Ryan Goss, Senior Lecturer in Law, Australian National University

Read more http://theconversation.com/australian-politics-explainer-the-writing-of-our-constitution-74518

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