What is Constitutional Law in Australia

An Act to constitute the Commonwealth of Australia

 

A law establishing the Australian Confederation

 

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

We, the peoples of New South Wales, Victoria, South Australia, Queensland and Tasmania, who humbly trust in the blessings of Almighty God, have come to an agreement to be in an indissoluble state under the crown of the United Kingdom of Great Britain and Ireland and to unite under the constitution hereby enacted,

And since it is advisable to arrange for the admission of other Australasian colonies and possessions to the covenant;


To this end, therefore, the following is made by Her Exalted Royal Majesty with the advice and consent of the ecclesiastical and secular members and the commons who are in the present Parliament (of the United Kingdom of Great Britain and Ireland) assembled and, on the basis of his authority, decreed:

 

1. Short title. This Act may be cited as the Commonwealth of Australia Constitution Act.

 

1. [short title] This law is known as the Federal Constitution Act.

 

2. Act to extend to the Queen’s successors. The provisions of this act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

 

2. [Extension of the provisions to the Queen's successors] The provisions of this Act with regard to the Queen also extend to Her Majesty's heirs and successors in the Government of the United Kingdom.

this article is to be interpreted in such a way that the rights to which the Queen is entitled under the Constitution of the Australian Confederation are automatically granted to the King or the ruling Queen of the United Kingdom. Formally, this means that the "Queen of Australia" does not hold the rights under this Constitution has but the Queen of the United Kingdom. The in turn is a special kind of personal union: the head of state of one state is recognized by the other state as its own head of state ipso jure; on the other hand, the personal union under international law is characterized by the fact that the person of one state is identical to the person of the head of state of the other state, both due to provisions of state and not international law.

This regulation corresponds to the older rule from Article 2 of the British North America Act of 1867.

According to this, although Australia is a monarchy, there is neither a right of succession to the throne nor any other provisions expressing a monarchical head of state (civil list, regency, special personal rights). B. can formally change the right of succession to the throne without the consent of Australia (and the other "Commonwealth Empires" (which is politically impossible).

This interpretation is contested by some constitutional law professors and Australian politicians and officials, e.g. B. Deny that the Regency Act 1937 is part of Australian law (1977 Royal Assent litigation for a Queensland bill that validates the legality of the Royal Assent under the Regency Act 1937 was not pronounced by the Queen but by her representatives, was successfully contested). The interpretation under the letters of Art. 2, however, is clearly that, although the 1937 Act, which was enacted after the Westminster Statute of 1931 came into force, also applies in Australia, as Article 2 clearly states that "the queen and her heirs and successor enjoy monarchy rights in Australia in the Government of the United Kingdom ". Since the regency law concerns the Government of the United Kingdom, and since the Regent would be" successor "in the Government of the United Kingdom", the Regent would be in the United Kingdom also regent in the Australian Confederation.
   So should z. For example, the now reigning Queen (of the United Kingdom and Australia) can no longer perform the duties of her office due to her age, and Prince Karl (Charles) as her immediate successor to become regent under the 1937 Regency Act, he could not take over the duties of the Queen in Australia, as the Australian view lacks the legal basis for this! However, common law is in force in Australia and could thus replace the legal basis; so after this Prince Karl would also be entrusted with the guardianship so that he could provide the rights of the queen in Australia.
 
Another theoretical question is what would happen in formal legal terms based on the still applicable provision of Art. 2 if Great Britain abolished the monarchy and "successor in the government of the United Kingdom" is not a hereditary king but an elected head of state. Then the elected head of state of the United Kingdom would also have to remain head of state of Australia; a waiver would be irrelevant as long as the provision of Art. 2 was in force.

Even if this provision is still valid in Australia today, the British "Imperial" Act on Regulations for Changing Royal Titles of March 26, 1953 (Royal Style and Titles Act 1 & 2 Eliz. 2 c. 9) created the possibility to change the Queen's title in the other realms of the Queen. For example, in Australia, the Royal Style and Titles Act No. 32 of 1953 established in Australia on April 3, 1953: "Her Majesty, by the grace of God, Queen of the United Kingdom, Australia and you others Empires and Territories, Head of the Commomwealth, Protector of the Faith "and established by the Royal Style and Titles Act No. 114 of 1973 in Australia of September 14, 1973, as follows:" Her Majesty, by the grace of God Queen of Australia and Her Other Empires and Territories, Head of the Commonwealth ". Regardless, it is the Queen of the United Kingdom who acts in and for Australia under the title Queen of Australia.

 

3. Proclamation of Commonwealth. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation2 that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.

 

§ 3. [Federal Proclamation] The Queen has the right, with the consent of the Privy Council, to declare by proclamation that on the date specified therein, but not later than one year after the enactment of this law, the peoples of New South Wales, Victoria, South Australia, Queensland and Tasmania - and also, if Her Majesty pleases and the people of Western Australia have given their consent, the people of Western Australia - will be united in one state under the name of the Australian Confederation. At any time after the proclamation has been made, the Queen may appoint a governor-general for the League.

see the royal proclamation of September 17, 1900, which set the date of the establishment of the Australian Confederation on January 1, 1901.

irrelevant transitional provision.

 

4. Commencement of Act. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

 

4. [Entry into force of the law] On the day so determined, the federation is deemed to have been established and the federal constitution comes into force. The parliaments of the various colonies can, however, at any time after the enactment of this law stipulate that laws come into force on the date so specified, which they could have enacted if the constitution had already entered into force when this law was passed.

irrelevant transitional provision; The effective date was January 1, 1901.

 

5. Operation of the Constitution and laws. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

 

5. [Effect of the Constitution and the Laws] This law and all laws which are enacted by the federal parliament on the basis of the constitution are binding on the courts, the judges and the population of every state and every part of the federal government regardless of any provisions in the laws of a state; federal laws apply to all British ships whose primary port of entry and destination are within federal territory, except for the Queen's warships.

see the Act on the Confirmation of the Westminster Statute of 1942, which also allowed the extraterritorial effect of Australian laws.

The law that was in effect in the 6 colonies before January 1, 1901, as well as the (British) imperial laws that were also applied to the colonies, are also part of the law of Australia, although this British law only remains after 112 years of the Australian Confederation rarely found in Australian law sources.

 

6. Definitions."The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State".

Original States shall mean such States as are parts of the Commonwealth at its establishment.

 

6. [Definitions] The term "Confederation" means the Australian Confederation established by this Act.

The term "States" means the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia and South Australia including the Northern Territory of South Australia which are currently part of the Confederation and also the Colonies or territories admitted or established as states by the federal government; all such parts of the federal government are referred to as the "state".

"Original states" are those states that were already part of the federal government when it was established.

 

7. Repeal of Federal Council Act.The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.
 

Any such law may be repealed4 as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

 

§ 7. [Repeal of the law on the Federal Council]The Australasian Federal Council Act of 1885 is hereby repealed; however, this does not affect any laws enacted by the Australasian Federal Council and in force when the federal government was established.

Such laws can be repealed by the federal parliament with effect for a state or by its parliament with effect for a colony that is not a state.

irrelevant transitional provision.

 

8. Application of Colonial Boundaries Act.After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

see to Act 58 & 59 Vict. Ch. 34;
irrelevant transitional provision

 

8. [Addition to the law on the borders of the colonies]After the enactment of this law, the law on the boundaries of the colonies of 1895 no longer applies to colonies that become federal states; however, for the purposes of the aforementioned law, the federal government is viewed as a self-governing colony.

irrelevant transitional provision

 

9. Constitution.The Constitution of the Commonwealth shall be as follows:

The Constitution

This Constitution is divided as follows:

Chapter I - The Parliament
Part I - General
Part II - The Senate
Part III - The House of Representatives
Part IV - Both Houses of the Parliament
Part V - Powers of the Parliament
Chapter II - The Executive Government
Chapter III - The Judicature
Chapter IV - Finance and Trade
Chapter V - The States
Chapter VI - New States
Chapter VII - Miscellaneous
Chapter VIII - Alteration of the Constitution
The Schedule

 

9. [Constitution] The federal constitution has the following wording:

The Constitution

This constitution is structured as follows:

Chapter I - Parliament
Part I - General
Part II - The Senate
Part III - The House of Representatives
Part IV - Both Houses of Parliament
Part V - Powers of Parliament
Chapter II - The executive power
Chapter III - The judicial power
Chapter IV - Finance and Commerce
Chapter V - The States
Chapter VI - New States
Chapter VII - Miscellaneous
Chapter VIII - Amendment of the Constitution
The appendix.