Learning Objectives

After finishing this module, you will able to:

• explain the sources of constitutional law in Australia
• find online materials on Australian constitutional law
• locate sources for Australian constitutional history.

The Australian Constitution

In 1901 an Act of the UK Parliament established a Federal system of government which united six previously self-governing British colonies. At present, power within Australia is distributed between the Commonwealth, six States (New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia) and two Territories (the Australian Capital Territory and the Northern Territory).

Sources of constitutional law

Australian constitutional law derives from a number of sources: both written and unwritten. The written sources include the following:

• the Commonwealth of Australian Consitutition Act 1901 (UK)
• the State Constitution Acts. These are:
  
  • Constitution Act 1902 (NSW)
  • Constitution Act 2001 (Qld)
  • Constitution Act 1934 (SA)
  • Constitution Act 1934 (Tas)
  • Constitution Act 1975 (Vic)
  • Constitution Act 1889 (WA)
• the two Commonwealth Acts which serve as constitutions for the two self-governing Territories:
  
  • Australian Capital Territory (Self-Government) Act 1988 (Cth)
  • Northern Territory (Self-Government) Act 1978 (Cth)
• Acts of UK Parliament after 1901 which changed the legal relations between the United Kingdom and Australia and their Australian counterparts. These include the Statute of Westminster 1931 (UK), the Statute of Westminster Adoption Act 1942 (Cth), the Australia Act 1986 (UK) and the Australia Act 1986 (Cth).
• the Commonwealth Electoral Act 1918 (Cth), its State and Territory equivalents and other statutes relating to the conduct of elections.
• judicial decisions, particularly those of the High Court of Australia. The High Court has the power to disallow statutes passed by the Commonwealth and State Parliaments as being unconstitutional and is called upon to interpret the meaning of the Constitution.

Unwritten sources of constitutional law include constitutional conventions and the rule of law. These are almost as important as the written sources of the law in terms of the day to day operation of the Parliaments. The rules governing the relationship between Governor-General and the Prime Minster provide an example: these are almost entirely based on convention.

It is worth noting that consititutional conventions do not in fact have the force of law. The letter of the law will generally prevail over convention if the two come into conflict. This point was made on 11 November 1975, when the Governor-General at the time, Sir John Kerr, dismissed the Whitlam Government and appointed Malcolm Fraser as a caretaker Prime Minister.

Constitution and the Common Law Read this recent article on the effect of the Constitution on the development of the common law in Australia. Kathleen Foley, The Australian Constitution's influence on the Common Law, 2003, Federal Law Review, 4. Is the Constitution now the "basic law" underlying Australian jurisprudence as the author contends? How is the situation in Australia different to that, say, in the United States.

Finding legal materials on constitutional law

• Centre for Comparative Constitutional Studies (CCCS). The CCCS conducts and promotes research on constitutional law.
• High Court. The site of the High Court contains past decisions of the Court and speeches of past and present Justices. Recent decisions of the High Court are summarised in the High Court of Australia Bulletins.
• Legal Information Access Centre Hot Topic: The Australian Constitution. This page provides an introduction to the Consitution and its operation.
• WebLaw. WebLaw has an extensive page of links on constitutional law, contributed by the Commonwealth Parliamentary Library
• WorldLII. WorldLII provides an online catelogue of materials on Australian constitutional law.

Sources of constitutional History

• Australian Federation Full Text Database. This site provides books, pamphlets and articles by major political figures, along with the text of the significant public debates of the 1890s.
• Documenting a Democracy. This site aims to trace the development of Australian democracy through key documents.
• Records of the Australasian Constitutional Conventions of the 1890s. This site provides access to the debates and proceedings of the Australasian Federation Conference of 1890 and the Australasian Federal Conventions of 1891 and 1897/8.

Summary

This module examined the following:

• the sources of constitutional law in Australia
• locating online materials on Australian constitutional law
• finding sources for Australian constitutional history.