Constitution Act 1900.
Commonwealth of Australia Constitution Act

An Act to constitute the Commonwealth of Australia [9th July 1900]

At the time just before Federation, Australia consisted of six Colonies. To turn six Colonies into the Commonwealth of Australia required an Act from the UK Parliament. The Act that the UK Parliament used to Federate Australia was called; “An Act to constitute the Commonwealth of Australia 9th July 1900”. That Act is a Law of the UK Parliament and they can repeal, amend or do nothing with it and the latter is what has happened.

There is no provision to change the Constitution Act other than the UK Parliament and it’s extremely unlikely that they would do that without a referendum of the people in this country. The Constitution Act is made up of a Preamble and 9 Covering Clauses and no more

The Constitution Act is an enabling act, in other words an Act that enabled or allowed Australia to Federate.

We must understand the difference between the Constitution Act and the Constitution. We also must understand that the Constitution is part of the Constitution Act. (Covering Clause 9)

The Constitution Act.

Below we have included the preamble, with some explanation of the Constitution Act.
An Act to constitute the Commonwealth of Australia; and is referred to as the Constitution Act.

PREAMBLE

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:—

Some explanation from CLRA and Quick and Garran

(Annotated Constitution).

The Annotated Constitution written by Quick and Garran make the following comments; Page 283 and 284, (relevant part only).

HISTORICAL NOTE.

—The preamble of the Commonwealth Bill of 1891 was as follows;

“Whereas the Australasian colonies agreed to unite in one 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 make provision for the admission into the Commonwealth of other Australasian colonies and possessions of Her Majesty.”

Under the Enabling Acts by which the Convention of 1897–8 was constituted, the mode by which the assent of the colonies was to be expressed; namely, by the vote of the people, was already determined; and accordingly the first recital in the preamble was as follows:—

“Whereas the people of colonies which have adopted the Constitution and have agreed to form one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established”.

Several largely-signed petitions had been received praying that there should be some recognition of God in the Constitution.

The Convention, however, felt some doubt as to the propriety of introducing at that stage any religious formula into the Constitution, and that idea was defeated by 17 votes to 11.

Numerous petitions were received to a similar effect, and a proposal to insert the words “humbly relying on the blessing of Almighty God” was agreed to.

In the Bill as introduced in the Imperial Parliament, the names of the five colonies which had accepted the Bill were inserted in the blank left for that purpose. The words “under the Constitution hereby established” was included.

Whereas the people…..

“Whereas the people” establish the fact that it was the people that Federated Australia and not any form of Government. “Whereas the people” is neither discriminatory nor racist. Those three words also establish the fact that the people are sovereign over and above any Parliament in Australia.

The Annotated Constitution written by Quick and Garran make the following comments; Page 285 and 286, (relevant part only).

 “This opinion approaches near the truth, is the supreme absolute and uncontrollable authority remains with the people.  The opening words of the preamble also proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern”.

………New South Wales, Victoria, South Australia, Queensland, and Tasmania……

Those five Colonies now States, decided to unite as the Commonwealth of Australia and although Western Australia was not part of the Commonwealth at the time of the creation of the Constitution Act. They did however decide to become part of the Commonwealth about one month later. Now that all six Colonies have become six States they united to form the Commonwealth of Australia. New Zealand was invited to be part of the Commonwealth of Australia at that time but they declined the offer.

……have agreed to unite in one indissoluble Federal

Commonwealth………

Simply means that the six Colonies that became States, then went on to be part of the Federal Commonwealth that could not be split up. There is no provision in either the Constitution Act or the Constitution for any State to split from the Commonwealth.

……under the Crown of the United Kingdom……

The words “under the Crown of the United Kingdom” have very significant meaning.

The Annotated Constitution written by Quick and Garran make the following comments; Page 285 and 286, (relevant part only).

It is a concrete and unequivocal acknowledgment of a principle which pervades the whole scheme of Government; harmony with the British Constitution and loyalty to the Queen of the United Kingdom with its multitudinous peoples and its complex divisions of political power”.

……United Kingdom of Great Britain and Ireland…..

The words “United Kingdom of Great Britain and Ireland” simply mean that three Countries formed together. Prior to the Act of Union 1707, United Kingdom consisted of three separate Countries. Those Countries were England, Scotland and Ireland (Wales is part of England). That on 1st May, 1707, the nations of England and Scotland were united into one kingdom by the name of Great Britain and that there should be one Parliament for the whole kingdom. In 1801, in another Act of Union, Great Britain and Ireland formed together to become the United Kingdom.

…..and under the Constitution hereby established.

The words, “Under the Constitution hereby established”

The Annotated Constitution written by Quick and Garran make the following comments;

“The Commonwealth is a political community, carved out of the British Empire and endowed through its Constitution with a defined quota of self-governing powers. Those powers are delegated by and derived from the British Parliament, and they are to be held, enjoyed, and exercised by the people of the Commonwealth in the manner prescribed by the grant, subject;

  • to the supreme British Sovereignty (under the Crown), and

(2)   to the Constitution of the Commonwealth. The Commonwealth is consequently under a double subjection. It is subject in the first place to the British Parliament, which, as the ultimate sovereign authority of the Empire, has the legal power to legislate for the Commonwealth as a part of the Empire, and even to amend or repeal the Constitution of the Commonwealth. The grant of a Constitution to any dependency of the Empire is, however, a practical guarantee that no Imperial legislation conflicting with such grant will be passed except at the express request and with the concurrence of the dependency”

The Constitution.

To understand anything about a Constitution. We must first ask ourselves two questions;

  1. What is a Constitution?

and

  1. Why do we have such a thing?

A Constitution is a document that is full of laws that control the governance of this country.

And what we mean by governance is that there are three distinct and totally separate organs of government in this country, and they are;

  1. The Parliament, which consists of the upper and lower houses (someone should tell Queensland about that, and is a very good example of why we should ask question 2 above far more frequently) and it is the Parliament that make, repeal and amend laws by first creating bills, and
  2. The Executive, which is headed up by the Governor General and it is one of their responsibilities to give or not to give Royal assent to bills created by Parliament so that they can become laws. The Police are also an integral part of the Executive, and
  1. The Judicature, which is headed up by the Chief Justice of the High Court, it is their responsibility to interpret the law and administer justice. The High Court is also an integral part of the Judicature, their primary role is to interpret and uphold the Constitution of the Commonwealth and that of the States. They are not there to defend any form of Government, whether State or Federal, a characteristic that is becoming far too frequent.

Why do we require a Constitution?

As described early in this document the wise men and women of Australia (The humanitarians) were not particularly happy with the way the Colonies were misbehaving. To the extent, that in the eyes of the wise men and women a local umbrella body was needed (the Commonwealth Government) that had the ability to restrain the Colonies. It was also realised that the people required a document that would protect the people from that umbrella body. The Constitution was to be that document.

How did the people come by the Constitution?

The Constitution took about thirteen years from conception to completion. In 1888 the wise men of Australia (largely lawyers) were called the framers of the Constitution and they conducted constitutional conventional debates all around the country. The constitutional conventional debates started in 1888, and went on for ten years. Then in 1898, and only after the framers were satisfied they had a document that they could put to the people in a referendum (Landowners only), a document to seek their approval, at that point the document would become a Constitution.

That 1898 referendum was unsuccessful, the framers had to go back to the drawing board, talk to the people and readjust the document to better reflect their will, and have another referendum (again landowners only), which they did in 1899. This referendum was successful and now the people had a Constitution, which came into effect on the 1st January 1901. 

Now the rest of the Preamble.

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:—

…….By the Queen’s Most Excellent Majesty.

The Annotated Constitution written by Quick and Garran make the following comments; Page 301 and 306, (relevant part only).

“The enacting words, showing the Authority by which the Commonwealth is created, are in the form in which Acts of Parliament have been framed from a remote period of English history, subject only to the condition that this supreme power to create Bills must be exercised in Parliament and not otherwise. It is in the Crown, and not in Parliament, that legislative authority (royal assent) is, according to Constitutional theory, directly vested. Every Act of Parliament bears on its face the stamp and evidence of its royal authority. It springs from the Queen’s Most Excellent Majesty”.

The Lords Spiritual.

“THE THREE ESTATES”.

“It was in the early and middle ages customary to consider a political community as divided into three orders or estates. In England it was generally held during a part of that period that the nobility, the clergy, and the commons, constituted the three states of which the Parliamentary Assembly was composed.

The Lords Spiritual.

“The narrow-minded clergy and owners of religious houses being legally exempt from taxation, and protected by law as well as by the sanctity of their order, the King could not tax them without their consent. In the “Model Parliament” of 1295 the clergy were for the first time represented as one of the three estates in a really national Legislature.

In the Parliamentary writ of summons served on every bishop, requiring his attendance in the King’s Great Council, he was to attend the Parliament and there take part in the deliberations of the assembly of the clergy. This command to the bishops was first issued in 1295; it was uniformly issued after 1354.”

And the Lords Temporal.

The Lords Temporal

“consists of all the peers of the realm, by whatever title of nobility distinguished. Bishops are not peers; they, with the peers, form the Lords of Parliament or the House of Lords as an integrated legislative chamber. (In other words, the Lords Spiritual and Lords Temporal combined to become the House of Lords) The origin of this body has been traced to the Great Council, consisting of the nobles, tenants-in-chief, principal landowners and bishops, which assembled to advise the King in matters of legislation and administration”.

The House of Lords now consists of members who hold their seats either;

(1) by hereditary right,

(2) by the creation of the reigning sovereign,

(3) by virtue of their office, such as English Bishops,

(4) by election for life, such as Irish peers, of whom there are twenty-eight,

(5) by election for the duration of a Parliament, such as the Scotch representative peers, of whom there are sixteen.

In 1830, the number of peers on the roll of Parliament was 401; in 1899, the number had increased to 591; about two-thirds of the hereditary peerages at present in existence were created during the present century.”

The House of Lords is the house of review, and is a bit like our Senate in that respect.

The House of Lords are not elected by the people, only the House of Commons are elected by the people.

The House of Commons.

ORIGIN.

“It would be difficult to condense into a brief note an adequate summary of the beginnings of that great and renowned parliamentary assembly whose name is thus officially given in the Imperial Act. The House of Commons was originally the legislative chamber in which were represented the various communities meant the collections of persons residing in the same neighbourhood, entitled to the enjoyment of common rights, subject to common duties and burdens, having common interests; and occupying the same relation to the King. According the maxim prevailed that “what touched all should be approved by all;” that no change should be made in a law affecting any class, order or community, and certainly that no tax could be imposed, without the consent of the group of persons immediately concerned.

The growth of these two middle classes, and their gradual representation for the discharge of public functions, was at times actually encouraged by the Crown in order to facilitate the collection of revenue or to counterbalance the increasing influence of the barons and bishops; at other times the popular tendency was supported by the leaders of the nobility, in order to gain support in their contests against the Crown.

The last great stage in the evolution of the House of Commons was the gradual detachment of the knights from the greater barons, and the consequent division of Parliament into two Houses; the House of Lords being the nobleman and official chamber, and the House of Commons the representative chamber, consisting, as it does to this day, of representatives of the districts. (Somewhat similar to the way that we elect our Senate).  

The exact date of this development is uncertain, but it was certainly complete in the year 1347.”

The settlement of countries.

On obtaining a country, or colony, the Crown has sometimes thought fit, by particular express provisions under the Great Seal, to create and form the several parts of the Constitution of a new Government; and at other times has only granted general powers to the Governor to frame such a Constitution, as he should think fit.

To such a colony there is no doubt that the settlers from the mother-country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have on the one hand the same laws and the same rights, unless they have been altered by Parliament; and, on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects.

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