The Australian Constitution: What it is and how it affects you

It's a small document with a big job: to govern the government. It defines how the federal parliament is elected, how it works and how it can be dissolved. It also establishes the High Court of Australia, which has the ultimate responsibility to resolve legal disputes about the meaning of the Constitution.  

How does the Constitution affect me? 

The Constitution is the highest law in Australia. It defines the systems and rules for the government. It establishes our democratic form of government, guaranteeing the people the right to vote, and it provides the framework within which the government can operate.  

The Australian Constitution enables the Parliament to make laws on certain topics. For example, it gives the Parliament the power to make laws on matters both national and personal. These include big issues like foreign affairs, defence, and taxes, as well as more personal matters like unemployment benefits, marriage and divorce, pensions and immigration. 

Through these powers, the federal government can provide schemes like Medicare, the National Disability Insurance Scheme (NDIS) and Job Seeker, subsidise aged care, childcare, hospital care and pharmaceutical services. 

If the Constitution does not empower the Parliament to make laws in a certain area, then the responsibility to make laws sits with the state parliaments. This is why each state has different laws when it comes to buying and renting property, hospitals, liquor licensing, policing, and roads. Each state can make laws unique to their circumstances. 

The Constitution is the ultimate rulebook all lawmakers use to understand what laws they can create. If a law contradicts the Constitution, the High Court can declare the law invalid. 

Even if we don't think about it much, the Constitution shapes our lives every single day. 

Where did the Constitution come from? 

In 1901, Australia federated, and the 6 colonies of New South Wales, Victoria, Tasmania, Western Australia, South Australia, and Queensland became the six states, creating the Commonwealth of Australia. They achieved this by creating the Constitution, a single governing document that all 6 states would be compelled to follow.  

This Constitution would have 2 primary functions. First, to establish a governmental system for the newly formed Commonwealth of Australia. Second, to unite the 6 colonies under a federal system and establish the powers and responsibilities of each level of government. 

By 1898, representatives from all 6 colonies agreed on a draft of the Constitution. This draft was then presented to the separate colony governments for approval. Following this, the Australian people voted to approve the draft Constitution through a series of referendums from June 1899 to July 1900.  

Although the majority of voters approved the draft, it was not approved by the majority of the population. Voting wasn't compulsory, so many eligible voters didn't participate. Different colonies had different rules for voting eligibility, and many did not extend the vote to women, First Nations peoples, people from Asia, Africa or the Pacific Islands, or people on public benefits or who didn't own property. 

After this series of successful referendums, the British Parliament, which held authority over Australia, approved the Constitution by passing the Commonwealth of Australia Constitution Act on 9 July 1900. The Constitution of Australia came into effect on 1 January 1901. 

What’s in the Constitution? 

The Constitution distributes power between the legislature, the executive, and the judiciary.  

The legislature – also known as the Parliament – debates and creates laws. It is formally comprised of the King (who for many purposes is represented by the Governor-General), the Senate, and the House of Representatives. 

The executive – also known as the government – is responsible for putting these laws into action. It includes the King (represented by the Governor-General), the Prime Minister, and other Ministers of State.  

The judiciary interprets and applies the law. It is comprised of the High Court of Australia and other courts. 

This system ensures that no one group has too much power. The Parliament can reject laws suggested by the governing party and the High Court can strike down unconstitutional laws. The governing party may become frustrated when the Parliament does not pass legislation, and some people may object to the High Court striking down laws, but this system is intentionally designed to protect us from abuse of power. 

Can we change the Constitution? 

If the federal government wants to change the Constitution, it has to ask the Australian people through a referendum. If a change to the Constitution is successful, it may pave the way for the government to change existing laws or create new laws relating to the amended Constitution.  

The Constitution was written to govern a country that would change and evolve and its authors recognised that sometimes the document might need to be changed.  

Certain sections of the Constitution, like the salaries of politicians and judges, were written so that they would only be in effect until the Parliament passed a relevant law.  

Other sections were written to be interpreted broadly. For example, the Parliament can create laws surrounding the broadcast of radio, internet, and television even though none of these services existed when the Constitution was written. The Constitution states the Parliament has the authority to legislate on 'postal, telegraphic, telephonic, and similar services'. In 1935, the High Court found that the term 'similar services' gives the Parliament the power to make laws about all services that send communications over a distance electronically. This has since been interpreted to allow the federal government to make laws about new communication services, like the internet. 

If the government wants to change the actual wording of the Constitution, a ‘double majority’ of Australian voters need to agree to the change through a referendum. A change to the Constitution is so significant it requires a double majority – a majority of Australian voters AND a majority of voters in a majority of states (i.e., at least 4 states) need to vote yes.  

Through referendums, Australians decide how they want to be governed. 

It’s your Constitution  

The Constitution governs the government. It ensures that no group has too much power and that the ultimate power rests with the Australian people. 

The Constitution exists to serve Australians. When it was first written, voters had a say in how the government would work through a series of referendums. If the government wants to change how it governs, it must first ask the Australian people. The Constitution was made for you, and it should serve your needs. 

The Constitution significantly influences our everyday lives. It provides the foundation for laws and regulations governing many aspects of Australian society, including education, healthcare, and infrastructure. 

You have the power to change the Constitution through a referendum. If the government wants to change the Constitution, it must gain the approval of the Australian people through a referendum.