Talk:Constitution of Australia/Archive 2

Archive 1

Archive 2

Archive 3

New Zealand

Irredentism states:

Australia While not an irredentist claim, Section 6 of the Commonwealth of Australia Constitution Act names New Zealand as a State. "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. New Zealand was part of the colony of New South Wales until 1841.

Is this right? If so (or even if not) a comment might be helpful. Thincat 10:00, 4 November 2005 (UTC)

That is not actually part of the Constitution; that is the British act which constituted it. You'll note that the preamble to the Constitution doesn't include Western Australia, that's because it wasn't certain whether WA would join the federation when the Constitution was drafted. Similarly, when the British act was drafted, it was thought that New Zealand would join. Fiji was considering joining at one point. Furthermore, if you read the section carefully (see it here) it qualifies the list by saying that those colonies "for the time being are parts of the Commonwealth". So really this doesn't mean much at all. --bainer (talk) 11:59, 4 November 2005 (UTC)

That's very helpful. This is very clearly not a feature of the Australian constitution. It seems to me it was not worth mentioning in irredentism either, except in a highly qualified way. Also, the quotation from the Act is unsatisfactorily incomplete. I think I might try deleting the paragraph in irredentism (a word I'd never come across until today!). Thincat 12:48, 4 November 2005 (UTC)

I do rather like the idea that New Zealand is Australia Irridenta though. Adam 22:03, 5 November 2005 (UTC)

Lets be frank. Many Australians regard New Zealand as the original failed state.

Common currency

"This means that Australia has a single currency, which was not the case prior to Federation."

Surely the British pound was the common currency before federation? Avalon 20:04, 5 November 2005 (UTC)

no. There were numerous diferent Australian coins including the dump and the holey dollar. Xtra 21:52, 5 November 2005 (UTC)

Those coins were in very early colonial NSW only - there was also an Adelaide Pound (now very rare and valuable). After about 1820 British currency circulated throughout the colonies. Gold sovs and half sovs were minted in Australia, but they were identical to British coins except for a tiny mintmark (M for Melbourne or P for Perth) and indeed were exported for use in the UK and the Empire. Adam 22:03, 5 November 2005 (UTC)

but although the coins were different, the actual currency that they represented was still the British Pound?? --Sumple 23:33, 21 December 2005 (UTC)

In theory the currency of the colonies was always the pound sterling, even at times when there was no actual British currency circulating. The use of the Spanish coins etc were only expedients. From the 1820s to 1910 British coins were the standard currency throughout Australia.

Streamline this page?

I think this page needs to be streamlined. THere is another page, Australian constitutional law that deals with the concepts of federal constitutional law. I think this page should be a breif outline of the Constitution, divided textually (chap I, II, III etc), with links to the relevant concepts if required. --Sumple (Talk) 06:27, 19 April 2006 (UTC)

Rewrite in progress

I'm doing a re-write of this article at User:Sumple/Constitution of Australia. All comments are welcome. --Sumple (Talk) 11:34, 4 August 2006 (UTC)

Why in your opinion does this article require a rewrite? Adam 11:57, 4 August 2006 (UTC)

Sorry should have elaborated. See Wikipedia talk:WikiProject Australian law#Constitution of Australia. --Sumple (Talk) 12:11, 4 August 2006 (UTC)

New version - any objections?

I'm proposing to substitute this article with a new version, as at User:Sumple/Constitution of Australia. If there are any objections, comments, or suggestions, please post them below. If nobody objects, I will change over to the re-written version in a week. Thank you for your attention. --Sumple (Talk) 06:22, 2 September 2006 (UTC)

• Support Good rewrite, alot clearer and with a better structure. But we need a view point from a regular contributor to this article before changeover, just to prevent reversion without discussion. MojoTas 04:38, 5 September 2006 (UTC)

Thanks I'll ask around for comments. --Sumple (Talk) 07:54, 5 September 2006 (UTC)

It looks much better in summary style. Well done Sumple.--cj | talk 10:16, 6 September 2006 (UTC)

Thanks cj! --Sumple (Talk) 00:35, 7 September 2006 (UTC)

References ARE required for the second para in the lead

Tony 00:34, 31 October 2006 (UTC)

Please inidicate which statements you think need referencing:

The Constitution of Australia is the law under which the government of Australia operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referenda held over 1898 - 1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an act of the Parliament of the United Kingdom. The Constitution came into force on 1 January 1901. Even though the Constitution was orginally given legal force by an act of the United Kingdom parliament, as Australia is now an independent country, the text of the Constitution is now independent of the text appended to the original Act, and only the Australian people can amend it (by referendum). Letters patent issued by the Crown, on the advice of Australian ministers, are also part of the Constitution of Australia.

Certain other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986, which was passed in equivalent forms by the Parliaments of every state, the United Kingdom, and the Commonwealth. These Acts had the effect of severing all constitutional links between Australia and the United Kingdom, except for the fact that the same person, Queen Elizabeth II, is the head of state of both countries.

Adam 01:53, 31 October 2006 (UTC)

Well, to start with, "the United Kingdom parliament has no power to change the Constitution"—the edit comment is e.g. B&W(3ed) p.168); Can this be spelt out and inserted as an inline citation? It's such an important and apparently contentious point that full referencing is required. I hope that the reference will be authoritative. Tony 03:26, 31 October 2006 (UTC)

Tony, the Blackshield & Williams reference (B&W) I quoted is a counter-point to the previous version which talked about the "texts being separate". Specifically, the reference says that the texts are not separate. As to why the UK parliament can't change the Constitution, I think it's spelt out in the section below about the Statute of Westminster and the Australia Acts. --Sumple (Talk) 03:49, 31 October 2006 (UTC)

It's uncertain to me whether "the Commonwealth" at the start of Para 2 refers to the Australian Federal Parliament or to the British Commonwealth of Nations. Please avoid the term in this context unless you want to spell it out. Tony 03:23, 31 October 2006 (UTC)

Australia not completely severed from the UK

Australia was granted independence by the United Kingdom parliament through several Acts (Constitution, Statute of Westminster and the Australia Act).

In each of these constitutional Acts, the UK parliament (and the Australian parliament where relevant) included provisions to the effect that the UK could not repeal or amend the laws without Australia's permission.

This is a legal nicety but does not reflect the legal reality.

It is long established that the UK parliament cannot "bind its own hands". That is, a parliament cannot restrict its ability to repeal or amend laws it has passed, provisions to the contrary notwithstanding. Basically, this is because future laws inconsistent with past laws effectively repeal the past laws and any provision restricting repeal.

Theoretically, the UK could repeal or amend the constitution or ANY law passed by any Australian parliament. Whether this power would be exercised (or whether Australia would recognise the UK's new laws!) is another matter. However, it is an important and fundamental constitutional point that is quite well established and recognised; it should not be glossed over or denied.

Ah, but the Mother of Parliaments is not 'binding its own hands' - the Australian federal and state parliaments have renounced this power as well. Therefore, any residual technical ability to amend these laws would have no effect within the provenance of Australian constitutional law. I can't imagine a circumstance where the UK parliament would exercise this non-power any more than it would amuse itself by amending repealed statutes. Slac speak up! 05:14, 17 May 2006 (UTC)

The UK has every right to ammend any Act that it passed and that will have the full force and validity in the UK. However, at this point in time and given the effects of the Australia Act etc, no ammendment in the UK would have any constitutional significance in Australia. At the point the Australia Acts where passed, the UK gave up any rights they would have to create an Act such as the Australia Act. Xtra 06:33, 17 May 2006 (UTC)

This reminds me once again that I need to write an article on Sue v Hill. I'll quote the key passages from that case (from the judgment of Gleeson CJ, Gummow & Hayne JJ). They are discussing the Australia Act 1986, specifically s 1 which removes the power of the UK parliament to legislate for Australia:

"Provisions such as s 1 may present doctrinal questions for the constitutional law of the United Kingdom, in particular for the dogma associated with Dicey's views as to the sovereignty of the Parliament at Westminster. Professor Sir William Wade pointed out more than 40 years ago that Dicey never explained how he reconciled his assertions that Westminster could destroy or transfer sovereignty and the proposition that it could not bind future Parliaments."

So the issue about binding hands is still open even in the UK in this instance, but even so they continue to say that the issue is irrelevant in Australia:

"The effect in the United Kingdom of any amendment or repeal by the United Kingdom Parliament of s 1 would be for those adjudicating upon the constitutional law of that country. But whatever effect the courts of the United Kingdom may give to an amendment or repeal of the 1986 UK Act, Australian courts would be obliged to give their obedience to s 1 of the statute passed by the Parliament of the Commonwealth."

Sue v Hill is still good law in Australia. So unless the High Court changes its mind, that is the legal reality. --bainer (talk) 13:14, 17 May 2006 (UTC)

The courts of Australia would probably consider any U.K. law, like abolishing Austrlalia, invalid, but this is still an interesting question in Australia, and from where Australian laws derive their power - it can't be U.K. Parliamentry Sovereignity, although it would once have been.

As for in the U.K., there would be no question at all - parliament could pass a law abolishing Australia, or making Siberia part of the U.K., and these laws would be valid - it is just a practical matter of whether thes laws would have any effect, or could be enforced. The U.K. could always send an army to invade Australia (or Siberia) - the U.K. courts would no disalow this (it can invade Iraq after all), but exactly how Austrlalian courts would treat the question is what is interesting. Matthew238 04:55, 4 June 2006 (UTC)

The British doctrine that "Parliament cannot bind its own hands" can only relate to domestic law. Clearly once a colonial power has legally renounced sovereignty over another country, that decision cannot be reversed. And even if this were not the case, British Parliamentary doctrine is irrelevant. Once a country is independent, it is beyond the reach of another country's law. An Act of the UK Parliament reclaiming sovereignty over (say) Pakistan would have no legal effect in Pakistan. This situation in Australia is a little more complicated, because there was no single date on which Britain renounced sovereignty over Australia - it was a cumulative process. But sovereignty was nevertheless renounced eventually, certainly once the Australia Acts were passed. Australia is thus now beyond the reach of British law. The single exception to this is law relating to the succession to the throne, since this is an institution shared by the UK and Australia. Australia has apparently accepted that British law relating to the succession will apply in Australia, although what would happen if the British Parliament legislated unilaterally to change the law of succession has never been tested. Adam 02:06, 15 June 2006 (UTC)

That's why "final" in the relevant part of Australia is dangerous. I suggest that it be reworded to avoid such as definitive sense. Tony 03:25, 31 October 2006 (UTC)

Except that even that "single" exception is not, in the expressed opinion of three High Court judges, an exception. Given all references provided so far indicate that "final" is the correct term, rewording would at best be the application of original research. --Michael Johnson 04:01, 31 October 2006 (UTC)

"Clearly once a colonial power has legally renounced sovereignty over another country, that decision cannot be reversed" - practically, that may be the case, but legally, from the colonial powers point of view, it isn't. If Britian wanted to invade Ireland, would the U.K. courts overule Parliament, because it had "bound its own hand". The U.K. would then ironically be free to invade all the countries that were not ever its colonies, but forbiden by law to invade its previous possessions. - Matthew238 22:48, 8 November 2006 (UTC)

Except that this article is about the constitution of Australia, not the United Kingdom. If the UK decides to invade Ireland, or Australia, or the US, or Iraq, well that is something the invadee has to deal with. However as far at the US or Ireland or indeed Australia is concerned, the UK has no residual powers. So as far as the constitution of Australia is concerned the UK can legislate what they want, it would not have any effect here unless the Brits suceed in invading and conquering the country (or we do what Newfoundland did in the 1930's, and hand ourselves back by choice). Two further examples. Many English kings also claimed to be King of France. According to the law of England they were King of France. Didn't make them so. Both the UK and Argentina claim the Faukland Islands. The law of either country dosn't affect the other - the status quo is maintained by force, as we know.--Michael Johnson 23:27, 8 November 2006 (UTC)

type of consitiuion

To Sumple:: this is in palce as it is a key an foundational atribute of the Australian constituion, all sections/heads of power are predicated on thhis fact. —The preceding unsigned comment was added by JUBALCAIN (talk • contribs) 00:28, 25 January 2007 (UTC).JUBALCAIN 00:29, 25 January 2007 (UTC)

For the record: by this diff [1] and subsequent edits User:JUBALCAIN sought to insert the following section immediately after the "Articles" paragraph:

==Limited Powers== The Australia Constitution is a limted powers constituion as opposed to plenary powers constituion that for example the (Australian) states have, excepting in limited areas of residual perogative powers and the war power which may wax and wane with the prosecution of war.

I have reverted this change because of the following reasons:

1. The division of powers is already mentioned Constitution of Australia#Interpretation, and is dealt more fully in various articles: Section 51 of the Australian Constitution, Australian constitutional law, Federalism in Australia and, more generally, Division of powers.
2. The added paragraph, which is about the specific interpretation of section 51, and, to a lesser extent, s 106-108, is out of place as a separate section and as a general header to the summary of the articles.
3. The addition of this new section destroys the existing organisation by cutting the Constitution of Australia#Articles into two, and inserting an inappropriate header for the summary of the articles.
4. The content is inaccurate. The Australian constitution is a federal constitution, and all federal constitutions feature division of powers. The paragraph in general, and the terms "limited powers constitution" as opposed to a "plenary powers constitution" in specific, are imprecise and misleading.
5. It is also not logical: it says that "The Australian consitution is a limited powers constituion [sic], [...] excepting in limited areas [...] How can it be a "limited powers constitution" except in some areas?

If you would like to contribute more material as to the division of powers under the federal system, please add to Constitution of Australia#Interpretation. --Sumple (Talk) 01:31, 25 January 2007 (UTC)

So. Many. Holes.

Such a crappy constitution... -Viva43 00:26, 15 May 2007 (UTC)

Preamble

I have reverted edits by User:IndependenceFreedom relating to preambles. The edits which I removed argued that the first 8 clauses of the Commonwealth of Australian Constitution Act 1900 constituted a "preamble" to the constitution. This is not the accepted view.

The Commonwealth of Australia Constitution Act is strctured as follows:

• short title: "Commonwealth of Australia Constitution Act"
• "(63 & 64 Victoria, Chapter 12)"
• long title: "An Act to constitute the Commonwealth of Australia"
• a preface: "WHEREAS the people of New South Wales...", etc, "And whereas it is expedient to provide for..." etc, "Be it therefore enacted by the Queen ... as follows: -"
• eight covering clauses providing for definitions, proclamation, commencement etc.
• the Constitution: section 9: "The Constitution of the Commonwealth shall be as follows: -"

Generally, only the preface is called the "Preamble" (see, e.g. Blackshield & Williams (2002); Winterton (1995); Constitutional commission report (1988)). The first eight sections are called "covering clauses". The preface is a "preamble" to the Imperial Act, not the Constitution itself. The Constitution itself has no preamble. The relationship between the Imperial Act and the Constitution post-Westminster and Australia Acts is explained in the History section.

Claims that the preface and covering clauses constitute a "preamble" to the Constitution itself are novel, and need to be backed up by reliable sources. --PalaceGuard008 (Talk) 02:57, 4 August 2007 (UTC)

Agreed. enochlau (talk) 05:00, 4 August 2007 (UTC)

I disagree. It seems the Australian Government also disagrees. Sometimes. Whilst your argument is at best perhaps semantically correct, the preamble to ANY constitution is regarded as any introduction found prior to the body of the sections making up the constitution. That is why it is called a 'preamble' of course. Whilst this creates some confusion, it is definitely not uncommon in Australia to refer to the initial clauses of the Constitution Act as the preamble. By definition the preamble does have to come before the actual Constitution. [2], the Australian Government's own Parliament website refers to what you call the "covering clauses" as the preamble. The Discovering Democracy Units website, a project of the Australian Government's Department of Education, Science and Training also describes the parts of the Act that come prior to Clause Nine as the "preamble". [3] The Australian Legal Information Institute website also refers to the preamble in its discussion at numerous places including [4] and [5], although they only quote the Introduction prior to all nine clauses as the preamble. Whilst there may be doubt as to what actually constitutes the preamble, at no time does the ALII question the existence of a preamble in these discussions, in fact clearly referring numerous times to the "Preamble to the Australian Constitution". Again, the ALII actually entitles this discussion as "The Preamble". AT no time does it suggest there is no preamble. Instead it begins its discussion with the words "The <<preamble to the Australian Constitution>> makes reference to the Queen." I could go on for hours quoting official government sources or other non-government sources that carry considerable authority. The overwhelming indication is that there is in fact a preamble. May I ask what is the source of the suggestion that there is no preamble? I am interested to know more about why you are so certain of your opinion. Is it personal opinion or do you have any reference supporting that opinion higher than the Senate website?

As I have noted before, you've confused a preamble to the Act, as a preamble to the Constitution. The Act is not the Constitution. The Constitution forms part of the Act, and that part does not have a preamble. Your links in fact show this: e.g. [6] labels that section as the "preamble" to the Act; [7] says quite clearly "A <<Preamble>> precedes this and the other eight covering clauses, and thus forms part of the British Act rather than part of the <<Constitution>> itself". It is the preamble to the Act. In any case, (university-level) academic references as cited by User:PalaceGuard008 (such as Winterton) are contrary to your claims. You might remember the 1999 referendum: that was to add a preamble to the Constitution: you cannot add a preamble when one exists (it was not a bill to amend any such preamble). enochlau (talk) 17:14, 4 August 2007 (UTC)

Yes, The distinction between the British Act and the text of the Constitution needs to be made clear. They are two different things, and sections 1-8 of the Act could be termed its preamble, but they are not the preamble to the Constitution. The fact that the 1999 referendum was to add a preamble is definitive here I think. Also, the High Court has paid scant notice to ss1-8 of the Act in interpreting the Constitution in a manner that suggests it is not a prefacing clause to the Constitution. Kewpid 17:29, 4 August 2007 (UTC)

Wouldn't it be reasonable to argue then that the whole constitution needs to be rewritten? It is, after all, the same constitution that was used when we were still a colony until we were finally recognized as a sovereign nation in 1919. The other three former colonies, or dominions if you prefer, have made clear and extensive changes to their constitutions since becoming internationally recognized as sovereign nations. Why not us? Why do you think we have chosen to continue using an Act of British Parliament that states (controversially) that the use of the act does not change our nature as a colony other than we become a 'self-governing' colony? In fact it would seem reasonable to suggest that the first point of business for any nation receiving ultimate sovereignty would be the redrafting of a new Constitution.

Regarding the preamble, whilst I accept your argument, it still does not justify why the Wikipedia states so adamantly that there is no Preamble. Especially in light of the fact that the same government that is empowered by the constitution refers to a preamble. Wouldn't it be more accurate and truthful to say something along the lines that whilst academic debate concerning what constitutes the preamble continues, the fact is that the Australian Senate, along with other government departments, regards the introduction and Clauses 1 to 8 as being a preamble, whilst some other authoritative sources regard just the introduction. No matter how you look at it, it seems it is reasonable enough to suggest at least both sides of the argument.

Thanks for your responses too by the way. I am enjoying the exchange.

Truth IndependenceFreedom 17:55, 4 August 2007 (UTC)

Covering clause vs preamble The Senate website is a bit ambiguous. Remember, also, that the Senate website isn't the Australian government's authoritative repository of laws - it isn't very authoritative at all, certainly much less authoritative than Williams or Winterton. It's got that label "(Preamble)" in brackets, but it is ambiguous whether that label attaches to only the preface or to the preface together with the covering clauses. With Austlii, it doesn't even have the preface at all.

The Commonwealth government's official database of legislation, ComLaw (Commonwealth of Australia Constitution Act 1900) labels the first 8 section "covering clauses", and does not label the preface at all. This is the same version that you will see if you buy a hard copy published by the government or an academic publisher.

Remember, also, that the preface is a very standard recitation in any British legislation - "Whereas blah blah be it therefore enacted by the Queen..." is a standard form preamble to any piece of legislation. That this particular statute has special significance for Australia doesn't change the way its structural members are identified: specifically, the sections are not part of the "Preamble".

Two sides to the argument On the one hand, we have the unambiguous opinions of the leading Constitutional law authorities in this country, and the usual custom for reading legislations; on the other hand, we have a rather ambiguous label on the Senate website. Unless there is some reliable source (academic work or official legislative material) that unambiguously contradicts Blackshield & Williams or Winterton and says that "the preface and the covering clauses together constitute the preamble", it would be irresponsible for Wikipedia to propagate such a view.

This is a quote from Blackshield and Williams:

“ The new preamble was to be inserted at the beginning of the Constitution, rather than at the head of the Commonwealth of Australia Constitution Act. The preamble that currently prefaces that Act, and the covering clauses that precede the Constitution, would not have been deleted or changed by either the republic or the preamble proposal ... ”

Clearly, B&W draw a distinction bewteen 1) the preface/preamble versus the covering clauses, and 2) the proposed preamble to the Constitution versus the existing preamble to the Act.

In the interest of dispelling doubt, however, I think we could add something to the "Preamble" section that says, "While the Commonwealth of Australia Constitution Act 1900 contains a standard-form preamble, the Constitution itself has no preamble". What do you think?

As a postscript, if you are interested in the academic debate surrounding the method of changing the preface and covering clauses (whether it is to be changed by referendum, by an act of the British parliament, or by the Federal parliament alone), George Winterton's "The STates and the Republic: A Constitutional ACcord?" (1995) 6 Public Law Review 107 has a good discussion.--PalaceGuard008 (Talk) 00:52, 5 August 2007 (UTC)

I think your suggestion to add something relating to a Preamble/Constitution introduction is good. One other thought is that as the Act remains an act of British Parliament, and Section 128 ONLY permits us to make changes to Clause nine, we couldn't change the intro clauses anyway. So this may have influenced the referendum wording too. I am truly confused why we continue to place out ultimate legal authority in an act of a foreign power. We can't change the Act through referendum, we can only request British Parliament to do that.

I'm glad we all agree. I agree with you about the confused constitutional situation in Australia - it is certainly a shock when you find out how cnofused it really is! --PalaceGuard008 (Talk) 00:36, 10 August 2007 (UTC)

To the post above and before PalaceGuards - don't be confused - the UK has no ultimate legal authority over Australia . In fact even a request to change the Constitution by Australia would have no effect in Australia - see S1. of the Australia Act 1986 ( Cth ) . In fact S1. of the Aust Act ( in my opinion ) actually validates the Constitution Act and the Constitution by specifying that only British Law passed AFTER 1986 is not valid in Australia . Implying that British Laws passed before 1986 pertaining to Australia are valid .Also S15. of the Aust Act (CTH ) gives the Commonwealth Govt. the power to amend or repeal both the Aust Act and the Statute of Westminster 1931 - if s8. of the Statute of Westminster was repealed the Commonwealth Govt. would then be able to amend or repeal both the Constitution Act and or the Constitution itself .The only restriction on the Commonwealth Government is that it would require the agreement of the States of Australia for it to take such an action . Note - via this procedure no referendum would be required to change the Constitution ! Lejon (talk) 03:09, 29 April 2008 (UTC)

On this subject it may be worthy of note that the Western Australian petition to overturn the Constitution Act was rejected by the British Parliament in 1935 on the grounds that it would need the consent of the Commonwealth Parliament to do so. That was of course after the Statute of Westminster (but before it had legal effect in Australia).--Gazzster (talk) 04:19, 17 July 2008 (UTC)

Constitution Act

This article says little about the Commonwealth of Australia Constitution Act 1900 (Imp), even thought that links to here. What, for example, effect does it have (excluding, of course, those parts which make up the Constitution)? How can it be amended - by referendum like the constitution, by act of parliament, by the U.K. parliament? What about the specification of who the monarch will be. This may have some implication for the independence of Austarlia from the U.K. - what law(s) determine succession to the throne, and how could Australia affect them? - Matthew238 (talk) 03:48, 24 September 2008 (UTC)

I think the UK Parliament could repeal or amend the Act, but it would have no legal effect in Australia, since after 1986 no new UK legislation applies to any part of Australia.The Australian Parliament could, I suppose,repeal or amend the Act, but the Constitution itself cannot be changed except by consent of the States and the People. The Constitution mentions the rights of the heirs and successors to Queen Victoria, and UK laws of succession govern the succesion in Australia. What is more troublesome to talk about is the question of whether these are UK laws that govern Australia or Australian laws patriated from UK law (in which case Australia could change them unilaterally). I believe that the Statute of Westminster 1931 requires unanimous consent amongst the nations sharing the UK monarchy as their own before amending the succession.But it's a difficult point. Could the UK technically change it's own law (as Gordon Brown has been talking about recently)with legal effect in the UK, and consult the other nations afterwards as a fait accompli? --Gazzster (talk) 21:40, 24 September 2008 (UTC)

The imperial legislation remains in force and can be changed by the Westminster parliament in the normal way. However, since the passage of the Statute of Westminster and the Australia Acts, such an act of legislation by the Westminster parliament does not bind Australia, and the Constitution as in force in Australia would not be changed.

The way I analogise it, the Constitution, having been borne and then given birth by the British Act, has become a separate piece of law. The two pieces of law are now separate and lead separate "lives". The British can do what they like to the British Act, but the Constitution, now with a separate existence, will not be affected.

Australia can and has amended received statutes, and both statute and the common law in some areas has significantly diverged because of either Australian or British developments.

Nothing in the Statute of Westminster makes any special provision for succession. Thus, British succession law applies to the Australian monarchy simply because it was received. The "shared monarchy" is a common law constitutional principle, and it is competent for Australia and any other realm to legislate to change that position - though convention would currently stand against such a move. --PalaceGuard008 (Talk) 04:15, 26 October 2008 (UTC)

Federal republic.

I'm just a student, but according to my textbook, the referendum calling for the republic of Australia had the population majority (something like 54% voted in the affirmative) but not the state majority. Something to double-check.

Either your textbook is wrong, or you read it incorrectly. The referendum lost the popular vote and lost in all states. Xtra 10:56, 25 October 2005 (UTC)

See our article on Australian republicanism.--Cyberjunkie | Talk 14:28, 25 October 2005 (UTC)

The referendum itself did not win any majorities. But polls close to the referendum, and since then, has consistently shown an overwhelming support for a republic. blame John Howard?--Sumple 23:31, 21 December 2005 (UTC)

There is a wikipedia section on australia republican vote and associated issues.Ern Malleyscrub (talk) 09:15, 15 November 2009 (UTC)

Which Parliament of the UK passed the Act?

I removed and Hamiltonstone restored the "27th" to the "parliament" field of the infobox. My reason was because it generated a redlink, which I couldn't see how to fix, so I assumed that it must be wrong. Hamiltonstone's reason was that "it DOES matter which one ... passed the act". I don't have a legal or political background, so I don't know the significance of a specific parliament. We have an article List of Parliaments of the United Kingdom that lists them, but that doesn't explain why the number is important (except perhaps for easy reference) - presumably an Act passed by any of them is as valid as one passed by another. The Constitution of Australia article of course tells us when it happened. So:

• Why does it matter which particular numbered parliament passed the Act?
• If it does matter, should the infobox be changed to support this? We don't appear to have specific articles for each parliament - and certainly there are no links from the List article.
• The infobox documentation says that "the name of the parliament which made the legislation. This will be linked", but doesn't tell us whether the "name" includes the number.
• I did a quick survey of the first 10 pages that link to the template, and none of them included a number.

I'm happy to accept that the number is important, if that is the case, but perhaps the infobox template and its documentation need updating. Mitch Ames (talk) 12:05, 6 November 2010 (UTC)

I can't see why it is important or relevant. All anyone needs to know is that the act was passed by the UK parliament in 1900. It is of no moment whether it happened to be the 27th, the 375th or the 658th Parliament. -- Jack of Oz ... speak! ... 12:26, 6 November 2010 (UTC)

Agreed.

On a related point, I also feel the infobox needs to be moved down, since the infobox is about the Imperial Act, while the article is mostly about the Australian Constitution as in force in Australia, and only tangentially about the Imperial Act as passed. As explained in the article, the Imperial Act has historical but no continued significance for the Constitution as in force in Australia. Every time that the Constitution is amended, it is the Constitution as in force in Australia which is amended, the Imperial Act has remained the same for 110 years, and is not (quite) the creature being described in the article. Perhaps it needs to be moved into the History section. --PalaceGuard008 (Talk)

OK, I've removed the number again. Although I notice that since I started this discussion, the number has changed from 27 to 26, and the latter does redirect to a different article (List of MPs elected in the United Kingdom general election, 1895). Mitch Ames (talk) 23:55, 3 December 2010 (UTC)

"Australian Constitution" and "Constitution of Australia"

Hi yorli,
Could we possibly distinguish between the "Australian Constitution" and the "Constitution of Australia"? The "Australian Constitution" is arguably a body of UK and Australian legislation and common law, including The 1931 "Statute of Westminster", the Australia Act 1986, and "received" conventions and maybe lots more. The "Constitution of Australia" though, is purely legislation.
Your thoughts about this? --Shirt58 (talk) 12:41, 22 July 2011 (UTC)

We could, but I don't think we should. The distinction that you make is very important, but even within Australia it is not usually, or at least consistently, expressed in that way. The "Constitution" in the narrow sense is called, in the Commonwealth of Australia Constitution Act 1900 (Imp), the "Commonwealth of Australia Constitution" (in and after that title) or, more briefly, the "Constitution of the Commonwealth" (cl 9) and, still more briefly, "the Constitution" (later and s 128). The leading textbook, covering all that you mention and more, is titled Australian Constitutional Law and Theory. The distinction that you make might be expressed as that between (narrow) "Constitution" and (broad) "constitutional law". But the latter is termed, in the UK, the "British Constitution". German legal theory sometimes distinguishes between (narrow) "constitution in the formal sense (Verfassung im formellen Sinne)" and (broad) "constitution in the substantive sense (Verfassung im materiellen Sinne)". I'm happy to leave be, here, consistently with articles on the "constitution of" other countries, e.g. Constitution of Canada. This phrasing gets the reader of WP efficiently to each country's material, which is the main thing. --Wikiain (talk) 17:54, 22 July 2011 (UTC)

Abdication of King in 1936

Nothing useful appears to be coming out of this discussion. Please keep in mind that this page is for discussing improvements to the article only, and not for "general chit chat" on the topic. Lankiveil (speak to me) 12:55, 29 October 2011 (UTC).

The abdication of King Edward in 1936 required an act of parliament made by all the states.The following day a new kingdom came about excluding Southern Ireland. So to then adopt a successor to the throne would also require an act of parliament of all the states or individual acts of succession.Canada did just that,Australia on the other hand has not they have just unlawfully adopted the successor that the British parliament appointed.The Australian constitution has not been lawfully altered to reflect the change of the name of the kingdom and quite simply all laws and taxes collected since then are a fraud.The parliament of Australia as per the constitution is still to be made up of the Monarch in the sovereignty of the United kingdom of great Britain and Ireland(which no longer exists)the senate and the house of representatives.Thus the parliament is not subject to the constitution and under section 51 does not have the power to make laws or tax etc. The adoption of the Westminster system in 1942 further perpetuates that fraud.As does the 1986 Australia acts and letters patent by a non constitutional Queen119.12.109.147 (talk) 08:45, 30 April 2011 (UTC) You naturally have citations from reputable sources that support these statements, don't you. They couldn't possibly be just your own personal opinions, could they, now. In any event, this is a page for discussing the Wikipedia article called Constitution of Australia, with a view to improving and enhancing it. It is not for having a general chit chat about Australia's constitutional arrangements, for which there are plenty of other sites. -- Jack of Oz [your turn] 09:12, 30 April 2011 (UTC) In 1919 Australia was a signatory to the league of nations as a sovereign nation @ Jack of Oz all is in the public domain,Wikipedia Australian constitution and King Edwards VIII Letter of abdication try doing a little research before making idle chit chat and by the way this is pertinent to The Australian constitution.119.12.109.147 (talk) 10:11, 30 April 2011 (UTC) No, why don't YOU: (a) try doing a little research and show us the specific sources from which you derive your opinions, and (b) explain exactly how you would propose to improve the existing article. That is what we discuss here - issues to do with our article, and not just a general discussion about the subject. -- Jack of Oz [your turn] 10:26, 30 April 2011 (UTC) well if you really want to know see www.basicfraud.com and further to this the writings of a former high court judge the Honorable Justice Kirby just for starters. I think that all that you believe in is about to be shattered. sorry but you asked for it.123.200.253.231 (talk) 11:44, 30 April 2011 (UTC) You're not getting it. As per point (a) - don't just refer obliquely to some unspecified writings by Kirby - provide the exact online links to whatever it is he wrote. You've also ignored my point (b). Unless you actually intend to change the article this talk page is attached to, whatever you say is a waste of your time and ours. -- Jack of Oz [your turn] 11:55, 30 April 2011 (UTC) For point b you should start your article by saying that Australia is a non constitutional monarchy.123.200.253.231 (talk) 12:01, 30 April 2011 (UTC) And then what? You can't just make that statement (even with sources) and leave it at that. How else would you change the article? You ought to realise that if you propose changes to an article, you are effectively participating in the ongoing development of that article, and you should be talking about "our article", not "your article". Like it or not, you are involved. That means you play by the rules. The rules, among other things, require reliable sources to support whatever goes into articles. Is www.basicfraud.com a reliable source? Well, hardly. It's the view of one person who does not even identify himself. It contains a number of absurd statements, such as the section headed "What the Free, Independent and Sovereign People of the Commonwealth of Australia Demand". By whose authority does it make such demands? Have "the Free, Independent and Sovereign People of the Commonwealth of Australia" ever been asked their opinion on this issue? I don't recall ever being asked what I thought about it. The whole website is a fringe theory and should be treated accordingly. But even if it is 100% correct, that's still not the point, because Wikipedia is about Verifiability, not truth. So, please get with the program and learn about what we do here, how, and why. You are most welcome to contribute to Wikipedia, but not by coming along and suggesting that Wikipedia become a mouthpiece for some fringe organisation of dubious character. -- Jack of Oz [your turn] 20:33, 30 April 2011 (UTC) Well said, JackGazzster (talk) 03:48, 1 May 2011 (UTC) I think that you should take the logs out of your own eyes before taking the splinter out of mine.121.91.163.85 (talk) 22:37, 1 May 2011 (UTC) My main reference Is the Australian constitution itself<A constitution that the Atourney generaland the Australian courts cannot and will not even validate and here my reference is to personal letters which I have saved sent to such for the purpose of finding out what exactly is the law in Australia.Is the constitution Valid or not ?Iether way how can one say that it is the supreme law by which Australia operates. Of course it's valid. Either put up or be silent.Gazzster (talk) 00:04, 2 May 2011 (UTC) How can it be Valid when there is no such thing in said constitution regarding The Queen of Australia and altering the constitution by means other than by referendum ?119.12.109.147 (talk) 01:14, 2 May 2011 (UTC) You display a naive and misguided understanding of these things. But even if that were not the case, this is not the place to make these points. There are plenty of other places where you can have at it all day long (for all the good it will do you, which, by the way, is zilch, but that's your call). If you want to edit the article to show how wrong we've all been forever about the Constitution, you don't need permission from anyone to do so. But please ensure you include proper citations from reputable external sources, or your edits will be reverted immediately. -- Jack of Oz [your turn] 02:21, 2 May 2011 (UTC) (edit conflict) First, there is no duty on the part of the Attorney General (so spelt) or the courts to give crazy letter writers answers to whatever questions they choose to ask. Second, the Constitution does mention the Queen repeatedly; the Constitution need not say "Australia is a constitutional monarchy" for it to be a constitutional monarchy. Rather, the fact that the Queen is one branch of Parliament, executive authority is vested in her, and various rights, duties, etc. are vested in her are what make Australia a constitutional monarchy. Third, the fact that the Constitution is silent on succession to the throne is enough to put it in the hands of Parliament. Fourth, your argument, such as it is, hinges on the allegation that Parliament chose to ratify the UK's choice of monarch. There are two main problems with that. The first is that there is no law against delegating the choice of monarch. The second is that at the time of the abdication, Australia had not yet adopted the Statute of Westminster, let alone patriated its constitution, so London could have legislated for Australia if it had been minded to. As such, there is nothing wrong with their having deferred. If you actually intend to have a real conversation about the article, you have to do more point us to insane conspiracy theories. You need actual sources, reliable ones, and something more than a personal opinion that the Queen isn't really the Queen. Any proposed change to the article has to meet certain requirements: it must verified by reliable sources, it must reflect a neutral point of view, and must not be original research. Good luck -Rrius (talk) 02:36, 2 May 2011 (UTC) What of the reliable source and half truths referendums that have failed but yet are implemented there is nothing reliable ,what ever happened to free speech and the truth further to that www.basicfraud.com does contain reliable resource including excerpts from sir Robert Menzies I suppose he too was unreliable further to that I am not their advocate and have nothing to do with them except a desire for knowledge.119.12.109.147 (talk) 03:07, 2 May 2011 (UTC) Fine. We are all seekers after knowledge. But what you've been doing here is not seeking knowledge, but trying to force down our necks some lame fringe theory that has virtually zero support. We're not interested in being convinced. Our sole interest is in continuous improvement of the article, which could possibly include some alternative views about well-accepted aspects - if, and I cannot stress this enough, they're properly sourced. Join us in that endeavour and your time here will be a happier one. But if all you want to do, as the evidence so far suggests, is to go on and on about how the whole shebang is a colossal fraud - which, by the way, sells the intelligence of the Australian people incredibly and insultingly short, but of course you and basicfraud.com know better - then quit now, before you're booted out of here. -- Jack of Oz [your turn] 03:50, 2 May 2011 (UTC) Let 8us indulge our friend a little and consider his proposition. He (or she) claims that the Government of Australia has no authority based on the claim that the Australian Parliament did not ratify the succession of George VI. First, as has already been pointed out, the Commonwealth of Australia did not ratify the Statute of Westminster until 1942 (made retroactive to 1939). And in fact the states did not overturn the Colonial Laws Validity Act until 1986. So technically the UK could have legislated for Australia before 1942. However, it acted as if the Statute of Westminster applied to it from 1936. Hence, the consultation of the UK Government with that of the Commonwealth over the aqbdication crisis. But one may ask, why need the UK to consult the dominions over who was to succeed Edward VIII? Did it consult over who was to succeed Victoria, Edward VII and George V? Of course not. The assumption was and is that the dominions would adopt the succession laws of the UK, ie., the nearest male, and after that, female communicant of the Church of England not Catholic or married to a Catholic. And that is what happened when Edward VIII abdicated.Further, our constitution names the heirs and successors of Queen Victoria as sovreigns of Australia.And even if, by some unlikely quirk of law, Elizabeth was not our Queen, Australian law would make it so by prescription. In other words, if the Parliament of Australia makes act afrter act in the name of Queen Elizabeth, and noone challenges it, then Elizabeth IS the sovereign of Australia. But as I say, thev UK succession is perfectly valid and enough to give legal effect to all acts of the Parliament and Governor-general of Australia.Gazzster (talk) 07:02, 2 May 2011 (UTC) You make a lot of assumptions, based on what credible proper citations from what reputable resources. If the parliament in 1942 backdated their acceptance of the Westminster act to 1939 I have 2 problems with that firstly they were at that time not subject to the constitution already , failing in due process.second the creation of the league of nations as a sovereign nation.Section 51 of the constitution is my resource and credible or so I am led to believe.119.12.109.147 (talk) 07:34, 2 May 2011 (UTC) I'm not sure what you're saying but the League of Nations did not confer sovereignty. In any case Canada, New Zealand, India and the other British dominions did have sovereignty in 1920, albeit in a limited manner.Of course Australia was subject to the Constitution in 1942. As Jack has said, unless you're prepared to edit with good sources there's really no point in bringing this up. But I'm a sucker for an argument. If you wish to prove that Lizzy 2 might not be sovereign of Australia, you have to prove how the Constitution became illegal between 1901 and 1952. Gazzster (talk) 08:53, 2 May 2011 (UTC) So far i have only had a go at the opening statement of the article,and the monarchy,now lets see Australia has a non constitutional thing called a prime minister that has usurped the president of the senate's role so one could say that Australia has never been subject to the constitution or maybe you could show me the prime ministers salary entitlements or any mention of such in the constitution the list of non constitutional problems associated with the legality of the parliament between what the constitution says and what is done in practice is so great one would have to write a book to point them all out.flawed and fraudulent party political spin reminds one of Nazi ism.Fairy tales are nice but they should be kept in the realms of fairy tales as should be this article.123.200.244.206 (talk) 12:27, 2 May 2011 (UTC)I would like to add that I believe that the Australian constitution is a wonderful document baring the racial vilification and that I wish it were valid.123.200.244.206 (talk) 13:17, 2 May 2011 (UTC) Well if anyone's talking about fairytales I'm afraid it's yourself. The President of the Senate is not the head of government and never has been so I dont know what you mean by usurping his or her role. But I think we'd better leave it there.Gazzster (talk) 21:26, 2 May 2011 (UTC) Commonwealth Of Australia 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: NOTE The united kingdom of Great Britian and Ireland no lomger exists.And Australia has never had a referendum to accept the crown of a foriegn power. An Act to constitute the Commonwealth of Australia. [9th July 1900] (The Commonwealth of Australia Constitution Act 1900 is an Act of the Parliament of the United Kingdom at Westminster) 2. 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. Note Australia signed the creation of the league of nations as a soveriegn nation in 1919 5. 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. The Australian constitution sect 51 .The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - ............................... NOTE Since the abdication of king Edward VII in 1936 and the creation of the new kingdom the folloing day ,legaly the parliament has not been subject to the constitution.It took a vote of all parliaments of all states to allow him to addicate and due to the fact that australia had signed the creation of the league of nations as soveriegn nation and that the kingdom of great Britian and Ireland no longer existed it would therefore be imperitive for Australia to have a succession to the trone act.To adopt the crown of the United kingdom of Great Britian and Northern Ireland is not being subject to the constitution. 1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth. " NOTE The legislative power of the commonwealth requires a Valid monarch. 2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him. 8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once. 34. Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:-- (i. ) He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he was chosen: (ii. ) He must be a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State. Note How does one that is born in a soveriegn Australia become the subject of the queen unless naturalised in the United Kingdom ?Unless Australia is a colony of the United kingdom of Great Britian and Northern Ireland. Recently a British person was deported to United kingdom of Great Britian and Northern Ireland from Australia. ??? Go figure !!! 43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. 44. Any person who-- (i. ) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or (ii. ) Is attained of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or (iii. ) Is an undischarged bankrupt or insolvent: or (iv. ) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or (v. ) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons: shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. 45. If a senator or member of the House of Representatives-- (i. ) Becomes subject to any of the disabilities mentioned in the last preceding section: or (ii. ) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or (iii.) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State: his place shall thereupon become vacant. 46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction. 106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts. 120. Every State shall make provisions for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effects to this provision. 123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. 128. This Constitution shall not be altered except in the following manner:-- The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, "Territory" means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives. — Preceding unsigned comment added by 121.91.43.251 (talk) 06:32, 7 July 2011 (UTC) As noted already, this is not the place to expound fringe theories. The only authority that can interpret the Constitution authoritavely is the High Court of Australia, which, according to you, has no authority at all. If you want to argue the case with me, I'd be happy to do so onmy talk page. Not here.Gazzster (talk) 09:19, 7 July 2011 (UTC) Such fringe theories have been dismissed by the High Court: Joosse v ASIC (1998), approved in Sue v Hill (1999). Even if one does not accept the authority of the High Court, one can accept its reasoning. Yes, as Gazzter says, let's stick to the article. And certainly not clutter up this page with cut-n-paste. --Wikiain (talk) 17:36, 7 July 2011 (UTC) I notice that where the High courts of Australia are depicted in the constitution that they are in fact Kangaroo courts that have not been constitutionally created ,that there is no enabling statute and that they had there first sitting 10 days after the dissolution of parliament 1903 they just came into being. Now if it were created as they would like us to believe in 1901 then both Barton and Connor were then both parliamentarians and high court judges simultaneously.That is the workings of a Kangaroo court for you.So My point is exactly where do the HCA get their authority,clearly not from the constitution. — Preceding unsigned comment added by 121.91.65.86 (talk) 05:39, 16 July 2011 (UTC) Whether the High Court of Australia (you should have noticed that there is only one) was created in 1901 by Constitution s 71 or not until the Judiciary Act 1903 (Cth), enabled by Constitution Ch III, remains a moot point: Blackshield & Williams, Australian Constitutional Law and Theory (5th edn 2010) pp 537-539. However, the Court has been validly created in one or both of those ways, and the 1903 Act is now supplemented by the High Court of Australia Act 1979 (Cth). However, the Court had no judges until after its composition was established by the 1903 Act. Griffith CJ, Barton J and O'Connor J were the first justices of the Court, appointed on 5 October 1903. Nobody was ever simultaneously a member of both the High Court and the Parliament, which would actually be unconstitutional: Constitution s 44(iv). Please try to contribute only in relation to the article and also sign your posts, using four tildes (~). --Wikiain (talk) 01:36, 17 July 2011 (UTC) And now we have a non constitutional PM with no mandate from the people of all the states of the Australian federal commonwealth changing the provisions of the constitution without a referendum.That being the change to the laws of succession and saying that they are for the rule of law and due process. Due process ended on 11/12/1936, and the ratification of the Westminster system 1931 backdated to 1939 in 1942.And thus to say that the Australian constitution is the supreme law by which Australia operates is a non compus mentus statement 59.167.155.50 (talk) 00:02, 29 October 2011 (UTC) I'm only gonna say it one more time: THIS IS NOT THE PLACE FOR THESE TROLLISH RANTS. We are not interested. Our sole interest here is developing a quality article on the Constitution of Australia, backed up by reliable external sources. There are plenty of other, more appropriate places online to have the sorts of discussions you want to engage in. Please take this matter to such a place. Those who want to go on and on about the alleged unconstitutionality of the Australian government ever since 1936 will not be tolerated here any longer. Their posts will be summarily deleted, in accordance with Wikipedia policy on keeping talk pages relevant to their purpose. There will be no further warnings about this. -- Jack of Oz [your turn] 00:36, 29 October 2011 (UTC) Good on ya, Jack! You know a "non compus mentus statement" when you see one. --Wikiain (talk) 02:22, 29 October 2011 (UTC)I do not see reason for this to be hidden .I think that the writer of this has some very valid points and is seems like he has you over a barrel and because you cannot provide answers that he be Hidden/censored.I personally would like to see these points explored even further.122.150.105.110 (talk) 22:58, 1 June 2012 (UTC)

Northern Territory of South Australia

Do we want to say something about how the Northern Territory was a territory of South Australia at the time of the Commonwealth of Australia Constitution Act and became a responsibility of federal government in 1908? The current situation where is just says "Northern Territory of South Australia" in the infobox is a little confusing. Yaris678 (talk) 11:51, 10 July 2012 (UTC)

Queen of Australia II

There is no such person or office as the "Queen of Australia" or "Monarchy of Australia" within the Constitution, and we cannot insert one into it. The actual wording is quite specific on this point, and has not been changed by referendum since. I am unaware of any High Court decision to reinterpret the wording, along the lines of Sue vs Hill, which found that a change in meaning had occurred some time between 1900 and 1996. We are obligated to refrain from original research, and saying that the Queen of the Constitution is the Queen of Australia, without a reliable source stating precisely that, is editorial opinion. --Pete (talk) 21:57, 18 July 2012 (UTC)

But the Constitution is a living document, not fossilised in 1901. It is interpreted in the light of constitutional development. The monarch referred to in the Constitution is then, the sovereign of Australia. Gazzster (talk) 00:21, 19 July 2012 (UTC)

Do we have a source for that? Nothing overrides the Constitution, not even the Royal Style and Titles Act. Unless we have a High Court decision on this specific point, we cannot say that the Queen in the Constitution is anything other than what the Constitution says in its specific definition: 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.[8]. That's the United Kingdom, not Australia. --Pete (talk) 00:55, 19 July 2012 (UTC)

Well, look at it from the viewpoint of a strict interpretation. We are governed by the Queen of Australia. But if she does not represent the same authority as that declared in 1901, where does she derive her authority?Gazzster (talk) 02:43, 19 July 2012 (UTC)

We need a reliable source. It's the same Queen, no disagreement at all, but if we are going to tell readers that the Queen in the Constitution is the Queen of Australia, we need a source saying so, and there's only two possible sources - the text of the Constitution itself, which doesn't support the statement, or a High Court judgement, which so far as I know, does not exist. Anything else is hand-waving and opinion, which cannot possibly change the Constitution, no matter how energetically the hands are flapped around. --Pete (talk) 03:11, 19 July 2012 (UTC)

I see what you're saying, but I think you're drawing attention to a problem that doesn't exist. The High Court makes judgements on the assumption that the same sovereignty referred to in the Constitution resides in the Australian Crown. Why should it rule on the matter unless it were specifically challenged?Gazzster (talk) 08:14, 19 July 2012 (UTC)

Of course. Nevertheless it is not up to Wikipedia editors to make judgements when the High Court has not yet troubled itself. We must stick with what the Constitution actually says, and "Queen of Australia" or "Monarchy of Australia" is not a phrase to be found anywhere in the document. --Pete (talk) 09:22, 19 July 2012 (UTC)

Surely the article is about the whole "constitution of Australia", not merely details on the document itself and its words, otherwise the whole article would need to have its emphasis altered to be purely focused on the written constitution, rather than how things work in practice. BritishWatcher (talk) 09:45, 19 July 2012 (UTC)

Of course. I have no problem saying that in practice it is the Queen of Australia who appoints the Governor-General, because that is how it happens. What I have a problem with is saying that the Queen of Australia is part of the Constitution, because she ain't. It is the Queen (or King) "in the sovereignty of the United Kingdom", and changing the text of the Constitution is not just a matter of reaching for the word processor. The practical effect is zero, which is why this text has never been changed, even to correct the slightly archaic title of the King or Queen of the United Kingdom of Great Britain and Ireland as seen in the Note to the Schedule. --Pete (talk) 22:44, 19 July 2012 (UTC)

I fear you're being pedantic about this. But if you want to reference this you may wish to use the Statute of Westminster 1933, which, when applied to Australia in 1942 provides the basis for accepting the reference to the Sovereign in the Constitution to mean the Australian Sovereign.Gazzster (talk) 01:09, 20 July 2012 (UTC)

Of course. Nevertheless, unless provided for in the Constitution, Parliament may not itself alter the words or meaning of the Constitution through subsequent legislation. A s128 referendum process is required. I have no doubt that the High Court would rule that the Queen of the United Kingdom in the original Constitution equates to the Queen of Australia in these latter days, but so far as I am aware, they have not yet done so. Pedantic or no, it is one of those things that grates on me, like seeing an uncorrected spelling error or a picture that is tilted. Call me picky, if you want, but there it is. --Pete (talk) 02:05, 20 July 2012 (UTC)

WHAT? There's no such thing as an Australian monarchy? GoodDay (talk) 00:00, 23 July 2012 (UTC)

Not in the Australian Constitution. Please read the discussion above. --Pete (talk) 00:10, 23 July 2012 (UTC)

No thanks. I've already been through the Australian Head of State arguments & this dispute is just a branch from those. GoodDay (talk) 00:26, 23 July 2012 (UTC)

You really should read the discussion on this specific point, if you want to contribute. --Pete (talk) 00:33, 23 July 2012 (UTC)

As a matter of interpretation, the Constitution has to be read in light of the later, constitutional enactments. The Constitution in 1901 is different in nature to the Constitution today: it was an act of the imperial parliament at Westminster. Since the Statute of Westminster and the Australia Acts, there is now a separate crown in right of Australia, and the notion that this change has somehow not affected the Constitution, seems a novel one. Skyring aka Pete's analysis above, while interesting, is original research based on his or her reading of the Constitutional text itself. No one, not even the qualified lawyers amongst us, is entitled to present his or her original research as fact here, and to suggest that it is the monarch in right of the United Kingdom who sits at the apex of the Australian legislative system today is inconsistent with all of the heavily cited articles we already have - e.g. in Monarch of Australia.

If Skyring wishes for his or her novel, originalist interpretation to prevail here, he or she will have to convince the constitutional law community in Australia first that they have been reading the Statute of Westminster wrong all these years! --PalaceGuard008 (Talk) 22:28, 29 September 2012 (UTC)

By the way, I notice Skyring seems to believe that an explicit statement by the High Court is required to confirm that the Constitution has been affected by the Statute of Westminster. While I do not agree with this, I would like to point him or her to Sue v Hill, where Hill made the same, originalist argument as to the textual meaning of the Constitution. This was rejected by the High Court. A careful reading of that case should, I think, answer Skyring's question about the High Court's views on the matter at hand in light of the Statute of Westminster and the Australia Acts. --PalaceGuard008 (Talk) 22:36, 29 September 2012 (UTC)

Individual articles on sections of the Constitution

I've just been reading Section 2 of the Constitution of Australia, and all I can say is that it's no more than a duplication of parts of Governor-General of Australia and should be merged with it. The template suggests there's some plan to have a dedicated article for each section of the Constitution. Whose idea was this and is it generally supported? What purpose is served by these different sub-articles? -- Jack of Oz ^[Talk] 20:55, 30 March 2013 (UTC)

It would make more sense to me if it were broken up into bigger parts. Instead of there being an article for section 2, maybe there should be one for Chapter I.I (sections 3 to 5) and so on. Not every section of the Constitution deserves its own article. -Rrius (talk) 00:34, 31 March 2013 (UTC)

I agree with you both. There should not be a list that is mostly red and, perhaps worse, very short articles produced just for the sake of having one on every section. A possible alternative is that adopted for the French Constitution in wp:fr, which lists only "Dispositions importantes (Important provisions)". We might get to that by removing all links that are now red and deleting or merging "for the sake of" articles such as that on s 2. Articles on individual sections would appear only in the list of important provisions and not in "See also". Along the way, some "important provisions" would not be sections but parts of sections - e.g. the article on s 51 already has sub-articles on its most important paragraphs. On the other hand, some important topics are not reducible to articles on individual sections - e.g. "democracy" is referable, but not reducible, to ss 7 and 24. At the same time, I think we should include the covering clauses: they are not part of the "constitution" as defined in the act, but have no function apart from it. In the republic referendum of 1999 they were treated as if they were part of it for the purposes of s 128 - there being no other way, since the Australia Acts, to change them. --Wikiain (talk) 23:26, 31 March 2013 (UTC)

Jack: the template down the bottom has been around for ages, and originally (see this version) it contemplated only having sections on those sections which were really relevant in Australian constitutional law.

It was in this diff that User:Shirt58 inserted links to every single section.

Later, User:Skakka went ahead and created articles on every chapter and every section. I dealt with many of those by tagging them with "move to Wikisource", because they had no content except the text of the Constitution. A few which had meaningful content remained, but the value of such content is still questionable.

I'm going to go ahead and revert the template back to the last version that did not have individual section links, whether the chapter links should stay should probably be further discussed. --PalaceGuard008 (Talk) 11:47, 19 May 2013 (UTC)

In re: Individual articles on sections of the Constitution ex rel JackofOz (or some sort of legal nonsense like that)

Catchwords: Constitution of Australia · Constitutional Law · Redlinks

Matters to be considered

Whose idea was this?

Is it generally supported?

Shirt58 J: the decision to redlink every section of the Constitution of Australia is unsafe and must be set aside.

But seriously. Yep, I changed the template to include every single section.

I'm fine with the current version. Some of those sections will never have legislative amendment or case law on point. I would of course prefer my version, but on Wikipedia we talk about things and reach a consensus.

--Shirt58 (talk) 11:21, 21 May 2013 (UTC)

Territorial extent of the Constitution Act

Can we please stop what is becoming an edit war over the "territorial extent" of the Commonwealth of Australia Constitution Act 1900, at the point of the revision by PalaceGuard008 on 14 November 2013?

PalaceGuard008 cites the official UK Legislation site, which states that the act extends to England, Wales, Scotland and Northern Ireland.

On one hand: that is not completely empty, although today it is unlikely to have any vital consequences. It meant, and still means, that in those places the institutions of the Commonwealth of Australia must be legally recognised. The only part of the act that is of current relevance is section 2 (which Australians call "covering clause 2"), providing that whoever is the UK head of state is also the head of state in Australia. That matters now, indirectly, because some parts of Australia are dragging their feet on bringing their own legislation referring to the monarchy into line with the recent UK legislation removing male primacy from the line of succession - which cannot come into effect unless all of the Commonwealth realms have made their laws consistent with it.

On the other hand: it is substantively misleading, in that Australians no longer recognise the act as having any force through authority of the UK legislature. That I think is not quite the same point as the end in 1986 of UK capacity to change the act with effect in Australia. There is also the positive side, that Australians appear to have adopted the act. That appears to be so, in that Australians regard not only the Constitution but also the covering clauses, and hence still the whole act, as having force of law in Australia. In that sense, the "territorial extent" of the act is more importantly "Australia". But I can't think of an occasion on which this has ever been formally stated - it resides in the realm of the "today too obvious to need mention".

This seems to give rise to a double problem with the statement of "territorial extent": (1) how is it to be stated in a way that, while formally correct, is not substantively misleading; and (2) how is that to be done without falling foul of WP:NOR and/or WP:NPOV?

So can we please leave things as they are until we can perhaps talk our way to a consensus?--Wikiain (talk) 00:41, 15 November 2013 (UTC)

I agree with what you say there. I was always uneasy with the insertion of the UK legislation infobox, because while there is undoubtedly a UK Act which remains on the statute books in the UK, this article is almost entirely about the Constitution as in force in Australia, not the UK Act, and through the reception/adoption/imperial fiat in combination with the Statute of Westminster/Australia Act, a law in similar but not identical terms (due to amendments) is in force in Australia. There are, in other words, two creatures out of the same roots. Subsequent amendments to either legislation will not affect the other, so the two creatures will inevitably look more and more different.

In my view, the UK statute infobox must record the actual status (etc) of the UK statute. The UK legislation is only in force in England, Scotland and Northern Ireland. I agree this becomes misleading because the article isn't about the UK statute. Perhaps a note or some sort of box around the whole Infobox, or collapsing it with a caption? --PalaceGuard008 (Talk) 10:17, 22 November 2013 (UTC)

Please keep up with judicial interpretation

I have recently reverted good faith edits by users who have been reading the Australian Constitution literally. Please: one can take many views and that happens, but in terms of what the Australian Constitution means as a text to be obeyed in Australia it means what it has been interpreted to mean by the High Court of Australia (HCA). Right now, especially, what is a "Chapter III court", and indeed a "court" within what is increasingly seen by the HCA as a national judicial system, is a matter of intense focus by the HCA: latest, Wainohu 2011. --Wikiain (talk) 12:12, 2 July 2011 (UTC)

What a crappy constitution, no such thing as a prime minister,if so show me where? No enabling statute for the High courts of Australia and 2 of the first three judges did not even qualify for the position,so quoting the HCA does nothing for me except make my blood boil because they do not legally exist they exist only in treason.The Queen of Australia bull dust. further proof that the Australian constitution has been subverted and defended by treasonous traitors to it.When Australia stopped being a colony of Great Britain and Ireland a new constitution should have been drafted because as it stands at the moment just makes Australians that except the legal professions assertions look like total twits and the laughing stock of the free world or anybody that can read and think for themselves and are not just a bunch of sheep.So this article keep up with judicial interpretation is a joke right, much like the churches and their mental blackmailing."If you don't believe in me you go to hell "These judicial people should learn to read and then demand a fix. 118.208.139.86 (talk) 01:15, 15 February 2014 (UTC)ref Australian constitution.

What a crappy constitution, no such thing as a prime minister,if so show me where? No enabling statute for the High courts of Australia and 2 of the first three judges did not even qualify for the position,so quoting the HCA does nothing for me except make my blood boil because they do not legally exist they exist only in treason.The Queen of Australia bull dust. further proof that the Australian constitution has been subverted and defended by treasonous traitors to it.When Australia stopped being a colony of Great Britain and Ireland a new constitution should have been drafted because as it stands at the moment just makes Australians that except the legal professions assertions look like total twits and the laughing stock of the free world or anybody that can read and think for themselves and are not just a bunch of sheep.So this article keep up with judicial interpretation is a joke right, much like the churches and their mental blackmailing."If you don't believe in me you go to hell "These judicial people should learn to read and then demand a fix. 118.208.139.86 (talk) 23:37, 14 February 2014 (UTC)ref Australian constitution.

I have separated your comment from mine so that nobody will confuse them. Kindly note what is in the green box to the previous section.--Wikiain (talk) 23:47, 14 February 2014 (UTC)

In response, you have duplicated your original comment. Huh.--Wikiain (talk) 21:21, 15 February 2014 (UTC)

Like New York, NY. So good, they named it twice. This reminds me of the Assassination of John F. Kennedy article, where conspiracy theorists seek to nibble away at the factual article, even though there is a perfectly good article dealing with the various conspiracy theories. If there really is enough doubt - sourced reliably - then perhaps an article could be established to examine the several doubts listed by the IP editor above. The point about legitimacy of High Court judges is especially intriguing. Robert Garran, in his Prosper the Commonwealth, alludes to defects in the first Commonwealth election, which were conducted under State law, there being no Commonwealth electoral legislation at that point. He said something to the effect that it was lucky that none of the elections were challenged, because the resulting court cases would have been interesting, to say the least!

Every now and then there are determined efforts by folk to challenge the legitimacy of some person or body because the correct forms were not observed. President Obama not swearing the precise oath of office in 2009 is a recent example. The usual response is to note that the alternative would be chaos if (say) the High Court had not been properly constituted and consequently their judgements were invalid and all the various ramifications which flow outwards from the original point of error. The error might have been made, but hey, the thing keeps on flying.

If the IP editor can show, via reliable sources rather than original research, that there are defects in the constitution of the Commonwealth, then why not let there be an article to that effect? We can point to it in the same way that the JFK Assassination article points to the Conspiracy Theory article. It's not as if Wikipedia is going to run out of space, and I'm all for arcana, so long as it is written in line with our procedures. --Pete (talk) 21:47, 15 February 2014 (UTC)