Common(wealth) Knowledge #1: What is Constitution Day?

A look at the key day in Australian history that plenty of people don't know about.

On the 9th of July, 1900, at the request of the colonies of New South Wales, Victoria, Queensland, South Australia, and Tasmania, and with the assent of the British Parliament, Queen Victoria signed the Australian Constitution into law.

This year, Constitution Day commemorates the 122nd anniversary of this momentous, yet relatively unknown, event in the creation of the Commonwealth of Australia, which took place halfway around the world.

And this year it is also the start of a new 6 News series, Common(wealth) Knowledge, which is all about the Australian government and Constitution.

The Australian Constitution, or to use its full title, the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, was drafted by delegates from all six Australian colonies, to varying degrees. Western Australia and Queensland were the most reluctant to join the potential new nation.

Therefore, Queensland did not take part in the three Australasian Federal Conventions held in 1897-98, where the final version of the Constitution was drafted, and Western Australian involvement was limited. Both colonies were concerned about economic domination by the more populous colonies of New South Wales and Victoria.

Queensland was the youngest of the six Australian colonies, and so there were fears that its manufacturing industries would be unable to compete with those industries of the other colonies. As Section 92 of the Constitution stated that “trade, commerce, and intercourse among the States … shall be absolutely free,” the Queensland government would not be able to impose tariffs on manufactured goods from other states in order to keep its manufacturing industries functioning.

If, in the words of the High Court in Cole v Whitfield (1988), there was to be a “free trade area” (at 391) within Australia, it was believed that Queensland’s manufacturing industries would perish.

Another difficulty for Queensland was that the agricultural industry in north Queensland, especially the profitable sugar cane farms, would suffer from what would become the White Australia Policy. North Queensland relied on imported South Sea Islanders from Melanesia, who served in conditions not much better than slavery, to work the farms. The British government and Queensland had already clashed over this issue, as many of the South Sea Islanders were taken from British Pacific possessions. The worry that a united Australian continent under the White Australia Policy would end this trade would come to fruition, with the passage of the Pacific Island Labourers Act 1901 (Cth), and the reparation of most workers.

Western Australia’s booming economy, which was complemented by a gold rush in the 1890s, contributed to the notion that it would not be an equal partner to the other states. The eastern states had experienced economic hardship in the 1890s, and Western Australia was worried that its economy would suffer as a result. Furthermore, the distance between Western Australia and the other colonies would also contribute to a sense of isolation. Perth was not connected by railroad to any other capital city, so would be reliant on sea travel.

However, despite the stances of the West Australian and Queensland governments, the mood in their citizens slowly shifted in the 1890s to eventually become in favour of Federation, even if only be a relatively slim margin in Queensland. With colonial newspapers circulating between the six colonies sharing the developments of the Federation process with Queensland and Western Australia, and an emphasis placed on the commonalities of the colonies, Federation would eventually be given the go-ahead in both colonies.

Economics would continue to dominate politics in the 1910s. Australia’s first three major federal political parties were the Free Trade Party, Protectionists, and Labour (now Labor), all of which were based on economic or socio-economic issues. This led to a three-party system which saw regular changes in who formed government, and an inability for any one party to form a majority government.

The Constitution that emerged out of the constitutional conventions of the 1890s was symbolic of the Australian experiment. Although Australia was still a British dominion, it was no longer a colony, and this shift towards independence was reflected in the creation of the ‘Washminster system,’ which combined the Westminster system of the UK and the federalist model from Washington DC.

The Westminster system is a model of government created by the British, and therefore is named after the Palace of Westminster, home to the British Parliament. It is used throughout the Commonwealth of Nations. Under it, the Executive branch of government is drawn from the Legislature, except for the Governor-General, who is appointed by the British monarch on the advice of the Prime Minister. Although the Judiciary is relatively independent, at least compared to the United States, where judges are nominated by the President and appointed by the Senate, the overlap between the Executive and Legislature means that there is not a total separation of powers.

The influence of the US system can be seen in the Australian Parliament, where the Senate is somewhat based on the US Senate, rather than the British system, where the upper house of the Legislature consists largely of the nobility. The US, Australia, and Britain all have elected lower houses, although Australia’s House of Representatives draws its name from the US, not Britain.

Federalism is a system developed by the US that splits the government’s powers between state governments and the federal government. Like the United States Constitution, the Australian Constitution provides an exhaustive list of legislative powers possessed by the Australian Parliament, with all other legislative powers held by the States. See here for how this works in relation to COVID-19 restrictions. This means that Australian citizens are citizens of Australia and are residents of a State or Territory.

Australia, like the United States, possesses a written constitution. In contrast, Britain has an ‘unwritten constitution’ made up of court-made common law, customs and traditions, and various pieces of legislation, including the Magna Carta. However, customs, referred to as ‘constitutional conventions,’ do play some role in the Australian Constitution, as there is no mention of the Prime Minister in the Constitution. These conventions are not legally binding though, and this creates many complications, such as the ability for the Governor-General to sack the Prime Minister, as seen with the dismissal of Gough Whitlam by John Kerr. Furthermore, Australia, like Britain, does not have a constitutional Bill of Rights that enumerates the rights of citizens. Instead, these rights are mostly found in common law and legislation, meaning that they are not as entrenched as they are in the United States. For example, O’Connor J stated in Potter v Minahan (1908) that each Australian has “a right to depart from and re-enter Australia as he pleases without let or hindrance unless some law of the Australian community has in that respect decreed the contrary” (at 305).

As citizens of a liberal democracy, Australians enjoy a wide range of freedom and rights, including the right to participate in government through voting. This includes a right to amend the Constitution through voting. On Constitution Day, Australians should consider how far we have come as a country, and be thankful for the freedoms that we possess as a nation.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy. Help support unbiased journalism & keep us independent: donate just $4 a month on Patreon & receive exclusive benefits. Want to inform others? Share the link to this story on social media & with your family & friends using the buttons below.