I suspect that the Australian Constitution of 1900 was very much modelled on the Canadian Constitution of 1867, the United States Constitution of 1789 and the Swiss Constitution of 1848. The Australian Constitution mostly wanted to retain the ideas of the British Parliament because the system at Westminster had already spawned six sprogs in Australia.
This commentary on the Australian Constitution continues and as with a previous post, I refer to the act as published here:
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/preamble
1. Short title
This Act may be cited as the Commonwealth of Australia Constitution Act.
Of itself, this clause looks to be unimportant; it probably is. However, it should be noted that the Constitution wasn't handed down from on high by an almighty being and nor does anyone particularly care about who the writers of the document were. The founding fathers of the Australian Constitution were all white men (mostly with beards) who over a series of constitutional conventions, argued bitterly about what should go in the final document. Trying to mythologise the arguments of a bunch of men, either in freezing conditions in Melbourne or in the sweaty underchambers of the Sydney Town Hall in a cicada filled hundred degree summer, is quite frankly a bit silly.
Clause 1 of the Constitution lays out by demonstration, the form by which every other piece of legislation handed down by the parliament. There will be the long name, the short name, a preamble about what the document intends to do, a list of definitions as they are used inside the document, and then the body of the document and how it operates.
2. Act to extend to the Queen's successors
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.
In 1900 when this Act was passed by the British Parliament in Westminster, the idea that a Dominion would even have a Constitution was a novel idea. The several states in Australia did not really have them and while Canada did, New Zealand, India, South Africa and Her Majesty's United Kingdom of Great Britain and Ireland did not. New Zealand and Britain still do not.
The provisions of this Act referring to the Queen are in fact materially different to those referring to the corporation sole which is the Crown. The Crown as a corporate person doesn't die; whereas the monarch is replaceable. Also, the Crown of the several states are different corporate persons to the Crown of the Commonwealth.
On that point, I actually quite like the idea that the Queen/King is ten thousand miles away. If we were to have a President (as opposed to the President of the Senate which we already have), then the people of Australia have emphatically stated that they want to elect such a person and unfortunately with the process of election comes the moral mandate that they should actually do something. I do not want the monarch to do anything. I like that the Governor-General (who as we will see in later posts in this series) although they are insanely powerful, is so loathe to use that power that there are only two times that anyone can even recall that Governor-General using said power.
There is also the idea that the Queen (the monarch) has sovereignty over Australia. This is a complex concept. As it stands the Queen can not enter the House of Representatives without express permission, the Queen can not bring legislation to the parliament except through a Member of Parliament, and while the Governor-General has the power to set aside legislation to be signed by the Queen for ceremonial purposes it is unclear whether the Queen can unilaterally withhold Royal Assent for legislation to be passed.
Second to this (and this is a problem with the first 9 clauses), the sovereignty over the Commonwealth of Australia extends to the Queen (which was then Victoria) and to to Her Majesty's heirs and successors. Not only does this presuppose that the Crown is the supreme sovereign it also presupposes that there aren't any other forms of sovereignty. This proves to be quite the problem in conjunction with Mabo v Queensland No.2 (1992) where the High Court found that the doctrine of terra nullius was invalid and which hinted at the idea that of sovereignties existed. We have never reconciled that and documents like the Uluru Statement From The Heart have been roundly ignored by the Parliament.
3. Proclamation of Commonwealth
It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.
Clause 3 of the Commonwealth of Australia Constitution Act is the clause where the formal proclamation of the corporation sole of the Commonwealth of Australia, which is separate and distinct from the several states, is made. This is the moment of birth of the person of the Commonwealth of Australia. What a strange person it is.
Take note of the description of who actually agreed to this: "the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania" "and also" "of Western Australia". The instrumentality of Federation is such that the person of the Commonwealth of Australia is formed and all of the gaps are filled in by pushing all the spaces together. Australia is possibly unique in that I suspect that it is the only country which was formed out of nothing by the people voting at the ballot box. There were a series of referenda in 1899 and 1900 which brought the motley crew of disparate people together into the Federation. In all of the colonies, the people who didn't agree to any of this were First Peoples; who were never asked. In some cases First People didn't even get the opportunity to vote (in Australia the Electoral Act 1918 frames voting as a duty not as a right) until after 1965.
I personally think that that leaves us with a dilemma. The Uluru Statement From The Heart demands some kind of voice to parliament. That in principle means that First People would have to agree to the lawful sovereignty of the Commonwealth of Australia (which they have never formally been asked to do). It might also mean that the sovereignty of First People might become subordinate to the Commonwealth of Australia; which is the current case with the colonies who became states. Of course, if they actually do, then I also think that for justice to be properly served that First People's sovereignty would have to be formally recognised and that would not only include an alteration of the Preamble but also of this clause (because this is the clause which creates the Commonwealth and states who formally agreed to the process of Federation) and perhaps most shockingly of all to conservative people who want to retain the right to be racist knaves, First People would be rightly afforded at least Six Senators per the other provisions of the Constitution as First People would have already been an original state. That Original State would have to be defined by some virtual term not bounded by land area as it would have encompassed the entire Australian continent and all islands but since legal gymnastics are about making words and definitions jump through hoops to achieve legislative outcomes, then that shouldn't be a problem.
This are also several historical quirks; including that the idea of a Commonwealth of Australia had to pass through the hard legal stares of the Privy Council, that this was to happen within the year, that the Queen would have to appoint a Governor-General (as there was no Commonwealth of Australia in existence to advise the Queen as to whom the Commonwealth of Australia wanted to fill the post) but the most hilarious is this:
"and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia"
The people of Western Australia actually did agree to joining the Commonwealth on 30th of July 1900 and it would have been well within their rights not to, just as Fiji and New Zealand had already backed out of the process. However our friends in the west are kind of a country unto themselves; being so far removed from the eastern states. You very much notice this state of apartness when it comes to time zones. In summer when it is 7pm in Sydney, it is 6pm in Brisbane because Queenslanders are worried about their cows fading and curtains not knowing when they are supposed to be milked and they refuse to adopt daylight savings time; it is 6:30pm in Adelaide because South Australians like to dawdle; and when it is 7pm in Sydney it is the 1970s in Perth.
Western Australia has tried to back out of the Commonwealth and even had a referendum on the subject in 1933 before that was struck off as unconstitutional and invalid by a parliamentary joint select committee in the he British Parliament. I think that Western Australia quite likes the current pandemic as they get to shut the borders and feign their own sovereignty.
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