Last year Horse worked its way through Clauses 0-9 of the Australian Constitution (yes, I did just mention Clause 0) and since then I have received four emails asking when I would go through the rest of the Constitution. At 128 Sections, this is a considerable task but seeing as so many of them are straight forward, it is not insurmountable.
I think that even more interesting than the Constitution itself, is the series of debates in several Constitutional Conventions which took place in the two decades before Federation. The six Australian colonies were granted responsible government from about 1855 onwards and as the six sets of government became more competent, they also became more petty.
One of the reasons frequently given for the cause of Federation is the mutual benefit of defence against foreign powers and perhaps there is cause for this in the late part of the nineteenth century when Germany acquired New Guinea but I think that it's more likely, given the transcripts of the Constitutional Conventions, that the six colonies' biggest fears were each other. To this day we don't exactly live on an island nation of governmental friends but one which becomes openly hostile across borders depending on the colour of the political stripes of the state governments.
The Constitution was not a holy document handed down by cherubim from on high but rather, it was a document which was the result of two decades of petty squabbling in sweaty, freezing, drafty, and smelly rooms full of beardy men who also liked the theatre of politics even when nobody was watching.
Having inherited traditions from the United Kingdom and the six colonial governments which were already here, as well as being informed by the constitutions of Canada, the United States, and Switzerland, the Australian Constitution is a very conservative document and one which has only been amended 8 times since Federation. I think almost by accident that we ended up with the best parliamentary system in the world and yet the agitations of politics of the day still manage to make what is otherwise a stable system, look poisoned.
I will refer to the copy as published by the Office of the Parliament:
1. Legislative power
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 hereinafter called The Parliament, or The Parliament of the Commonwealth.
Having jettisoned both Fiji (who thought that Australia was too far away) and New Zealand (who justly thought that they could end up being bullied by the new Federation), the six colonies made no attempt to re-invent the system of government which they were familiar with. What we were given in 1901 was essentially a seventh parliament which functioned identically to the existing colonial parliaments who were now going to be called 'states' but with a few small differences.
Section 1 mentions nothing about where the new Federal Parliament is to be located and I know that this is going to sound strange but it doesn't really define who the 'Queen' is either. The names of the Senate and the House of Representatives are clearly copies of the names used in the United States, as the Constitutional Conventions looked heavily at the Constitutions of the United States, Canada, and Switzerland.
2. Governor-General
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.
Just like the Federal Parliament was a copy of the six existing colonial parliaments, the Governor-General is a copy of the the six existing colonial Governors. The actual powers of the Governor-General remain undefined in some respects to this day and I happen to think that this is a strength of the system.
Because no-one really knows what the actual powers of the Governor-General are, it means that the Governor-General also doesn't really know what their actual powers are either. Because they don't really know what their actual powers are, Governors-General have been loathe to use them; to the point where the only times that anyone can name anything that the Governor-General did anything are the 1901 Hopetoun Blunder and the 1975 Constitutional Crisis which isn't really a crisis but the Governor-General of the day acting in a way which is entirely consistent within the provisions of the Constitution.
I think that a system which has produced only 2 points of contention in 121 years, is by operative demonstration very very stable. For this reason, I want to dismiss any claims by republicans on the basis that there is no way in Hades that they can invent or design as such a stable system as this.
3. Salary of Governor-General
There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.
The salary of a Governor-General shall not be altered during his continuance in office.
Shock! Horror! A Governor-General being paid a sum of money for his public service? Wow.
£10,000 was an extraordinary amount of money in 1901. Adjusted for inflation, that is more than $1.1m a year now; which is more than double the salary of the Prime Minister (who by the way isn't even mentioned within the Constitution or even if there needs to be one).
Section 3 is mostly inoperative now as the Parliament has otherwise provided a different salary for the Governor-General, and it's kind of an untested question of whether or not the money is paid to the Queen who then hands that money to the Governor-General or if the Governor-General is paid directly out of the budget as a line item.
4. Provisions relating to Governor-General
The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.
In other words, the Governor-General is in effect only allowed to have one paid job. Particularly late in the piece, the delegates from Victoria appear to be concerned that the Governor-General would get a salary for that job as well as a second paid position within the civil service. Presumably they expected that by paying such an extravagant amount of money, that the kinds of people who might be attracted to the post, would also be avaricious enough to want other money and power.
5. Sessions of Parliament, prorogation and dissolution
The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.
Summoning Parliament
After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.
First session
The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.
This is a massive power which has been assigned to the Governor-General. This is the power to call, to close, to raise the parliament and dissolve the House of Representatives at any time; no matter how inconvenient for anyone else in the world.
In fact, two of the imagined charges against King George III have to do with the exercise of a similar power, though truth in point there has never been any evidence of these charges.
https://www.archives.gov/founding-docs/declaration-transcript
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
- Declaration of Independence, 4th Jul 1776
At any rate, by placing this power in the hands of the Governor-General, the Constitution of Australia safeguards itself against an imagined or pretended charge like this by explicitly laying out said power.
In the weeks running up to the 2022 General Election, the commentariat had devolved into a slanging match over when the Prime Minister would call the election. The truth is that while convention says that the Prime Minister as the effective head of the Federal Executive Council can advise the Governor-General when they would like to dissolve the parliament, the actual power to do so always lies with the Governor-General. We were always at least going to go to an election for the Senate on or before May 21 because of the fixed-terms of that chamber but even if the Prime Minister had said nothing, the Governor-General would have been the one to make that call.
The Governor-General could have in theory called the election without advise from the Prime Minister and again, while there would have been public outrage because this has never been done in 121 years of the Commonwealth, the Section 5 power would have allowed the Governor-General to do that.
Probably the clause demanding that the parliament shall be summoned within six months of a general election and the return of the writs, stems from the unpleasantness of Charles I (long since our of the memory, even then). Likewise the demand to call that first parliament within six months of the Commonwealth, is not only a practical demand on the Governor-General to call the parliament but a call to the members who would be elected to get on with the business of governing the Commonwealth.
6. Yearly session of Parliament
There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.
The only critical demand upon the parliament with respect to the passage of legislation, is to table and pass Appropriation Bill No.1. That is, the parliament's first function and indeed only absolute core function is to pass the Federal Budget and make sure that the normal business of the Commonwealth can continue.
Even if the Parliament were to achieve exactly nothing else, because this chapter asserts that the Governor-General must be paid a salary, then that by default suggests that there has to be an Appropriation Bill for at least that one thing.
The things which the Parliament can legislate for are a different set of items to what it absolutely must legislate for and since as we shall see a lot later on, the payment of a Salary (and presumably an implied taxation bill of some kind) is as far as I am aware the only absolutely non-removable item.
Admittedly, the Parliament has never not been busy in passing legislation and so this has never been an issue but I imagine that the reason why this has been included is because of fears of things like military coups, or soft coup where a party in charge simply refuses to call parliament, abject disaster, or a situation where the mix of seats and parties is so fractured and chaotic that nobody can form government. I think of Belgium quite recently which went more than 500 days without a government forming. A parliament not sitting under those circumstances would fall foul of the Constitution.
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