Constitutional Law

Australian Constitutional Law is a branch of public law which focuses upon the primary source of that law in the Commonwealth of Australia Constitution Act 1900 (Imp).  The Commonwealth of Australia Constitution Act created the Commonwealth of Australia and preserved the former British colonies as technically autonomous entities called States. 

The Australian Constitution was passed as part of a British Act of Parliament in 1900, and took effect on 1 January 1901.

The Constitution establishes a federal system of government and provides a definition of public power in Australia. Chapters I, II, and III of the Constitution confer the legislative, executive, and judicial powers of the Commonwealth on three different bodies established by the Constitution – the Parliament (Chapter I), the Executive Government (Chapter II), and the Judicature (Chapter III). It divides legislative power between the Commonwealth and the States by conferring on the Commonwealth Parliament power to legislate with respect to particular topics. In the event of any inconsistency, the Commonwealth legislation prevails and the State law to the extent of the inconsistency is invalid.

Under the federal system created by the Australian Constitution, the six former colonies became the six States of Australia. Each of the six colonies has its own constitution which continue to regulate, among other things, the Legislature, the Executive Government, and the Judiciary of the States. The continuing existence of the States is expressly guaranteed by the Australian Constitution. The Australian Constitution allows the States to preserve each of their constitutions. The States are bound by the Australian Constitution, and the constitutions of the States must be read subject to the Australian Constitution. The State Parliaments can pass laws on a wider range of subjects than the Commonwealth Parliament but the Commonwealth is generally regarded as the more powerful partner in the federation.

The Commonwealth can, where the Constitution gives it power over a subject matter, override State laws. Section 109 of the Constitution which provides that if a valid Commonwealth law is inconsistent with a law of a State, the Commonwealth law operates and the State law is invalid to the extent of the inconsistency. Many subjects of Commonwealth power are regulated almost entirely by Commonwealth law including bankruptcy, marriage and divorce, and immigration.