Structure of Australian Constitution - Essay Example

Name Tutor Course Date Introduction The current structure of Australian constitution is rather complicated and has played a major role in hindering republicanism in Australia. Australia shares a monarch with England and other commonwealth territories meaning that the queen is not a resident of Australia. This makes the situation to appear as if Australia is still a colony of England, which is not the case. The constitution that Australia uses is a reflection of the law of Britain referred to as the Commonwealth of Australia Constitution Act, 1900. This made it easier for the United Kingdom to independently pass the Australian constitution. However, the power of British over Australia ended in 1986 after the enactment of the Australian Act. Since then, Australia has only been left with a small link with England due to the fact that they share the Queen. To reach to this point, it has however taken Australia several stages but it has still not achieved full legal independence, which will be possible when it will start existing under a different monarch form England. Constitution of Australia Australia and England are ruled by the same Queen, called Queen Elizabeth II. Queen Elizabeth II acts as the queen of sixteen self governing states referred to as the commonwealth territories. Among the commonwealth territories is the Australia and United Kingdom. The queen is the holder of the crown in each of the commonwealth nations and she is crowned separately in each nation but equally where the kingdom is shared. Queen Elizabeth is also the chief of commonwealth and the senior director of the Church of England. The highest crown is held in United Kingdom and the least in Nevis. As the ruler of the constitution, the Queen is non partisan and her duties are just ceremonial (Nicholas, 62). Commonwealth of Australia was born as early as when Australia gained independence from the United Kingdom. The constitution gave the common wealth total powers related to an independent state, such as the power to get involved in foreign issues and to set its own army in the state. However, the United Kingdom was left with the authority to get involved in foreign matters on behalf of Australia. Australia therefore went on being represented by the United Kingdom as a member of British Empire in the worldwide meetings and conferences. The constitution however stated that the British colony be represented in Australia by a Governor-General initially elected on the decision of British and not Australia. Generally, the constitution of commonwealth provided that stand of commonwealth in the United Kingdom remain the same as for those of its other members. This is the reason as to why England and Australia share the queen (Sawer, 119). In the late 1920s, a significant change in the constitution of the British Commonwealth took place. The change resulted in the split of the crown that was initially the centre point of the empire to many crowns put on by a shared monarch. Another change occurred in 1931 that was brought by the Act of British Parliament referred to as the Statute of Westminster. This was related to the change of the British colonies to commonwealth colonies. After this change, the government of the United Kingdom identified Australia as an independent state and was allowed to make its own laws unless the government of Australia requests the British government to assist in making laws. The Statute however failed to be adopted in the states of Australia following their own requests since they wanted to be left to govern themselves same as the United Kingdom, but subject to directives form British Government. Their state governors who stood in place of ruler were initially elected following the advice of the British government. The level of Commonwealth on the other hand directed that the ruler was to be elected following the advice of the government of Australia and not the British government. In 1934, a referendum voting was worn where the Australians wanted to depart from the Commonwealth of Australia to go back to the British Empire as an independent kingdom. However, the government of Britain did not take any action because the appeal was received from the government of Australia in conjunction with the Statute of Westminster. The authority form the Statute of Westminster to appeal to the British government to deign laws on behalf of Australia was applied on many occasions, mainly to assist Australia to gain new regions. However, its most important purpose was its final. This was at the time when the process was used to enact the Australian Act of 1986. This act brought to an end the power of the British government to create laws for Australia and its states even if it was at their appeal. The act also stated that the government of Australia and its states could now enact any law that was before needed to be enacted by the British government on their behalf. The act still banned the order of the monarch him/herself to practise his or her authority in the states, but only on situations where he or she is available in those states. Finally, the act forced the last legal connection with the United Kingdom by banning the right of request to the Judicial Committee of the Privy Council. Summary of the main stages in Australia's path toward legal independence from the United Kingdom The real independence was attained in March 1986 when the Australian Act of 1986 was enacted. However, Australia’s independence from the United Kingdom did not historically take one occasion. Legally, it has been taking place gradually. Some of the key steps that have been taken in the process include attainment of significant internal self rule by the colonies in the mid 1800. Before then, Australia was divided into different political British colonies totalling to six. By mid 19th century, the six colonies had attained nearly full self ruling each having its own colonial governments, and their “mother country” caring for their security and foreign affairs. The “mother Country” could also occasionally intervene in some of the issues in the colonies. Each of the colonies had its own laws and imposed customs levies at the boundary between them. This was a contribution to the total financial development in Australia (Sharp, 94). The second step that Australia made was in 1901 when the commonwealth of Australia was formed. The significance of formation of the commonwealth of Australia was to get it out of being a under British Empire. Australia preferred to be under commonwealth, which the constitution provided powers equal to an independent country. Powers were given that could allow it to be involved in foreign issues and to set up its own army. The third step was in development of a shared monarchy. Before the year 1927, one could talk of a British monarch ruling in the territories. However, after then, there was king of Australia, a title that was not in common use, but the only connection with Britain was that the monarch was form Britain and was not elected form the commonwealth of Australia. The significance of the shared monarch was that the states of Australia could be headed by a governor who is elected by the queen following the advice of the state governments. Here, Australia achieved the power to form its own state government and replaced the power of British government with that of the queen (Winterton, 112). The fourth step was the enacting of the statute of Westminster. The significance of the Statute of Westminster was to declare governmental equality among the self ruling territories of the British Empire and the United Kingdom. The statute was adopted as a family law in all the commonwealth territories in such a way that it could not be made outdated by the changes in the constitution. The statute is historically important since it indicated the effective government independence of those nations either instantly or later after approval. This act laid the basis for continuation of the connection between the commonwealth territories and the queen (Campaign against Foreign Military Bases in Australia, 71). The last and the most significant step towards achievement of Australian legal independence was the enacting of the Australian act. Since the act was passed in 1986. The enactment of the act was powered by the statute of the Westminster. The act cut off all the powers that British had over Australia. British was left at a position that it could not make any laws for Australia even at the appeal of the Australian government. Since the Australian act was passed, the only connection that is left between Australia and the United Kingdom is on the monarch, that is, the Queen of Australia and England. However, the connection may not be automatic. This is because if the British government changes in the law of succession of the crown, the change could not affect the Australian monarchy since the Australian act provides that succession would go on as per the already available rules unless the rules were changed in Australia. The only left role of the monarch is appointment and dismissal of the governor general and the governors of the states. This role is however performed following the counsel of the premier in the state. Therefore, the monarchs function is just ceremonial in Australia. Conclusion It is hard for Australia to achieve total independence due to the complications that exist in the structure of her constitution. As long as it is a member of commonwealth, it has to exist in the shared monarchy where the king of Australia is the same as that of England. However this does not mean that Australia is still a colony of England. Achievement of republicanism in Australia is more still complicated by the fact that each of its state has its own constitution, and at the same time commonwealth places a complicated mixture of a written constitution besides the principle, tradition and distance powers. It is however the duty of Australians to work towards the achievement of republicanism either by a referendum or by constituting its own constitution that will make it withdraws from commonwealth membership. Works cited Nicholas, Harold. The Australian Constitution: including Commonwealth of Australia. Austria: Law Book Co. of Australasia, 1998. Sawer, Geoffrey. The Australian Constitution. Melbourne: Australian Govt. Pub. Service, 2000. Winterton, George. Monarchy to republic: Australian republican government. Oxford: Oxford University Press, 1999. Sharp, Martin. Australian independence: colony to reluctant kingdom. Melbourne: Melbourne University Press. Campaign against Foreign Military Bases in Australia. Australian independence. Austria: The Campaign, 2002. Read More