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The Australian Constitution describes and defines the way in which the executive can function. Through a discussion of three constitutional functions, including; the process of altering the Constitution, creation of the High Court of Australia, and preservation of State Powers, evidence ultimately suggests that the Constitution has been able to adapt to changes in Australian society over time.
The Constitution can only be formally altered by a strict process outlined in section 128 of the Constitution. There are four stages to this process. The first is the consultation stage, where the community is encouraged to consider and debate any proposed changes. The next stage involves a bill being introduced into parliament, where it must be successfully passed through both houses. However, it can be reintroduced after a period of 3 months in which it only needs to be passed through one house. The referendum stage provides that the Governor-General authorises the referendum, and must then vote regarding the proposed change. To be successful dual criteria must be achieved: the democratic criteria, with more than 50% voting in favour of a change, and the federal criteria, with at least four of the six states voting in favour. If the referendum is successful, the governor-general assents to the changes and they are made, if unsuccessful, the bill lapses. Despite this, the lack of referenda success suggests it is not effective, as there have only been eight successful proposals out of forty-four put to a referendum. The 1967 referendum was one of the eight successful proposals, in which Australians voted to amend the Constitution to allow the Commonwealth to make laws for Aboriginal people and include them in the census. The reasons for the lack of success include a lack of bipartisan support, difficulty in achieving the dual criteria, the conservative nature of the electorate, and misunderstanding the process. The eight successful proposals out of fourty-four put to referendum have been passed to allow the Constitution to keep up to date with society, however, as the process is so strict, constitutional alteration is not the best means to achieving change.
The Founding Fathers created the Australian Constitution, prescribing safeguards to protect the sovereignty of the States from the powers of the Commonwealth. The nature of the federal system was intentionally constructed to ensure States retain sovereignty over certain legislative powers. The doctrine of the division of powers ensures that any legislative powers not specifically enumerated in the Constitution reside with the States and the Commonwealth cannot legislate in these areas. Constitutional Protection is provided through sections 106, 107, and 108. These sections operate to preserve the constitution of each state; provided it does not conflict with the Commonwealth Constitution, preserve the powers of the states unless exclusively given to the Commonwealth and preserve state laws to the extent they are not inconsistent with their federal counterparts. Protection of state powers is also provided through equal representation for the states in the Senate, with the intention that the twelve Senators from each state vote in favour of that state’s interests. Despite these protections, state powers have gradually eroded over time. Whilst originally the senate’s role was to vote in the interests of the states, this purpose has now shifted, in that it now votes along party lines. This transition was demonstrated in the 1942 Uniform Taxation Legislation where the Senate voted in favour of altering the division of powers away from the state by making income tax a specific power of the Commonwealth. While the protection provided through sections 106, 107 and 108 of the constitution has proven an effective mechanism for the preserving state powers, the shifting roles of the senate has rendered it less effective in this regard. 96 grants power roads case
The High Court of Australia was established in 1901 pursuant of section Section 71 of the Constitution. It is vested with judicial powers to interpret the constitution and uphold its principles. The High Court achieves this through two jurisdictional sittings. The majority of the High Court’s workload derives from its appellate jurisdictions where disputes from lower sate and federal courts are resolved pursuant to section 73 of the Australian Consitution. The original jurisdiction, which is defined in sections 75 and 76 of the Australian constitution vests the High Court with the judicial authority to undertake disputes involving the constitution . Essentially, the High Court sits in its original jurisdiction as ‘guardian of the constitution’, giving expression to the words and phrases within it so as to ensure that power is validly exercised by the legislature and executive. The High Court’s interpretations have brought a dynamism to the constitutional alteration process which has prevented the constitution from becoming antiquated in the face of rapid societal changes. This was demonstrated in the Mabo (2) case, where the Full Bench of the High Court of Australia determined that the doctrine of terra nullius was the product of bygone ideas and values and as such was contrary to contemporary human rights expectations. In its place, the High Court established the common law principle of the Native Title, which provided a means for Indigenous Australians to claim Native Title if an ongoing link and association with the land could be proven. Mabo 2, is one of the many examples in which the High Court of Australia has adapted to changing societal expectations in regard to race and social equality.
The Australian Constitution has somewhat adapted to changing societal expectations through its key functions. The altering of the Constitution ensures that the Constitution can only be changed by a strict processes outlined in section 128 of the Constitution. However as this process is so strict Constitutional Alteration has proven an ineffective means of achieving change. The state powers has been successfully upheld through sections 106, 107 and 108 of the Constitution, however, the shifting roles of the senate has provoked a shift in powers away from the states, in favour of the commonwealth. This shift has created a less rigid and strict division of law making powers, which has given the legislative the ability to adapt to changing societal needs and expectations. The High Court of Australia, has brought about the most flexible changes in Australian society through its decisions and interpretations. These functions are effective for the Constitution as it promotes trust and coordionation for people to live cohesively together and evidence ultimately suggests that the Constitution has been able to adapt to changes in Australian society over time.
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