BY DR GLENN DAVIES
Constitution Day in Australia is observed annually on 9 July and acknowledges the day the Constitution of Australia was approved in 1900 when Queen Victoria granted Royal Assent to the Commonwealth of Australia Constitution Act after the Bill was passed by the British Parliament
On 1 January 1901, the Commonwealth of Australia was officially established when this Act entered into force.
Constitution Day is not a public holiday in Australia and is arguably the least known of the notable days in the Australian calendar. In 2000, the commemoration for the centenary anniversary of the Constitution of Australia was established. However, the commemoration was not widely held after 2001.
The National Archives of Australia revived the observance in 2007, as this is where the original Constitution of Australia document is preserved.
Copies of the Act, the signed Royal Assent and related documentation have been dubbed Australia’s “birth certificates“. However, unlike Australia Day, Anzac Day or Melbourne Cup Day, Constitution Day is linked inextricably to a set of defining documents. It also commemorates the outcome of a democratic process — the votes of 573,865 people in the six Australian colonies, in the referenda of 1899 and 1900.
The Constitution of Australia is the first national constitution anywhere in the world to be put to a popular vote. As it did in a number of areas of social reform around this time, Australia led the world in constitutional development.
The Constitution of Australia has a special status in that it can’t be changed in the same way as other laws can be changed. It is a supreme law — that is, it overrides other laws. The Federal Parliament can change ordinary laws, such as the Marriage Act, by passing amendment laws, but it can only initiate proposals for changes to the Constitution. The approval of the people of Australia is necessary for any change to the Constitution, just as the approval of the people of Australia was a step in the process of creating the Constitution in the first place.
Many proposals for constitutional change have been discussed since 1901, but most have not got as far as a referendum or have been rejected at referendum. There have been 42 proposals to alter the Australian Constitution passed by the Federal Parliament and submitted to referenda, but only eight have been successful — the last in 1977.
1999 was the last Referendum. Geoffrey Sawer stated we are a “constitutionally frozen nation”. Perhaps it’s time we started to defrost our nation.
Over the past few years, Australia appears to have gone through a “Constitutional crisis“. Since October 2017, Section 44 (i) of the Constitution has become the subject of national attention, with 15 parliamentarians being disqualified, or resigning pre-emptively, due to breaking this Constitutional clause, which refers to dual citizenship.
Section 44 (i) states that a person is disqualified from running for office if they are:
‘ … under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.’
The Constitution of Australia takes the form of a statute and was drafted in broad terms, so as to last over a long time. It provides the foundation of the body politic. The Australian High Court is the ultimate arbiter of the Constitution and as has been shown, it is clear that “unknowing” is no defence.
The Australian High Court acknowledged its decisions on the dual citizenship referrals was harsh but correct. This has led to certainty and stability for overseas-born British citizens. The decisions are clear. This is the future.
On this 2019 Constitution Day, with a new Federal Parliament, Australia’s “Constitutional moment” isn’t over. The ghost of Section 44 (i) continues to hang over both Federal chambers.
We all hope the dual citizenship fiasco has been resolved for the new Federal Parliament through better processes. If not, expect the High Court to interpret the Constitution of Australia Act to the black letter of the law.
Happy civic birthday, Australia!
This article was originally published by Dr Glenn Davies for Independent Australia.
