I’m curious about something: how do Australians cite their Constitution?
The Oz Constitution was enacted by means of a British statute, after it had been approved by the six Australian colonies. The statute was the Commonwealth of Australia Constitution Act, 63 & 64 Vict. (UK), c. 12. After eight introductory sections, the text of the Constitution is set out in s. 9 of the British Act.
So, what’s the formal citation for the Constitution in Oz law-speak? Is it just “Constitution of Australia”? Or is it something like, “Constitution of Australia, being s. 9 of the Commonwealth of Australia Constitution Act, 63 & 64 Vict. (UK), c. 12” ? Something else entirely?
The typical citation is usually something like, e.g., Constitution s. 51(xx) (to cite that particular provision). It’s not necessary or usual to cite the Act of the Westminster parliament which established the Constitution; the Constitution is treated as a fundamental norm of the Australian legal order which doesn’t require further citation.
Nor it is necessary to specify the Constitution of Australia. If disambiguation is required, it will usually be disambiguation from the constitution of one of the states of Australia, and this is acheived by citing the Commonwealth Constitution or Constitution (Cth).
Northern Piper, I was able to find this, which may help:
It looks to be similar to the McGill Guide, which you and I are both familiar with.
UDS1, that’s helpful, but you should know that Northern Piper is a legal scholar posting from Canada. If he’s working on a paper or brief, to be used in a Canadian legal journal or before a court, he’d want to make sure that the constitution he is citing is the Australian constitution, not the Canadian one, which would be the default in Canada.
I do owe you thanks, though, because as I read through the University of Melbourne guide, the abbreviation “Cth” puzzled me. Now, thanks to your post, I know that it stands for the Commonwealth Constitution, meaning the Constitution of Australia. Thanks again!
Dammit, you rumbled me. Shoulda known better than to post here.
My initial thought is that each of the states should have their own monarch or duke. Maybe the Earl of West Australia, the Brenin of New South Wales, and the Queen of Queensland (with descent solely through the female line, of course).
I’m still working on the details, but I’ll keep you posted.
Oh, and in place of the Gov Gen, I think you should have a new official, with a title that abbreviates neatly to “Cth.” Doesn’t Cthulu come from the South Pacific? Of course, then you’d have to re-name Canberra to R’lyeh.
And a little bit of history there. It was a Commonwealth when formed (they argued about if they wanted a commonwealth or a federation), but in the 70’s or 80’s the government (which was federalist at the time) really didn’t like that word, and stripped it out of all government documentation. I can remember the replacement of the ashtrays and the door mats.
It’s crept back in again (particularly in the (Attorney-General’s Department), but it’s still the case that very few government departments will ever use the word ‘Commonwealth’ unless absolutely unavoidable.
It provides fertile ground for the small number of ‘sovereign citizens’ we have in Aus. If it’s not the Commonwealth Government it’s illegitimate.
Confusingly, the process by which the Commonwealth was formed was, and still is, referred to as “federation”, and this is also the commonly-used name for that period of Australian history, for art/architecture characterising that period, etc. So nobody was shying away from the concept of federation, and I am sceptical that “commonwealth” was intended to deny or conceal the fact that what was going on was the creation of a federal state.
The term “commonwealth” seems to have been first proposed in about 1890. It seems to have been a conscious departure from the Canadian precedent established in 1867; “Dominion” is suggestive of lordship whereas “commonwealth” points to the common or shared welfare. It may have been that, a generation after the Canadians, the Australians were concerned to appeal to more democratic concepts, and so to evoke the community rather than the monarch. It may also have been an attempt to reassure the smaller states, who were generally less enthusiastic about federation, that the goal was to establish a polity that would be beneficial to all. “Commonwealth” also hinted at the influence of the US on the design of the Australian constitution; several US states have the formal title “Commonwealth”, and an influential study (at the time) of the US system was entitled The American Commonwealth.
As against that, “commonwealth” had republican and even revolutionary overtones, because it evoked Cromwell’s Commonwealth.
Other titles considered at the time included “United Australia,” “Federated Australia,” “The Australian Dominion,” and “The Federated States of Australia,” but in the end they went with Commonwealth of Australia, which is still the formal title of the state…
I was taught that it meant the states were accepting an economic union, not a political union. They weren’t going to be usurped by some federal government: they were just going into a union, which would replace the comparatively light (but stupid and out-of-touch) hand of foreign colonial oversight with something local and democratic.
I’m sceptical of the notion that the use of “Commonwealth” was intended to deny the reality of federation, not least because the Constitution itself says the exact opposite - the states are said to “have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland”, the legislative power of the Commonwealth is “vested in a Federal Parliament”, there’s a “Federal Judicature”, a “Federal Executive Council”, a “Federal Supreme Court” and other “federal; courts” exercising “federal jurisdiction”, etc. So, nobody reading the Constitution was likely to think that it attempted to conceal the reality of federation, or the fundamentally federal nature of the Commonwealth.
It is a bit of a pedant’s paradise. Whenever I write I agonise just a tiny bit over whether Federal or Commonwealth is the more appropriate term, but it invariably is corrected by an editor, regardless of choice.
Despite that, public [ie civil] servants working for the Australian government are invariably known as Feds, and often with a small but clear note of disdain.
Interesting. In Canada, which is much the same (a group of former colonies coming together to form a single country under the British crown), we used the term “confederation.” So for example, “On July 1, 1867, the colonies, now provinces, of Ontario, Quebec, Nova Scotia, and New Brunswick came together in confederation.”
In 1967, Canada held confederation celebrations to celebrate our 100th birthday.
In 2017, Canada held confederation celebrations to celebrate our 150th birthday.
What I’m getting at is, are we conflating the terms, “commonwealth,” “dominion,” “federation,” and “confederation.” and similar? In the end, aren’t Canada and Australia both a collection of states/provinces subject to a federal government under their respective constitutions? Any way you look at it, that’s a dominion, or a confederation, or a federation, or a commonwealth. No matter what you want to call it.
Interestingly, some years ago, Canada dropped the “Dominion of” precursor, and just became “Canada.” Now we’re just plain, “Canada,” in international treaties and so on. Perhaps the “Commonwealth of Australia” ought to drop the “Commonwealth of” part, and just be “Australia.” Might help, when you’re trying to convince other countries that you’re not British. Worked for us.
Was “confederation” the term used for this process at the time that it was happening? What strikes me is that, in the period up to 1867, Canadians would have been very conscious of the late unpleasantness south of the border, in which the United States of America were opposed by the Confederate States of America. I can’t but think that this must have coloured the language used about the developments occurring in Canada.
So maybe the advocates of confederation were using a term chosen to convey a sense that the Canadian entity would be less centralised than the USA, and would have an allocation of powers bewteen the centre and the provinces more like that favoured by the CSA.
Or am I reading too much into this, Canadian Dopers?
There’s always been some of that.