Constitutional Law and Australian Political Institutions

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Aside from compulsory voting at state and federal elections, many people are unaware of the political processes and institutions that govern Australia. This article will outline the political institutions of Australia and how they impact the decision-making processes in Australia.


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A. The Australian Constitution


The Australian Constitution is the most significant document in Australian law, as it determines the foundation upon which our country was built. It outlines such things as how our Government is to be run, where the capital city should be and what the Federal Government has the power to legislate on.


The Australian Constitution highlights the three main bodies that govern Australia, being the Legislature, the Executive and the Judiciary. The separation of these bodies is known as the separation of powers and is seen as a fundamental requirement of democracy.


The Legislature refers to the people in charge of the creation of laws.


The Executive refers to the parts of the Government in charge of administering laws.


The Judiciary refers to the Courts that have the task of enforcing laws.


As members of the Legislature and the Executive cross-over, seen in the Prime Minister and members of his cabinet, we do not have a complete separation of powers. However, by separating at least our Legislature and Judiciary we create a measure preventing corruption and helping to uphold the values of Australian democracy.


The only way the Constitution can be amended is through a referendum.1 A referendum only succeeds if the majority of people in Australia say yes, as well as a majority of States say yes. Since federation, Australia has held 44 referendums, with only 8 succeeding, the most recent being in 1977. This demonstrates the difficult nature of amending the Constitution.


B. Federal Levels of Government


B.1. Governor General


The role and powers of the Governor General are outlined throughout the Constitution at various sections, including sections 2, 7 and 28. The Governor-General represents the Queen in Australian Parliament, as the Queen is Australia’s Head of State.


The Governor-General has powers such as, summoning Parliament, dissolving Parliament, assenting to Bills and resigning members of Parliament.


While these powers seem quite expansive, convention dictates that the Governor-General only act on the advice of the Ministers, which puts power mostly back into the hands of the Ministers and Parliament.


B.2. House of Representatives


The House of Representatives is the lower house of Federal Parliament. It is made up of 151 members, each representing an electorate of Australia.


As established in section 24 of the Constitution, the House of Representatives must be freely elected by the people of Australia.


Members in the House of Representatives are elected for a period of 3 years. A party becomes the Government of Australia when they achieve a majority of seats in the House of Representatives, being 76 seats. If neither major party achieves 76 seats in the House, it is called a ‘Hung Parliament’ and the party may form alliances with independent members of the House to form a minority government.2 This occurred in the 2010 election, which elected the Gillard Government.


B.3. Senate


The Senate is the upper house of Federal Parliament. It consists of 76 senators, made up of 12 senators from each state and 2 from each territory. This proportional voting system ensures all states and territories are heard in Parliament.


Senators are voted in for a period of 6 years, with just over half the senators up for election every 3 years. This results in a reshuffle of just over 50% of the Senate every 3 years.


The Senate elections are organised to coincide with the House of Representatives elections for convenience.


C. State and Territory Governments


C.1. State and Territory Constitutions


Aside from the national Constitution, all other states and territories of Australia have their own constitutions or self-governance Acts. However, they all must abide by the national Constitution as if there is an inconsistency between the two, Commonwealth law prevails.3 Most sections of the New South Wales Constitution can be amended by NSW Parliament; however, for any changes to the formation and election of the Houses of Parliament, similarly to the national  Constitution, a referendum of NSW residents is required.4


D. New South Wales Parliament


Similar to the Federal Parliament, NSW Parliament is bicameral, meaning it has a lower house and an upper house. In NSW the lower house is the Legislative Assembly and the upper house is the Legislative Council.


NSW State elections are held every 4 years on the fourth Saturday in March.5


D.1. Legislative Assembly


Members of the Legislative Assembly are elected by the people of NSW. The State of NSW is split into 93 electorates, each one represented by a member in the Legislative Assembly.


D.2. Legislative Council


The Legislative Council consists of 42 members, each elected by the people of NSW. The Legislative Council is not split geographically like the Legislative Assembly, but rather sees NSW as one electorate from which 42 members are voted in. This results in a higher representation of minor parties in the Legislative Council.


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1 Section 128 of the Australian Constitution.

2 Nicholas Horne 2010, ‘Hung Parliaments and Minority governments’, Parliament of Australia; Background Notes: Politics and Public
Administration Section
, 23 December.
3 Section 109 of the Australian Constitution.
4 Constitution Act 1902 (NSW) section 7A and 7B.
5 Constitution Act 1902 (NSW) section 24A.

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© Comasters August 2020.


Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.