Section 96 gives the Commonwealth power to give money to States "on such terms and conditions as the Parliament thinks fit". This power is not limited by any other part of the Constitution, such as Section 99 that forbids giving preference to one State or over another State. It is subject only to Section 116, freedom of religion, and possibly other such freedoms. This power, which was only meant to be used ("during a period of ten years ... and thereafter until the Parliament otherwise provides"), has been used by the Commonwealth to encourage cooperation by the States to various extents over the years.
Section 101 sets up an Inter-State Commission, a body which is no longer exists, but which was meant to have a significant role in the federal structure.
Chapter V says what the States can do in a federal system. Sections 106-108 preserve the Constitution, the powers of the Parliament, and the laws in force of each of the States.
Section 109 says that, where a State law is different to a federal law, the federal law applies.
Section 111 says that a State can give up any part of its lands to the Commonwealth. This has happened several times. South Australia gave the Northern Territory to the Commonwealth.
Section 114 stops any state from having its own military force. It also stops the State or the Commonwealth taxing each other's property.
Section 116 sets out "freedom of religion", by stopping "the Commonwealth" from making any law to start a religion, to impose any religious observance, or to stop a religion, and by stopping religious discrimination for public office.
Chapter VI allows new states to be made, or to join the Commonwealth. Section 122 allows the Parliament to provide for the representation in Parliament of any new territory. Section 123 says that changing the boundaries of a State needs the support of the Parliament of that State and must pass a referendum in that State.
No new states have joined the Commonwealth since federation.
Chapter VII says that the seat of government of the Commonwealth (now Canberra) shall be in New South Wales but no less than one hundred miles from Sydney, and that the Governor-General may appoint deputies. Section 127 first said that Aborigines cannot be counted in any Commonwealth or State census. This section was changed in 1967.
Chapter VIII sets out how the Constitution can be changed. Section 128 says that changes must be approved by a referendum. A successful change needs:
The Governor-General must put the referendum bill to the people between two and six months after passing parliament. After the constitutional amendment bill has passed both the parliament and the referendum, it then receives Royal Assent from the Governor-General. This makes it the new law and the wording of the Constitution is changed.
An exception to this process is if the amendment bill is rejected by one house of Federal Parliament. If the bill passes the first house and is rejected by the second, then after three months the first house may pass it again. If the bill is still rejected by the second house, then the Governor-General may choose to still put the bill to the people's vote.
As mentioned above, changing the Constitution requires a referendum in which the "Yes" vote achieves a majority nationally, as well as majorities in a majority of states.
Forty-four proposals to change the Constitution have been voted on at referendums. Eight have been approved. The following is a list of changes that have been approved.
As well as the written Constitution and Letters Patent issued by the Crown, conventions are an important part of the Constitution. These have developed over the years and define how various constitutional mechanisms work in practice.
Conventions play a powerful role in the operation of the Australian constitution because of its set-up and operation as a Westminster system of responsible government. Some important conventions include:
However, because conventions are not written down, their existence and practice are open to debate. Real or alleged violation of convention has often led to political controversy. One extreme case was the Australian constitutional crisis of 1975, in which the operation of conventions was seriously tested. The ensuing constitutional crisis was resolved dramatically when the Governor-General Sir John Kerr dismissed the Labor Prime Minister Gough Whitlam, appointing Malcolm Fraser as caretaker Prime Minister pending the 1975 general election. A number of conventions were said to be broken during this episode. These include:
In line with the common law tradition in Australia, the law on the interpretation and application of the Constitution has developed largely through judgments by the High Court of Australia. In a number of important cases, the High Court has developed several "doctrines" which underlie the interpretation of the Australian Constitution. Some examples include:
The vast majority of constitutional cases before the High Court deal with characterisation: whether new laws are part of the power granted to the Commonwealth government by the Constitution.
The Australian Constitution does not include a Bill of Rights. Some people at the 1898 Constitutional Convention wanted a Bill of Rights like the United States Constitution, but the majority felt that the traditional rights and freedoms of British subjects were enough. These would be protected by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for not protecting rights and freedoms.
Some rights were included:
In 1992 and 1994, the High Court of Australia found that the Constitution gave an "implied" right to freedom of political communication, in a series of cases including the "Australian Capital Television" case and the "Theophanous" case. This was seen as a necessary part of the democratic system created by the Constitution. The application of this "implied right" has, however, been restricted in later cases, such as "Lange v ABC". It is in no way equivalent to a freedom of speech, and only protects individuals against the government trying to limit their political communication: it offers no protection against other individuals.
In 2007, the High Court of Australia in "Roach v Electoral Commissioner" said that sections 7 and 24 of the Constitution, by providing that members of the House of Representatives and the Senate be "directly chosen by the people", created a limited right to vote. This means that there is a universal franchise in principle, and limited the Federal Parliament's legislative power to change it. In the case, a legislative change to stop all prisoners from voting (as opposed to only those serving sentences of three years or more, as it was before the amendment) was rejected as breaking that right.
Other attempts to find other "implied rights" in High Court cases have not been successful.
While a "pro forma" preamble prefaces the Imperial "Commonwealth of Australia Constitution Act 1900", the Australian Constitution itself does not have a preamble. There have been some calls to add one to express the spirit and aspirations embodied in the constitution. However, there has been fierce opposition, usually on the basis of the content of the preamble, as well as possible legal ramifications of this text. In 1999, a proposed preamble, written by John Howard, the then Prime Minister, was defeated in a referendum held concurrently with the Republic referendum. The "Yes" vote (in favour of the insertion of the preamble) did not achieve a majority in any of the six states.