The constitutional system

From Sovereignty in Australia to Australian Sovereignty

“…Shared sovereignty can take many forms, but the proposal here builds upon the complex interaction, cooperation and multi‐level governance already found in the federal system, in which supreme authority is not pooled, divided or used jointly. The proposal is very much in line with what Galligan (, p. 38) calls the ‘ongoing dynamic of intergovernmental relations’ in the Australian federal constitutional system, of ‘shared arrangements for handling complex policy areas in which both the Commonwealth and the [S]tates have policy interests’. Wouter Werner and Jaap De Wilde (, p. 303) describe how sovereignty can be shared without fear of its loss, distinguishing between the ‘claimed status’ of sovereignty, which is indivisible and ‘cannot be partly handed over or pooled’, and the ‘rights and powers linked to that status’, which can be transferred or shared with ‘other States’ or interests.…”

“…Brian Galligan (, p. 28) notes that Aborigines were ‘systematically denied basic human rights and entitlements by both the [s]tates and the Commonwealth until the 1960s’, and traces this back to the 1900 Constitution. While the absence of a statement of citizenship rights and core values in the Constitution was in part due to not wanting to reduce the variety of states’ practice to a federal norm, a ‘less honourable reason … was to allow deliberate discrimination against Aboriginal peoples and racial groups such as the Chinese’, and not to infringe upon the ‘constraints upon the [s]tates’ right to discriminate against Aboriginal people’.…”

“…Galligan argues that the Australian Constitution of 1901 has latterly been misunderstood. Instead of being a Westminster system which places sovereignty in the hands of parliament, Australia has a federal system in which sovereignty is vested in the Constitution by the constituent people (Galligan, , p. 250; , pp. 23–6), and through which political power is shared between the different parts of the federal system.…”

“…On the other hand, as R. D. Lumb (, p. 163) notes, ‘the States continued their separate constitutional relations with the Imperial Crown and Parliament’ after Federation. Galligan (, pp. 27–8) pinpoints the lack of an ‘adequate safeguard of rights’ for Aborigines as due in part to the ‘respect’ for the states in the establishment of the federal system in 1900, ‘which were left with jurisdiction over key areas of citizenship and rights, including police and criminal law as well as many of the human services and their own electoral and political systems’.…”

“…He argues that the fundamental law of responsible government by the different states in Australia, established in the 1850s, was ‘overlaid’ by the fundamental law of the federal government in 1901. As Galligan (, p. 28) notes, for example, the States’ ‘established laws and practices regarding citizenship would continue after federation’. Lumb (, p. 150) maintains that, ‘[a]s in the United States, the Federal Constitution was superimposed on the Constitutions of the individual States and did not replace them’.…”