1. Constitutional Law Theories Flashcards
What is constitutional law?
- Branch of the law which regulates the three arms of government
- It is the source of exercise of public power and the limitations
- Relations between arms of government
- Relations between levels of government (Australia is a federation - a Commonwealth - so relo between federal and state governments)
- Relations between the government and the people
- Constitutions are often entrenched
Entrenched - The federal Constitution’s special power is that it overrides all future laws.
Double referendum - The only way to change the federal Constitution.
Recall
Parliamentary sovereignty
What is it, how is it applied in Australia
Parliamentary sovereignty means to be able to make or unmake any law whatever; and that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.
In Australia, no parliament is absolutely sovereign, constrained by the Cth Constitution. However, it forms part of our legal culture, due to influence of British law on Australia’s legal system.
It is part of a twin pillar of Anglo-Australian constitutional law (sovereignty and rule of law). It states that the Parliament is supreme over Monarchy, enabling it to pass laws.
For and against bill of rights
Australia is the only liberal democracy not to have either a constitutionally entrenched bill of rights or rights of a national huyman rights act.
For
* Ensure legislation passed conforms to human rights principles
* Encourage social inclusion, redress to minorities suffering unfair treatment
* Improve Australia’s international reputation, address past human rights violations
Against
* Imbalance of power courts > Parliament
* Hard to change entrenched bill of rights
* More rights may be given to the wrong hands (criminals)
* Courts will clog up
Recall
Pros and cons of parliamentary sovereignty
Pros
Parliament is elected by the people (democratic)
Cons
Failure to incorporate checks and balances upon the legislative arm to prevent the passage of oppressive statutes
Recall
Rule of Law
3 facets/doctrine in Dicey’s terms
- People are governed by the law, and the law alone
- people cannot be punished for a decision that was not consistent to the law. - Equality before the law
- Equality between the governed and the governers. All, including the government, are below the law. - Human rights are inherent in people, no need for a law
Recall
Bicameralism
Parliament is made up of 2 houses.
The lower house of Commons and the upper house of Lords.
In Australia there is the lower house of representatives and the upper house of senate.
Queensland does not follow bicameralism, and has one house of Parliament, the legislative assembly (easier to pass legislative agendas).
Neither do the Territories
Representatives - ELECTED by people for electrates
Senate - ELECTED by people for states
Supply/budget
P authorises govt budget
Ch8 s128
Amendment procedure which entrenches the Constitution.
Passed by the lower house and upper house, then submitted to Australian people in double referendum.
How did Australia become independent from the UK?
UK’s statute of Westminster 1931 applied to dominions of the UK - applied to Commonwealth of Australia but not to the individual states of Australia. The statute repealed the collonial law’s validity act (CLVA) regarding to dominions. Therefore with statute of Westminster 1931, from thereon, dominions can legislate according to UK law. In 1942, Australia adopted the statute of Westminster, thereby becoming independent.
States are still bound by CLVA and cannot pass laws until Australia Acts 1986, which repealed the CLVA for the states.
If the settlement of Australia was based on terra nullius, which was clearly not factually true, is the importation and extension of British laws to Australia lawful?
Extension of British laws to Australia was lawful despite the injustice of terra nullius. Due to the sovereignty of the Westminster Parliament, any law enacted in Australia by UK is legal. Through the Australian Courts Act 1828, the extension of British law to Australia’s legal matters and courts was made legally valid.
What are the three arms of government and what do they do?
Legislative arm - legislates laws and passes bills through the Parliament.
Executive arm - Administers laws by policy throughout government agencies and ministerial departments.
Judiciary arm - Resolves legal controversies withi enforceable binding decisions.
During COVID, Victoria attracted a lot of criticism over its management of hotel quarantine. But is quarantine a federal or State responsibility?
s51(ix) of the federal Constitution gives Parliament the power to quarantine, and s69 requires the states to transfer quarantine services to the Commonwealth. The states and territories also have powers to quarantine people within their state or territory as part of their powers to manage public health and deal with emergencies.
Constitutional conventions
Conventions are customs or practices that are habitually followed by governments, who are under a moral or political obligation to continue following them. Breach does not attract any legal sanction.
Conventions are important especially with the power of the Governor-General, for who the federal Contitution provides enormous power. Convention of GG is that he acts on the advice of the government of the day (doctrine of responsible government).
s5 - GG to dissolve lower house of Parliament “as he thinks fit”
s58 - GG to disallow legislaiton by refusing assent
s64 - GG to sack Ministers and entire government
Why are certain constitutional practices protected by convention rather than law?
It is important for a proper functioning of government that it has discretionary power on government to **allow a constitution to develop **in accordance with new ideas and events without strict legal constraint.
It is impossible to codify all rules.
Conventions allow flexibility to permit gradual, evolutionary shifts in power.
Representative government
Government that represent the people. In Australia, make-up of the lower house of Parliament is democratically elected through preferential voting.
