Ch 1: The Constitutional Framework

Question 1

Define constitution

Answer 1

• set of fundamental laws that are binding on the government and the governed and which set out the structures, powers, processess and procedures of government
• can be written (one or a small number of special Acts i.e. Aus, US) or unwritten (numerous individual statutes, court judgements and unwritten conventions i.e. UK, NZ)

Question 2

Define constitutionalism

Answer 2

• the belief that the powers of government should be limited and subject to the rule of law. It requires that the powers of governmentmust be set out in an unwritten or written constitution
• this rejection of arbitary rule was a vital step in the development of modern democracies

Question 3

Are there benefits of written constitutions over unwritten?

Answer 3

the existence of a written constitution doesn’t guarantee that a nation has a real constitution i.e. the shame constitution created by the Soviet Union (1936) where Soviet citizens were granted extensive rights however it is believed that it was published to findout who agreed with it so thos enemies of the people could be dealt with

Question 4

What are the basic principles included in a constitution?

Answer 4

• the basis of soverignty of political and legal institutions - of the right to govern
  
  • republic - comes from the people
  • constitutional monarchy - comes both from the people and the continuance of the tradition of monarchy
  • both may refer to god(s) as a source of authority
• the fundamental values underlying the system of government i.e. political equality
• the relationship between govt. and citizens - the rights and responsibilities of citizens in relation to each other and the political and legal system

Question 5

How do constitutions limit power?

Answer 5

• the separation of powers - constitutional powers are divided between legislative, executive and judicial institutions
• create federation - divide power/sovereignty between different levels of govt.

Question 6

What are conventions?

Answer 6

constitutional conventions are unwritten constitutional rules that have strong acceptance and are consciously and consistently followed (but not invariably) in practice, they are not laws so breaches of a convention can only have political consequences

• our conventions consist mostly of Britain’s unwritten conventions

Question 7

What are some different constitutional structures?

Answer 7

unitary system - the power to make political decisions is concentrated in the hands of a single central govt., if there is regional governments they may delegate some decision making bu they have no indpendent powers i.e Britain, France, NZ

federal system - sovereignty is divided between a central govt. and 2 or more regional govt.s

Question 8

What are different forms of separation of powers?

Answer 8

presidential system - separate institutions exist for the exercise of the different arms of govt. authority i.e. US, the popularly elected President of the US exercises executibe authority, the legislative, the Congress is a check and balnce on the executive

responsible parliamentary system - only the legislative is elected, the legislature choses the executive from its own members and can dismiss and replace a govt. i.e. UK, Aus, Canada, India

Question 9

What are different forms of authority and roles of the head of state?

Answer 9

republics - the people are the only source of sovereignty. The people directly or indirectly choose the head of state whose office symbolises national authority whule the real power of the head of state varies greatly i.e. US, India

constitutional monarchy - have hereditary monarchs as their head of state. The constitutional monarch has limited and often only ceremonial powers, retained as a traditional symbol and focus of national loyalty i.e. UK, Aus

Question 10

What are the different types of parliaments and constitutions?

Answer 10

unicameral parliament - parliament consists of a single chamber

bicameral parliament - legislative power is shared between 2 different houses

minimalist constitution - generally does not cover all processes, procedures and rights leaving it to common law, specific statutes and conventions i.e. Aus

Question 11

What is Australia’s constitution defined as?

Answer 11

Australia is a constitutional monarchy organised as a federation, which operates as a responsible parliamentary government. It has a written constitution but it is a minimalist document that concentrates on the task of uniting Australia under a generally coordinate federal system while leaving thw processes and procedures of the national govt. to conventions and the rights of citizens as matters of common and statute law

Question 12

What are the features of Australia’s preamble?

Answer 12

• refers to it sources of authority - the people and the mother country
• its context - how it was created
• major objective - to stablisha ‘indissoluble Federal Commonwealth’
• following the preamble are 8 covering clauses providing further context

Question 13

What does chapter one of the Constitution detail?

Answer 13

The parliament

• defines the federal parliaent as the Queen, the Senate and the HoR
• includes the British practice that all legislation formally required royal assent (by GG)

Question 14

What are the roles of the houses?

Answer 14

Senate

• states house - s7 states there will be an equal number of senators elected from each state
• house of review - check on the democratic passions of popular rule in the LH, in s13 - senator terms, s24 - nexus clause, s53 - equal power of Senate apart from it not being able to initiate or amend money bills

HoR

• people’s house - the popular house directly chosen by the people (s24)
• house of govt. - exclusive power to initiate or amend money bills, making it central to the budget process and therefore the focus of govt. authority

Question 15

How is conflict resolved between the 2 houses?

Answer 15

when a legislative deadlock occurs, s.57 sets out procedures to overcome the conflict

• if a bill originating in the HOR is rejected/amended by the Senate twice within 3 months, a double dissolution election can be called
• all the seats in the Senate and the HOR are recontested
• after the election the disputed bill(s) can be put to a joint sitting of both houses and can be passed on a majority vote of all Senators and MPs

Question 16

How does the constitution cover democracy?

Answer 16

• some suggest that the HoR provides the Constitution’s ‘democratic princple’ and the Senate is the ‘federal principle’
• however there is limited statement of voting rights: s8 - prevents plural voting, s41 - guarantees that electors qualified to vote in state elections must be allowed to vote in Commonwealth elections

Question 17

What are the legislative powers of the GG?

Answer 17

Ch 1 gives the GG significant legislative powers

• parliamentary processes - dissolve HoR (ss28), call a double dissolution election (s57), opening and suspending parliament
• legislation - authority to veto bills after their passage through parliament (s58-66)

Question 18

What does chapter two of the Constitution detail?

Answer 18

vests executive power in Federal Parliament and the Queen, to be exercised by the GG (s61)

Question 19

How are powers given to the Queen and GG divided?

Answer 19

express powers - by convention exercised on behalf of the Parliament i.e. power to disallow legislation (s59) and appoint Justices of the High Court (s72)

reserve powers - allw GG to exercise power when political leaders cannot, or to act during a political crisi i.e. nominating a new PM when lower house majority is lost

Question 20

What do Ch 1 and Ch 2 fail to do?

Answer 20

they fail to set out many of the processs and procedures of federal govt. Much of these are taken from the British Westminster System and left to constitutional conventions

Question 21

What are the main Westminster conventions?

Answer 21

• the PM is a member of the lower house, ministers must be MPs
• the PM and ministery must have a majority in the lower house
• minisers are collectively and individually responsible to the parliament
• the GG acts on the advice of the PM

Question 22

What are the main homegrown conventions?

Answer 22

• the active powers of the Queen and GG in legislative and executive decision making are fictional/merely formal and ‘do not exist’
• the powers of the GG that are in conflict with responsible govt. are generally inactive
• the govt. has the right to nominate the Senate President
• the Senate has power to negotiate changes in money bills

Question 23

Define the Washminster system

Answer 23

features of British parliamentarianism are combined with federal structure inspired by the US Constitution

Question 24

What does chapter three of the Constitution detail?

Answer 24

judicial power is vested in the High Court and other federal courts established by parliament to adjudicate in areas of federal legislative power. Guarantees trial by jury for indictable offences (s80)

Question 25

What are the functions of the High Court?

Answer 25

• determining appeals from decisions of any Aus court (s73)
• interpretation of the constitution (s76)

it’s authority can be divided into

• original jurisdiction - over constitutional disputes and matters in s75
• apellate jurisdiction - can cover any other area of Australian law

Question 26

How does the Constitution set up the powers of the govt?

Answer 26

the Constitution creates a division of powers between the State and the Commonwealth. It specifies Commonwealth areas of power that may be exclusive or concurrent (shared with the states but with Commonwealth law overriding). Powers not mentioned in the Constitution (residual powers) remain with the states

Question 27

What are examples of exclusive powers?

Answer 27

• s52 - administration of capital city (and Commonwealth properties) and to run the Commonwealth public service
• indirectly the CW can raise armed forces and coin money (states are effectively prevented from legislating in these areas s114 + 115)
• s90 - power to levy customs and excise dutyies and to grant export bounties

Question 28

What are the powers detailed in s51 and what was the aim of them?

Answer 28

mostly concurrent powers

including

• foreign trade and commerce
• taxation
• marriage
• corporations

Its aim was to encourage cooperation to achieve common aims through legislation and administration. However the Commonwealth can have the final say in these areas, because the Commonwealth law will prevail when there is conflict (s109)

Question 29

How are state residual powers detailed?

Answer 29

• s106-108 ensures the states retained their constitutions and exisiting laws of the colonies they replaced
• powers include
  
  • intrastate trade and commerce
  • civil and criminal law
  • health and education
• s100 - control over river waters in their borders and s113 - liquor licensing where two exclusive powers of the states

Question 30

How are rights of citizens mentioned in the Constitution?

Answer 30

there is only limited mention of individual rights in the Constitution as the founding fathers believed that civil and legal rights were adequately protected by common law and the traditions of govt inherited from Britain

• s41 - right to vote in CW elections if you had the right to vote in lower house election in any state
• s51 xxxi - property aquired by the CW must be on just terms
• s80 - the right to trial by jury for indictable offences
• s116 - freedom of religion
• s117 - no state can discriminate against residents of any other state

Question 31

How can the constitution be altered?

Answer 31

under s128. it is ensured that the people of Australia, through a referendum, must approve any change to the wording of the constitution

Process:

1. bill passed by federal parliament (either by both houses, or one house twice after 3 months)
2. approval in referendum by an overall majority of electors in Aus and by a majority of electors in a majority of states (double majority)
3. assent to the constitutional amendment by the GG

Question 32

What are features of good governance?

Answer 32

• a consitutionalist framework that limits power through the sep of powers and rule of law. Also division of powers
• responsive, accountable and transparent political processes
• effective support for political and legal equality
• guarantees of human rights and political and legal equity