Chapter One: The Constitutional Framework

Question 1

Constitution

Answer 1

A legal document that outlines the structural framework for how a state is governed, outranking all other forms of law and usually only changed under special circumstances.

Question 2

Constitutionalism

Answer 2

The idea that governments have defined, limited powers and that government actions must be based on the rule of law.

Question 3

Enumerated or Specific Powers

Answer 3

These are powers specifically set out in the constitution, either the exclusive powers given to the Commonwealth government or the concurrent powers given to the Commonwealth and the state governments.

Question 4

Reserve Powers

Answer 4

Powers of the Governor General which are only used in the case of a political crisis, such as dismissing a prime minister if they no longer have the support of the House of Representatives, nominating a caretaker Prime Minister or calling an early election.

Question 5

Express Powers

Answer 5

Powers of the Governor General which are exercised by the Parliament and in which the Governor General has no say. Examples include the Governor Generals right to disallow and legislation (s59) and to appoint justices of the high court (s72).

Question 6

Exclusive Powers

Answer 6

Powers of government which are only exercisable by the Commonwealth. Several are listed in section 52, and others are proposed indirectly and directly. Section 90 gives the Commonwealth custom and excise duties and sections 114 and 115 forbids the states from raising armed forces and coining money.

Question 7

Concurrent Powers

Answer 7

Powers of government which are exercisable by both the State and Commonwealth governments. These are listed all in section 51 and include marriage, taxation and corporations, however under section 109 the Commonwealth has overriding jurisdiction in these areas.

Question 8

Residual Powers

Answer 8

Sections 106 to 108 ensure that the state governments keep their existing constitutions and continue to exercise power in areas they were already doing so unless stated specifically by the constitution. Thus any power not mentioned in the constitution is a power of the States, such as health, education and criminal and civil law.

Question 9

Federal Executive Council

Answer 9

What the constitution uses to refer to the Prime Minister and senior ministers.

Question 10

Head of State

Answer 10

A government official who in systems such as Australia and the UK, possess a ceremonial role in government and always acts on constitutional conventions and the advice of the Prime Minister.

Question 11

Head of Government

Answer 11

An elected government official who possesses real executive power such as the Prime Minister in Australia.

Question 12

Constitutional Preamble

Answer 12

Brief preludes to constitutions that may give it legal authority and provide symbolic values by which the constitution is made from.

Question 13

Double Dissolution

Answer 13

Outlined by section 57 of the constitution, it provides a way to solve disputed between the two houses of Parliament by dissolving both houses completely and convening a full Senate and House election.

Question 14

Independence of the Judiciary

Answer 14

The principle of a liberal democracy which makes the judiciary completely independent from the other branches of government. In Australia, it is reinforced by section 72 which guarantees the tenure of a Justice until the retiring age of seventy.

Question 15

Nexus Clause

Answer 15

Section 24 of the constitution, which states that the number of Senators must be equal to half that of the number of members of the House of Representatives.

Question 16

Minimalist Constitution

Answer 16

A constitution which includes only the provisions that are necessary to run the state, such as the Australian constitution.

Question 17

Maximalist Constitution

Answer 17

A large constitution which not only details how a state is governed, but also lists rights of citizens and descriptions of good government. The United States constitution is an example of a maximalist constitution.

Question 18

Mandamus

Answer 18

A power given to the high court by section 75 of the constitution which allows the court to hear appeals from the decisions of Commonwealth officers. This allows the high court to hear appeals from the administrative appeals tribunal and refugee review tribunal and rule against their decisions.

Question 19

Parliamentarianism

Answer 19

The Westminster Convention that the Parliament is the body of government elected directly by the people and therefore they are the most powerful institution of government.

Question 20

Westminster system

Answer 20

A system of government modelled after the United Kingdom system of government, following Westminster conventions and the conventions of responsible government.

Question 21

Washminster system

Answer 21

A word to describe the semi-Westminster style of government Australia has adopted, using Parliamentarianism principles from the Westminster system but federal principles from the United States.

Question 22

List four key constitutionalist principles

Answer 22

Constitutionalism is the idea that the following principles are reinforced by the constitution:
• Legal systems are based on the rule of law, equity of the law and the right to a fair trial
• The separation of powers between the executive, judiciary and the legislative is reinforced
• The division of powers between the state and federal levels of government are stated
• The Parliament is bicameral in nature, with the Senate acting as a house of review

Question 23

What are some principles that can be included in a constitution?

Answer 23

Constitutions may include the following principles:
• Principles of good government, such as the basis of sovereignty
• Limiting government through specification of powers
• Checking government
• Social values such as the rule of law, judicial equity and gender equity

Question 24

Why are constitutional conventions significant in the Australian system?

Answer 24

In Australia, constitutional conventions are almost always followed and they are extremely significant because they dictate how the executive carries out its power. For example, the constitution in section 64 states that the Governor General has the power to appoint and dismiss ministers but by Westminster convention this power is carried out by cabinet and the Prime Minister. Conventions, unlike laws, do not have legal ramifications if broken, but they can cause significant controversy. The constitutional crisis of 1975 is an example of such controversy.

Question 25

Outline the general structure of the constitution

Answer 25

The constitution begins with the preamble which outlines the legality of the document and gives it authority under the Queen and the British house of Commons. Chapter one creates the legislature constituting the House of Representatives and the Senate and creates the federal division of power. Chapter two creates the executive in the Governor General and chapter three creates the High Court and gives it its original and appellate jurisdiction. Chapter four outlines trade and finance which creates the economic union and outlines the financial powers of the Commonwealth. Chapter five creates a federal compact and enforces the division of powers. Chapter six allows the constitution to be altered through referendums.

Question 26

Distinguish between express and reserve powers of the Governor General

Answer 26

The powers of the Governor General are divided into express and reserve powers. Express powers by convention are exercised by the Parliament, areas in which the Governor General has no personal jurisdiction. Express powers include the Queens right to disallow legislation (s59) and the right of the Governor General to appoint justices of the High Court. Reserve powers are powers that are held in reserve by the Governor General in the case of a political crisis. The Governor General may decide that the Prime Minister has lost confidence of the house and thus a new Prime Minister must be nominated, or they may call an election. This was the case during the 1975 constitutional crisis.

Question 27

Outline the conventions of Westminster responsible government

Answer 27

1. The executive must enjoy a majority in the House of Representatives, otherwise they must resign.
2. The Prime Minster must be a member of the lower house and they must choose a cabinet who are appointed as members of Parliament.
3. Minsters must resign if they cannot support the position of the government.
4. Individual ministers must resign if they are subject to a successful censure motion.
5. Ministers are accountable to the Parliament for the actions of officials under their control.
6. Appointed officials are loyal to their current minister
7. The Queen and the Governor General act on the advice of the Prime Minister

Question 28

What are some home-grown conventions of the Australian Constitution?

Answer 28

The following conventions are specific to the Australian constitution:

1. That the active powers of the Governor General in legislative and executive decision making are either fictional or merely formal, (s59, s68, s72)
2. That the powers of the Governor General that are contradictory with the principles of good government are generally inactive (s61, s62, ss63, s64)
3. That the government has the right to nominate a president in the Senate
4. The Senate has the power to negotiate money bills