Fundamental Concepts in Australian CL Flashcards
What is constitutional law?
Branch of the law which regulates the 3 arms of government: the legislature, the executive and the judiciary.
What does each branch of government do?
Legislature: enact laws.
Executive or administrative: administer laws, or put them into practice, and deal with the details of legal and policy administration.
Judiciary: interpret and apply the law.
Does Australia have parliamentary sovereignty?
Unlike British constitutional law, where the Parliament has absolute sovereignty (being the supreme laws of the UK), Australia’s Parliament can be challenged by the Judiciary where laws are unconstitutional.
What is the rule of law according to Dicey?
- Absolute supremacy of regular law over the influence of arbitrary power.
- Equality before the law as between the governors and the governed.
- Constitutional rules are the consequence of rights being defined and enforced by the courts.
How does the rule of law affect the Constitution?
The rule of law is ‘no more than an assumption about the expected application of the Constitution’ - Palmer v Western Australia (2021), [21].
What are constitutional conventions?
Customs or practices that are habitually followed by governments, who are under a moral or political obligation to continue following them. Their breach, however, does not attract legal sanction.
What is bicameralism?
Partially adopted from the UK, where there are two houses of Parliament. The lower house is known as the House of Representatives, and the upper house is the Senate.
What is the doctrine of representative government?
Refers to how the lower house of Parliament is made-up, particularly that it is democratically elected.
What is the doctrine of responsible government?
The executive’s responsibility to the legislature. Where the government will only stay in power while their power or coalition commands a majority in the House of Representatives.
What is the doctrine of collective responsibility?
Ministers being individually responsible to Parliament for the activities of the administrative departments that they head. Public servants are responsible to their Minister who is responsible to Parliament and is accountable for their actions.
What is the doctrine of the separation of powers?
The functions of the three arms of government be clearly and institutionally separated. Each arm operate as checks and balances upon each other so that power is not concentrated on one arm.
What does it mean to be a federation?
Despite being four separate “countries”, the UK is a Unitarian State, with legal power centralised in the English Parliament in Westminster. However, Australia has seven autonomous governments; the federal government and six regional State governments.
Why is Australia a federation?
With inspiration from the US and how it distributes its power, the decentralisation of power provides a check against abuse of power and unwieldy bureaucracies.
What are heads of power?
Specific constitutional authority given to the Commonwealth to pass certain laws.
What are concurrent powers?
Powers under s 51 of the Constitution that are granted to both the Commonwealth and to States.
