Introduction to AUS Constitutional Law Flashcards
What is the purpose of Consti law as a whole?
- To regulate the 3 arms of government
What does the legislative, executive and judiciary do?
Legislative - make and unmake law
Executive - execute the law by putting into pace
Judiciary - Interpret and apply the law
What is the concept of Parliamentary Sovereignty?
- Parliament has ABSOLUTE power as they make and unmake law (in UK at least, NOT AUS) e.g. s.92 in AUS Consti that states have freedom over trade, commerce b/w states
- PS plays a crucial role in Constitutional Interpretation as Judges will interpret constitution in a way in which the constitution was intended
What are the 3 most common features of Rule of Law?
- Law must be ‘clear, accesible and comprehensive’ rather than retrospective and relatively stable. Law should also be PREDICTABLE, consistent and non-discriminatory
- Equity before the law e.g. officials subject to same law as private citizens
- Ensure basic human rights flow with laws
What did Bingham expand on Dicey’s 3 fundamental aspects of law?
- Accessible and so far possibly intelligible, clear and predictable
- Power should be exercised in good faith and NOT exceed level of power
- Law must protect fundamental human rights
What are constitutional conventions in government?
- Customs and practices which governments are obliged to follow, not binding, so breaching these customs and practices do NOT result in legal sanction
- This is to allow constitution to develop and adapt to current environment
e.g. 1975 GG Kerr sacked Whitlam Government
What is a Bicameralism system?
- Parliaments have 2 houses –> Lower and Upper Houses
AUS: Lower (House of Representatives) and Uppoer (Senate) in QLD –> only Lower House
UK: Lower (House of Commons) and Upper (House of Lords)
What is a Representative Government
Composition of LH which is democratically elected –> members voted based on ‘preferential voting’ w/ exception of Tasmanian Lower House
What is a Responsible Government?
- Executive branch is RESPONSIBLE to the legislature
- GG acts on advice of PM
- Executive and LH –> Coalition in power MUST have confidence of LH/executive in order to stay in power –> loss of confidence –> coalition must resign –> If no government can form –> GG calls on election
What is the Separation of Powers
- Fundamental principle which divides the government into 3 distinct branches:
1. Legislature = making laws
2. Judiciary = interpreting and administering justice
3. Executive = implementing and enforcing laws - Purpose to evenly distribute power and uphold RoL
What section in AUS Constitution reinforces the Separation of Powers
s.64 –> AUS has overlap b/w legislature and executive in that ministers also members of the former as per s.64 of commonwealth constitution
What was Federalism?
- AUS had 7 autonomous governments —> Commonwealth and 6 state governments (2 territories NOT have governments b/c abolished by Commonwealth Parliament as per s122)
Reforming AUS Constitution and Referenda?
- s.128 of AUS constitution:
Option1 - absolute majority in each House of Parliament AND Amendment is submitted to the electors within 6 mnths AND ‘double majority’ in referendum (majority of ppl nationally favour change)
Option 2 - ABSOLUTE majority of one house (not the other) during 2 rounds AND GG submits the amendment to eectors AND doube majority in referendum
What are some Fundamental Instruments of Law?
- Colonisation –> Federation
- Colonial Laws Validity Act
- Statute of Westminister 1931
- Australia Acts 1986
What was Colonisation to Federation
–> Led to AUS Constitution and creation of Commonwealth Government for serious inquiries and laws such as national affairs
What was Colonial Laws Validity Act
Ensure laws passed by colonial legislatures within British Empire were valid and enforceable –> Played crucial role in AUS law because it provided legal validation for laws enacted by AUS colonies, facilitating self-governance and legislative independence
What were the 3 limitations of Colonial Laws Validity Act and when was it abolished?
–> Abolished after introduction of Australia Act
1. Doctrine of repugnant = laws will NOT be inconsistent w British Law
2. Extraterritorial Laws = Laws NOT go beyond states
3. Disallowance = Monarch could discontinue law despite receiving royal assent from GG
What is the Statute of Westminister
British Law aimed at granting legislative independence to dominions of British Empire such as Canada, AUS and NZ –> Statute was used to affirm that no act of British Parliament would be applicable unless these dominions chose to accept it –> helped countries make their OWN laws without interference from Britain –> Statute marked a significant step in legal and political autonomy in AUS
What did Australia Act do?
- Sever the remaining constitutional and legal ties b/w AUS and UK
