Introduction to AUS Constitutional Law

Question 1

What is the purpose of Consti law as a whole?

Answer 1

• To regulate the 3 arms of government

Question 2

What does the legislative, executive and judiciary do?

Answer 2

Legislative - make and unmake law
Executive - execute the law by putting into pace
Judiciary - Interpret and apply the law

Question 3

What is the concept of Parliamentary Sovereignty?

Answer 3

• 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

Question 4

What are the 3 most common features of Rule of Law?

Answer 4

1. Law must be ‘clear, accesible and comprehensive’ rather than retrospective and relatively stable. Law should also be PREDICTABLE, consistent and non-discriminatory
2. Equity before the law e.g. officials subject to same law as private citizens
3. Ensure basic human rights flow with laws

Question 5

What did Bingham expand on Dicey’s 3 fundamental aspects of law?

Answer 5

1. Accessible and so far possibly intelligible, clear and predictable
2. Power should be exercised in good faith and NOT exceed level of power
3. Law must protect fundamental human rights

Question 6

What are constitutional conventions in government?

Answer 6

• 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

Question 7

What is a Bicameralism system?

Answer 7

• 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)

Question 8

What is a Representative Government

Answer 8

Composition of LH which is democratically elected –> members voted based on ‘preferential voting’ w/ exception of Tasmanian Lower House

Question 9

What is a Responsible Government?

Answer 9

• 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

Question 10

What is the Separation of Powers

Answer 10

• 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

Question 11

What section in AUS Constitution reinforces the Separation of Powers

Answer 11

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

Question 12

What was Federalism?

Answer 12

• AUS had 7 autonomous governments —> Commonwealth and 6 state governments (2 territories NOT have governments b/c abolished by Commonwealth Parliament as per s122)

Question 13

Reforming AUS Constitution and Referenda?

Answer 13

• 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

Question 14

What are some Fundamental Instruments of Law?

Answer 14

• Colonisation –> Federation
• Colonial Laws Validity Act
• Statute of Westminister 1931
• Australia Acts 1986

Question 15

What was Colonisation to Federation

Answer 15

–> Led to AUS Constitution and creation of Commonwealth Government for serious inquiries and laws such as national affairs

Question 16

What was Colonial Laws Validity Act

Answer 16

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

Question 17

What were the 3 limitations of Colonial Laws Validity Act and when was it abolished?

Answer 17

–> 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

Question 18

What is the Statute of Westminister

Answer 18

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

Question 19

What did Australia Act do?

Answer 19

• Sever the remaining constitutional and legal ties b/w AUS and UK