Overview of the Australian Constitution

Question 1

What does the Australian constitution ‘constitute’?

Answer 1

It creates the Commonwealth of Australia.

It is the day that Australia became recognised as a nation, not merely a geographical expression.

A Commonwealth is an independent country, especially a democratic republic, however it also refers to Great Britain and the states it previously governed over.

Question 2

When did the constitution of Australia come into effect?

Answer 2

1 January 1901

Question 3

When was the Australian constitution tabled and passed in Great Britain?

Answer 3

Series of conventions were held in 1890s by representatives from the states of Australia.

It was passed as a British Act of Parliament in 1900, and came into effect on 1 January, 1901.

Question 4

The constitution of Australia establishes our nation on a federal model of government.

What does this mean?

Answer 4

It means that the government divides political powers between a centralised government (the Commonwealth) and the states (formerly separate British colonies).

If state law contravenes Commonwealth law, it is Commonwealth law that prevails.

Question 5

What do the ‘heads of power’ refer to in s51?

Answer 5

‘Heads of power’ are areas of authority provided to the Commonwealth government, as opposed to the State Governments and often are to do with national government, i.e. defence, taxation, foreign affairs, currency.

Question 6

What 2 ways have the ‘heads of power’ been modified in Australia?

Answer 6

1. Referenda - e.g. the addition of social welfare payments 1946 to the powers of the Commonwealth
2. High Court interpretations, e.g. ‘implied’ powers
3. Referral of State issues to the Commonwealth by the State Governments via s51

Question 7

What are the 2 fundamental principles of Australia’s government structure as set out in the Constitution?

Answer 7

1. Parliamentary democracy
2. Separation of powers

Question 8

Describe the overall structure of the government as set out by the Australian Constitution.

Answer 8

Sets out the 3 major arms of government.

1. Chapter I - the Parliament. Legislative Branch, sets out structure of parliament
2. Chapter II - the Executive Government. Executive Branch, sets out structure of ‘Cabinet’ or ‘Ministry’
3. Chapter III - the Judicature. Judiciary Branch, sets out the independent judiciary (i.e. the judges of a country)

Question 9

What is ‘legislative power’?

Answer 9

The power to make laws.

It is the power held by the legislative arm of the government.

Question 10

What is executive power?

Answer 10

It is the power to run government and administer laws, e.g. government departments, statutory authorities, defence forces.

It is the power held by the executive arm of government.

Question 11

What is ‘judicial power’?

Answer 11

It is the power to conclusively determine legal disputes, traditionally exercised by courts, e.g. crimes, litigation, contracts, motor accidents.

It is the power held by the judicial arm of government.

Question 12

Describe the overall structure of the legislative branch of government as described in Chapter I of the Constitution.

Answer 12

Chapter I - Legislative Branch

• Commonwealth Parliament is established, consisting of 2 houses:
  
  • House of Representatives (similarities to British House of Commons) - members directly chosen by the people
  • Senate (similarities to American model) - also chosen by the people, but 6 states have equal representation regardless of size
• Reconciles democratic (direct rule by the people) and federalist principles (centralised government over the states)

Question 13

Describe the overall structure of the executive branch of government as described in Chapter II of the Constitution.

Answer 13

Chapter II - Executive Branch, sets out structure of ‘Cabinet’ or ‘Ministry’

• Known as the ‘Cabinet’ or ‘Ministry’
• Based on the ‘Westminister Model of Government’ which requires that ministers must also be members of government - unlike U.S. system, making the executive branch answerable to the legislative branch

Question 14

Australia’s government is based on the ‘Westminister system’, where the executive branch is directly answerable to the legislative branch of government.

What are 2 examples of this?

Answer 14

‘Question Time’ is a direct effect of this and unique to the Australian government, another example is Senate Committee hearings.

Question 15

Describe the overall structure of the judicial branch of government as described in Chapter III of the Constitution.

Answer 15

It establishes the High Court, the nation’s highest court and final arbiter (one who settles a dispute on a matter) on the interpretation of the Constitution.

Also allows for creation of other federal courts.

Judges are appointed until they are aged 70. This is to help with independence of the judiciary.

Question 16

Australia is a constitutional monarchy.

What does this mean?

Answer 16

It means that our head of state is the Queen. Our constitution also regulates the function of the monarch.

Question 17

How can the Constitution be changed?

Answer 17

By referendum with majority of States and voters approving.

This is in line with s128 of the Constitution, which judicially describes the ‘sovereignty of the people of Australia’.

Question 18

How was Australia governed prior to the Constitution?

Answer 18

Six self-governing colonies (NSW, QLD, VIC, TAS, WA, SA), the power over which ultimately lay with the British Parliament.

Since the creation of the Australian constitution, the authority now lies with the Australian people who created the constitution and who have agreed to be bound by its terms.

Upon the establishment of the constitution, the six colonies became the Six States of Australia.

Question 19

Describe how the ‘powers’ (the judicial, legislative and executive powers) are separated in Australian government.

Give an example.

Answer 19

There is poor separation of executive and legislative powers. There is strict separation of judicial powers to all other branches of government.

Executive & Legislative Separation

1. Parliament can pass acts whereas executive government enacts those acts, by making rules, regulations, by-laws (law made by local authority)
   
   • Both houses of Parliament retain authority to ‘reject’ any regulation made by the executive government within a specified time-frame
2. All executive government ministers are also Members of Parliament

Judicature

• Only a court can exercise the judicial power of the government to determine if someone has contravened a law of the Parliament

Example:

Parliament passes a law about regulation of imports. Executive government makes policies about what constitutes an ‘unauthorised import’. Someone brings in an ‘unauthorised import’. They are referred to a court to determine if this is the case.

Question 20

What powers do the Crown hold over the Australian government?

Answer 20

The role of the Crown is set out in our constitution, namely, that:

1. The Queen is part of the Parliament.
2. The Queen is authorised to appoint a Governor-General over the nation.
3. The Queen is head of the executive power over the government and the Governor-General may exercise these powers on her behalf.

The Queen has little to do with the day-to-day function of Parliament, but when she does, e.g. appointing a Governor-General, she acts on the advice of the Prime Minister.

In most cases, the Governor-General acts in accordance to advice by Commonwealth Ministers, as part of the ‘responsible government’ (accountable to the people), except for when exercising reserve powers.

Question 21

What are ‘reserve powers’ of the Governor General?

Answer 21

These are matters in which the Governor-General does not need to act in accordance with advice from Commonwealth Ministers.

Normally, the Governor-General needs to act in accordance with ‘conventions’. E.g. under s64 of the Constitution, the Governor-General must, by convention, appoint the parliamentary leader of the party or coalition of parties which has a majority of seats in the House of Representatives.

The 2 most important reserve powers are the powers to appoint and dismiss a Prime Minister.

Question 22

Name a historical example of the Governor-General exercising reserve powers.

Why was this controversial?

Answer 22

When Governor-General Sir John Kerr dismissed Mr Sir E.G. Whitlam in 1975, after Opposition blocked passage of the Supply Bill, which effectively stopped Whitlam from having the funds required to govern.

Those for Sir Kerr said he acted in accordance with the convention that the government without supply cannot govern and should seek a general election or be dismissed.

Those against Sir Kerr said he acted against convention that a Prime Minister who maintains majority support of the House of Representatives as Mr Whitlam did, should remain PM.

Question 23

Describe how the concept of ‘representative government’ is enshrined in the Australian constitution.

Answer 23

Australia has a government made of representatives directly chosen by the people, s24.

Accordingly, regular elections are held for both Houses of Parliament, as per s7 and s28.

Question 24

Outline the structure of the Australian Commonwealth Parliament.

Answer 24

The Commonwealth Parliament consists of the Queen, a House of Representatives, a Senate.

House of Representatives

• 150 members

Senate

• Each state (6 states) has 12 senators
• NT and ACT each has 2 senators

Total senators = 76

Question 25

How does a Bill become an Act of Parliament?

Answer 25

It must pass both Houses of Parliament.

It is then presented to the Governor-General who assents to it in the Queen’s name.

Once this assent is given, the Bill becomes law.

Question 26

What happens if the Houses disagree on a Bill?

Answer 26

It is passed back and forth between the Houses. Usually the Houses will resolve the disagreement.

If the disagreement cannot be resolved, the Governor-General causes a double-dissolution, i.e. a holding of election for both Houses of Parliament, then if necessary a joint convening of the two new Houses of Parliament to see whether the Bill should be passed.

Question 27

Does the Commonwealth Parliament have powers to make laws? Explain.

Answer 27

Yes, but only in particular areas, as listed in s51 and s52, such as defence, foreign affairs, trading, finance, marriage and divorce, immigration, interstate industrial issues.

It notably does not have power in important areas such as environment, education, roads, criminal law.

However, Commonwealth law can still override States, e.g. by refusing to allow construction of a dam to give effect to an international agreement.

s109 provides that if a valid Commonwealth law is inconsistent with the law of a State Parliament, the Commonwealth law is upheld and the State law made invalid for the scope of the relevant inconsistency.

Question 28

Does the constitution limit the areas in which the State governments may make laws?

Answer 28

It places no limitation except for a few important exceptions, namely taxation (States cannot excise) & customs s90 and defence s114, e.g. States cannot raise up defence forces without the approval of the Commonwealth.

This is why States have laws over a much larger swathe of topics compared to the Commonwealth.