The Australian Constitutional System

Question 1

What is the division of powers?

Answer 1

The constitutional allocation (or sharing) of legislative powers between the Commonwealth and the States.

Question 2

What are the categories of legislative powers under the division of powers? (PERCS)

Answer 2

Prohibited powers

Exclusive powers

Residual powers

Concurrent powers

Specific powers

Question 3

What are prohibited powers?

Answer 3

Legislative powers neither the Commonwealth nor the States cannot exercise.

The Commonwealth cannot exercise power to establish a religion (section 116)

States, by implication, are prohibited from exercising an exclusive power of the Commonwealth

Federal partner can impede free trade between the States (Section 92).

Question 4

What are exclusive powers?

Answer 4

These are the specific powers that only the Commonwealth can exercise. Examples include defence (Section 114), and the external tariff (Section 90).

Question 5

What are residual powers?

Answer 5

By implication, the legislative powers not prescribed as a specific power of the Commonwealth in the Australian Constitution reside with the States. Examples include education, health and the environment.

Question 6

What are concurrent powers?

Answer 6

By implication, the specific powers not exclusive to the Commonwealth, can be exercised concurrently with the States. This includes most of the heads of power in Section 51, however, should a conflict arise between federal and state law resulting from the exercise of a concurrent power, then federal law prevails to the extent necessary to remove the conflict. This is prescribed in the inconsistency rule in Section 109.

Question 7

What are specific powers?

Answer 7

These are the legislative powers enumerated in the Australian Constitution, primarily in Section 51 which the Commonwealth can exercise. Examples include trade, finance, marriage and external affairs.

Question 8

What are the two methods of changing the division of powers?

Answer 8

Referral of powers (Section 51)

Constitutional Alteration by Referendum (Section 128)

Question 9

What are the three categories of executive power?

Answer 9

Constitutional Arm - Governor General, outlined in chapter 2 of the constitution.

Convention Arm - Government ministers, outlined in unwritten constitutional rules.

Public Service Arm - enforces statutes, created through statutory rules.

Question 10

The Governor General will only accept the advice of the prime minister provided three conditions exist, what are they?

Answer 10

The PM must: Have the confidence (majority support) of the House of Representatives Guarantee the passage of the supply Bills though Parliament Give advice is consistent with constitutional law.

Question 11

What are the three elements of constitutional law?

Answer 11

The written Australian Constitution

The High Court’s interpretation of the Australian Constitution

Legislation relating to governance passed pursuant to the Australian Constitution or British law

Question 12

What role does the high court play regardig the division of powers (Division of Powers)?

Answer 12

Any dispute related to the exercise of a legislative power is resolved in the original jurisdiction of the High Court, usually sitting as a Full Bench. The High Court must decide if a power has been exercised:

intra vires (within the power of the Constitution) or

ultra vires (beyond the power).

This occurs under section 67 of the constitution

Question 13

What happens when state laws contradict federal laws?

Answer 13

Federal law overrides state law as per section 109 of the comstitution (Inconsistancy rule)

Question 14

When does case law override statute law?

Answer 14

When case law is made by the high court

Question 15

What is the Australian Federal System?

Answer 15

The Australian federal system is comprised of one Commonwealth (central) tier, six States, two self-governing Territories and a collection of local government councils. The name of the Australian federation is the Commonwealth of Australia.

Question 16

What are the two types of federalism?

Answer 16

Co-ordinate Federalism - Commonwealth and the states are independent and autonomous, but are bound by the principles of constitutional government.

Cooperative Federalism - National, state, and local governments interact cooperatively and collectively to solve common problems.

Question 17

What is the seperation of powers?

Answer 17

The separation of powers is a doctrine that divides the governance of a nation or state into distinct, but related, arms or branches, each with its own institutions and roles.

Question 18

What are the two main functions of the seperation of powers ?

Answer 18

Ensures power can not be ammassed and provides a series of checks and balances so that each arm can supervise other’s exercise of power.

Question 19

How does the Constitution facillitate human rights?

Answer 19

When the Founding Fathers drafted the Australian Constitution they did not believe it was necessary to include a Bill of Rights, nor include many human rights in it, as they considered that human rights were adequately protected by statute law and case law.

Some rights are included:

• Right to own property
• Freedom of and from religion
• Right to trade freely

Question 20

How is a referendum conducted?

Answer 20

Chapter 8 (Section 128) of the Australian Constitution allows amendment through a strict process, the main step being a direct vote by the people at a referendum.This process has five steps:

Consultation stage

Government provides for public debate about the issue, ensures it receives media attention.

Drafting Stage

The Parliamentary Counsel drafts a bill to alter the constitution

Wording recomendations are accepted e.g. Constitutional Commission.

Parliament Stage

A Bill authorising the proposed change must pass through both houses of parliament, with an absolute majority.

Referendum stage

The Governor General authorises the referendum to be held no sooner than two months and no later than six months after the Bill has passed through parliament.

Voting is compulsory for all adult citizens.

Yes/No question only

For the referendum to success the double majority must be achieved: (Dual Criteria)

Democratic criteria: 50% plus 1 the population, and

Federal criteria: 4/6 states

Special provisions: a majority of voters may be required to be achieved in any state that will be directly/individually impacted on by the outcome of the referendum.

Assent and Proclamation

After a successful referendum the GG will give royal assent to the Bill to become an Act and then proclaim changes to the constitutional the Government Gazette

An unsuccessful referendum means the bill would lapse.