The Underlying Principles and Key Features of Australia's Constitutional System Flashcards
What was the Australian Constitution designed to create?
Designed to create principles, structures, and processes that would achieve stable governance and democracy.
What is fundamental to Australia’s constitutional system?
the acknowledgement and adherence to the rule of law
What are some elements of the rule of law?
The supremacy of constitutional law with all government organisations (including parliaments, governments, government agencies and courts) only able to exercise power in accordance with constitutional law.
What are unwritten conventions?
These are rules concerning the operation of the government not set out in the Constitution.
These are essential to the effective operation of our system while also allowing flexibility.
What are some examples of responsible government in the Westminster System?
- Responsible government – Government is determined from the political party or parties commanding the majority of seats in the lower house.
- Governor-General commissions majority leader as Prime Minister, must sit in lower house. acts as the Governor-General’s chief adviser.
- Governor-General only accepts advice of majority party, provided advice is consistent with constitutional law and Senate passage of Supply bills is guaranteed.
- Speaker of the House has access to Governor-General to advise of lower house composition; principally which party commands majority.
- The High Court of Australia does not give legal advice to the Government (or the Parliament).
- The Governor-General gives assent to bills passed through both houses of parliament in exactly the same form
What elements serve as the theoretical basis of the constitution?
- Constitutional monarchy
- Representative government
- Responsible government
- Separation of powers
- Division of powers
Where is the separation of powers outlined?
Chapters 1, 2 and 3of the Constitution outline the nature and powers of the three institutions of government
- Chapter 1 - form of parliament (legislature)
- Chapter 2 - Executive government
- Chapter 3 - Judiciary
What is the idea behind the separation of powers?
- sharing lawmaking powers across different institutions will uphold the rights of diverse groups while creating a system of check and balances that upholds acceptable standards and reduces corruption
- The supervisory role of each branch ensures laws are valid & of good quality.
- Judicial independence protects the rights of people against the power of the state.
What is outlined in Chapter 1 of the constitution?
- Parliament is conferred legislation power (the power to make laws)-Chapter 1 of the Constitution.
- The bicameral nature of the Commonwealth parliament and it’s powers are set out in Chapter 1.
- The legislative powers of the Commonwealth are ‘enumerated powers’ because they arise from the legislative authority of the parliament, as expressly listed in the Constitution.
- Chapter 1 sets out the composition of the two Houses of Parliament, and the rules of eligibility regarding the election of citizens to those houses.
What is set out in chapter 2 of the constitution?
- Chapter 2 of the Constitution confers powers to administer laws and carry out the business of government to the executive.
- Executive power is vested in the Governor General as the Queen’s representative, but is exercised , by the conventions of responsible government, on the advice of the Ministers of Government.
- No list of executive powers in the Constitution.
- The government assumes the executive powers from:-
- Text of the Constitution
- Common law
- Federal statutes
- Most apparent powers exercised by the government refer to the passages which grant the Governor General specific executive power.
- E.g..- section 68 vests Commander-in-
chief powers over defence forces in
the Governor General (these are
only exercised on the advice of
responsible ministers).
- E.g..- section 68 vests Commander-in-
What is set out in chapter 3 of the constitution?
- Judicial power- the power to resolve legal disputes is conferred in Chapter 3, section 71.
- The Commonwealth Parliament established the High Court and vested it with judicial power.
- Parliament also created:-
- Federal Court of Australia
- Federal Circuit Court
- Each of these have specific powers to bring about just outcomes of legal disputes.
Is there an actual separation of powers in Australia?
No clear separation between legislature and executive as executive government can make delegated legislation. Also, Prime Minister and Ministers must be members of Parliament to ensure responsible government.
What are some advantages of unwritten conventions?
Unwritten conventions allow for flexibility.
E.g. – a majority government can be formed with support for a minor party/independent if no party/coalition has a majority in the lower house.
These ‘unwritten’ rules have survived for hundreds of years
What are some disadvantages of unwritten conventions?
- Unwritten conventions bring uncertainty and lack predictability.
- They are not legally binding- if an ‘unwritten’ convention is breached it is not subject to legal challenge.
- If these were written there would be greater transparency regarding the actions of government.
- “Unwritten’ conventions offer little protection to the people as Parliament can depart from these at any stage.
What is the division of powers?
The Constitution divides legislative power between the Commonwealth and the states.
The Division of Power is implied in various sections of the Constitution.
