Pols Term 1 Short answer

swit

Explain how power is separated by the Australian Constitution

The Australian constitution divides power and allocates sovereignty (powers) in three ways (exclusive, concurrent and residual powers) to the Commonwealth (federal) and Regional (state) governments.

- Chapters 1, 2, 3 create the Commonwealth's legislative, executive and judicial branches and separate them in the process.

+ the separation of powers (legislative, executive, judicial)

Exclusive powers

- Powers that are national in their nature --> federal powers

- Section 52 of the Constitution

- E.g. defence, immigration and external affairs.

Concurrent powers

- shared powers between the Commonwealth (federal) and regional (state) governments.

- Section 51 of the Constitution

- e.g. taxation, marriage, divorce

Residual powers

- powers that are regional (state) by their nature

- not specified in the constitution

- e.g. public transport, health (hospitals etc.), police, fire, education

What section of the Consitution states that if Commonwealth and state laws clash, Commonwealth always overrules?

section 109

Define the separation of powers

- Definition: the allocation of law making powers to separate arms of government. (legislature, executive and judiciary)

- Purpose: prevents a a concentration of powers, establishes checks and balances and prevents improper exercises of power.

Separation of Powers in the Australian Constitution

Chapter 1, Section 1: outlines legislative power

Chapter 2, Section 61: outlines executive power

Chapter 3, Section 71: outlines the powers of the judiciary

Judiciary

power to make judgements on the law

- High Court, and other courts

Legislative

Makes and changes laws

Senate, House of Representatives (PM)

Executive

put law into action

- King (Governor General)

- PM

- Ministers (Cabinet)

Overlaps in the separation of powers within Australia

Section 62 and section 64 of Constitution

- s62: federal council which advises the gov general (executive0 is made up of government ministers, and they are also members of parliament. therefore executive and legislative is overlapped.

- s64: states that gov general appoints ministers to run departments e.g. war or defence. the same ministers sit in parliament where laws are made

- because the same people are part of the same branches, exec and leg is not completely separate

Strength of separation of powers in Australia

- generally strong, some overlaps which makes it weaker

- judicial is VERY independent which strengthens the SoP, and courts like the High Court are separate from Parliament, as judges cannot be members in sections 75, 76

- executive and legislative branches overlap through the PM and ministers, in section 62, 64

Examples of SoP upheld

- courts can stop unlawful government actions e.g. Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) the High Court stopped the government from sending asylum seekers to Malaysia because it did not meet legal requirements.

- courts can declare laws invalid e.g. Australian Communist Party v Commonwealth (1951), the High Court ruled that a law banning the Communist Party was invalid because it went beyond the government's constitutional powers.

Examples of SoP undermined

- gov general appoints judges --> this was changed in 1979 through the High Court of Australia act, which COMPLETELY separated the judicial from the other branches

- crossover exec and leg (s62 and 64)

- Separation of powers is undermined in Australia because ministers sit in Parliament, otherwise not many ways it is undermined

Responsible government

operates through specific, UNWRITTEN Westminster conventions that regulate the relationship between the executive and legislative

--> Individual ministerial responsibility (IMR)

--> collective ministerial responsibility (CMR)

Individual ministerial responsibility (IMR)

- ministers must be accountable to parliament for personal conduct, administration of portfolios and department actions

- ministers MUST maintain the confidence of the House and resign if they mislead (lie) in parliament

- e.g. 2016 Stuart Robert resigned as Minister for Human sevices after it was revealed he attended a private property deal in China with a liberal party donor whilst acting as assistant minister

Collective ministerial responsibility (CMR)

- cabinet is responsible to the people through parliament

- all ministers must be prepared to accept collective responsibility for the policies and actions of the gov

- liberal gov coalition gov suspended CMR on specific issues such as higher education tuition fees and nucleat deterrent renewal

Define federalism

A system of government in which law-making power is divided between one central and two or more regional governments.

Define federation

The process of uniting previously independent colonies or states under one national government. This requires a written constitution to allow for settlement of disputes between division of powers.

When did Australia federate?

January 1st 1901

Why did Australia federate?

1. Free trade

2. Defence

3. Immigration

4. National pride and identity

1. Free trade

- tariffs between the colonies restricted trade and movement and increase the prices of G+S

- made travelling difficult, as they would have to stop at borders and switch tracks, check passports etc.

- federation would abolish all the above and strengthen the economy

2. Defence

- Colonies were ill equipped and relied on British presence.

- colonies were worried that they would be vulnerable from other stronger nations

- federation would create one bigger, united and stronger military

3. Immigration

- there was fear in the colonies that non European immigrants would infiltrate and that threatened the socioeconomic and racial unity of the region

- a federal gov was seen as necessary to implement stricter and similar immigration across the entire continent/country

4. National pride and identity

- people living here started to identify as Australian rather than British/european

- wanted to be their own country and nationality

Australia's path to federation

- 1847: Earl Grey proposed a central legislative authority

- 1856: colonies are self governing, based on the British system

- 1890: first draft of the Constitution and was passed in British parliament

- 1900: Queen Victoria gave the Royal Assent to the Act and first gov general was appointed

- 1st Jan 1901: federation achieved

Define a constitutional monarchy

a form of government in which the head of state is an inherited position with powers limited by a written constitution or by unwritten constitutional conventions.

Define constitutionalism

The ide a that government power should be limited by a body of laws, so that its exercise is controlled.

Define common law

Law made by judges when deciding cases which give rise to the ne ed for new precedents.

Define the common law system

A legal system in which judges establish precedents that serve as guides in future cases with similar factual circumstances and legal principles. In resolving disputes, judges are bound to apply precedents from superior courts, as to provide consistency in the application of law. Common law systems use an adversarial trial system.

Define Westminster Government

a British system of government featuring a head of state (the monarch) and bicameralism.

Which countries helped shape Australia's political and legal system?

1. Britain

2. USA

3. Canada

4. Switzerland

1. Britain

1. Constitutional monarchy

2. Bicameralism

3. Westminster system

4. Opposition

5. The public service

6. Constitutional conventions

7. English common law

Britain: 1. Constitutional monarchy

- Australia "copied" one way of governing from Britain

- Australia shares the same monarch, which is represented by the governor general.

Britain: 2. Bicameralism

- having 2 houses of parliament (in federal)

- House of Representatives modelled off of the House of commons which is the lower house in Britain

Britain: 3. Westminster system

- A system of government where the executive branch (PM and cabinet ministers) are drawn from the legislative.

- the party that gets majority of the votes in the lower house forms government.

- Parliament also checks individual ministers by questioning them. - It may remove ministers by a censure motion if they are personally or politically corrupt or incompetent.

- Responsible government = the principle that the executive branch is accountable to the legislature branch.

Britain: 4. Opposition

- The second largest party in the lower house

- It scrutinises the government and offers electors an alternative government

- this was a major and very important in the British system

Britain: 5. Australian public service

Modelled on the British Public Service

- Provides expert unbiased advice to the ministry and cabinet

- Part of the executive branch

Britain: 6. Constitutional conventions

- Unwritten (NOT in the constitution and not legally binding but are followed and respected).

- E.g. gov is formed in the lower house, and the PMs weekly meeting with the monarch (in the UK), gov general exercise power on the advice of the Federal Executive Council (EXCO)

- Australia inherited these conventions from the UK

English common law

- Aus legal system based on England's

- Australian courts use the same trial system and develop common law through judges decisions on cases.

USA influences

1. Federalism

2. Strong bicameralism

3. A written constitution

4. Constitutional court

USA: 1. Federalism

USA has a state gov and federal gov as it is a huge amount of land and has 50 states

USA: 2. Strong bicameralism

where the two legislative chambers are equally powerful. The Australian senate is modelled off of the American Senate.

USA: 3. A written constitution

- as power is divided between commonwealth and state, a written system is necessary to separate the powers

USA: constitutional court

- Aus High court modelled off of US Supreme court

- they have the power to interpret the constitution and "strike down" on unconstitutional laws

- powerful checks and balances

Canada's influence

- similar to what Australia did, was the first "Washminster" system (blend of US and UK)

- IMPORTANT TO REMEMBER AUS DID NOT INHERIT CANADA'S SYSTEM

Switzerland's influence

Referendums

- australia copied it exactly

- double majority

- section 128 states the referendum processes