Flashcards in CHAPTER 1 Deck (78):
The idea that government powers should be limited and not be absolubte. Democratic constitutions are founded in this idea
How many chapters does the commonwealth constitution contain?
It follows the us model, the first 3 chapters (articles in US) creating the 3 branches of government
5 fundamental features/ laws of democratic constitutions?, what do constitutions do?
1. Specific geographic distribution of power (eg. Either unitary of federalism)
2. Institutions of government with defined powers- parliament, executive government and other courts
3. Procedures and processes of government, relationships between parliament, executive government and court
4. Relationship between governing institutions and citizens IE. rights
5. Mechanism of alteration contained
How many parts are there of CHAPTER 1 of the constitution?
5 parts, 60 sections
4. Both houses
5. Powers of the parliament
What do the first 3 chapters of the constitution deal with?
Chapter1- legislative power
Chapter2- executive power
Chapter3- judicial power
What is legislative power?
The power to make statute law.
What does section 1 of the constitution do? 📖
Section 1 creates a bicameral commonwealth parliament
Do the 2 Houses of Parliament have the same law making powers!
2 houses are almost identical in powers except the senate cannot initiate or amend money bills (s53)
What section says the senate must be directly chosen by the people?📖
What section says the House of Representatives must be directly chosen by the people?📖
How does the constitution Limit sovereignty for commonwealth parliament?🌟🌟🌟
- Heads of powers are specified and enumerated, the may be challenged if the don't legislate under a specific head of power
What is executive power?
Power to Carry out or execute laws by developing policies and implementing statutes
Who is executive according the the constitution?
Queen, GG (formal constitutional exec)
Pm, cabinet and wider ministry (political executive)
(RESP P GOV not mentioned in the constitution)
What section mentions that ministers must be members of parliament?📖
Who are the administrative executive?
Public service (government departments, agencies &statutory authorities)
What is judicial power?
The power to adjudicate and make legally binding decisions.
Who exersises judicial powers?📖
Constitution -High Court of Australia, and in such other federal courts as the Parliament creates ( s71)
How does the constitution limit judicial power?🌟🌟
Limits powers by defining them either original or appellate jurisdiction
What is a constitution?
- written or unwritten
series of basic laws that sets out structures, functions and processes for governing a state or nation. It is the rules that govern the governors on procedures, powersand relationships within government and between government and its Citizens.
What are constitutional conventions?
- unwritten Generally accepted practice that has been followed for a lengthy period of time regarding powers, procedures and processes of the country's political system.
- not legally binding, no penalties for breaching of conventions ( only political consequences)
Eg. PM elected from HOR and is leader of the majority party, and GG to act on the advice of the PM
What is the purpose of the preamble of the constitution?
- states authority
- lists constitutions objectives
- sets out social contract that might include limits on gov power or specific Individual rights
- making symbolic statements about a constitutions underlying social and political values
What section says the senate cannot initiate or amend money bills?📖
What section says that senators spend max 6yr terms?📖
What section says they must be an equal number of senators from each state?📖
What section says the HOR must be directly chosen by the people?📖
What section includes the nexus clause? 📖
What is the nexus clause?
the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.’
- no. In HOR x2 senate
- no. In HOR proportional to population
What section states that only HOR has power to be initiate money bills?📖
What does section 57 give the power for the GG to do?
Dissolve both houses by double dissolution (2016)
What are the Governor generals legislative powers?📖
S58- royal assent
S57- call double dissolution to resolve dispute between HOR and senate
S5- dissolve both houses before an election, proclaim opening of parliament after election
S32- issue writs for election
S28- dissolve HOR
How does the constitution limit sovereignty for parliament?
- it enumerates where Parliament can make laws
- if make laws in other areas then they can be challenged in the high court
Constitution doesn't contain provisions for processes of creating legislation. Standing orders outline these processes and procedures
What does responsible parliamentary government ensue?
- government must be accountable to and drawn from executive
- members of exec must be members of legislature
- the government must resign if it loses a motion of no confidence in lower house
- if a minister loses a vote of no confidence they are expected to resign
- ministers are accountable to parliament for departments under their control
- Governor General must act on advice of the PM
Who are the administrative members of executive?
Public service and gov departments
What are the GGs reserve powers?📖
powers of the GG codified in the constitution and exercisable without advice in emergencies eg. S28 & s64
S64- GG may appoint ministers, who serve 'at his pleasure.
He has power to dismiss ministers including pm
: STIPULATES AUS TO BE RESP P GOV coz
"GG in council" suggests he needs to act on advice????
What are the GGs express powers?📖
When the Governor General is action on the advice of the pm he is seen to be 'expressing the will of Parliament'
What section of the constitution vests judicial power in high court and other courts federal courts that parliament creates?📖
What section states that GG in council appoints judges📖
What section says that judges must retire at 70📖
Define responsible parliamentary government?
RPG is a term used for to describe the formation of government based on the Westminster system, it states that executive is to be drawn from and accountable to Parliament
Where is US judiciary power vested?
The Supreme Court and other inferior courts the congress may create
What is the role of the US Supreme Court
It is the final court of appeal for all matters, it has the power to interpret constitution and strike down laws it judges unconstitutional. And can Adjudicate on matters arising from presidents powers.
It is a powerful check on powers of congress and president.
Where is US executive power vested?
President advised and assisted by secretaries of cabinet.
The president nominated members of their cabinet and other senior exec branch officials
Powers the Australian Legislative branch?
- enact leg on behalf of the people
- initiate, debate, amend, approve/ disprove statutes as outlined in 51 to make law for the "peace, order and good government o Australia"
- debate foreign policy
- form government/ Westminster convention and check government through censure motions and motions of no confidence
- HOR can initiate money bills
- scrutiny of gov administration/ actions
- reflecting will of majority
Members of Australian legislative arm
- bicameral p of elected individuals who wish they control political and legislative agenda
- queen represented by GG
Members of US legislative?
-Bicameral system consisting of congress
- head of state, elected position
- people's house proportional to states
- to be elected over 25, citizen for 7 years
Powers of congress/ legislative arm
Article 1 s1- legislative powers "granted within"
- pass bills
- declare war, regulate interstate and foreign commerce, tax and spending policies
- can impeach president who committed criminal offence
- ability to make standing orders
- ratification of treaties
Powers of US executive
- article 1s2 when vacancies occur in HOR, executive issues writs for election
- article 2 s2 president shall be commander in chief of the army and the navy
- power to grant reprieves and pardons for offences against the USA ( expt, cases of impeachment)
-president can veto a bill BUT if 2/3 of con. Disagree it is still passed
-power to make treaties provided that 2/3 of senators agree, and ratify it
- pres can nominate ambassadors, public ministers and judges
- Covene houses if there is disagreement they may adjourn until seen fit
- pres can fill vacancies that happen during recess of senate
Powers of the Australian executive?
-GG can chose federal exec council (s62 )
- power to appoint senior gov ministers (s64)
- GG is commander in chief of armed forces
- power to convene parliament
- appoint and dismiss pm (s64) RESERVE PWR
- runs gov
- execution, maintainence of constitution and laws of commonwealth
- appoints justices of HC
Who is us exec power vested in?
article 1 s1 exec power vested in president together with Vice President
Powers of Australian judiciary?
-S71 vests power In hc and other fed courts p creates
- interprets the constitution (s76)
- highest court of appeal (s73)
- review legislation and can deem federal law unconstitutional (s76)
- deals with matters arising between states
Checks on the judicial arm of Government?
- s72guaranteed tenure ( retire at 70)
- appointed by GG on advice of the pm
- s72 removed only on basis of 'proven misbehaviour or incapacity'
Powers of the US judiciary?
Article 3- Supreme Court and other inferior courts created by congress
- interprets constitution eg, right to declare laws unconstitutional
- appellate jurisdiction
- deal with matters between states
Similarities between us and Aus legislative arm?
- pass bills
- regulate tax and spending
- us congress can impeach p, Aus HOR can move motion of no confidence & double dissolution by GG
- oversee, investigate and make rules for government and its officers.
- make standing orders s50
- congress has pwr to declare war, GG has power to declare war
Differences between Aus and us legislative arm?
- responsible parliamentary government causes responsibility for legislation passed on pm and the governing party due to the chain of accountability whereas USA with its completely seperate exec and legislature does not have the same issue of responsibility
Similarities between Australian and us executive
- elected executive
- appoints justices of hc
- commander in chief of armed forces
- issuing writs of Election
- power to select government ministers
Differences between Aus executive and us executive
-Aus has rpg, the us has executive presidential Government ( exec drawn from and accountable to p)
-Pm indirectly elected office
- distinct sop in us
Similarities between us and Aus judiciary?
- both interpret c
- highest court of appeal
- deals with issues between states
- both set out in 3rd chapter/ article
- both are head of state (gg/p)
- independent judiciary (sop)
Differences between Aus and us judiciary?
No way for congress to remove judges
How are the powers of LEGISLATURE limited in Australia, by the the executive?
- GG has power to give royal assent
-double dissolutions by GG ( 2016 election, due to ...)
How are the powers of LEGISLATURE limited in Australia, by the the judiciary ?
- the high court reviews legislation for lawfulness
How are the powers of LEGISLATURE limited in the US, by the the executive?
- legislature cannot be a part of Executive like in Aus
- president can veto a bill, but If 2/3 disagrees it becomes a law
How are the powers of LEGISLATURE limited in the US, by the the judiciary ?
Supreme Court can deem laws unconstitutional
How are the powers of EXECUTIVE limited in AUS, by the LEGISLATIVE ?
-Vote of no confidence can remove gov?
As must have majority of seats to form gov
- GG can remove pm
How are the powers of EXECUTIVE limited in AUS, by the judiciary ?
- high court checks legality of government policy
How are the powers of EXECUTIVE limited in US, by the LEGISLATIVE?
-congress can override veto
- exec cannot b member of legislative
- pres can be impeached by congress
- treaties must be ratified by congress
How are the powers of EXECUTIVE limited in the US, by the JUDICIARY ?
- Supreme Court checks presidents powers
How are the powers of judiciary limited in AUS, by the LEGISLATIVE ?
-S72 judges can be removed by parliament on the ground of proved misconduct and incapacity
- s72 guaranteed tenure
How are the powers of judiciary limited in AUS, by the executive ?
-GG appoints on advice of pm
How are the powers of judiciary limited in the US, by the LEGISLATIVE ?
Judiciary not really limited by legislative???..
Define seperation of powers?
A doctrine which the functions of government to make, carry out, interpret and enforce the law are dispersed in order to prevent concentration of power. It is a key feature of democracy
What is a double dissolution
A double dissolution is a mechanism used by the GG with the advice of the pm to break deadlock Btwn the 2 Houses of Parliament. It works be effectively dissolving the 2 Houses calling for a reelection
Define Australians political and legal system?
Australia is a representative democracy and constitutional monarchy organised as a federation with a Westminster system of responsible parliamentary government
Define constitutional monarchy?
A form of government in which the head of state is an inherited position but whose powers are limited by a written constitution or by unwritten constitutional conventions
Define representative government?
A form of government in which the people are sovereign but are represented in government by an elected member of an assembly ( parliament) acting as their representatives. Such representatives may be delegates, trustees or partisan.
A legislature composed of two houses or chambers, an upper house ( of review) and a lower house.
A system of government in which sovereignty is geographically divided between one central and two or more regional government, each sovereign within their own sphere
Define US system of government?
The United States is a representative democracy and a republic organised as a federation with an executive presidential system of governmental