Chapter One: The Constitutional Framework Flashcards
Constitution
A legal document that outlines the structural framework for how a state is governed, outranking all other forms of law and usually only changed under special circumstances.
Constitutionalism
The idea that governments have defined, limited powers and that government actions must be based on the rule of law.
Enumerated or Specific Powers
These are powers specifically set out in the constitution, either the exclusive powers given to the Commonwealth government or the concurrent powers given to the Commonwealth and the state governments.
Reserve Powers
Powers of the Governor General which are only used in the case of a political crisis, such as dismissing a prime minister if they no longer have the support of the House of Representatives, nominating a caretaker Prime Minister or calling an early election.
Express Powers
Powers of the Governor General which are exercised by the Parliament and in which the Governor General has no say. Examples include the Governor Generals right to disallow and legislation (s59) and to appoint justices of the high court (s72).
Exclusive Powers
Powers of government which are only exercisable by the Commonwealth. Several are listed in section 52, and others are proposed indirectly and directly. Section 90 gives the Commonwealth custom and excise duties and sections 114 and 115 forbids the states from raising armed forces and coining money.
Concurrent Powers
Powers of government which are exercisable by both the State and Commonwealth governments. These are listed all in section 51 and include marriage, taxation and corporations, however under section 109 the Commonwealth has overriding jurisdiction in these areas.
Residual Powers
Sections 106 to 108 ensure that the state governments keep their existing constitutions and continue to exercise power in areas they were already doing so unless stated specifically by the constitution. Thus any power not mentioned in the constitution is a power of the States, such as health, education and criminal and civil law.
Federal Executive Council
What the constitution uses to refer to the Prime Minister and senior ministers.
Head of State
A government official who in systems such as Australia and the UK, possess a ceremonial role in government and always acts on constitutional conventions and the advice of the Prime Minister.
Head of Government
An elected government official who possesses real executive power such as the Prime Minister in Australia.
Constitutional Preamble
Brief preludes to constitutions that may give it legal authority and provide symbolic values by which the constitution is made from.
Double Dissolution
Outlined by section 57 of the constitution, it provides a way to solve disputed between the two houses of Parliament by dissolving both houses completely and convening a full Senate and House election.
Independence of the Judiciary
The principle of a liberal democracy which makes the judiciary completely independent from the other branches of government. In Australia, it is reinforced by section 72 which guarantees the tenure of a Justice until the retiring age of seventy.
Nexus Clause
Section 24 of the constitution, which states that the number of Senators must be equal to half that of the number of members of the House of Representatives.
Minimalist Constitution
A constitution which includes only the provisions that are necessary to run the state, such as the Australian constitution.
Maximalist Constitution
A large constitution which not only details how a state is governed, but also lists rights of citizens and descriptions of good government. The United States constitution is an example of a maximalist constitution.
Mandamus
A power given to the high court by section 75 of the constitution which allows the court to hear appeals from the decisions of Commonwealth officers. This allows the high court to hear appeals from the administrative appeals tribunal and refugee review tribunal and rule against their decisions.
Parliamentarianism
The Westminster Convention that the Parliament is the body of government elected directly by the people and therefore they are the most powerful institution of government.
Westminster system
A system of government modelled after the United Kingdom system of government, following Westminster conventions and the conventions of responsible government.
Washminster system
A word to describe the semi-Westminster style of government Australia has adopted, using Parliamentarianism principles from the Westminster system but federal principles from the United States.
List four key constitutionalist principles
Constitutionalism is the idea that the following principles are reinforced by the constitution:
• Legal systems are based on the rule of law, equity of the law and the right to a fair trial
• The separation of powers between the executive, judiciary and the legislative is reinforced
• The division of powers between the state and federal levels of government are stated
• The Parliament is bicameral in nature, with the Senate acting as a house of review
What are some principles that can be included in a constitution?
Constitutions may include the following principles:
• Principles of good government, such as the basis of sovereignty
• Limiting government through specification of powers
• Checking government
• Social values such as the rule of law, judicial equity and gender equity
Why are constitutional conventions significant in the Australian system?
In Australia, constitutional conventions are almost always followed and they are extremely significant because they dictate how the executive carries out its power. For example, the constitution in section 64 states that the Governor General has the power to appoint and dismiss ministers but by Westminster convention this power is carried out by cabinet and the Prime Minister. Conventions, unlike laws, do not have legal ramifications if broken, but they can cause significant controversy. The constitutional crisis of 1975 is an example of such controversy.
