Constitution Flashcards
What is the Federal System of government?
The Federal System of government means that we have two levels of lawmaking - a Federal level and a State level and that lawmaking is carried out in accordance with the division of powers under the Constitution. The Federal System provides for LEG. Each is separate by related. Federal laws apply to all Australians and checks on the power of each of the three institutions of government result in checks on the abuse of power.
What are the four main functions of the Australian Constitution?
- An indissoluble federation designed to inhibit secession - to provide for national security, uniform immigration, a national communication networks and to prohibit interstate trade barriers.
- Division of Powers
- Protection of states ‘sovereignty ‘ - achieved by having a bi-cameral Parliament.
Constitutional Monarchy - acts as a guardian of the ‘Constitution’.
What are the reasons for Federation?
- There was a growing feeling of nationalism in a climb to nationhood.
- A tariff and import policy was necessary to provide for free trade.
- There was a perceived threat of invasion and the need for national defence.
- The need for a common approach to immigration and foreign policy
- Unity and identity
- Banking regulations
- Industrial relations
What is the importance and the influence of federation?
Balances and maintains the Separation of Powers Doctrine.
Independent states foster competition between the other in economic affairs by keeping taxes and government regulations low to attract private enterprise to the state. This foster economic employment, growth and prosperity.
Makes international relations easier
How does the United Nations influence Australia’s legal system?
As a signatory to international human rights treaties, Australia is able to enact legislation to give effect to form those treaties for the benefit of Aussies.
Should Australia have a dispute with another nation, the dispute may be heard in the International Court of Justice.
The decisions of international courts forms persuasive precedents for Australian courts.
What is the role of JSCOT (Joint standing committee on treaties)?
Joint Standing Committee on Treaties’ reports its findings (decisions and recommendations) to the federal government and Parliament.
Is part of the legislative arm.
Does the executive have too much power in the treaty making process?
Yes. Where diffusing government power into three separate arms – legislative, executive and judicial, it prevents the power from being amassed into the hands of a few. One powerful arm can too easily misuse or abuse its power and infringe human rights and liberties. However, the Westminster model of parliamentary democracy is not based on a complete separation of powers. If the executive government can control a majority in both houses, the parliament merely becomes a ‘rubber stamp’ to its policies and has very limited ability to scrutinise government. There is also not specific mention of the structure of the Executive government or how it is formed in the Australian Constitution. Furthermore, the powers of the three arms were written in the Constitution in 1890s under very difficult circumstances. Changing events have allowed the executive to amass tremendous power not foreshadowed by the founders eg the use of the external affairs power by governments to undermine the legislative powers of states.
What is the purpose of Unwritten Conventions?
Unwritten conventions are conventions not included in our Constitution but have been adopted by practice.
For example:
- Responsible government is reflected by the convention that the political party with the most number of seats in the lower house forms government.
-By convention, the Governor-General always gives assent to bills passed by Parliament
- By convention, the Upper House should not block supply (1975-Whitlam)
What is the role of the Governor-General?
They appoint ministers, judges and ambassadors. They act on the advice of the Prime Minister in relation to the appointment of judges. Gives royal assent. Head of state, and acts on behalf of the Queen (is her representative)
What is the difference between exclusive and residual powers?
Residual powers is power that is retained by the government after other powers are distributed to other authorities in the course of elections or by the process of delegation, while exclusive powers refer to a set of lawmaking powers only the Commonwealth can legislate on which include immigration, currency and defence.
What is the Sovereignty of States?
Australia is a Sovereign nation, which means it is independent of other nations and this is important because it means we can pass laws to protect its sovereignty
eg
Border Protection Act 2001 - to deter or punish anyone who aids or assists people to enter Aus illegally
The migration Act 1998
Advantage of Federal System
- The trade between states will be free of charge
- A strong central government makes international relations easier
- Provides for different ways of thinking in different states on issues such as education development but at the same time for a national approach to defence and external affairs matters
Disadvantage of Federal System
- Divisions of powers could cause conflict – point scoring, lack of cooperation and buck passing
- Legislative powers is poorly defined in Constitution
Should the decisions of international courts influence Australian courts?
Yes. Australia is a member of the United Nations and therefore should respect the findings of the international courts. The upholding of human rights should be the responsibility of all nations. The respect of the courts is lessened if decisions are not followed.
Rights protected in Constitution
Protects some rights and freedoms. It provides for limited freedoms from Commonwealth intervention in religion and interstate trade, whereas the right to a representative government and a limited freedom of political communication has been implied by the High Court.
