Anatomy of the Constitution

Introduction

A constitution is a document, written or unwritten that sets out the structures, processes, functions and powers of the government. It essentially governs the governors, protecting the people from the abuse of power.

A federal constitution is a constitution for federations, specifically outlining the division of powers between the central government and the various sub-governments. It addresses the roles of each level of government and states what areas of policy each level is responsible for.

The Washminster Model is a system of government adopted by Australia, which is a mix of American and British systems, hence the name ‘Washminster’, a portmanteau of Washington and Westminster, the locations of the US and UK parliaments. It mixes federalism with separation of powers.

  • From the UK, Australia adopted many of the Westminster Conventions of Responsible Government. The monarch, through their representative the GG, is the Head of State.
  • A bicameral parliament is elected by the people, the lower house serves as the main legislator, and the upper house as a house of review.
  • The party with the most seats in the lower house forms government, and their leader becomes the PM.
  • A council of ministers is appointed to advise the GG

 

  • From the USA, Australia adopted many elements of federalism
  • A written constitution would serve to define the powers of       the levels of government
  • The Senate would have an equal amount of representatives from each state ( s. 7)
  • A High Court would be established to oversee disputes between states or states and the central government
  • Co-ordinate federalism means that the states and the central gov’t should have equal power
Four barriers to federation:
  1. wealthier states didn’t want to dish out to the poorer ones;
  2. smaller states didn’t want to get swamped by larger ones;
  3. immigration problem: QLD wanted Kanakas etc. to work, others didn’t;
  4. jealousy between states.
Reasons:
  1. Defence – France, Germany were moving into the Pacific; unified country can deal with it better
  2. Trade – trade could not grow because of strict tariffs between States
  3. National Identity – a continent for a nation, a nation for a continent
  4. Foreign policy – united Australia would be more effective
  5. British attitudes – the UK saw that it would result in a strong ally in the Asia-Pacific region

Preamble and covering clauses

  • The preamble is basically the poem in the beginning of the Constitution that is not legally binding
  • The Queen and the British parliament passed the Constitution Act
  • Being an original state was important: Chapter 6 states that new states may not get the same deals as original states.
  • ‘One indissoluble Federal Commonwealth’

Legislature (Chapter 1)

  • Federal parliament is defined as the Queen, HoR and the Senate (s. 1)
  • Senate
    • s 7 – Same no. of senators representing each state (12)
    • s 15 – Casual vacancies to be replaced by a member of the same party.
    • s 24 – No. of senators is to be half of the no. of HoR
  • HoR
    • s 26 – Tasmania will have a minimum of 5 seats
    • s 34 – Members must be on the electoral role and a citizen of Australia
  • Vacancies:
    • In the HoR, a by-election is held
    • Since by-elections are impractical in the Senate
    • Originally, vacancies in the Senate were appointed by the state, since they were the state representatives.
    • This was changed in the 1977 referendum because of the 1975 crisis (Murphy and Milliner)
    • Now, the party appoints it, since the seats are allocated by proportional representation by party
  • Legislative power:
    • Both Houses may introduce bills, but only the HoR may initiate money bills, s 53. the Senate may accept or reject it, but may not amend.
  • Disputes between houses are solved by a double dissolution (only 6 – latest 1987, Hawke) election, then a joint sitting (only 1 – 1975). (s 57)
  • The GG’s legislative powers (s 58, 59 and 60)
    • Assenting to bills
    • Rejecting them
    • Sending them back for consideration or amendments

Executive

  • According to the Constitution (s 61 to 70),
    • The executive power is vested in the GG
    • The GG may appoint a Federal Executive Council of senior ministers to advise him
    • May appoint or dismiss ministers (Whitlam 1975)
    • Control of the defence forces
    • However, in practice, the GG acts only on the advice of the PM and Cabinet
  • Reserve powers are powers that the GG may exercise without or contrary to ministerial advice. These are uncodified, and are derived from the GG being the Head of State
    • Appointing PM in a hung parliament
    • Dismissing PM if they lost confidence
    • Refuse to dissolve parliament if requested by PM
  • Express powers are those that the GG may exercise on the advice of ministers
    • Those outlined in the Constitution – assent to bills, prorogue parliament, control of the defence forces

Judiciary

  • Vested in the High Court (Chapter 3 judges) and other federal courts (71).
  • s 72 – appointment and tenure of judges. GG appoints on advice of PM and Cabinet, justices must retire after turning 70. (1977). Previously, it was a lifetime appointment
  • Appellate jurisdiction (73)
    • Is the final court of appeal of every court in the land
  • Original Jurisdiction
    • 75 – disputes between states, C’th and individuals; international treaties
    • 76 – issues arising concerning federal law or the Constitution; maritime law

Division of Powers

  • Exclusive powers (s 51, 52, 90):
    • Powers that are concurrent in the C’th. The States are not allowed to legislate in these areas if they are explicitly stated in other sections of the Constitution to be exclusive.
      • Defence vi
      • Trade
      • External affairs xxix
      • Financial corporations xx
      • Quarantine, Customs and Excise s 90
  • Concurrent
    • Powers that both theC’th and the States may have power over
      • Taxation (s 51 ii)
  • Residual powers
    • According to s 107, all powers not exclusively mentioned in the Constitution as federal powers are retained by the States
      • Law and Order
      • Health
      • Education
  • s 109 – When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail to the extent of the inconsistency
  • s 90, 94 and 96 contribute to VFI
    • 90 gives the C’th exclusive rights over customs and excise (Ha v NSW 1997)
    • 94 allows the C’th to distribute surplus revenue to the States
    • 96 allows the C’th to attach conditions to the money they give

Other

  • s 92 – Free trade between States
  • Rights
    • s 41 right to vote in federal elections if you vote in State
    • s 51 xxxi – acquisition of property under just terms
    • s 80 – right to trial by jury for federal indictable offences
    • s 116 – the C’th may not impose a state religion
    • s 117 – cannot discriminate between individuals on the basis of the State they come from
  • Chapter 6 deals with new states.

Altering the Constitution

  • s 128 –
    • A bill must pass both houses, or one house twice
    • A referendum must be held, a yes or no question
    • A double majority must be achieved.

Conventions

See constitutional conventions

  • Home-grown conventions are those that are specifically Australian, not Westminster
  • Australia developed its own conventions
    • Prior to 1975, the States would fill a casual vacancy on advice of the party
    • The Speaker and Deputy would be from the government, second deputy for the opp’n
    • The Senate always passes the Budget
    • Pairing

 

 

 

 

 

 

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