LAWS1205 Final: APL exam notes final
FOUNDATIONAL INFORMATION
KEY SECTIONS OF CONSTITUTION
Section 1
oVests legislative power in the Queen, Senate, House of Representatives – called The Parliament.
Section 2
oEstablishes Governor-General who is the Queen’s representative.
Section 7
oEstablishes the Senate, which is composed of senators from each state, voted in by people of the state as one
electorate.
Section 24
oEstablishes House of Representative, composed of members directly chosen by people of Commonwealth.
Section 51
oBasic legislative powers of the Parliament.
Section 61
oExecutive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General.
Section 71
oEstablishes the federal courts that have judicial power.
Section 128
oOutlines the method for changing the constitution: amendment must be passed at a referendum by a majority
of people in a majority of states.
KEY CONSTITUTIONAL THEMES
Federalism
Enshrined in the preamble of the Constitution: “Whereas the people of NSW, VIC, SA, QLD, TAS…have agreed to
unite in one indissoluble Federal Commonwealth”.
Two tiers of government that power is divided between: Commonwealth and the states.
Distinct features:
oBody of states closely connected so that the inhabitants feel a sense of common nationality.
oInhabitants must have a desire to be a union but not give up allegiance to a particular state.
oReconciling independence of states under an overarching, common government.
oAccountability: states accountable to Commonwealth and vice versa.
Distinct features in Australia:
oAutonomy of government institutions
oEach state being treated fairly by the Commonwealth: s51(ii) and s51(iii)
oGuarantee of equal state representation in Senate: s7.
oRespect and fairness owed by a state to government and peoples of other states: s117, s118, s92.
Pros of federalism:
oAllows pluralistic democracy to flourish
oDifferent policy outcomes for different constituents
oDivision of powers means that one state cannot become too oppressive.
oIndividual participation in national affairs
Cons of federalism:
oNo direct democracy at a national level
oState rights do not necessarily translate into individual liberty
oStates can strike down federal attempts to liberate minority groups
First Territory Senator’s Case
oQuestion: was the Commonwealth allowed to legislate to allow for territory senators?
oTension between equal representation of all citizens (democracy) and having the Senate as a state’s house
(federalism).
oDemocracy did prevail, but only by a bit.
Responsible Government
An accountability measure – everyone in government is responsible to someone else.
Legislature
oResponsible to the other house of parliament
oResponsible to tribunals and courts
oGeneral elections
oJudicial review
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Executive
oRule of law
oResponsible to parliament
oCodes of conduct, Freedom of Information Act, commissions
oGovernors-General act on advice of ministers
oGeneral elections
oJudicial review
Judiciary
oJudicial appeal
oParliamentary oversight
oExecutive appointment of judicial officers
Relevant sections of Constitution:
oS53: Powers of the Houses
Money/tax legislation cannot originate here
Can amend a proposed law
Can send legislation back to lower house
Equal power to lower house with respect to proposed laws.
oS56: Recommendation of money votes
A resolution on legislation that relates to revenue cannot occur unless a message from Governor-
General recommends it.
oS61: Executive power
Governor-General is the Queen’s representative, which extends to execution of Constitution
oS62: Federal executive council
This council will advise the Governor-General
oS64:
No minister of state can hold power from longer than 3 months unless they are or become a member
of Parliament.
Rule of Law
Rule of law is a mode of governance according to which:
oAgents of the state only act in the manner and to the extent authorised by the public law which regulates them
and do not act in contravention with any law that regulates them and:
oEffective accountability mechanisms operate in order to ensure the conformity of state agents to the public.
oThe general public has the freedom to do what they please as long as it does not contravene a law.
oOverall: state agents can only act if there is a law that allows them to do so, and the public can act in any way
that doesn’t break the law.
Separation of powers and the rule of law
oThe bulk of state power should not lie with one agent – should be distributed.
oAllows for checks and balances.
Democracy
Popular sovereignty
oAll public and state power ultimately resides in and gains its authority from the will of the people. The people
legitimise power.
Representative democracy
oThose who serve as representatives of the people in society and are accountable to the people carry out vast
majority of government activities.
Parliamentary sovereignty
oThe parliament has under the Constitution the right to make any law, and no body is recognised as being able
to override or set aside the legislation of Parliament. Also applies to state parliaments.
oLimitations on sovereignty of Parliament:
The possibility that people will disobey or resist laws.
The Parliament may be voted out.
Parliament usually legislates to the society’s morals and values.
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Part I – THE LEGISLATURE (STATE/TERRITORY)
Origins of state constitutions
Section 106 of Constitution
oWith the introduction of the Commonwealth Constitution, state constitutions shall remain.
Section 107 of Constitution
oWith the introduction of the Commonwealth Constitution, state parliaments shall continue.
Section 2 of Australia Act
oStates can legislate for the peace, order and good governance of the state – handing power from UK to the
states.
oPeace order and good governance of the state – grants state plenary power
State power (Australia Acts: Sections 2, 6)
State constitutions give states plenary power.
Australia Act section 2 states that states can legislate for the peace, order and good governance of their state, and can
also make extraterritorial laws.
oAustralia Act is subject to the Constitution – Union Steamships
oExtraterritorial laws must have a connection to the state though – Pearce v Florida.
In NSW, this is confirmed under Section 5 of their constitution that states that they can legislate for the peace, welfare
and good governance of their state.
BLF Case
State prerogative power
Can only be exercised in accordance with state government’s area of constitutional responsibility: (Davis)
Right to pardon (exists at both levels of government)
Right to mine metals within their territory
Limits on state power
Section 106
oState constitutions are subject to the
Commonwealth Constitution.
Section 109 of Constitution
oIf a law of the state is inconsistent
with a law of the Commonwealth, the
latter will prevail.
Section 52
oiii) Any power vested in the Commonwealth Parliament by the Constitution (see below) may not be exercised by the
states.
Section 114
oThe states cannot impose a tax on any property belonging to Commonwealth
Limit (1): delegation and abdication
Cannot abdicate power. – Cobb and Co. states that the delegated officer must have a “parliamentary hand on their
shoulder.” In Cobb & Co., they could undo the delegation at any time, and the power was delegated to the QLD transport
commissioner which was valid.
Parliament can delegate legislation but it cannot abdicate it (Dignan)
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Document Summary
Section 1: vests legislative power in the queen, senate, house of representatives called the parliament. Section 2: establishes governor-general who is the queen"s representative. Section 7: establishes the senate, which is composed of senators from each state, voted in by people of the state as one electorate. Section 24: establishes house of representative, composed of members directly chosen by people of commonwealth. Section 51: basic legislative powers of the parliament. Section 61: executive power of the commonwealth is vested in the queen and is exercisable by the governor-general. Section 71: establishes the federal courts that have judicial power. Section 128: outlines the method for changing the constitution: amendment must be passed at a referendum by a majority of people in a majority of states. Enshrined in the preamble of the constitution: whereas the people of nsw, vic, sa, qld, tas have agreed to unite in one indissoluble federal commonwealth .
