Fundamental concepts, institutions and instruments
Fundamental concepts, institutions and instruments Nature and purpose of constitutional law •
•
•
Provides the foundation of the legal system o
Regulates the three arms of government (legislature, executive, judiciary)
o
Provides fundamental rules of the legal system
Defines major institutions of government o
Legislature, executive government, judiciary are all created by the Constitution
o
The Constitution Act 1975 (Vic) defines what Parliament is made up of (Queen, Legislative Assembly and Council)
Confers authority on them o
•
Legislature, exec government and judiciary only have what power the Constitution confers on them.
Limits and controls their authority o
Imposes rules about how the institutions must operate in exercise of their authority
o
Regulates the channels and exercise of political power
The rule of law Society should be governed by declared laws, so that no one is subject to arbitrary exercise of power. Law should affect each person equally and all are subject to the law •
Arguably the rule of law and parliamentary sovereignty are inconsistent (if parliament can absolutely legislate anything, it cannot be bound by the rule of law).
•
Executive (PM, Cabinet) may not have adequate constraints since is usually guaranteed a parliamentary majority due to strict party discipline.
Constitutionalism Really the same as the rule of law but applied to the functions of a constitution in limiting controlling and regulating government.
2 central features of Australian Constitutional Law 1) British (Westminster) system of responsible government British Constitution
•
unwritten
•
Constitution includes statutes, common law, constitutional conventions
o
Constitutional conventions are customs that are habitually followed by governments under a moral or political (but not legal) obligation to follow them. Political (not legal) sanctions may follow a break with convention. Some constitutional conventions:
Queen will act on the advice of the government (it is a break from convention to sack government etc as was done to Whitlam govt by GG Kerr in 1975)
•
British Parliament is sovereign; can change own constitution by ordinary legislation, has unlimited lawmaking authority
•
No strict separation of powers
2) Federal system (based on US model)
Separation of powers The functions of the 3 arms of government are to be clearly and institutionally separated to prevent concentration and abuse of power. The arms then operate as checks and balanced on each other. •
Distinction between legislature and executive has been blurred in Australia (and UK) as Cth Ministers are members of both the executive and the legislature as required by s 64 of the Constitution.
•
The judiciary is insulated from other branches to ensure independence and impartiality in interpretation and application of law: see Ch III of CC (see later notes).
The 3 types of powers • Legislative power: to make new laws •
Executive power: includes power to enforce/execute laws. Police, power to control armed forces, enter agreements with other countries, declare war.
•
Judicial power: power to interpret and apply law; adjudicate legal disputers and order laws be properly enforced. Orders can be addressed to the executive branch. Courts, judges.
Responsible government This doctrine states that the executive is responsible to the legislature. The Crown (GG) acts on the advice of the Ministers (including the PM), who only stay in power while they have the confidence of the House of Representatives. Executive responsible to lower house responsible to electorate Ministers
House of Representatives
Australian people
Ministers responsible to HoReps responsible to Vote for HoReps. Also HoReps via vote of no electorate via the doctrine of Senate but executive not
•
•
Provides the foundation of the legal system o
Regulates the three arms of government (legislature, executive, judiciary)
o
Provides fundamental rules of the legal system
Defines major institutions of government o
Legislature, executive government, judiciary are all created by the Constitution
o
The Constitution Act 1975 (Vic) defines what Parliament is made up of (Queen, Legislative Assembly and Council)
Confers authority on them o
•
Legislature, exec government and judiciary only have what power the Constitution confers on them.
Limits and controls their authority o
Imposes rules about how the institutions must operate in exercise of their authority
o
Regulates the channels and exercise of political power
The rule of law Society should be governed by declared laws, so that no one is subject to arbitrary exercise of power. Law should affect each person equally and all are subject to the law •
Arguably the rule of law and parliamentary sovereignty are inconsistent (if parliament can absolutely legislate anything, it cannot be bound by the rule of law).
•
Executive (PM, Cabinet) may not have adequate constraints since is usually guaranteed a parliamentary majority due to strict party discipline.
Constitutionalism Really the same as the rule of law but applied to the functions of a constitution in limiting controlling and regulating government.
2 central features of Australian Constitutional Law 1) British (Westminster) system of responsible government British Constitution
•
unwritten
•
Constitution includes statutes, common law, constitutional conventions
o
Constitutional conventions are customs that are habitually followed by governments under a moral or political (but not legal) obligation to follow them. Political (not legal) sanctions may follow a break with convention. Some constitutional conventions:
Queen will act on the advice of the government (it is a break from convention to sack government etc as was done to Whitlam govt by GG Kerr in 1975)
•
British Parliament is sovereign; can change own constitution by ordinary legislation, has unlimited lawmaking authority
•
No strict separation of powers
2) Federal system (based on US model)
Separation of powers The functions of the 3 arms of government are to be clearly and institutionally separated to prevent concentration and abuse of power. The arms then operate as checks and balanced on each other. •
Distinction between legislature and executive has been blurred in Australia (and UK) as Cth Ministers are members of both the executive and the legislature as required by s 64 of the Constitution.
•
The judiciary is insulated from other branches to ensure independence and impartiality in interpretation and application of law: see Ch III of CC (see later notes).
The 3 types of powers • Legislative power: to make new laws •
Executive power: includes power to enforce/execute laws. Police, power to control armed forces, enter agreements with other countries, declare war.
•
Judicial power: power to interpret and apply law; adjudicate legal disputers and order laws be properly enforced. Orders can be addressed to the executive branch. Courts, judges.
Responsible government This doctrine states that the executive is responsible to the legislature. The Crown (GG) acts on the advice of the Ministers (including the PM), who only stay in power while they have the confidence of the House of Representatives. Executive responsible to lower house responsible to electorate Ministers
House of Representatives
Australian people
Ministers responsible to HoReps responsible to Vote for HoReps. Also HoReps via vote of no electorate via the doctrine of Senate but executive not
