The Anatomy of the Constitution

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The Anatomy of the Constitution

• The Commonwealth of Australia Act 1900

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STRUCTURE

• Preamble
• 9 Covering Clauses
• 9th Covering Clause is The Constitution
• Is relatively short
• Focus is on the creation of the institutions of
  the central government

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Preamble

• Preambles can have several aims
• 1. Stating the sources of authority for the
  constitution
• 2. Listing a constitutions objectives
• 3. Setting out a social contract which might
  place limits on government or specific individual
  rights
• 4. Making a symbolic statement about a
  constitutions underlying social and political
  values.

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Australias Preamble

• Refers to sources of authority
• The states
• Blessing of Almighty God
• Covering clauses
• Allow WA to join every state

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CHAPTER ONE THE FEDERAL PARLIAMENT
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The Senate
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• Very powerful
• Primary role is to protect the interests of the
  states and act as a house of review
• Has this changed over time?
• Section 7 equal number of Senators from each
  state
• Section 13 6 year terms
• Why?
• Section 24 (nexus) Senate half the size of the
  HofR
• Section 53 equal powers except for the
  initiation and amendment of money bills.

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• Intended to be the popular house representing the
  people
• Constitution implies it is the house of
  government
• Exclusive power to initiate and amend money bills
  The budget
• 150 members currently
• 15 WA MHRs

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RESOLVING DEADLOCKS BETWEEN THE HOUSES

• Section 57
• Establishes the procedure of a double dissolution
• Rejection of a bill twice within three months by
  the Senate gives the House of Representatives a
  trigger for a DD
• After vote a joint sitting can be held
• Only ever one joint sitting
• Six Double Dissolutions

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HOWARD WILL MORE THAN LIKELY NEVER USE A DOUBLE
DISSOLUTION TRIGGER. Therefore can be referred to
as toy triggers
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REPRESENTATIVE GOVERNMENT

• Senators and MHRs be directly elected by the
  people through elections
• Constitution does not set up any electoral system
  
• Only dictates that the franchise is the same as
  the state election franchise

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RESPONSIBLE GOVERNMENT

• Means that the executive is responsible to the
  parliament and that the parliament is responsible
  to the people.
• Budget function
• FEC are elected to parliament

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EXECUTIVE

• Queen and GG
• Chapter 2
• GG powers
• Express
• Formal
• Act on advice of PM
• EG Commander of Armed Forces (sc 68)
• Fictional
• Never been used such as power to disallow
  legislation (sc 59)
• Has been argued that reserve powers do not exist
• Reserve
• Allow GG to act in times of a political crisis
• 1975
• Very contentious some say they dont exist

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JUDICIARY

• Chapter 3
• Power is vested in the High Court and other
  Federal Courts
• Judiciary should be independent
• GG on advice of the Federal Executive Council (PM
  2/3 senior Ministers) has power to appoint High
  Court Justices (sc 72)
• Has been argued that there can be political
  appointments
• Whitlam appointed a former minister

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High Court Jurisdiction

• APPELLATE
• Determining appeals from decisions of any
  Australian Court (Federal and State)
• Interpretation of the Constitution
• Original
• Section 75
• Matters arising under treaties
• Cases brought before the Commonwealth
• Legal disputes between states or between the
  residents of one state and the government of
  another

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CONVENTIONS OF RESPONSIBLE GOVERNMENT

• Writers assumed that representative and
  responsible government would be the basis of our
  Federal system
• Thus focus for FF was on Federation and not on
  what the colonies already did. Under standard
  British practice
• There is no explicit mention of the Westminster
  system in the constitution
• Most matters were covered by conventions

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CONVENTIONS

• Defn An unwritten practice concerning the
  powers, processes and procedures of a political
  system that has general acceptance and are
  consciously followed
• The conventions include

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• The executive (govt) must enjoy majority support
  of the lower house
• This usually happens automatically as the
  government is the party that wins over half the
  seats in the lower house at election time
• Only time it did not happen was in 1975

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• 2. The PM must be a member of the Lower House and
  the Ministry can come from either House
• - EG Sen. Robert Hill is the Defence Minister

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• 3. Ministers must resign if they can not publicly
  support cabinet decisions

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• 4. Individual ministers must resign if they are
  the subject of a no confidence vote
• -due to govt majority is almost impossible
• -did happen and was ignored in 1975

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• 5. Ministers are accountable to Parliament for
  the actions of officials under their control
• -this is known as individual ministerial
  responsibility
• -has proven difficult in recent years to
  apportion blame for the actions of others
• -no doubt oppositions love to exploit this in
  question time

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• 6. Appointed officials are loyal to their current
  minister
• -John Howard had some difficulty last year with
  some ex-defence officials speaking out about
  children overboard

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• 7. The Head of State acts on the advice of the
  Head of Government (PM)
• -someone forgot to tell this to John Kerr in
  1975

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SECTION 51

• 39 sub-sections
• Most are concurrent
• Taxation
• Marriage
• In theory should foster cooperation
• In reality fosters some level of resentment
• Commonwealth does have final say if laws conflict
  under section 109

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• Any powers not mentioned in the Constitution are
  known as residual powers
• Criminal law
• Health
• School education
• Emergency services
• water

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• Three types of powers
• 1. Exclusive Federal govt only
• 2. Concurrent Federal and State govts can act
• Residual States only can act