#7105 - Fundamental Concepts Theory - Constitutional Law

• Provides the foundation of the legal system

  • Regulates the three arms of government (legislature, executive, judiciary)

  • Provides fundamental rules of the legal system

• Defines major institutions of government

  • Legislature, executive government, judiciary are all created by the Constitution

  • The Constitution Act 1975 (Vic) defines what Parliament is made up of (Queen, Legislative Assembly and Council)

• Confers authority on them

  • Legislature, exec government and judiciary only have what power the Constitution confers on them.

• Limits and controls their authority

  • Imposes rules about how the institutions must operate in exercise of their authority

  • Regulates the channels and exercise of political power

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.

Really the same as the rule of law but applied to the functions of a constitution in limiting controlling and regulating government.

British Constitution

• unwritten

• Constitution includes statutes, common law, constitutional conventions

  • 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 G-G Kerr in 1975)

• British Parliament is sovereign; can change own constitution by ordinary legislation, has unlimited law-making authority

• No strict 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).

• 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.

This doctrine states that the executive is responsible to the legislature. The Crown (G-G) 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

Queen/G-G is formal head of all branches of govt, but in practice Queen/G-G acts on advice of elected govt

• Leaders of govt are also members of Parliament

• The party that wins majority support in the lower house (House of Reps) are appointed as Ministers and the party leader appointed Prime Minister

• The executive is “responsible” to Parliament because Parliament can scrutinise and question the Ministers; and if the lower house is unsatisfied with the work of the Ministers it can have a vote of no confidence and the Queen by a constitutional convention must dismiss the Ministers, and another group can be appointed to form government. If there is no other majority, an election must be held.

  • If there is a motion of no confidence and the government is not dismissed, parliament can apply political sanctions (refuse to pass appropriation and expenditure Bills until govt ran out of money). The Queen/G-G would then have to back down.

Problems with responsible govt in Australia

Executive is responsible to Parliament, but it can be argued because of strict party discipline and the threat that MPs will not be preselected at the next election, ministers control parliament and not the other way around.

• Senate can ask the difficult questions if the govt does not also have a majority there, but the Senate is not supposed to be able to bring down a government, though it has been done by blocking appropriation Bills and bringing down the Whitlam government.

• UK: parliament is sovereign: it has the power to make or unmake any law, including extraterritorial laws. No person or body can override this and must obey the laws, which courts must enforce.

• Commonwealth: parliament not absolutely sovereign as it is constrained by the Commonwealth Constitution and only has the powers conferred by the Constitution.

• States: parliament is not subject to many constraints from flexible State constitutions, but is still constrained to a degree by the CC. Plenary power.

Even where parliaments are only partially sovereign courts will only strike down legislation if there is constitutional authority for its disallowance; unjust laws may be passed unless against the Constitution (‘POAGG’ in State constitutions not words of limitation: does not matter if State law is just: Union Steamship v King).

There are two houses of Parliament. The Houses act as “checks and balances” on one another to avoid the passing of tyrannical laws.

This doctrine refers to the make-up of the lower House of Parliament, meaning it is democratically elected. All lower houses are democratically elected in Australia (note: so are upper houses here).

Narrowly, the executive (the Crown) has uniquely governmental CL powers called ‘prerogative powers’ that only it enjoys. Now at a federal level these are thought to be absorbed by CC s 61.

• Includes power to declare war, make peace, execute treaties, coin money, pardon offenders, conduct inquiries under Royal Commissions and request extraditions.

• A more broad reading of the term ‘prerogative powers’ includes the powers that every legal person possesses as a matter of CL: right to enter contracts, own property, set up corporations.

• All colonies were allowed to adopt their own constitutions

• Legislative councils were established from prominent citizens

• Mid-19^th C legislative councils were authorised to adopt a constitution allowing a legislative assembly to be popularly elected (Westminster parliament approved the constitutions)

• Colonial constitutions intended to be flexible or uncontrolled (can be changed by ordinary legislation). CF Commonwealth Constitution which is rigid and controlled.

• Victoria Constitution Act 1975 (Vic): Vic Parliament has made changes over the years.

In State constitutions there is a broad sweeping legislative power such. In most states it is the power to make laws for the POAGG of the State. Victorian is below.

This is regarded as a plenary legislative power, meaning it is general and not subject to limitations inherent in the power itself. Any limitations come from external sources (such as the Commonwealth Constitution).

States have constituent legislative power, meaning they have power to change the State constitution itself.

• However, they cannot use this power to abdicate their own power (see manner and form).

• S 51: concurrent powers

  • If inconsistent Commonwealth law prevails: CC s 109

• S 52: powers Commonwealth may exercise exclusively

• S 106: State constitutions shall continue to operate subject to the CC

• S 107: State powers that are not exclusively vested in Comm Parliament or withdrawn from the parliament of the State will continue to be held by the States.

Australian courts (particularly HCA) are charged with interpreting and applying the principles of the Constitution. Their independence is protected by...