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Questions and Answers

What was one reason for the federation of Australia?

  • Imposition of tariffs between colonies
  • Desire for complete independence from Britain
  • Formation of a national religion
  • Fear of common enemies (correct)

Which legislative body in Australia is designed to have an equal number of members from each state?

  • House of Lords
  • Senate (correct)
  • Parliamentary Council
  • House of Representatives

Which section of the Australian Constitution articulates the free trade and commerce between states?

  • S 92 (correct)
  • S 100
  • S 75
  • S 50

Which term refers to powers exclusive to the Commonwealth under Australian federalism?

<p>Exclusive powers (A)</p> Signup and view all the answers

Who is credited with the idea that inspired the structure of the Australian Parliament?

<p>Alexander Hamilton (D)</p> Signup and view all the answers

What significant limitation did the Magna Carta impose on the monarchy?

<p>It limited the King's ability to impose taxes without consent. (B)</p> Signup and view all the answers

Which principle emphasizes the need for Kings to act according to established processes?

<p>Constitutionalism (B)</p> Signup and view all the answers

What is a key provision asserted by the Magna Carta regarding individual rights?

<p>Every individual is entitled to a fair trial. (C)</p> Signup and view all the answers

How did the English Revolution of 1688 impact the relationship between the parliament and the monarchy?

<p>Stabilized relations and reduced monarch's influence. (A)</p> Signup and view all the answers

What principle asserts that the parliament is the supreme law-making body?

<p>Parliamentary Sovereignty (D)</p> Signup and view all the answers

Which aspect of government did the Act of Settlement 1701 address?

<p>Security of tenure for judges. (A)</p> Signup and view all the answers

What does the term 'collective responsibility' refer to in parliamentary governance?

<p>The entire Cabinet is accountable to Parliament. (B)</p> Signup and view all the answers

What does the phrase 'the law of the land' imply in the context of individual rights?

<p>The law must protect individual rights uniformly. (B)</p> Signup and view all the answers

What does Ministerial Responsibility entail?

<p>Ministers are accountable for government actions they endorse. (A)</p> Signup and view all the answers

In the context of Australian governance, who has the power to vote for the Senate?

<p>Eligible electors from each state. (D)</p> Signup and view all the answers

Why is the concept of 'electors sovereignty' significant in parliamentary systems?

<p>It restricts electors from modifying laws. (B)</p> Signup and view all the answers

What role did the 19th-century Reform Acts play in parliamentary governance?

<p>They created a more representative Parliament. (B)</p> Signup and view all the answers

What is one of the critical consequences of the constitutional developments post-1688 Revolution?

<p>Development of a representative Parliament. (B)</p> Signup and view all the answers

What is the primary distinction between legal sovereignty and political sovereignty?

<p>Legal sovereignty refers to the power of making laws while political sovereignty pertains to the obedience of citizens. (A)</p> Signup and view all the answers

What is the constitutional distinction between Australia's Parliament and England's Parliament?

<p>Australia's Parliament is limited by constitutional constraints while England's is not as limited. (C)</p> Signup and view all the answers

According to Leslie Stephen, why is the power of the legislature limited?

<p>Due to internal social conditions and public willingness to obey. (B)</p> Signup and view all the answers

What is the main function of the courts in relation to parliamentary sovereignty?

<p>To determine if legislation falls under the limits of parliamentary power. (A)</p> Signup and view all the answers

What does Dicey's theory suggest about the nature of parliamentary sovereignty?

<p>It implies that parliament is unrestricted by any legal limitations. (A)</p> Signup and view all the answers

Which of the following statements reflects the limitations on sovereign power?

<p>Internal limitations arise from the essence of the sovereign’s character and societal influences. (C)</p> Signup and view all the answers

What is referred to as 'Deeper Constitutional Morality' in the context of parliamentary sovereignty?

<p>The inherent ethical principles that govern parliamentary power. (A)</p> Signup and view all the answers

How does RS Allan reinterpret Dicey's theory of parliamentary sovereignty?

<p>He connects parliamentary sovereignty to the ethical need for representative democracy. (C)</p> Signup and view all the answers

Which statement best describes the concept of legal sovereignty?

<p>The capacity to enforce laws without any underlying legal limitations. (C)</p> Signup and view all the answers

What does the discussion suggest about the practicality of absolute sovereignty?

<p>It is often questioned as a realistic concept due to inherent societal limits. (D)</p> Signup and view all the answers

Which best describes the essence of constitutionalism?

<p>A framework that limits government powers and upholds principles of governance. (A)</p> Signup and view all the answers

What are the two main classifications of Australian constitutionalism?

<p>Political and legal. (A)</p> Signup and view all the answers

What is the primary purpose of the separation of powers?

<p>To prevent the concentration of power in a single entity. (D)</p> Signup and view all the answers

What does a formal conception of the rule of law emphasize?

<p>Strict adherence to established laws and procedures. (D)</p> Signup and view all the answers

Which document is considered a foundational element of British constitutionalism?

<p>The Magna Carta. (C)</p> Signup and view all the answers

What is the principle of parliamentary sovereignty?

<p>Parliament’s decisions cannot be legally challenged. (B)</p> Signup and view all the answers

Which concept refers to moral principles that govern the behavior of government?

<p>Constitutional morality. (D)</p> Signup and view all the answers

What aspect of Australian federalism pertains to the distribution of authority among different government levels?

<p>Division of powers. (D)</p> Signup and view all the answers

Which of the following is a key feature of Australian federalism?

<p>Intergovernmental cooperation. (C)</p> Signup and view all the answers

In the context of judicial review, what was the significance of Marbury v. Madison?

<p>Confirmed the Supreme Court's power to overturn laws. (B)</p> Signup and view all the answers

What does the doctrine of repugnancy refer to within Australian federalism?

<p>State laws contradicting federal laws. (B)</p> Signup and view all the answers

Which of the following is a characteristic of judicial review?

<p>Judiciaries assess the validity of legislation against the constitution. (C)</p> Signup and view all the answers

What is a key argument for federalism?

<p>Enhances local governance and representation. (A)</p> Signup and view all the answers

What aspect does 'deeper constitutional morality' emphasize according to TRS Allan?

<p>The need for ethical considerations in governance. (D)</p> Signup and view all the answers

What is the primary power of judicial review in the context of the federal judiciary?

<p>To declare void any act that contravenes the Constitution (C)</p> Signup and view all the answers

Which principle describes the allocation of power between the Commonwealth and the State in federalism?

<p>Division of power between the Commonwealth and the State (D)</p> Signup and view all the answers

What role do the courts play in the principle of judicial review?

<p>Judicial 'umpire' for conflicts between laws (C)</p> Signup and view all the answers

What mechanism aims to prevent the tyranny of a ruling elite in the US Constitution?

<p>Separation of powers (A)</p> Signup and view all the answers

Which component of the US Constitution emphasizes constitutional supremacy, separation of powers, and judicial review as interlinked?

<p>The 'Trinity' of the Constitution (B)</p> Signup and view all the answers

What was one of the fears that inspired the framers of the US Constitution?

<p>Despotism of an elite and unresponsive government (A)</p> Signup and view all the answers

What is meant by 'partial separation of powers' in the Australian context?

<p>Elements of separation are present but not absolute (D)</p> Signup and view all the answers

What does federalism allow separate states to do within an overarching political system?

<p>Maintain their integrity while participating in a national governance (C)</p> Signup and view all the answers

Which of the following is NOT a key principle of the US Constitution?

<p>State-dominant authorities (B)</p> Signup and view all the answers

What concept is defined as a political organization that allows different states to remain autonomous while being part of a larger system?

<p>Federalism (D)</p> Signup and view all the answers

What is a significant challenge faced by minority communities in Australia regarding their rights?

<p>They are subject to a greater burden, including fees. (A)</p> Signup and view all the answers

What role does political constitutionalism play in the context of minority rights?

<p>It helps provide remedies to disadvantaged communities. (A)</p> Signup and view all the answers

Which case emphasized the need for courts to ensure laws are valid and actions are lawful?

<p>Plaintiff S157/2022 v Commonwealth (A)</p> Signup and view all the answers

How is the separation of powers established in the Australian Constitution?

<p>By defining distinct sections for Parliament, the Executive, and the Judicature. (A)</p> Signup and view all the answers

According to Montesquieu, what is the relationship between legislative and executive power?

<p>There must be a separation to prevent liberty loss. (A)</p> Signup and view all the answers

What was a concern regarding the integration of certain freedoms into the Constitution?

<p>It might limit Parliament's powers. (C)</p> Signup and view all the answers

Which statement reflects the courts' role in the Australian judicial system?

<p>Courts act as the ultimate decision-makers in legal disputes. (B)</p> Signup and view all the answers

What is a key characteristic of the Westminster system in relation to the judiciary?

<p>The executive integrates into the judiciary for accountability. (C)</p> Signup and view all the answers

What is the practical reality of separation of powers in government systems?

<p>There are overlaps and coordination among branches. (C)</p> Signup and view all the answers

Which of the following is a description of the 'formal rule of law'?

<p>Law should guide human conduct and meet procedural standards. (A)</p> Signup and view all the answers

Which document recognized the principle that governments must operate under the law?

<p>Common Sense by Thomas Paine. (A)</p> Signup and view all the answers

What critique is associated with the rigid separation of powers?

<p>It often leads to governmental deadlock. (A)</p> Signup and view all the answers

Which principle states that every person within the state is subject to the law?

<p>Rule of Law. (C)</p> Signup and view all the answers

What is a consequence of having a non-democratically elected judiciary?

<p>Reduced accountability to the public. (D)</p> Signup and view all the answers

What challenge does the Australian constitutional system present compared to the Westminster system?

<p>It separates the judiciary from other government institutions. (D)</p> Signup and view all the answers

Flashcards

Constitutionalism

A system of government based on a written constitution that limits the power of the government and protects individual rights.

Rule of Law

The principle that everyone, including the government, must obey the law.

Separation of Powers

Division of governmental power among different branches to prevent tyranny.

Parliamentary Sovereignty

The principle that the parliament is the supreme law-making body, with no higher power.

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Judicial Review

The power of courts to review the constitutionality of laws passed by the legislature.

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Federalism

A system of government where power is divided between a central government and regional governments.

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Magna Carta

A document that limited the power of the English monarch and established fundamental rights.

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Representative Government

A system where citizens elect representatives to make decisions on their behalf.

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Responsible Government

Government's accountability to the parliament.

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Diceyan Notion of Rule of Law

Rule of Law under Dicey emphasizes individuals being equal before the law.

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Substantive Conceptions of Rule of Law

Rule of law encompassing not only procedural fairness, but also the substance of the law's justice.

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Formal rule of law

Rule of law based on adherence to established procedures & rules.

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Doctrines of repugnancy

The concept that state laws that conflict with federal laws are invalid.

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Extraterritoriality

The extent to which a nation's laws apply outside its borders.

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Jusisocracy

The concept that the judiciary has increased power and influence.

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Minority Burden

Disadvantaged groups face disproportionately high costs and fees.

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Australian Constitutional Rights

Australia's constitution doesn't explicitly guarantee equal rights, or rights for minority groups.

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Political Constitutionalism

The use of political tools and the courts to address the lack of constitutional protections for vulnerable groups, such as First Nations people.

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Judicial Power

The authority to interpret laws and make judgment calls regarding their validity.

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Amalgamated Society Case

A court case arguing that the need for court protection of powers is not necessary.

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Popular Sovereignty

The idea that ultimate political power resides with the people.

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Australian Constitution (s3)

Section 3 of Australia's constitution outlines the Federal Commonwealth and the unity of the nation.

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Separation of Powers

Dividing governmental power among different branches (legislative, executive, and judicial).

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Westminster System

A parliamentary system of government where the executive is drawn from the legislature.

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Baron de Montesquieu

Philosopher who advocated for separation of powers to prevent tyranny.

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Rule of Law

The principle that everyone, including the government, should be subject to laws.

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Formal Rule of Law

The law must have clear procedures and application.

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Boilermakers Case

A legal case emphasizing the separation of the judiciary from other branches of government.

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Responsible Government

A system of government where the executive (e.g. government ministers) are accountable to the legislature.

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Substantive Rule of Law

Ensuring fairness and justice of laws, applying equally across society.

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Parliamentary Sovereignty

The supreme legal authority of a parliament to make and unmake laws, unbound by any legal restriction.

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Common Law

Law developed through court decisions rather than legislation.

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Legal Sovereignty

The unrestricted power of a parliament to create law.

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Political Sovereignty

The ultimate power of the state to enforce obedience from its citizens.

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External Limitations

Restrictions on a sovereign power's authority from those outside the system.

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Internal Limitations

Limitations on a sovereign power's authority that spring from that power's nature.

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Constitutional Constraints

Rules that limit the power of a parliament, particularly in Australia.

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Diceyan Theory

A theory that links parliamentary sovereignty to representative democracy.

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Deeper Constitutional Morality

Ethical principles guiding the constitution.

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Absolute Sovereignty

The unrestricted power of a sovereign, typically in theory.

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Reasons for Federation

Motivations behind the creation of a unified Australian government, including fear of common enemies, rising Australian nationalism, and facilitating trade/commerce across colonies.

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Distribution of Powers

Division of power in the Australian government between the national (Commonwealth) and state governments.

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Exclusive Powers (Commonwealth)

Specific powers exclusively held by the national (Commonwealth) government, as listed in section 52 of the Australian Constitution.

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Australian Federalism

A system of government in Australia where power is divided between a national government and various state governments, inspired by the US system.

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Senate and House of Representatives

Two Houses of Parliament within the Australian Federal system; the Senate has equal representation from each state, while the House of Representatives reflects proportional representation based on population.

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Magna Carta

A document from 1215 establishing certain rights and limiting royal power.

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Rule of Law

The principle that everyone is subject to and accountable under the law.

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Fair Trial Rights

The right to a fair trial and due process of law, including justice by peers.

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King's official character

The idea that a king acts in a role that must be carried out in specific ways.

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Limited Royal Power

Restrictions on the power of the monarch.

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Representative Government

A government in which citizens elect representatives to make decisions for them.

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Parliamentary Sovereignty

The concept that parliament is the supreme law-making body.

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Ministerial Responsibility

The idea that ministers are accountable for the government's actions.

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Collective Responsibility

The principle that the whole government (cabinet) is accountable to parliament.

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Individual Rights

Rights inherent to every person regarding life, liberty, property, and citizenship.

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General Welfare

The needs and well-being of the society as a whole.

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Law of the Land

The established legal framework through which the state can act.

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1688 English Revolution

An event that led to a change in the relationship between the parliament and the executive.

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Act of Settlement 1701

An act that provided rules on government-parliament relations.

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Australian Constitution

The fundamental law of Australia, outlining the structure of government.

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Judicial Review

The power of the judiciary to declare laws or actions unconstitutional.

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Australian Separation of Powers

Australia has partial separation of powers.

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Federalism

A system where power is shared between a central government and regional governments.

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US Constitution

The fundamental law of the United States establishing its structure and principles.

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Separation of Powers (US)

Division of government power among separate branches (legislative, executive, judicial).

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Constitutional Supremacy

The Constitution is the highest law of the land.

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US Constitutional Inheritance

Concepts of democracy and individual rights from the US Constitution.

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US Federalism

Federal system of government with shared powers between national and state governments.

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Fear Behind the US Constitution

The motivation behind drafting the US constitution was fear of unchecked power.

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US Strong Upper House

The US Senate is a significant part of the legislative branch.

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Study Notes

Constitutionalism and the Rule of Law

  • Constitutionalism defines limits of power for a political community
  • Classifying Australian Constitutionalism
    • Political Constitutionalism vs Legal Constitutionalism
  • Purpose of Separation of Powers
    • Formal conceptions of the rule of law vs Substantive conceptions of the rule of law
    • Diceyan notion of rule of law in Britain,
  • Constitutional Hybrid - British
    • British and American elements in the Australian Constitution
    • Magna Carta and its importance
    • Representative and responsible government
    • Diceyan Theory: Parliamentary Sovereignty
    • Limits on Parliamentary Sovereignty
    • TRS Allan: Deeper Constitutional Morality
    • Constitutional Conventions
  • Constitutional Hybrid - American
    • AU's American Constitutional Inheritance
    • Key mechanisms adopted by framers of the US Constitution
    • Institutional realization of Westminster vs American System
  • Core Features of Australian Federalism
    • Arguments for Federalism
    • Judicial Review - Definitions and Consequences
    • Justifications for the Court's function to review constitutional validity of Legislation
  • Judisocracy?
  • Federation and Australian Federalism
    • Definitions
    • Reasons for joining in Federation
    • Core features of Australian Federalism
    • Doctrines of repugnancy and extraterritoriality
    • Australia - a legally independent nation? - Australia Act 1986
    • Why is the Australian Constitution Binding? - popular sovereignty
  • Indigenous Sovereignty vs Crown Sovereignty
    • Definitions
    • Mabo No. 2 (1992)
    • Indigenous Sovereignty
    • HCA Views on Sovereignty (Post Mabo)
    • Yorta Yorta - HCA Approach to Indigenous Sovereignty

Indigenous People, Voting, and the Constitution

  • Constitution and Franchise pre-Mabo
  • Indigenous People, Voting and the Constitution
    • Definitions
    • Milestones in the Evolution of Voting Rights
    • Aus Const. s 41 - providing ATSI people with achieving voting rights
    • Race power under the Constitution (s 51(xxvi))
    • 1967 Referendum - Constitutional Amendments
    • Progress towards reconciliation
    • Uluru Statement from the Heart recommendations
    • The Voice - proposed s 129
  • Legislature 1
    • Definitions
    • History and Significance of Parliament
    • Distribution of legislative power
    • Legislation/Constitution sections relating to eligibility for election

Constitutionalism and the Rule of Law (Page 3)

  • Written Constitution vs Unwritten Constitution
  • Flexible Constitutions vs Rigid Constitutions
  • Big-C Constitutionalism vs Small-c Constitutionalism
  • Limited Constitutionalist Government vs Limited/Constitutionalist Government
  • Separation of Powers
  • Constitutionalism Purposes of Constitutions
  • Social Contract Theory (Hobbes; Locke)

Constitutionalism and the Rule of Law (Pages 4,5)

  • Classifying Australian Constitutionalism (Rigid) with Changes to Constitution
  • Political vs Legal Constitutionalism
  • Role of judicial review
  • Common Law Views and Arguments
  • Protection of powers by Courts is not necessary
  • Common law and arguments in the Australian context

A Constitutional Hybrid - British (Page 9)

  • Definitions
  • Ministerial Responsibility
  • Collective Responsibility
  • British and American Elements in the Australian Constitution
  • Elements from British Constitutionalism
  • Elements from American Constitutionalism
  • Parliamentary Sovereignty
  • Judicial Review
  • Legal Sovereignty
  • Political Sovereignty
  • Electors = Political Sovereign
  • External Limitations on Sovereign Power
  • Internal Limitations on Sovereign Power

Magna Carta (Page 10)

  • History
  • Magna Carta (1215)
  • Purpose
  • Protecting Individual Rights
  • Limits the Arbitrary Exercise of Power (Symbolically and Precursor)
  • James Spigelman on Magna Carta

Representative and Responsible Government

  • Historical background
  • Post 1688 English Revolution
  • Monarch's personal involvement declines
  • Rise of Cabinet Government
  • Representative character of Parliament
  • Martin Loughlin on Foundations of Public Law
  • Principles arising from 1688 Revolution
  • Government involved an exercise of trust
  • The Act of Settlement 1701
  • Role of Parliament in 18th Century - Tension in Parliament

Popular Sovereignty (Page 27)

  • Definitions
  • American approach vs. Australian approach

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