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Constitutional Law - Week 3 (Whitlam dismissal (An unelected GG who ended…
Constitutional Law - Week 3
Presidential & Parliamentary Forms of Democracy
Responsible Government in the Com Const
Sources and Extent of Executive Power
This is a deadlock - under s57 - GG can dissolve both houses of parliament which means new election must be called
Commonwealth Parliament - Bicameral
Upper House (Senate) & Lower House (House of Representatives)
All states except for QLD have bicameral parliament
By convention when gov loses support of lower house has only two choices 1. Announce general election or resign
If election would only relate to the lower house; the upper house is not affected
Because of the numerical superiority of the lower house the convention is that the Prime Minister comes from the lower house
Convention - not determined by an Act of parliament - it is a set of long held decisions and constitutional practices
Whitlam dismissal
Reserve Powers
Gough believed the GG did not have the power to dismiss the PM
s 64 - the power of appointment also (arguably) brings the power to dismiss/terminate the gov of a PM that loses the confidence of the lower house
The PM thought the GG acted on the advice of the executive and therefore not for the GG to act on his own and impose an autocratic view and dismiss the government
An unelected GG who ended up dismissing the head of the executive government
This would be like an individual person in the US having the power to dismiss the president
John Kerr consulted the Chief Justice - Chief Justice advised that he had the power to do so, despite this being an unusual move as the Judiciary only provide opinions is when there is a matter before the court ie. an actual controversy
Section 53 - Senate as a co-equal body -
Any bills with respect to money must originate in the lower house
The Senate cannot amend appropriations of money or taxation
However, last section of s53 mandates equal power with lower house; except, with respect to money appropriations
What happens when a deadlock in parliament - ie. bill passes lower house but not the senate?
This is different from when the PM loses confidence or cannot pass money bill
GG calls a joint sitting - then the proposed bill will be voted on by both houses of parliament
in GG aftermath HCA challenge to 6 pieces of legislation and laws only allowed one?
Cormack v Coke - confirmed requirement of s57 was mandatory and
Could the HCA Cormack v Coke the HC would invalidate a law but not to try and control what the parliament wants to do - the jurisdiction of the HC only is invoked when the law is passed
HCA will not stop parliament from enacting a bill/law which is invalid - only on a case being brought before it