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Constitutional Law Reading Log Week 4 Part A 1. What are the two tiers of Australian Federal Government? The two tiers of Australian Federal Government are the Commonwealth and the individual States of Australia, whereby each tier have their own respective powers, but still operate as one political ...

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Constitutional Law Reading Log Week 4 Part A 1. What are the two tiers of Australian Federal Government? The two tiers of Australian Federal Government are the Commonwealth and the individual States of Australia, whereby each tier have their own respective powers, but still operate as one political system.

3. How do Galligan and Walsh suggest that Federalism operates in Australia? How does James Gillespie critique this position in Australia? Is it possible to reach a coherent political position on the issue of federalism and if so, which view do you prefer? Galligan and Walsh suggests that Federalism in Australia as a method to enhance the democracy of the nation. However, this mode of government may be detrimental for the system as there can be a lack of cohesion and consistency across the divisions of the government. This can be portrayed when the States and government create policies that overlap, on its issues, in different authorities. James Gillespie critiques this position in Australia as he argues that the States control the rights of minorities through morals, health, land laws and ability to control Aboriginals. Gillespie criticises that government intervention, and the two tiers of government, is not a source for democracy and freedom. He provides that concentrating power in the Commonwealth will negate the issues of the division of government. It is possible to reach a coherent political position on federalism, through a subjective view. In my opinion, the doctrine of representative government is effectively reinforced under the Commonwealth that is elected through democracy of the society. Power imbalances play a role in a two-tier government and represents that, even with a divided mode of government, the Commonwealth has overriding power which impacts on the just outcome of federalism. Part B 5. What is executive prerogative power and where does it come from?

Executive prerogative power is defined as a special bundle of powers or privileges, formed by common law, that are ascribed to the Crown. This form of power is derived from s 61 of the Australian Constitution, and also found independently from the formation of the Constitution. Executive prerogative power is exercised in the circumstances where there is no statutory or Constitutional authority for Commonwealth Action, which is seen in the case of Tampa.

8. Where, according to Justice French (as he was then), does the prerogative power to exclude aliens come from? What was the view of Black CJ in this case? Which judgment do you prefer and why? The prerogative power to exclude aliens, in Justice French’s judgment, stemmed from the absence of statutory authority, and in s61 of the Constitution, that is partially influenced by royal prerogative. The power was an incidental one and is central to Australia’s sovereignty. Also, Justice French argued that this power was directly part of the Constitution and was validly applied in common law. However, Chief Justice Black’s perspective dissented Justice French’s, that is, stating that this power is not compatible with modern constitutional jurisprudence. Chief Justice Black provides that prerogative power stems from legislation only and not from any other power exercised by the executive, saying that it is an outdated power. It could be argued that both judgments have some value, but moreover, Chief Justice Black’s dissent has more value in this ever-changing society. As Justice French’s opinion adopts a more literalist approach when interpreting the Constitution, but it is still valid in saying that other than statutory change, this provision is still binding on the State. On the other hand, Justice French could have formed this opinion from personal values, or subjectiveness, and does not reflect the progressive or legalist approach which is predominant in this society and significant for compatible law. In respect to Chief Justice Black’s judgment, this view is more agreeable as it is evident that prerogative power to exclude aliens is only reflected in statute, or the Constitution, and is outdated due to lapse of time....