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Legal > 3. The People and the Australian Constitution > Flashcards

3. The People and the Australian Constitution Flashcards

1
Q

australian constitution

A

a set of rules and principles that guide the way Australia is governed. Formal title: the Commonwealth of Australia Constitution Act 1900 [UK]

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2
Q

parliament

A

a formal assembly of representatives of the people that is elected by the people and gathers together to make laws

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3
Q

house of representatives

A
  • the lower house of the Commonwealth Parliament
  • draft bills (unless a bill was created in the senate)
  • where prime minister, etc is housed
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4
Q

senate

A
  • the upper house of the commonwealth parliament

- decide on bills and draft them into law

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5
Q

high court

A

the ultimate court of appeal in australia and the court with the authority to hear and determine disputes arising under the Australian constitution

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6
Q

structure of parliament

A
  • crown (gg)
  • senate
  • house of reps
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7
Q

ways the high court can act as a check on parliament

A
  • the bicameral structure of the commonwealth parliament
  • the express protection of rights
  • the separation of powers
  • the double majority requirement for a referendum
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8
Q

bicameral structure of parliament

A
  • not required by the constitution
  • senate reviews bills introduced in lower house
  • senators should vote according to their party and the interest of the state
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9
Q

bicameral structure strengths

A
  • allows for the review of legislation by the second house
  • if there is a slim majority in parliament, debate is facilitated more effectively
  • a hostile senate (one which is not led by the government of the day) will be more likely to review bills more carefully
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10
Q

bicameral structure weaknesses

A
  • where both houses are led by the same government, the senate tends to be a ‘rubber stamp’
  • if the government holds the majority in the lower house, debate is unlikely to occur
  • the recent increase in minor or independent parties means that lawmaking can be stalled
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11
Q

separation of powers

A
  • executive, legislative, judicial
  • purpose = to ensure that no one body has absolute power or control over the functions of the political and legal system
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12
Q

executive power

A
  • the power to administer laws and manage the business of government
  • can make rules with legal effect
  • outlined in section 61 of the constitution
  • carried out by the Prime Minister, senior government ministers, and government departments
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13
Q

legislative power

A
  • the power to make laws

- cabinet is formed of the prime minister and senior ministers

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14
Q

judicial power

A

-the power given to courts and tribunals to enforce the law and settle disputes

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15
Q

reasons for the separation of powers

A
  • to make sure those who make the laws are not also interpreting them
  • to prevent power from being concentrated in one set of hands
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16
Q

separation of powers strengths

A
  • allows for the executive to be scrutinised by the legislature
  • the judiciary is independent of the parliament and government
  • ministers are subject to scrutiny during question time
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17
Q

separation of powers weaknesses

A
  • in reality, the legislative and executive powers are combined
  • judges are appointed by the executive
  • if the opposition gains control of the senate, it can obstruct bills for political gain rather than provide authentic scrutiny
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18
Q

reserve powers

A
  • matters in which the governer-general is not required to act in accordance with ministerial advice
  • the powers to appoint and dismiss a prime minister
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19
Q

express rights

A

rights that are explicitly stated in the constitution

20
Q

section 116

A

the right to freedom of religion

  • cannot make laws which:
  • -establish a state religion
  • -impose religious services
  • -prohibit the free exercise of any religion
  • -require a religious test as a requirement for holding government office
21
Q

section 92

A

the right to free interstate trade and commerce

-provides freedom of movement between states without burden or hindrance

22
Q

section 51 (31)

A

the right to receive ‘just terms’ when property is acquired by the commonwealth
-the commonwealth must pay fair and reasonable
compensation for property that is compulsorily acquired
-‘property’ can be tangible and intangible and real (immovable) and personal (moveable)

23
Q

section 80

A

the right to a trial by jury for commonwealth indictable offences

  • most indictable offences are crimes under state laws and therefore do not fall under this section
  • the high court can avoid this section by declaring offences summary offences (often terrorism laws)
24
Q

section 117

A

the right to not be discriminated against based on state of residence
-exceptions are limited, such as the right for only residents of a state to vote in that state’s election

25
Q

express rights strengths

A
  • impose limits on parliament
  • any person who believes a law infringes on these rights can take a case to the high court.
  • cannot be removed by the commonwealth parliament
26
Q

express rights weaknesses

A
  • can only be changed by a referendum, which is a difficult process
  • the cost of initiating a court case is high
  • the rights are limited in scope
27
Q

section 76

A

gives the commonwealth parliament the power to provide the high court with the jurisdiction to hear disputes arising from the constitution

28
Q

the high court’s role in interpreting the constitution (s76)

A
  • it acts as a guardian of the constitution
  • it acts as a check on any abuse of power
  • it gives meaning to the words
29
Q

s76 strengths

A
  • judges are independent of the executive
  • the court’s existence allows people an avenue to overturn laws they have an interest in
  • they can act as an independent check on parliament
30
Q

s76 weaknesses

A
  • judges can only rule on the facts of a case
  • judges can only intervene when a case is brought before them
  • the High Court’s role is limited to interpreting the words of the Constitution
31
Q

section 128

A

the section that outlines the process of a referendum

32
Q

referendum

A

compulsory vote on a proposed change to the wording of the Constitution
-either ‘yes’ or ‘no’ to a question presented by the commonwealth parliament

33
Q

double majority

A

-a majority of voters in the whole of Australia
AND
-a majority of voters in a majority of states (not including territories)

34
Q

double majority strengths

A
  • allows the public to refuse to support a proposed change to the wording of the Constitution
  • the requirement is strict and often difficult to achieve
  • protects the smaller states
35
Q

double majority weaknesses

A
  • the people may not understand the complex details of the proposal
  • it is a time-consuming and costly check
  • the double majority requirement can result in an outcome that appears undemocratic
36
Q

section 7

A

the senate shall be directly chosen by the people of the state

37
Q

section 21

A

the house of representatives shall be directly chosen by the people

38
Q

the implied right to vote in federal elections

A

limited because people serving a prison term of more than 3 years are ineligible to vote

39
Q

roach v electoral commissioner

A

sections 7 and 24 of the constitution declare that the senators and members of house of reps must be directly chosen by the people, 2006 version of the electoral act prohibited people in prison from voting in a federal election. roach v ec upheld the 2004 version of the law, making anyone serving < 3 years eligible

40
Q

the implied right to freedom of political communication

A

limited - is only to ensure the freedom upholds the principles of representative and responsible government
importantly -not- freedom of speech

41
Q

3 part test to determine the right to freedom of political communication

A
  • does this law burden political communication?
  • is the purpose of the law legitimate?
  • is the law justified?
42
Q

does this law burden political communication?

A

a law which burdens political communication would stop or restrict a person from communicating or publishing comments about politics and the actions or policies of the government

43
Q

is the purpose of the law legitimate?

A

if the purpose and means of a law do not undermine the system of representative and responsible government, it is compatible with the Australian constitution

44
Q

is the law justified?

A
  • suitable: there is a rational connection between purpose and the way it is carried out
  • necessary: there is no alternative way to achieve the purpose of the law
  • adequate in balance: whether the law’s purpose is important enough to be worth the restrictions placed on political communication
45
Q

lange v abc significance

A
  • reinforced the implied right to freedom of political communication
  • high court established that this right is not only applicable during an election
  • limits can be placed by parliament that restrict this freedom
46
Q

mccloy v nsw

A

the high court found that laws which placed a cap on political donations do not impede the system of representative government set out by the constitution
-lange test was refined in this case

Legal (6 decks)

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