3. The People and the Australian Constitution

Question 1

australian constitution

Answer 1

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

Question 2

parliament

Answer 2

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

Question 3

house of representatives

Answer 3

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

Question 4

senate

Answer 4

• the upper house of the commonwealth parliament

- decide on bills and draft them into law

Question 5

high court

Answer 5

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

Question 6

structure of parliament

Answer 6

• crown (gg)
• senate
• house of reps

Question 7

ways the high court can act as a check on parliament

Answer 7

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

Question 8

bicameral structure of parliament

Answer 8

• 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

Question 9

bicameral structure strengths

Answer 9

• 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

Question 10

bicameral structure weaknesses

Answer 10

• 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

Question 11

separation of powers

Answer 11

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

Question 12

executive power

Answer 12

• 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

Question 13

legislative power

Answer 13

• the power to make laws

- cabinet is formed of the prime minister and senior ministers

Question 14

judicial power

Answer 14

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

Question 15

reasons for the separation of powers

Answer 15

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

Question 16

separation of powers strengths

Answer 16

• 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

Question 17

separation of powers weaknesses

Answer 17

• 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

Question 18

reserve powers

Answer 18

• 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

Question 19

express rights

Answer 19

rights that are explicitly stated in the constitution

Question 20

section 116

Answer 20

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

Question 21

section 92

Answer 21

the right to free interstate trade and commerce

-provides freedom of movement between states without burden or hindrance

Question 22

section 51 (31)

Answer 22

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)

Question 23

section 80

Answer 23

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)

Question 24

section 117

Answer 24

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

Question 25

express rights strengths

Answer 25

- 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

Question 26

express rights weaknesses

Answer 26

- 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

Question 27

section 76

Answer 27

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

Question 28

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

Answer 28

- it acts as a guardian of the constitution - it acts as a check on any abuse of power - it gives meaning to the words

Question 29

s76 strengths

Answer 29

- 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

Question 30

s76 weaknesses

Answer 30

- 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

Question 31

section 128

Answer 31

the section that outlines the process of a referendum

Question 32

referendum

Answer 32

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

Question 33

double majority

Answer 33

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

Question 34

double majority strengths

Answer 34

- 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

Question 35

double majority weaknesses

Answer 35

- 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

Question 36

section 7

Answer 36

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

Question 37

section 21

Answer 37

the house of representatives shall be directly chosen by the people

Question 38

the implied right to vote in federal elections

Answer 38

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

Question 39

roach v electoral commissioner

Answer 39

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

Question 40

the implied right to freedom of political communication

Answer 40

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

Question 41

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

Answer 41

- does this law burden political communication? - is the purpose of the law legitimate? - is the law justified?

Question 42

does this law burden political communication?

Answer 42

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

Question 43

is the purpose of the law legitimate?

Answer 43

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

Question 44

is the law justified?

Answer 44

- 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

Question 45

lange v abc significance

Answer 45

- 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

Question 46

mccloy v nsw

Answer 46

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