4.1 - The People And The Australian Consitution

Question 1

Background info

Answer 1

• development of British parliaments
• federation of Australia
• parliaments in Australia
• rule of law

Question 2

Background info: development of British parliament

Answer 2

In 1215, king John was an unpopular king due to raising taxes and leading the country to defeat in multiple wars. He signed a charter called MAGNA CARTA which held significance because for the first tine the English monarch was subject to the will of others, not just god.

In around 1236, the word parliament was first used to describe the great council.
From 1295 onwards they began to meet regularly and from 1350 two groups formed and began meeting separately:
Nobles and the clergy: House of Lords (upper)
Nights and towns people: House of Commons (lower)

Conflict between monarchs and the parliament grew during the rule of James I (1603-25) and his son Charles I (1625-49) who claimed to rule be divine right (gods will)
Power of people overcame the divine right of kings when Charles I was brought to trial for treason against the people, and was beheaded.
The crown was restored in 1660 and after this time the law-making powers stayed with the parliament.
- British parliamentary system is called the Westminster system, and has two Houses of Parliament and monarch as head of state

Question 3

Background info: federation of Australia

Answer 3

In the 19th century Australia was made of different British colonies. Each of our present states were seperate colonies.

Question 4

Background info: federation of Australia: why it happened

Answer 4

During the 1870s and 1880s there was a large fear of invasion as people were concerned about the arrival of non-british immigrants and the lack of a common immigration policy.
- people realised the need for a central government to make laws on matters such as these (i.e immigration, trade issues, rail transport)

Question 5

Background info: federation of Australia: how it happened

Answer 5

By the 1880s formal discussion concerning federation was occurring between colonies, and in the 1890s each colony sent a representative group to special meetings called constitutional conventions.

A draft federal constitution bill was prepared and submitted to the people for voting in 1898 and 99, and in each colony a majority of voters approved.

The Commonwealth of Australia Constitution Act 1990 (UK) is the formal document by which federation was achieved
- came into force January 1st 1901

Question 6

Background info: parliaments in Australia

Answer 6

The monarch/crown (Queen) is the head of stat and part of parliament

Australia is a constitutional monarchy, meaning it has a monarch as the head of state and a constitution that established the parliamentary system and provides a legal framework for making laws.
Australia is also a representative democracy (people vote to elect representatives to the parliament to make laws and govern on their behalf)
- one commonwealth parliament (in Canberra)
- six state parliaments
- two territory parliaments (ACT and NT)

Question 7

Background info: rule of law

Answer 7

Means everyone (individuals, groups, and the government) is bound by and must adhere to laws, and the laws should be such that people are willing and able to abide by them
Principles:
- Australian constitution acts as a check on parliament in law-making
- laws made by parliament are subject to open and free criticism and people can seek to change them
- judges are able to interpret laws
- judges should be free from political pressures
I.e in June 2017 3 members of the parliament had to apologise for comments made regarding sentencing in Victoria

Question 8

Role of the crown and parliament in law-making: role of federal parliament:

Answer 8

The commonwealth parliament consists of the Queen who is represented by Governor General, the senate, and the House of Representatives

Question 9

Role of the crown and parliament in law-making: role of federal parliament: house of reps

Answer 9

Also known as the people’s house, as they reflect the current opinion of the people at election as it determines which party or coalition of party’s should form government
- 150 members, each of which represent an electoral division (term of 3 years but can be less if dissolved by GG)
Political party that achieves majority becomes government, leader of said party becomes PM who appoints government ministers.
- party with next highest becomes the opposition who appoints shadow ministers who check and scrutinise corresponding government ministers

Question 10

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making

Answer 10

• Initiate and make laws
• determine government
• provide representative government
• scrutinise government administration
• act as a house of review
• control government expenditure

Question 11

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: initiate and make laws

Answer 11

usually the house to initiate laws as the government sits there. Is the only house that can introduce money supply bills and bill introduced without authority from cabinet is called private members bill

Question 12

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: determine government

Answer 12

political party that has the most members in the house of reps forms government and leader becomes PM and appoints ministers. In the case of a hung parliament has promise of enough voters to pass important legislation

Question 13

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: provide responsible government

Answer 13

Ministers are responsible to parliament and therefore the people via being held accountable to both. This is as they are examined by the opposition

Question 14

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: provide representative government

Answer 14

Form a government that reflects majority of views, thus proposed laws should reflect views and values of the community. If not they risk not holding majority of members in the house of reps and thus not being government, and also the risk of protests and public pressures

Question 15

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: scrutinise government administration

Answer 15

Done by publicising government and debating them in the House of Representatives. It helps to keep the government honest by opposition ‘poking holes’

Question 16

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: act as a house of review

Answer 16

When a bill is initiated in the senate, the House of Representatives has a role to suggest improvements and check it

Question 17

Role of the crown and parliament in law-making: role of federal parliament: house of reps: role in law-making: control government expenditure

Answer 17

As money bills can only be introduced in the House of Representatives, they have a role to control how the government spends their money

Question 18

Role of the crown and parliament in law-making: role of federal parliament: the senate

Answer 18

Consists of 76 elected members, each state elects 12 representatives and theres 2 representatives elected from each mainland territory (76 total)
- each senator is elected for a term of 6 years, with half elected every three years in the 1st of July

Question 19

Role of the crown and parliament in law-making: role of federal parliament: the senate: role in law-making

Answer 19

• act as a house of review
• act as a states house
• scrutinise bulls through committee process
• initiate and pass bills

Question 20

Role of the crown and parliament in law-making: role of federal parliament: the senate: role in law-making: act as a house of review

Answer 20

Majority of bills are initiated in the lower house due to the government sitting there, thus the and check senate often has a role to scrutinise bills.
It there is a hostile senate they may ‘nit pick’ and over scrutinise so as to make the government look bad by not passing their bills, however if the government holds majority in the senate they may under scrutinise and ‘rubber stamp’ bills

Question 21

Role of the crown and parliament in law-making: role of federal parliament: the senate: role in law-making: act as a states house

Answer 21

When federation occurred, states (especially smaller ones) were afraid of giving up power. To overcome this, s7 of the constitution ensures the senate should have equal representation in each state, thus senators should be representing the interests of their state.
In reality, senators often stand with their party rather than their state, so their ability to act as a states house is slightly flawed

Question 22

Role of the crown and parliament in law-making: role of federal parliament: the senate: role in law-making: scrutinise bills through committee process

Answer 22

Senate has a large and active committee system that enable senators to inquire into policy issues in depth and to scrutinise bills before they become law. I.e senate standing committee for the scrutiny of bills has a role to assess legislative proposals to determine its effects on rights, freedoms, obligations, and the rule of law

Question 23

Role of the crown and parliament in law-making: role of federal parliament: the senate: role in law-making: initiate and pass bills

Answer 23

Able to initiate bills not including money bills, and pass bills that have been passed by the lower house. The senate is able to insist on changes before passing a bill.
This gives the senate power (especially money related bills) in situations by demanding certain changes, which is more likely to happen in a hostile senate

Question 24

Role of the crown and parliament in law-making: role of state parliament

Answer 24

The parliament of Victoria consists of the queen as represented by the governor of Victoria, the legislative council (upper) and the legislative assembly (lower)

Question 25

Role of the crown and parliament in law-making: role of state parliament: legislative assembly

Answer 25

88 members (Victoria is divided in 88 districts for state elections)
- term is four years
Elections are held on the last Saturday in November every four years, and the party of coalition of parties that win majority of seats in the legislative assembly forms government
- leader is known as premier, and the next highest party becomes opposition who appoints shadow ministers

Question 26

Role of the crown and parliament in law-making: role of state parliament: legislative assembly: role in law-making

Answer 26

• Initiate and pass bills
• form government
• provide representative government
• act as a house of review
• control government expenditure

Question 27

Role of the crown and parliament in law-making: role of state parliament: legislative assembly: role in law-making: initiate and pass bills

Answer 27

Usually introduced in the lower house due to the government sitting there, but may be introduced by any member

Question 28

Role of the crown and parliament in law-making: role of state parliament: legislative assembly: role in law-making: form government

Answer 28

Political party have has the most members forms government

Question 29

Role of the crown and parliament in law-making: role of state parliament: legislative assembly: role in law-making: provide representative government

Answer 29

As they are elected according to the interests of the people, they have a role to represent said interests as they risk being voted out

Question 30

Role of the crown and parliament in law-making: role of state parliament: legislative assembly: role in law-making: act as house of review

Answer 30

When a bill is introduced in legislative council, the legislative assembly has a role to scrutinise and check the bill.
This is not possible for Queensland’s legislative assembly and they do not have a legislative council and thus cant review bills introduced there

Question 31

Role of the crown and parliament in law-making: role of state parliament: legislative assembly: role in law-making: control
Government expenditure

Answer 31

As its the only place money bills can be introduced, they are responsible for controlling governmental expenditure

Question 32

Role of the crown and parliament in law-making: role of state parliament: legislative council

Answer 32

40 members of council as for election purposes Victoria is divided into eight regions each consisting of 11 districts.
- five members elected from each district for a four year term

Candidates are elected by obtaining a predetermined promotion. Once it’s obtained extras are transferred to another in voters order of preference

Question 33

Role of the crown and parliament in law-making: role of state parliament: legislative council: role in law-making

Answer 33

• act as a house of review
• examine bills through its committees
• initiate and pass bills

Question 34

Role of the crown and parliament in law-making: role of state parliament: legislative council: role in law-making: act as house of review

Answer 34

Should scrutinise bills passed by the legislative assembly by debating, amending, or rejecting. This is a large role of the legislative council as majority of bills are initiated in the lower house as the government sits there
- they apply checks by reflecting the will of the people, however in reality side with party lines

Question 35

Role of the crown and parliament in law-making: role of state parliament: legislative council: role in law-making: examine bills through its committees

Answer 35

Has a number of committees that debate bills at length and recommend to the house whether bills should be supported. This allows for detailed examination of bills

Question 36

Role of the crown and parliament in law-making: role of state parliament: legislative council: role in law-making: initiate and pass bills

Answer 36

Less common in the legislative council as the government sits in lower house. If government holds majority in the legislative council they may be likely to ‘rubber stamp’ bills by voting according to party lines. But the opposite may occur if there is a hostile senate

Question 37

Role of the crown and parliament in law-making: lower house; comparison of state and federal roles

Answer 37

• hor has 150 seats whereas la has 88 seats
• hor has one member for each 150 electorates across australia, whereas la has one member for 88 districts accord victories
• hor term is usually 3 years whereas la is fixed at four years

Question 38

Role of the crown and parliament in law-making: upper house; comparison of state and federal roles

Answer 38

• in senate each state is an electorate but in lc the state is divided into 8 regions
• in senate there are 12 senators from each state and 2 from each ACT and NT (76 total), but in lc five members are elected from each region
• 76 senators, lc has 40 members
• in senate the term is usually 6 years with half elected every 3, but in lc term of office is fixed at four years

Question 39

Stages of a bill through parliament

Answer 39

• introduction and first reading: bill is introduced to the house
• second reading: the purpose of the bill is explained, debated, and voted on. In Victoria, bill is considered to it’s compatibility with charter of right and responsibilities.
• committee stage: bill is considered in detail, clause by clause. Amendments are likely to occur and committee report is used.
• third reading: bill is voted on in its final form
• bill passes through first house
• same procedure occurs in second house: can be rejected/sent back to the first house with recommendations
• bill passes second house
• royal assent: Governor General (federal) and governor (state) signs and approves the bills before it becomes a law
• proclamation: act comes into operation
• ## bill becomes law

Question 40

Role of the crown and parliament in law-making: role of the crown

Answer 40

The crown (i.e British parliament) is a part of a system of government in Australia through its representatives:
- one Governor General (federal level)
- six governors (at state level)
Governor General is appointed by the queen on the advice of the PM, and governors by advice of premiere of each state

Main responsibility of the crowns representatives in Australia is to ensure that the democratic system operates effectively (required an electoral system, parliament, government, and courts)

Question 41

Role of the crown and parliament in law-making: granting royal assent

Answer 41

Royal assent is the formal signing and approval of a bill by a Governor General or Governor

Crowns representative in both the commonwealth and Victorian parliament is required to approve bills before they can become law.
- normally given on advice of the prime minister or ministers, or at a state level by premier or ministers

Question 42

Role of the crown and parliament in law-making: withholding royal assent

Answer 42

Crowns representative has the power to withhold royal assent, meaning to refuse to approve a bill, which rarely occurs.
Constitution states under what circumstance can be withheld
- at a state level royal assent cannot be withheld

Question 43

Role of the crown and parliament in law-making: appointing executive council

Answer 43

Comprises leader of the government (PM at federal level, premiers at state level) as well as senior ministers
- role of executive council is to give advice on government matters and approve secondary legislation (rules and regulations made by government bodies)
In reality queens representative in approving secondary legislation comes from advice of premier or pm

Question 44

Role of the crown and parliament in law-making: dissolving lower house

Answer 44

Can dissolve the lower house to bring an election

Question 45

Division of constitutional law-making powers

Answer 45

Law-making powers are powers or authority given to parliament to make laws in certain areas. These powers are exercisable by parliaments, which is the supreme law-making body in Australia.
The creation of the commonwealth parliament required the Australian constitution to specify the way law-making powers were to be shared
- residual powers
- exclusive powers
- concurrent powers

Question 46

Division of constitutional law-making powers: residual powers

Answer 46

Law making powers left with the states at the time of federation and not listed in the Australian constitution
- specific sections of the constitution protect the continuing power of the states to create these laws (I.e section 106, 107, and 108)

In reality the commonwealth parliament still holds power in this section due to section 91 (tied grants) which is the power for the commonwealth to grant money to any state. Usually tied to terms/conditions that the state must adhere to to receive the grant

• education
• water
• health

Question 47

Division of constitutional law-making powers: exclusive powers

Answer 47

Most of the law-making powers of the commonwealth parliament are set out in section 51. Exclusive power is one that can only be exercised by the commonwealth parliament.
- means only the commonwealth parliament can make laws in these areas such as defence, currency, and custom border protection

Some powers held by the commonwealth are made exclusive by other sections
- section 51(xii) gives power to commonwealth to make laws relating to coining money, and section 115 provides a state shall not coin money
Other powers are exclusive by nature
- section 51(xix) gives power to the commonwealth to make laws resting to naturalisation (becoming an Australian citizen)

Question 48

Division of constitutional law-making powers: concurrent powers

Answer 48

Law-making powers shared by the commonwealth and state parliaments.

• trade
• taxation
• marriage and divorce
• Postal, telegraphic, telephonic, and similar services

Question 49

Division of constitutional law-making powers: comparison

Answer 49

Residual powers are held by state parliaments, exclusive powers are held by commonwealth parliament, and concurrent powers are held by both

Residual powers are not expressed in the constitution whilst exclusive and concurrent powers are

All are protected by the constitution

Constitution allows residual powers to be referred to another parliament, whereas others cannot

Question 50

Section 109

Answer 50

Is destined to help resolve conflicts and inconsistencies between state and commonwealth laws
- “when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”

Question 51

Section 109: McBain v Victoria (2000)

Answer 51

S8 of the infertility treatment act 1995 (vic) states in order to receive treatment a woman must be married and living with her husband on a genuine domestic basis or living with a man in a de facto relationship
However, s22 of the sex discrimination act 1984 (cth) provides that it is unlawful for a person who provides good or services or makes facilities available, to discriminate against another person in the grounds of the persons sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding

I’m this case, Dr John mcbain refused IVF to Leesa Meldrum on accountable to the infertility treatment act.
- mcbain has to establish inconsistency by showing a specific patient was denied service (Leesa). Discriminatory section of Victorian law was proven invalid and so couples could no longer be denied IVF services in basis of marital status

Question 52

Section 109: significance

Answer 52

Can act as a restriction on state parliaments as if a state parliament passed a law in an area where there is a commonwealth law, the federal law will prevail to the extent of the inconsistency.
- Means states are constrained in areas of concurrent powers

However, s109 doesn’t automatically operate. FIRST the law needs to be challenged
SECOND if the commonwealth law is abrogated or changed, and the states law continues to be in existence, the state law will be in force and have effect
Also significant as it imposes a consistent approach to the way inconsistencies between state and commonwealth laws are dealt with (that is, no doubt commonwealth law will prevail)

Question 53

AC acts as a check on parliament:

Answer 53

• bicameral structure of commonwealth parliament
• separation of powers
• express protection of rights
• role of the high court in interpreting the Australian constitution
• requirement for a double majority in a referendum

Question 54

AC acts as a check on parliament: bicameral commonwealth parliament

Answer 54

Meaning parliament has an upper and lowe house (section 1 of the AC states there must be two house)

Constitution also has provisions concerning how the houses are composed

• s51 requires senate to be composed of senators for each state directly chosen by the people for a term of six years
• s24 requires the hor to be composed of members directly chosen by the people

Constitution does leave certain composition matters to be legislated by the commonwealth parliament
- s7 states ‘until the parliament otherwise provides there shall be six senators for each original state’

Constitution does not quite state parliaments to be bicameral

Question 55

AC acts as a check on parliament: bicameral commonwealth parliament: checking process

Answer 55

Bicameral structure is designed to act as a check on parliament
- especially the senate as they review bills passed by the hor,
Where most bills are initiated due to the government sitting there

Question 56

AC acts as a check on parliament: bicameral commonwealth parliament: strengths

Answer 56

• the bicameral structure and existence of two houses allows for review of legislation by the second
  House (usually the senate). This allows for an identification of errors and omissions in bills, thus depicting how bicameral structure as written in the constitution provides a check on parliament in law making
• if there is a slim majority or hung parliament then considerable debate can occur in the lower house than there might have been in another situation. This is due to having to negotiate with independents or other members to bet a majority vote and pass the bill. This conveys how the bicameral structure and this constitution effectively acts as a check
• if there is a hostile senate (gov doesn’t hold majority in senate) or a significant number of minor parties in the senate, then it is likely that bill will end reviewed more carefully which can lead to large discussion or amendments to satisfy minor parties and independents, thus increasing checks on parliament in law-making

Question 57

AC acts as a check on parliament: bicameral commonwealth parliament: weaknesses

Answer 57

• if the government holds majority in the lower house, then debates and negotiations are unlikely in said house
• if the government holds a majority of seats in the upper house, they may vote with party lines and ‘rubber stamp’ rather than scrutinise and discuss the bill, which diluted the checks that the upper house has in law-making
• because the lower house is controlled by the government, and usually members of parliament vote with their party lines, laws will generally only be passed if the federal government supports them. This can dilute checks as laws that may be supported by majority of people may not get through parliament if the federal government doesn’t alone their views with it

Question 58

AC acts as a check on parliament: the separation of powers

Answer 58

A doctrine established by the Australian constitution that ensures the three powers of parliamentary system remain seperate

• executive power
• legislative power
• judicial power

Question 59

AC acts as a check on parliament: the separation of powers: executive powers

Answer 59

Executive power is the power to administer the laws and mange the business of government
- vested in the GG under chapter II of the Australian Constitution
- specifically s61 states the executive powers of the commonwealth is vested in the queen, and is exercisable by the GG
In practice executive power is carried out by the PM, senior ministers, and government departments

Question 60

AC acts as a check on parliament: the separation of powers: legislative powers

Answer 60

Is the power to make laws
- resides with the parliament under chapter I of the Australian constitution
- specifically, S1 states the legislative powers of the commonwealth are vested in the federal parliaments
Legislative and executive powers are
Combined at a federal level
I’m practice the power to administer the law and carry out business of the government (executive power) is placed in the hands of the cabinet rather than the executive
Executive and legislative power are closely linked by laws having been passed by parliament having to receive royal assent

Question 61

Cabinet

Answer 61

Consists of PM and senior ministers, whose main role is to decide in general government policy and formulate proposed laws to be introduced to parliament

Question 62

AC acts as a check on parliament: the separation of powers: judicial powers

Answer 62

Power given in courts and tribunals to enforce the law and settle disputes
- provides for under chapter III and is vested in the HC and other federal courts
- s71 in particular states that the judicial power of the commonwealth shall be vested in the law courts
Legislative and judicial powers must be kept seperate
Sole province of the high court to decide disputes on issues involving the constitution, but as a secondary role courts have the power to make laws
Ensues citizens are safe from misuse of political power or corruption in the resolution of disputes

Question 63

AC acts as a check on parliament: the separation of powers: reasons for seperation

Answer 63

Prevents power from being concentrated in one set of hands and helps to protect individuals by providing checks and balances on the power of the commonwealth parliament
- no one body can make law, administer law, and rule on it legality

Question 64

AC acts as a check on parliament: the separation of powers: strengths

Answer 64

• allows for executive to be scrutinised by the legislative. This provides checked and balances in that the legislative as the law-maker can refuse to pass legislation they think is inappropriate
• judiciary is independent of the parliament and government, so can keep a check and balance on them
• despite the overlap between executive and legislative power, checks occur between the two as ministers are subject to scrutiny in parliament during question time

Question 65

AC acts as a check on parliament: the separation of powers: weaknesses

Answer 65

• in reality the legislative power and executive power are combined. This can decrease the ability of the depression of powers to act as a check on each of the powers
• where the government controls the senateF there is far less scrutiny applied to laws and thus the exercise of legislative power. in addition , legislature and execute may be more interested in their party lines than keeping a check on each other
• judges are appointed by the executive, which met result in the perception that the executive is influencing the composition of the benches of superior courts

Question 66

AC acts as a check on parliament: express rights

Answer 66

Also known as explicit rights, are explicitly stated in the constitution. Are entrenched meaning can only be changed through referendum process (s128)

• the right to freedom of religion (s116)
• the right to free interstate trade and commerce (s92)
• right to receive just terms when property is acquired by the commonwealth (s51(xxxi))
• right to trial by jury for indictable commonwealth offences (s80)
• right to not be discriminated against on the bias of the state where you reside (s117)a

These right tend to be expressed as limitations on the commonwealth parliament rather than positive right for individuals

Question 67

AC acts as a check on parliament: express rights: freedom of religion

Answer 67

S116 states the commonwealth parliament cannot make a law which

• establishes a state religion
• imposes any religious observance
• prohibits the free exercise of any religion, although this can be limited due to national security or to ensure people follow the laws of the country, pointed out by justice rich in Adelaide company of jehovahs witnesses inc. c commonwealth (1942)
• requires a religious test as a requirement for holding any commonwealth office

Question 68

AC acts as a check on parliament: express rights: right to free interstate trade and commerce

Answer 68

Under s92, interstate trade and commerce must be free (whether by road or sea)
prevents parliament from treating interstate trade differently than trade from within a state
- provides freedom of movement between states without burden or hindrance

Mainly refers to trade and commerce by can refer to movement of people between states

scope of s92 was limited by Cole c whitfield (1988) 165 CLR 360
- decided that states are restricted from making laws that interfere with free trade within the commonwealth. Some restrictions are acceptable as long as they don’t impose burden on interstate trade, or discriminate against interstate trade

Question 69

AC acts as a check on parliament: express rights: acquisition of property on just terms

Answer 69

Under s51(xxxi), the commonwealth must provide just terms when acquiring property

• independent caller decides on what ‘just terms’ is, but this may not be suitable to the seller who is forced to sell
• Property includes tangible and intangible, real (immovable) and personal (moveable)

Commonwealth is only able to acquire property for a purpose or area which it has the power to make laws, however HC has found that s51(xxxi) can apply to state legislation that is passed under a commonwealth funding agreement

Question 70

AC acts as a check on parliament: express rights: jury trial

Answer 70

Under s80, there must be a jury trial for indictable commonwealth offences under the criminal law

• crimes against country I.e terrorism, treason
• Heard in Supreme Court and juries decision must be unanimous

S80 provides only limited right to trial for two reasons

• most indictable offences aren’t crimes against state law, and this section only applies to commonwealth offences
• HC rules indictable meaning ‘crimes tried on indictment’ this the government can avoid s80 by declaring the offence to be a summary offence

Question 71

AC acts as a check on parliament: express rights: discrimination based on state residence

Answer 71

Under s117, it is unlawful for state and commonwealth governments to discriminate against someone on the basis of the state state in which that person resides
- I.e NSW resident living in Victoria cannot be subject to a Victorian law that would place them in a worse position than if they were born in Victoria

States can favour their own residents in limited circumstances such as the right for only residents of a state to vote in elections for that state
- in R v Loubie (1985) Loubie was charged with an offence in QLD and denied bail because under the bail act 1980 (qld) bail was able to be denied for a person who resided outside the state of QLD.
Supreme Court ruled this section of the act to be invalid

Question 72

AC acts as a check on parliament: express rights: strengths

Answer 72

• express rights impose limits on what parliament can make laws on and what it can’t. For example s116 prohibits the commonwealth parliament from making a law which restricts the free exercise of any religion. This allows for a check on parliament by not allowing them to pass a law that will go against these rights
• any person who believes that a law infringed in these rights can take a case to the high court so can declare the law invalid. This allows for a judicial check on parliament
• express rights are clearly stated in the Australian constitution and have remained unchanged in this way since federation. this allows for the public to become aware that such rights exist and to undertake legal action if their rights are breached, increasing the ability for these express right to check law-making in parliament

Question 73

AC acts as a check on parliament: express rights: weaknesses

Answer 73

• because express rights can only be changed by a referendum, there is limited ability for further rights to be added into the constitution, thus reducing the ability of more express rights to act as a check on parliament. In addition,
  Once changed it is very hard to go back, which can give the commonwealth overwhelming powers
• if a persons rights have been affected,
  The cost of initiating a court case is high, so some may not be able to afford such action, which could result in parliament making laws that infringe these right and then not being challenger, therefore decreasing checks
• the protection of rights does not prevent the parliament from passing the lawF and it requires the law to be challenged in court for it to be declared invalid. This means checks on parliament via express rights are limited

Question 74

AC acts as a check on parliament: role of high court in interpreting Australian constitution

Answer 74

HC was established under section 71 of the Australian constitution, and has a role to hear cases relating to the constitution and interpret its words.
- section 76 gives the commonwealth parliament the power to provide the HC with jurisdiction to hear disputes arising under the constitution or involving interpretation

HC changes/broadens/narrows the MEANING of the words not the wording

Question 75

AC acts as a check on parliament: role of high court in interpreting Australian constitution: R V Brislan; Ex parte Williams (1935) 54 CLR 262

Answer 75

Ms Brislan was charged and convicted under the wireless telegraphy act 1905 (cth) for owning a wireless set without a license.
She challenged this in the high court stating that a ‘wireless set’ was not mentioned in the constitution and therefore the section of wireless telegraphy act was invalid.
The HC ruled against Brislan stating that the term ‘like service’ stated in the constitution included wireless sets.

This broadened commonwealths power by allowing them to legislate regarding postal, telegraphic, telephonic, and other like service to include broadcasting to wireless sets

Question 76

AC acts as a check on parliament: role of high court in interpreting Australian constitution: act as guardian of the Australian constitution

Answer 76

HC does this by explaining what the constitution means, and deciding how it should be interpreted
- only court that can do this hence why it’s considered a guardian of the constitution

By this interpretation the HC can have an influence on the day-to-day application of the constitution, ensuring it remains relevant to Australian people

Question 77

AC acts as a check on parliament: role of high court in interpreting Australian constitution: acts as check in any abuse of power

Answer 77

Individuals, groups, state, territory, and commonwealth bodies may argue that a territory, state, or commonwealth parliament has made a law beyond its powers. They do this by bringing the matter to the high court for a ruling to be made on whether the law is constitutional (can only be done by a party with a standing, that is, by a person or group that is directly affected by the law being challenged

If parliament passes a law outside its power, the high court can declare ‘ultra vires’ and parliament can

• amend legislation so that the unconstitutional provisions are removed
• amend the constitution in accordance with s128 which would require a referendum

Question 78

AC acts as a check on parliament: role of high court in interpreting Australian constitution: give meaning to words

Answer 78

Give meaning to words in the constitution through interpretation and apply said words to a case
In the past, the HC has

Interpreter the constitution to determine whether a law had been made within parliaments law-making powers
- In doing so, has at times shifted the division of law-making powers
Interpreted the constitution and has implied rights within the Australian constitution
- rights not expressly stated in the Australian constitution but are considered to exist through interpretation by the HC

Question 79

AC acts as a check on parliament: role of high court in interpreting Australian constitution: give meaning to words: implied freedom of political communication

Answer 79

In Australia Capital Pty Ltd V Commonwealth (1992) 177 CLR 106 the high court interpreted the constitution and held there was an implied freedom of political communication

This strengthened and widened the interpretation. HC found people can politically communicate (re advertising) for a six week period concerning elections
Later found people can discuss individual politicians in their capacity as an MP for the term of their office

Question 80

AC acts as a check on parliament: role of high court in interpreting Australian constitution: strengths

Answer 80

Judges are independent of the executive and legislature due to the depression of powers, and therefore decisions made on cases are based on facts rather than political or public pressures. This allows for the HC to check the parliaments law-making in an unbiased light, thus allowing them to properly check the parliament in law-making.

Existence of HC allows for individuals who have an ‘interest’ to bring matters to court and have a law overturned. Means that HC is effective in protecting rights as people can bring cases to them in which they have been infringed, therefore showing how the HC interpretation of the constitution acts as a check on parliament in law-making

Justices of the HC are experienced in making decisions and they have a wide range of legal resources to ensure that decisions are properly made. There resources includes tools and strategies such as comparisons to other countries to ensure Australia keeps pace with developments. This allows the HC to properly check the parliament

When a parliament makes a law outside its power the HC can act as an independent check to confirm whether there had been an abuse of power (ultra vires). This is due to the HC not being affiliated with parliament, and allows the HC to effectively cut as a check on the parliament in law-making

Question 81

AC acts as a check on parliament: role of high court in interpreting Australian constitution: weaknesses

Answer 81

Judges can only rule on the facts of the case that is brought before them, and cannot create general principles of law outside of the immediate case. They also have to wait for cases to come to them even if they notice an issue, thus limiting their ability to act as a check on parliament in law-making

The role of the aHc In interpreting the constitution is limited by the fact that litigation is expensive. This means that many people would be unable to have a case heard in the HC, thus reducing the volume of cases and in turn their ability to act as a check

The decision of the HC may depend on the composition of the HC justices, as some may be more conservative in their approach to interpreting the constitution (may think changes can ‘open a can of worms’). This can affect the ability of the HC to effectively act as a check on parliament in law-making

Question 82

AC acts as a check on parliament: requirement for a double majority in a referendum

Answer 82

The only way the words of the Australian constitution can be changed is through a referendum process, which is set out in section 128 of the Australian constitution
Acts as restriction on parliament as they cannot change the constitution outside of this process, which involves referring the change to the people
- in thsi way s128 operates as a check on power of parliament to pass laws that change the constitution

As set out in s128, a referendum process has three states
- the parliament (starts similarly to a bill)
- the people
- the Governor General (if rejected twice by one house, the GG can still put it to the people within 2-6 months
Only 8/44 have been successful in Aus history

Question 83

AC acts as a check on parliament: requirement for a double majority in a referendum: the people

Answer 83

• it’s compulsory to vote in a proposed referendum for all electors who are required to vote for the election of members of the House of Representatives in each state or territory
• the referendum outlining the proposed change in the wording of the constitution is to be put to the people not less than two months and not more than six months after it had been passed through both house of commonwealth parliament (or one house twice on GGs choice)
• before referendum is out to the people, the Australian electoral commission sends information to every household explaining the proposed changed wording, and provides arguments for and against

Question 84

AC acts as a check on parliament: requirement for a double majority in a referendum: double majority provision

Answer 84

In referenda, voters are required to answer yes or no to the question asked
For a referendum to be successful, each must satisfy the double majority provision
- a majority of voters in the whole of Australia (including territories) must vote yes, and
- a majority of voters in a majority of states must vote yes (territories not included)

This requirement in section 128 operates to restrict the power of the commonwealth parliament in that the wording of the constitution can only be changed with the double majority provision
- I.e 1977 referendum in which the purpose was focused on the term of senators attracted 62.2% of the national vote, but was only
Supported by the majority vote in three states so was unsuccessful

Question 85

AC acts as a check on parliament: requirement for a double majority in a referendum: strengths

Answer 85

S128 allows the public to refuse to support a proposed change in wording of the constitution, thus a ensuring the commonwealth is not able to exert power in an arbitrary manner, allowing for a check to be made on power

The double majority requirement is strict, and has proven difficult to achieve (8/44). It allows the people power in determining whether a change is to be made, thus acting as a check on commonwealth parliament in law-making

Referendum process is lengthy and requires information to go out to voters about the proposed change, including if it will provide the commonwealth parliament with power. This allows for a proper and informed check to be made

Question 86

AC acts as a check on parliament: requirement for a double majority in a referendum: weaknesses

Answer 86

Public may not understand the complex details of the proposal, or may be wary of change and vote ‘no’ through fear or mistrust, which can restrict the ability to accurately check the parliament in law-making

Double majority provisions are difficult to achieve, which means that changes to the constitution have been limited, thus decreasing the ability to act as a check on parliament in law-making

If the referendum proposed an increase in the commonwealth parliaments power, the only action the states can take to stop the movement of power is to lobby against it. This can sway voters and impact the ability for a check to be made