AOS 1 - UNIT 4

Question 1

Outline the structure of the Victorian Parliament.

Answer 1

Bicameral (2 houses):
Lower House = Legislative Assembly (88)
Upper House = Legislative Council (40)
Both houses have a 4 year term

Crown:
Governor – Margaret Gardner

Question 2

Outline the structure of the Commonwealth Parliament.

Answer 2

Bicameral (2 houses):
Lower House = House of Representatives (151)
House has a 3 year term

Upper House = Senate (76)
House has a 6 year term (with half elections every 3 years)

Crown:
Governor-General – David Hurley

Question 3

Outline 2 roles of the Lower House of parliament.

Answer 3

• Initiate and make laws – Majority in lower house because this is the house of government)
• Form government – Political party holding the majority of seats
• Responsible government – MPs being held accountable and answerable for their actions
• Representative government – by reflecting the needs of the community
• House or review – for bills initiated in the UH (rare)
• Control government expenditure - through being the only house to initiate and amend appropriation bills

Question 4

Outline 2 roles of the Upper House of parliament.

Answer 4

• House of review – Review bills created and passed by the lower house to check for radical laws or errors
• Initiate and make laws – Rare, and can’t initiate money (appropriation) bills
• States’ House – Equal representation from the states (cth) or regions (vic) means everyone’s interests are fairly protected
• Committees – held in various structures and groups to investigate matters of importance, including law reforms

Question 5

Outline the roles of the crown.

Answer 5

• Royal assent – the crown’s approval of a bill before it can become a law, which can also be denied/withheld in limited circumstances
• Executive Council – Group with the leader of the government and senior ministers to advise the government on certain matters and approve delegated legislation

Question 6

What is the division of powers and where does it come from?

Answer 6

*The classification of law-making powers into different categories, with each category being held by a different parliament.
*Established by the Commonwealth Constitution as a means of allocating some law-making powers to a central law-making body at the time of federation, without the states losing all their powers
Main categories: Residual & Specific (Exclusive & Concurrent)

Question 7

Define what a residual power is and provide two examples.

Answer 7

• Law-making powers that belong to the states because they were left with them when the constitution was made and Australia federated
• Not written in the constitution

Examples: Public transport, Crime and law enforcement, Health, Hospitals, Education, Environment etc.

Question 8

Define what a concurrent power is and provide two examples.

Answer 8

• Law-making powers that are shared by the states and the commonwealth parliaments
• Written in the constitution as specific powers
• Mostly found in s51 & s52

Examples: Taxation (s51(ii)), Marriage (s51(xxi)) & Trade (s51(i))

Question 9

Define what an exclusive power is and provide two examples.

Answer 9

Law-making powers that are only used by the commonwealth parliament
*Written in the constitution as specific powers and often made exclusive by another section

Examples: Customs & excise (s90), Raising a military/defence (s114) & Coining money (s115)

Question 10

Contrast/differentiate between a residual power and a concurrent power.

Answer 10

• Residual powers are only exercised by states whereas a concurrent power can also be used by the Commonwealth Parliament
• Residual powers includes public transport and crime whereas concurrent powers includes trade and taxation

Question 11

What is s109 of the Australian Constitution?

Answer 11

*States that in the event of an inconsistency between commonwealth and state laws, the commonwealth law will prevail to the extent of the inconsistency

Question 12

Why is s109 significant? Provide at least 2 different points.

Answer 12

• Provides a consistent mechanism for resolving disputes in areas of concurrent law-making power
• A challenge has to be made against the conflicting law before s109 is activated, so conflicting laws can co-exist for some time before this happens
• The invalid potion of the state law is only invalid while the conflict remains in place
• This section restricts the law-making powers of the state parliaments, as laws that conflict with the Cth will become invalid and inoperable while in conflict

Question 13

Identify the 5 checks the constitution provides on the law-making powers of parliament.

Answer 13

1. Bicameral structure of parliament
2. Separation of powers principle
3. Express protection of rights
4. Role of the High Court in interpreting the constitution
5. Double majority requirement in a referendum

Question 14

How does the bicameral structure of parliament provide a check on parliaments law-making?

Answer 14

• Bicameral structure (through s7&24) ensures two houses have to pass a bill before it can be presented to the crown for final approval
• The upper house acts as a house of review to amend or reject bills passed by the lower house that are erroneous or radical
• Interests of the states are protected because legislation supporting or favouring one state is quickly rejected

Question 15

How does the separation of powers provide a check on parliaments law-making?

Answer 15

• It prevents the ‘concentration’ of power in one set of hands, so no one body can make, administer and rule on the legality of a law
• Protects individual rights (as they are safeguarded from the misuse of political power as well as ensuring there is no corruption in the resolution of disputes)
• Protects against the misuse of power within parliament, as there is an independent body who can check their work

Question 16

How do express rights in the constitution provide a check on parliaments law-making?

Answer 16

• Usually written as a restriction rather than a positive right
• Provide a check on parliament by being enforceable by the High Court – so if a law is made that does breach rights, it can be challenged and possibly declared invalid

Question 17

How does the role of the High Court in interpreting the constitution provide a check on parliaments law-making?

Answer 17

It provides a way to challenge laws made by the cth parliament that may go beyond their law-making powers

Question 18

How does the double majority requirement of a referendum provide a check on parliaments law-making?

Answer 18

The power to change the wording of the constitution is taken out of the hands of parliament and given to the people, so they can’t just change the document as they please (which would likely result in them increasing their powers)

Question 19

Outline three strengths of the check provided by the bicameral structure of parliaments on their law-making abilities.

Answer 19

1. 2nd house allows for review of proposed legislation, providing a check against abuses of power and potential errors getting embedded in laws
2. A hostile upper house results in rigorous debate and review of bills, thus increasing the check on parliament
3. Bicameral requirement is specifically stated in the constitution, so it can only be removed or changed by changing the actual constitution

Question 20

Outline three weaknesses of the check provided by the bicameral structure of parliaments on their law-making abilities.

Answer 20

1. Where the government also controls the Senate, a rubber stamp is likely to occur, causing lower house decisions to be confirmed rather than scrutinised, allowing radical or erroneous bills to pass
2. The increased debate can stall/slow down the law-making process and result in ‘watered-down’ versions of laws due to the high number of amendments made
3. There is no constitutional requirement for state parliaments to be bicameral, so Victoria doesn’t technically have to have 2 houses

Question 21

Outline three strengths of the check provided by the separation of powers on parliaments law-making abilities.

Answer 21

1. SOP allows for the legislature to check the work of the executive power and refuse anything inappropriate
2. Judiciary is kept independent, which is especially important when the cth parliament is a party in a court case
3. The SOP is specifically stated in the constitution, so it can only be removed or changed by changing the actual constitution

Question 22

Outline three weaknesses of the check provided by the separation of powers on parliaments law-making abilities.

Answer 22

1. In reality the executive and legislative are somewhat combined, decreasing the effectiveness of the ‘checks’ that occur
2. Judges are appointed by the Governor-General (executive) which may cause people to ‘think’ there is a connection between the two powers
3. No constitutional requirement for state parliaments to have a SOP (although in practice, they do!)

Question 23

Outline three strengths of the check provided by express rights on parliaments law-making abilities.

Answer 23

1. Express rights create limitations on the law-making powers of the Commonwealth, protecting the public from them making any law they want to
2. Any person who believes a law infringes their rights can challenge it in the High Court, creating a judicial check on parliament (provided they have standing)
3. Constitutional express rights can’t be removed by the cth parliament, so this check on parliament is likely to stay a part of our system for a long time

Question 24

Outline three weaknesses of the check provided by express rights on parliaments law-making abilities.

Answer 24

1. The existence of the right doesn’t stop the parliament from making the law (has to be challenged to be invalid), so law-making powers aren’t really restricted
2. For the HC to declare a law invalid, someone with standing who can afford to initiate a case must do so. This is rare, so it’s highly likely parliament won’t get challenged, preventing the ‘check’ from occurring
3. Since a referendum is required to change rights, there is also a limited ability to add more, reducing the ability to increase the check on parliament

Question 25

Outline three strengths of the check provided by High Court interpretation of the constitution on parliaments law-making abilities.

Answer 25

1. Judges are independent from the other 2 arms of power (leg. & exec.) so cases are free from political influence, meaning the ‘check’ on parliament is not politically motivated
2. Judges in the HC are highly experienced and have a wide range of resources at their disposal, making the check on parliament thorough and accurate
3. The HC acts as an independent check to determine if parliament have abused their law-making powers

Question 26

Outline three weaknesses of the check provided by High Court interpretation of the constitution on parliaments law-making abilities.

Answer 26

1. Judges can only rule on the facts brought to them in the case – they can’t create general principles beyond these facts
2. The composition of the justices hearing the case in the HC may influence the decision, as some justices are more conservative in their approach
3. The HC can only intervene in a dispute about the legality of a parliamentary law if a person with standing brings a case - since such cases are expensive for the ordinary person, the amount of cases is severely reduced

Question 27

Outline three strengths of the check provided by the double majority requirement of a referendum on parliaments law-making abilities.

Answer 27

1. The double majority requirement of a referendum is difficult to pass, and therefore protects radical changes from being passed
2. s128 allows the public to refuse a proposed change if it’s undesirable, preventing the parliament from exercising their powers without care or thought
3. The vote is compulsory, so the power to decide on changes to the constitution is taken away from parliament and given to eligible voters within the Australian public

Question 28

Outline three weaknesses of the check provided by the double majority requirement of a referendum on parliaments law-making abilities.

Answer 28

1. The double majority is difficult to pass, preventing even valid changes from being passed unless they are un-controversial or have overwhelming public support
2. The public often vote conservatively because they don’t understand the change, fear change or don’t trust politicians, reducing the effectiveness of this check on parliament
3. Referendums are an extremely timely and costly way of checking the actions of parliament (eg. 1999 referendum about becoming a republic costs approx. $66 million)

Question 29

Describe the separation of powers.

Answer 29

It is the separation of law-making powers within our legal system to avoid the concentration of power in one set of hands.

1. Legislative power = Making laws = Held by parliament
2. Executive power = Administering the law = Held by the crown
3. Judicial power = Enforcing the law = Held by the courts

Question 30

Justify why Australia’s separation of powers is not completely separate.

Answer 30

There is a crossover between legislative and executive:

• Executive Council formed by crown approves delegated legislation
• Governor-General often acts on the advice of the Prime Minister
• Bills passed by parliament must receive approval from the crown before becoming a law

Question 31

What are the five express rights afforded by the Australian Constitution?

Answer 31

1. Property acquired on just terms – s51(xxxi)
2. Trial by jury for Cth indictable offences – s80
3. Free trade between the states – s92
4. Freedom of religion – s116
5. Freedom of state-based discrimination – s117

Question 32

What are the roles of the High Court of Australia?

Answer 32

• They act as the guardian of the constitution by being the only court that can interpret it
• They act as a check on parliament’s law-making by determining if a law contravenes their powers when a relevant case comes before them
• They give meaning to the words of the constitution via their interpretations (i.e. s7&s24)

Question 33

What is a referendum and what it is used for?

Answer 33

• A Yes/No vote in the community on whether or not to change the actual wording of the constitution
• It is the only way to change the wording of the document
• It’s a compulsory vote for everyone enrolled to vote in federal elections

Question 34

Outline what a double majority is in a referendum.

Answer 34

*A majority of Australia’s whole population must vote YES to the change
AND
*A majority of states in Australia must have the majority of their state’s population vote YES to the change

Question 35

Describe the express right of property acquired on just terms (s.51(xxxi)).

Answer 35

• The acquisition of property is where the Commonwealth need to use land you own for something else, so they ‘take’ it.
• This right prevents the Parliament from taking your land/property without paying a fair amount of compensation for it. However, the amount paid is determined by an independent valuer, not the property owner.
• This right is fairly broad - Clth must pay the amount of compensation determined by an independent valuer.
• The Cth is also restricted to acquiring property that they need and have the law-making power use for it’s intended purpose.
• BUT the independent value for compensation doesn’t take into account market fluctuations, inconvenience, stress, sentimental value etc., so the compensation isn’t always seen to be fair.

Question 36

Describe the express right of a trial by jury for indictable offences (s.80).

Answer 36

• This is the right to have your trial for a criminal offence committed under Commonwealth laws heard by a jury.
• This right prevents the trial from being heard by a stand-along judge - the right can’t be waived.
• It is narrow, as it only applies to Commonwealth crimes, and most crimes are state laws, since crime is a residual power, and it only applies to indictable offences – so the Commonwealth Parliament can just make the crime a summary offence to avoid using a jury.

Question 37

Describe the express right of free trade between states (s.92).

Answer 37

• This right requires all trade within the country, regardless of the state or location, to be free from any charges or taxes.
• It prevents the government from restricting the movement of goods or people across state borders.
• It prevents the Commonwealth from setting fees or charges for people who want to buy or sell between different states.
• This right was broad, but has been narrowed in recent years. It now allows some restrictions on trade, provided those restrictions don’t impose a burden on interstate trade or discriminate against the use of it (Cole v Whitfield (1988)).

Question 38

Describe the express right of freedom of religion (s.116).

Answer 38

• This right requires religion to be free and flexible in our country.
• The Commonwealth Parliament is not able to make any laws that:
• Establish a state religion (a religion that everyone has to follow)
• Impose religious observance (making it mandatory to do)
• Prohibit free exercise of any religion (can’t stop someone from believing in something)
• Require a religious test to hold a job n the public sector (working for a government department)
• This right is narrow, as it only applies to laws made by the Commonwealth Parliament, not the states.
• The right is also not strong enough to override our own country’s laws or jeopardise national security

Question 39

Describe the express right of not being discriminated against on the basis of the state in which you reside (s.117).

Answer 39

• The right says that you are entitled to live in any state without being discriminated for making that choice.
• A law can’t be made that treats you differently just because of where you live or what state you are in.
• This right is narrow, since some ‘favouritism’ for states is permitted in limited circumstances (such as voting in a particular state’s election f you live in that state).
• It is also unclear what it means to benefit a state (which is allowed) vs. what it means to discriminate against a state (which is not allowed).

Question 40

Identify the name of the case related to the interpretation of s7&s24 and outline the facts of this case.

Answer 40

Roach Case (2007)

• Commonwealth Parliament passed a law to change who could vote – limiting everyone instead of just people serving a sentence greater than 3 years
• Roach, who was serving a 6 year jail term, challenged the validity of both the new & old law, saying s7&s24 of the constitution required all people to vote

Question 41

Outline three reasons/ways the Roach case was significant.

Answer 41

• The decision meant that the Commonwealth Parliament couldn’t restrict too many people from voting (i.e. can’t exclude large portions of the population, as this would undermine the principle of representative government required by these sections)
• The interpretation of s7&s24 still upheld representative government by requiring the houses to be chosen by the people – this was further supported by cases like Rowe v Electoral Commissioner (2010) and Murphy v Electoral Commissioner (2016)
• Decision meant that the Commonwealth Parliament maintained some ability to legislate about who could vote, provided those that were excluded were for a substantial and reasonable reason

Question 42

Identify the name of the case related to the division of powers and outline the facts of this case.

Answer 42

Brislan’s Case (1935)

• The Commonwealth Parliament passed a law using s51(v) of the constitution that required everyone using a wireless receiving set (radio) had to hold a licence
• Brislan was charged for not having a licence, so subsequently she challenged the validity of the law because wireless receiving sets were not mentioned in s51(v) and she didn’t believe they constituted an “other like service”, therefore meaning the Commonwealth didn’t have legislative power in this area

Question 43

Outline three reasons/ways the Brislan case was significant.

Answer 43

• As a result of radios being found to be included as an “other like service” the Commonwealth Parliament was able to make laws about them, meaning they could now legislate in an area not specifically mentioned in the constitution – this changed the division of powers in this area, shifting a residual power to a concurrent power
• This case paved the way to numerous favourable HC decisions broadening this power, allowing them to use it to legislate on things such as electronic means of communication (such as the law on Interactive Gambling Act 2001)
• Since future cases have favoured the Commonwealth, states powers have slowly eroded in this area (since the Commonwealth gains their power at the expense of the states)

Question 44

Identify the name of the case related to the impact of international obligations and outline the facts of this case.

Answer 44

Tasmanian Dams Case (1983)

• The Commonwealth Parliament used their external affairs power to stop the Tasmanian Government from building a dam on the Franklin River, which they believed they could do because the land belonged to part of an international treaty
• The Tasmanian Government fought the validity of the law, as the building of a dam was related to environmental laws, which was a residual power

Question 45

Outline three reasons/ways the Tasmanian Dams case was significant.

Answer 45

• The decision to validate the Commonwealth law meant the Commonwealth Parliament was able to extend their powers by using the external affairs power to legislate in an area that was previously a residual power
• This case paved the way for a broad use of the external affairs power, as seen in cases like Richardson v Forestry Commission of Tasmania (used this power to stop certain activities while determining if the land should be added to the world heritage list)
• Justices said that the Commonwealth Parliament has the power to decide how to legislate to fulfil an international obligation, provided that legislation is appropriate and adapted to carry out the purpose of the obligation (can’t go beyond what is needed)

Question 46

Identify one successful referendum that led to a change in the wording of the constitution, and outline what that change was.

Answer 46

1967 Indigenous Affairs Referendum

• Changed the wording of s51 to allow the Commonwealth Parliament to legislate in regards to Indigenous Affairs (this had previously been left to the states)
• Also deleted s127 that referred to Indigenous people as flora and fauna, although this has no impact on law-making powers

Question 47

Using the 1967 referendum as an example, outline the ability of the people to change the constitution.

Answer 47

• This referendum allowed the constitution to change, which also resulted in change to law-making (since it changed a residual power to a concurrent power)
• This referendum had overwhelming support (over 90% of the population), which is needed for a referendum to be successful because of the difficulty in passing the double majority requirement
• The double majority requirement protects all states interests equally regardless of their population, as seen by each state having an ‘equivalent’ vote
• This referendum had bipartisan support (both major political parties) contributing to its success
• While the people vote on the change, parliament has to put forward the referendum first, limiting the people’s power to create change

Question 48

Define what ‘international treaties’ and ‘international declarations’ are.

Answer 48

International treaties = a binding agreement between two (bilateral) or more (multilateral) countries governed by international law

International declarations = a non-binding agreement between countries which sets out certain aspirations or intentions of the signatories, used to influence government policy

Question 49

Outline three impacts on Australian law caused by the use of the external affairs power.

Answer 49

• External Affairs power can be used for any matter contained in an international agreement, such as a treaty, allowing the Cth Parliament to address global concerns through national laws
• Cth Parliament can use this power to give effect to an international obligation in an area they wouldn’t otherwise have law-making powers in (seen in Tas Dam case & Lemonthyme Forest case)
• Cth can decide how to give effect to a treaty, provided the means used is appropriate
• External affairs not limited to international agreements, but may extend to other international law obligations (Koowarta v Bjelke-Peterson (1982))

Question 50

Outline three limitations placed on the use of the external affairs power.

Answer 50

• External Affairs can’t be used to go beyond what is needed to fulfil the treaty, and should not be used as an unlimited law-making power or separate head of power (Tasmanian Dams case)
• Powers can only be used if a bona fide agreement exists (meaning it must be genuine and created to serve a real purpose, rather than existing just to extend law-making powers)
• Power can’t be used to override any of the express rights in the constitution, protecting our individual interests (and if it is, those laws if challenged will likely be deemed ultra vires by the HC)
• To date, HC cases have focused on treaties, however if tested, it is likely similar effects and limitations would exist in relation to declarations (Koowarta case)