Aos 4 Sac Flashcards
Structure of the commonwealth parliament:
The queen (crown) - represented by the governor general
The senate (upper house)
House of Representatives (lower house)
Commonwealth parliament passes laws of Australia in their area of law-making powers
Structure of the Victorian parliament:
The queen - represented by the governor of Victoria
Legislative council - upper house
Legislative assembly - lower house
Victorian parliament passed Alex for the government of Victoria in its area of law-making powers
Separation of powers:
Judiciary - power to make judgements on law (judges)
Executive - power to put law into action
Parliament - power to make and change law
Note::
Separation of powers make sure checks and balances can be applied
Role of the lower houses:
-initiates most bills
-determine the seat of government
-scrutinise and publicise government administration and government spending
-represent the people
Role of the upper houses:
-house of review
-initiate some bills (except monetary)
-represent the states of Australia
How laws are made in the cth parliament:
- The executive government decides a policy, drafts and introduces the bill to parliament
- Both houses consider the bill
- If passed by parliament, the bill gets approved by the governor general
- Bill becomes act of parliament and therefore laws
Role of the crown in law-making
-granting royal assent
-withholding royal assent
-appointing the executive council
The division of constitutional law-making powers
Residual powers - kept some of their powers
Concurrent powers - shared some of their powers with the commonwealth
Exclusive powers - handed some of their powers over to the commonwealth entirely
Residual powers include:
Section 106,108,108 of constitution protect the continuing power of the states to create law in areas that weren’t handed to the commonwealth to look after
Concurrent powers include:
Tax, trade, marriage, divorce, postal, telephonic ect
Exclusive powers include:
Defence, currency, customs, border protection
Significance of section 109
Section 109 defends the right of the commonwealth to make laws (on concurrent areas) that render the state laws invalid. Meaning, if the state and commonwealth have opposing views on legislation, the commonwealth will always win
Definitions
Abrogate - parliament overriding a courts stance or decision and turning it into written law
Codification - parliament making laws that confirm a courts decision
Statutory interpretation - courts interpreting laws written by parliament
Other definitions
Checks - restrictions or limitations to the power given to each branch of government
Balances - the balanced division of powers
Express rights - rights that are specifically stated in the constitution, meaning they can be changed by a referendum
Significance of section 1
Requires the commonwealth parliament to be a bicameral parliament
Strengths of restricting the commonwealth parliament
-two houses allows for a more thorough review of legislation to check for any errors and abuses of power within the bill
- if the government holds a slim majority then considerable debate can occur in the lower house than there otherwise might be
- the requirement for the bicameral structure is specifically stated in the Australian constitution, cannot be changed unless referendum
Weaknesses of restricting the commonwealth parliament
- government holds a majority in the lower house, then debate and negotiations are unlikely to occur
- where the government also controls the upper house, it tends to create a rubber stamp situation and their legislation is automatically passed
- the recent increase in the number of minor parties and independents in the senate mean that law-making is stalled or delayed due to lengthy debates around the bill itself
Reason for seperation of powers
The 3 powers are separated to prevent any one branch of the government from obtaining total and absolute control
Facts - seperation of powers
- the executive and legislative powers in Australia are somewhat combined
- the judicial power is kept seperate
- parliament does not have any power to override judicial powers, including sway in decisions made by federal court judges
5 express rights stated in the constitution
- the right to freedom of religion (section 116)
- the right to free interstate trade and commerce (section 92)
- the right to receive ‘just terms’ when property is acquired by the commonwealth (section 51)
- the right to trial by jury for indictable commonwealth offences (section 80)
- the right not to be discriminated against on the basis of the state where you reside (section 117)
NOTE: these rights are usually expressed as limitations on the cth parliament, rather than a positive
Role of the high court in interpreting the constitution
- established under section 71
- section 76 - acts as a guardian of the constitution by interpreting what it means and how it should be interpreted
- acts as a check on any abuse of power from commonwealth, state bodies or individuals
Requirement for double majority in a referendum
- aus constitution changed through referendum (section 128)
- referendum process acts as a check on the powers of parliament because the cth parliament can’t change the constitution outside of the process
- referendums are successful when there’s a double majority vote
Section 24 - House of Representatives
House of reps members shall be chosen directly from the people of the Cth
Definitions
Structural rights - indirect rights that aren’t found in the constitution
Implied - aren’t expressly stated in the constitution
