Chapter 11: Checks on Parliament in Law-Making

Question 1

Is parliament the supreme law-making body?

Answer 1

yes

Question 2

What is meant by the supreme law-making body?

Answer 2

the body in possession of the final law-making power, including the ability to amend laws within its power and pass statue to abrogate common law.

Question 3

does parliament have absolute power?

Answer 3

no.

the australian constitution prevents this by establishing checks on parliament.

Question 4

What is meant by a check on parliament?

Answer 4

A process/structure designed to prevent the abuse of power, such as corruption or misleading practices by governments and their ministers

Question 5

What does the bicameral structure or the commonwealth parliament entail as a check on parliament?

Answer 5

Two Chambers: senate (upper); HOR (lower)
Both HOR and Senate can act as houses of review, debating and voting on the bill to apply scrutiny.
Bill must pass through both houses to receive royal assent and become a law.
Section 1 of Australian Constitution requires the Commonwealth Parliament to have two houses.

Question 6

What is stipulated by sections 7, 24 and 28 of the Australian Constitution?

Answer 6

Section 7 - Senate composed of equal number of elected members from each state, chosen directly by the people, for a term of 6 years

Section 24 - HOR to be composed of members directly chosen by the people

Section 28 - term of 3 years in HOR (may be dissolved sooner by governor-general)

Question 7

Does the Australian Constitution leave certain matters about the composition of the houses to be legislated by the Commonwealth parliament?

Answer 7

Yes.
E.g. Section 7 - ‘until the Parliament otherwise provides there shall be six senators for each Original State’.
1983 - Commonwealth Parliament passed the Representation Act 1983 (Cth) to increase the number of sent

Question 8

Does the Australian Constitution require the state parliaments to be bicameral?

Answer 8

No. Only the Commonwealth. That why states aren’t constitutionally prevented from converting from a bicameral parliament to a unicameral one e.g. Queensland 1922

Question 9

What are the strengths of the bicameral structure of Commonwealth parliament as a check on it’s law-making power?

Answer 9

• Two houses allows for review of bills by 2nd house = scrutiny + expose flaws in policy = balances against abuse of power
• Slim majority or hung parliament = more debate and negotiation in order to pass bill = taking into account broad range of views
• Hostile senate = upper house likely to review bills passed through the lower house more carefully = close scrutiny and debate
• Constitution ensures periodic elections every 3 years = voters who fail to represent public can be voted out of office = held to account
• Specifically listed in the Constitution so cannot be removed without a referendum
• Upper house is elected by proportional vote and for 6 years, so less influenced by popular majority.

Question 10

What are the weaknesses of the bicameral structure of Commonwealth parliament as a check on it’s law-making power?

Answer 10

• Government has majority in the upper house = rubber stamp = no vigorous debate = less scrutiny, just voting with party = can pass legislation that does not reflect will of the people
• Majority in the lower house = no vigorous debate or negotiations = less scrutiny, just voting according to wishes of party
• There is a fine line between healthy review and never getting anything done. Increasing minor parties and independents in the Senate can mean too much power is vested then in those members = law-making is stalled or laws aren’t as effective as they could be
• lower house usually controlled by gov = members are usually required to vote on party lines, rather than with their conscience and as representatives of their electorate = laws will generally only be passed if supported by gov.
• if gov. needs support of minor party or independent, the member can make excessive demands on the gov = excessive power where their vote is crucial to pass bill
• The VIC parliament could abolish its upper house, as QLD did.

Question 11

What is the separation of powers?

Answer 11

doctrine established by the Australian Constitution 
involves the division of three arms of powers: 
the legislature (held by the parliament which makes laws) 
the executive (held by the governor-general who administers laws) 
and the judicial (held by the courts who interpret and enforce laws)

Question 12

Why is the main purpose of the separation of powers?

Answer 12

Ensure that no one body has absolute power.
Protect individual rights by providing checks and balances on the power of parliament.
Uphold rule of law.

Question 13

How does the separation of powers uphold the rule of law?

Question 14

Does the separation of powers exist at the state level?

Answer 14

Yes.

But constitution specifically mentions that three arms of power must be separated at a federal level.

Question 15

What is executive power?

Answer 15

Authority to administer the law and conduct government
Vested in GG (although to be exact, constitution says it’s “vested in the Queen and is exercisable by the Governor-General as the Queen’s representative”
In practice, exercise by government leader, ministers and departments

Question 16

What section of the Australian Constitution addressed executive power?

Answer 16

Section 61
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Question 17

What is legislative power?

Answer 17

The authority to make laws

Exercised by the parliament

Question 18

What section of the Constitution addresses legislative power?

Answer 18

Section 1
The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth

Question 19

How, in Australia, do the executive and legislative powers overlap?

Answer 19

In practice, executive powers not exercised by the Queen or the Queen’s rep, but by members of the cabinet who - being in parliament - also exercise legislative powers in making laws.
Also, when bills are passed through both houses of parliament, the GG/G usually gives royal assent on advice of the prime minister or premier - who was involved in creating the law in question.

Question 20

What is cabinet?

Answer 20

The policy-making body composed of government leader and a range of senior ministers in charge of a range of government departments.
Cabinet members decide which bills or legislation should be presented to parliament.

Question 21

What is judicial power?

Answer 21

The authority to interpret and enforce the law and settle disputes.
Given to courts and tribunals.

Question 22

What section of the constitution addresses judicial power?

Answer 22

Section 71
Judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Question 23

Why must the legislative and judiciary be kept separate?

Answer 23

• Courts decide whether parliament has breached terms of the constitution in law-making. This process becomes futile if the court is affiliated politically with parliament.
• Avoid conflict of interest where those who create laws can also decide whether they have been breached = power would be heavily concentrated in parliament’s hands.

Question 24

What are the strengths in the separation of powers as acting as a check on parliament in law-making?

Answer 24

• allows executive to be scrutinised by legislature e.g. legislature can vote against government legislation
• judiciary is independent of executive and legislature = can interpret and enforce laws without bias and ensure parliament acts within constitutional rights
• doctrine is entrenched in Australian Constitution. referendum needed to abolish it.

Question 25

What are the weaknesses in the separation of powers as acting as a check on parliament in law-making?

Answer 25

• legislative and executive are combined = reduces ability of doctrine to act as check on each of the powers bcos in practice, cabinet can both create and enforce laws
• judges appointed by the executive = may appoint according to political bias = not entirely independent and cabinet can influence how its laws are interpret and enforced through selection of justices
• less scrutiny applied to proposed laws and thus to the exercise of legislative power if gov. forms majority in senate and votes along party lines
• if opposition controls senate, it can obstruct bills for political gain rather than providing authentic scrutiny
• the constitution only provides for separation of powers at federal level, not at state level (although the principle does exist at state level)

Question 26

What are express rights?

Answer 26

Rights that are state in the Australian Constitution. These rights are entrenches, meaning they can only be changed by referendum.

Question 27

List the express rights entrenched in the Australian Constitution

Answer 27

• right to freedom of religion
• right to free interstate trade and commerce
• right to receive ‘just terms’ when property is acquired by the Commonwealth
• right to trial by jury for indictable Commonwealth offences
• right to not be discriminated against on the basis of the state where you reside

Question 28

What is the purpose of express rights in terms of acting as a means by which the Constitution provides checks on parliament in law-making?

Answer 28

explicit check on parliament as any law made by parliament that infringes an express right can be declared invalid by High Court.
they are expressed as limitation on the Commonwealth parliament in law-making.

Question 29

Explain the express right relating to religion

Answer 29

Section 116. Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

In a nutshell:

• cannot establish a religion
• impose any religious observance
• prohibit free exercise of any religion
• cant’ require a religious test as requirement for holding any Commonwealth office

Question 30

Does section 116 of the Australian Constitution apply to the states?

Answer 30

No.

Question 31

Explain the express right relating to trade within the Commonwealth

Answer 31

Section 92. Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

in a nutshell:

• interstate trade and commerce (whether by means of road or sea) should be free
• provides freedom of movement between the states

Question 32

Explain the express right relating to the acquisition of property on just terms

Answer 32

Section 51 (xxxi)
the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. 

In a nutshell:

• Commonwealth must provide just terms when acquiring property
• Commonwealth is only able to acquire property for a purpose/area for which it has the power to make laws e.g. airports, national parks

Question 33

What is just terms?

Answer 33

payment of fair and reasonable compensation for property that is compulsorily acquired

Question 34

What property is included when considering the express right stipulated by section 51 (xxxi) of the Australian Constitution?

Answer 34

• tangible property
• intangible property
• real property (immovable property like land)
• personal property (movable property like goods)

Question 35

Does section 51 (xxxi) of the Australian Constitution apply to the states?

Answer 35

No.
But High Court found that it can apply to state legislation that is passed under a Commonwealth funding agreement (so when the Commonwealth is affiliated with the states’ acquisition of property)

Question 36

Explain the express right relating to a jury trial

Answer 36

Section 80. Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

In a nutshell:
- there must be a jury trial for indictable Commonwealth offences under the criminal law

Question 37

How is the express right to trial by jury limited?

Answer 37

• most indictable offences are crimes under state law. the express right is exclusive to commonwealth offences
• gov. avoid section 80 and trial by jury for serious offences by declaring them to be summary offences (though unlikely, this can occur for offences like acts of terrorism)

Question 38

Explain the express right relating to discrimination on the basis of state residence

Answer 38

Section 117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

In a nutshell:

• unlawful for state and Commonwealth governments to discriminate against someone on the basis of the state in which the person resides
• there can be an exception; high court rules that in limited circumstances, states can favour their own residents e.g. right for only residents to vote in state elections

Question 39

What are strengths of express rights acting as checks on parliament in law-making?

Answer 39

• limit parliament in law-making as any law which conflicts with express rights can be challenged through the High Court be declared invalid.
• rights are entrenched. Needs a referendum to change. Ensures that they stay constant over time.
• stability provides opportunity for public to become aware that such rights exist and to undertake legal action is their rights are breached

Question 40

What are weaknesses of express rights in acting as checks on parliament in law-making?

Answer 40

• limited ability for rights to be added into constitution to provide additional checks on parliament in law-making as referendum is needed to insert new rights, which is difficult.
• though rights are entrenched, this doesn’t prevent Cth Parliament from passing the law, an individual will have to launch a HC challenge for law to be declared invalid. parliament not significantly restricted.
• HC challenge is $$$. if people can’t afford to take civil action, laws that go beyond the power of parliament left unchallenged and not declared invalid, and parliament unchecked.
• Rights are limited in scope and generally only apply to Federal Laws.
• Few rights in comparison with other countries with Bills of Rights. Ineffective means of acting as check on parliament because there are so few of them, and they are so limited in scope.

Question 41

What main sections of the Australia Constitution are relevant to the role of the High Court in interpreting the Australian Constitution?

Answer 41

Section 71 - establishes the High Court
Section 75 - gives Commonwealth power to provide High Court with jurisdiction to hear disputes arising under the Constitution or involving its interpretation

Question 42

What does the role of the High Court in interpreting the Constitution involve?

Answer 42

• acting as a guardian of the constitution
• acting as a check on any abuse of power
• giving meaning to the words

Question 43

How does the High Court act as a guardian of the Australian Constitution?

Answer 43

• explaining what it means & deciding how it should be interpreted
• applying to cases, ensuring that it remains relevant to the Australian people

Question 44

How does the High Court act as a check on any abuse of power?

Answer 44

if it finds that a parliament has passed a law outside its own power, it can declare the law ultra vires, making the law invalid.
parliament must then amend the law so unconstitutional provisions are removed or try to amend the constitution by pursuing a referendum.

Question 45

How is parliament still kept in check if the High Court declares that its legislation is valid?

Answer 45

• scrutiny on the exercise of legislative powers is still applied
• the legislative authority of the Commonwealth is made clear, providing certainty for parliament and those directly affected by the area of law

Question 46

What is ultra vires?

Answer 46

latin term meaning ‘beyond the powers’; a law is made beyond the powers of the parliament

Question 47

How does the High Court give meaning to the words of the Constitution?

Answer 47

By interpreting and applying the broadly written words of the constitution to the specific cases before it. Involves considering facts of the case and determining where certain laws breach the constitution.
In this, the High Court may shift the division of law-making powers or establish implied rights within the Australian Constitution.

Question 48

What are implied rights?

Answer 48

rights not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court

Question 49

What are strengths of the high court’s role in interpreting the Australian Constitution as acting as a check on parliament in law-making?

Answer 49

• Judges are independent of the executive and make decisions based on legal principles, not political pressure = scrutiny on parliament + avoid abuse of power
• allows people to challenge laws through the high court and have them overturned if declared ultra vires = parliament held accountable
• avoids challenged to laws from being too easily made, which could disrupt the necessity of parliaments making law to ensure social cohesion

Question 50

What are weaknesses of the high court’s role in interpreting the Australian Constitution as acting as a check on parliament in law-making?

Answer 50

• Judges can only rule on the facts of the case that is brought before them
• High court cannot intervene until a case is brought before them.
• $$$ for ordinary person to challenge law through high court + requirement of standing + court delays make it difficult to challenge = less cases brought to court and parliament unchecked
• role is limited to determining whether a law is constitutional, not whether it is an effective/good law = can’t influence parliament to improve a poor law that is not ultra vires = poor legislation that doesn’t reflect the will of the people may still be passed

Question 51

What is a referendum?

Answer 51

The method used for changing the wording of the Australian Constitution. Requires a proposal to be approved by the Australian people in a public vote by a double majority.

Question 52

What section of the Australian Constitution establishes the referendum process?

Answer 52

Section 128.

Question 53

Outline the referendum process

Answer 53

1. Both houses of parliament must pass proposed law for the change by absolute majority, or one house must pass it twice. 2-6 months after it’s passed, the proposal must be submitted to the states and territories.
2. All electors required to vote for the election of HOR in each state/territory vote on the referendum. Doubly majority provision must be met: majority of voters in the whole of Australia must vote yes AND in a majority of states, a majority of voters must vote yes.
3. Proposed law for the change presented to the GG for royal assent.

Question 54

Why does the double majority provision exist?

Answer 54

• protect smaller states from being dominated by the larger, more populated states
• ensure each of the states has an equal voice regardless of their size or population

Question 55

Are the territories counted under the double majority provision?

Answer 55

No

Question 56

How many states are there? And how many of them must contain a majority of ‘yes’ votes to satisfy one part of the double majority provision?

Answer 56

6 states

majority of voters in at least 4 out of the 6 states must vote yes

Question 57

What are strengths of a double majority requirement in acting as a check on parliament in law-making?

Answer 57

• commonwealth cannot change constitution alone without referring to the people, allowing them to refuse to support a proposal that is deemed inappropriate = balance on the power of parliament
• protects smaller states, ensuring they aren’t dominated by more highly populated states = some states do not have less influence over the parliament’s proposal, has equal voice to support/reject it
• the double majority requirement ensures voter support must be high and geographically spread
  around Australia = ensure that outcome reflects the will of the people
• compulsory vote = removes power from Commonwealth Parliament to decide whether constitution should be changed and gives power to all eligible voters
• requires info. to go to voters about the change, including info. about whether the change will give parliament more power = informed vote = outcome reflects the will of the people

Question 58

What are weaknesses of a double majority requirement in acting as a check on parliament in law-making?

Answer 58

• public may not understand the complex details of the proposals, and vote no out of mistrust of politicians
• double majority requirement is difficult to achieve = even valid proposals hard to pass, even if majority of australians support it, because majority of states may not = can be seen as undemocratic and unjust, and may hinder parliament in law-making
• time-consuming and costly check on parliament
• the voters cannot initiate change in the words of the Constitution. Instead, proposed changes must first be passed through the Commonwealth Parliament.