Constitution as a check on parliamentary law-making Flashcards
Bicameral structure of parliament
when parliament consists of two houses and the crown it acts as a check on parliamentary law making
Limitation of bicameral structure on parliamentary law-making
If the government holds a large majority then little debate will occur.
If the government holds majority in both houses, the senate cannot properly debate, review and scrutinised bills as they will be rushed through.
Separation of powers
A principle established by the Constitution, separating the executive, legislative and judicial powers, to ensure there is no abuse of power by those bodies involved in the creation of laws and the administration of justice.
Legislative powers
The power to make laws and is held by the parliament
Executive power
The ability to administer laws and conduct the business of government and is held by the Governor general but in practice is carried out by the cabinet.
Judicial power
The ability to resolve criminal and civil
disputes, sometimes imposing sanctions and awarding damages - given to the courts
Limitation on the separation of powers as a check on parliamentary law-making
Whilst the executive power is given to the Governor General, it is performed by the cabinet, therefore the executive and legislative powers are not kept separate.
Judges are appointed by the executive which can be seen as the executive influencing the courts.
Express rights in the constitution
express rights are rights actually written in the constitution that can only be removed via a process of a referendum.
s. 51 (xxxi)
The right to just terms when Commonwealth acquires property - allows the Commonwealth to make laws with respect to ‘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.’
s. 80
The trial
on indictment of any
offence against any law of
the Commonwealth shall
be by jury.’
s. 92
declares that
‘trade, commerce, and
intercourse among the
States, whether by means
of internal carriage or
ocean navigation, shall be
absolutely free.’
s. 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
s. 117
Rights of residents in States. Residents 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.
How do express rights work to limit the law making powers of the Commonwealth parliament?
Express rights can be challenged in the HC if someone feels that the Commonwealth parliament has breached them in legislation.
The HC can declare the legislation ultra vires.
Express rights are entrenched in the constitution and so can only be removed via a referendum.
What is a limitation on the ability of express rights to be a check on parliamentary law-making?
Litigation in the HC is expressive and time consuming.
The HC cannot change the wording of the constitution - they can only interpret the case before them without creating general principles.
Express rights are limited in scope - e.g. some of then don’t apply to the states.
Legislation cannot automatically be declared ultra vires - instead someone with standing must challenge it in the HC.
