DP6 Constitutional checks on parliament in law-making Flashcards
What are the 3 checks on parliament in law-making?
The ability of the High Court to declare laws ultra vires, Express rights and the Separation of powers.
What is a Constitutional ‘check’?
A constitutional check is something that holds parliament accountable by restricting its law-making ability and declaring acts invalid.
Although parliament is the supreme law-making body, its powers are limited by the Australian Constitution, which provides a range of mechanisms and structure to ensure that parliament cannot act outside of its law-making powers, and act within state interest.
What role does the high court play in protecting the principle of a representative government?
The High Court protects a representative government as it ensures that laws which are invalid or contradictory are declared ultra vires. Thus, it can act as a check on the abuse of legislative power.
The High Court can rule on section 109 of the Constitution and state that a law is invalid, but it also has the jurisdiction to interpret the words of the constitution. Thus, if it has the belief, when presented with a case, that any parliament has passed laws which are contradictory to their powers on the Constitution, that law is considered beyond its law-making powers and is thus invalid.
Furthermore, High Court decisions set precedent for the meaning of words and how they apply, and cannot be abrogated by parliament when referring to the constitution.
How does the High Court act as a ‘check’?
It gives the Australiana people an avenue to challenge the validity of laws made by parliament, and protects the people from an abuse of legislative power.
What is an example of the High Court protecting the principle of a representative government?
In a case in the High Court, Roach v Electoral Commissioner (2007), the High Court was required to determine if laws made by Commonwealth parliament restricted the ability of parliament to be ‘directly chosen by the people’ (s 7 and 24) after laws were passed that did not allow some prisoners to vote in elections.
In 2004, Commonwealth parliament passed amendment to Commonwealth Electoral Act, which banned anyone serving prison term longer than three years from voting. This was extended in 2006 to ban anyone serving a prison term from voting. Vickie Lee Roach challenged the validity of both Acts in the High Court, as she believed they were contradictory to sections 7 and 24 of the Australia Constitution, preventing prisoners from voting and thus directly choosing the government.
The High Court held that a person’s right to vote can be restricted, but only if reasonable to preserve representative government. It found that the first law was valid, but the second law was invalid.
How can the High Court be limited in its ability to act as a check on parliament?
Not all people can challenge the validity of laws in the High Court due to costs, time and standing.
If a person has not been directly affected by an offence, and thus does not possess locus standi (standing), or special interest in the case, it cannot be brought to the High Court. Furthermore, people must apply for leave in the High Court, and must be approved before a case can be initiated.
Due to the large costs of bringing cases to the High Court, and the cost of legal representation, many people are unable to bring their case to the High Court. Additionally, people may not want to pursue their case in the High Court due to the publicity that is often associated with doing so, or they do not have adequate time to attend court. Because High Court cases are complex and require the interpreting of the Australian Constitution, cases take considerable time to analyse facts and for the High Court justices to make a decision. Thus, costs, time, and standing limit the ability of the people to utilise the High Court. If there are no cases for the High Court to hear, then no changes can be made and thus the High Court cannot act as a ‘check’ on parliament’s law-making powers.
What is the separation of powers?
According to section 61, the Constitution distributes the power to govern and manage Australian laws into different areas: the legislature, executive and judiciary.
The executive has the power to administer laws and place them into effect, and es responsible for developing government policies. Thus, key individuals, such as the Governor-General and the Prime Minister can exercise this power.
The Legislature has the power to make laws, which is exercised by the government. And the judiciary has the power to interpret and apply the law and to resolve disputes, which is exercised by the courts. It is crucial that the judiciary is politically intendent from the executive and legislature to ensure for a fair system, free from political pressures.
How is the separation of powers a check on parliament’s law-making ability?
It ensures that no body has absolute power or control over the functions of Australia’s political and legal systems. Furthermore, the separation of powers prevents the abuse of parliament’s law-making power, by separating into 3 arms that compliment and counterbalance each other. It ensures that no body can make, administer, and decide on the validity of law.
What are the strengths of the separation of powers as a check?
The separation of powers is entrenched in the Australian constitution, meaning that it cannot be easily removed or altered without a constitutional amendment and in turn, a referendum.
Furthermore, because the judiciary is independent from the other powers, it can check on the legislature, and ensure that any laws made that are ultra vires are declared invalid.
What are the limitations of the separation of powers as a check?
However, the separation of powers is limited in its ability to check on parliament, as the judiciary can only declare acts invalid, or parts of acts invalid when a case is brought before them. This means that although a law may be beyond parliament’s law-making ability, the judiciary may be unable to declare it invalid until a case is brought before them.
Additionally, the constitution only provides a separation of powers at a federal level, not a state level. This means that states decide to adopt the principle, but do not have to.
How do express rights act as a check on parliament’s law-making powers?
Express rights are freedoms which are explicitly stated in the Australian Constitution, such as the right to trial by jury for indictable Commonwealth offences. Express rights act as a check on parliament’s law-making ability, as laws made cannot infringe upon the people’s ability to enjoy their rights. For example, because the people have the right to express and practice their relgion, parliament cannot establish a national religion that prevents people from exercising their unique religion.
If there is a law which infringes upon an express right, the people can challenge the validity of this law in the High Court of Australia. This means that a religion law may be declared invalid, and thus set precedent for future laws in this area. Whilst express rights do restrict parliament’s law-making ability by deterring parliament from making such laws, there is no mechanism that prevents such laws from being made. Whilst parliament will face public scrutiny, and the law may be declared invalid, nothing prevents parliament from making such laws. They may be voted out in the next election, but this takes time.
What are the strengths of express rights acting as a check?
Express rights limit parliament’s ability to make laws, as such laws can be challenged in the High Court. Furthermore, because express rights are entrenched in the Constitution, they cannot be changed without a referendum, meaning this restriction cannot be altered or removed easily.
What are the limitations of express rights acting as a check?
Exoress rights are limited in acting a a check on parliament as there are only 5, whcih are limted ins cope, meaning that there are little constitutional rights and restrivtions in this area upon parlameny. Due to the referendum process, it is difficult to add more express rights. Furthermore, necause the rights are limited in scope, they only protect narrow areas. For example, section 80 if the Australian Constitution relates to the right t trial by jury for indictable commonwealth offences, but only applies for federal offences. Thus, laws could be made which prevent a person from having a right to trial by jury for indictable state offences.
Finally, express rights only deter parliament from passing laws which contradict such rights or limit the enjoyment of these rights, and cannot prevent parliament from passing such laws. Laws can be passed which restrict the enjoyment of these rights, but can only be declared invalid once challenged in the High Court.
