Legal Unit 4 AOS 1

Question 1

Legislative Assembly

Answer 1

Comprised of 88 members.
1 per district.
4 year term.

• Main role is to initiate and pass bills in state legislation. Bills are usually introduced by the government but any member can introduce a bill.
• Another role is to form government, party with majority of seats forms government.
• provide representative government. - represent the interests of the people.

Question 2

Legislative Council

Answer 2

40 members
4 year term

• main role is to act as the house of review for any legislation that’s been passed by the legislative assembly through scrutinising, debating, amending or rejecting proposed legislation.
• Examines bills through its comprehensive committee stage which consider the bills in detail and debate proposed bills.
• occasionally introduces and passes bills, however this is uncommon.

* depending on composition, can act as a hostile senate or a rubber stamp senate, influencing the ability of parliament’s law making.**

Question 3

The Governor

Answer 3

Queens representative at state level.

• main role is to grant or withhold royal assent to legislation passed through state parliament.

Question 4

House of Representatives

Answer 4

3 year term
151 members from 151 electorates
People’s house.

• Main role is to initiate and pass bills in federal legislation. Bills are usually introduced by the government but any member can introduce a bill.
• Another role is to form government, party with majority of seats forms government.
• provide representative government. - represent the interests of the people.
• house of review if bill is introduced by senate.
• controls government expenditure.

Question 5

The Senate

Answer 5

76 members
6 year term
12 representatives from each state.
2 from each territory

• main role is to act as the house of review for any legislation that’s been passed by the legislative assembly through scrutinising, debating, amending or rejecting proposed legislation.
• Protect the interests of the states and territories with equal representation as the more populated states don’t hold all the power in commonwealth parliament.
• occasionally introduces and passes bills, however this is uncommon.

* depending on composition, can act as a hostile senate or a rubber stamp senate, influencing the ability of parliament’s law making.**

Question 6

Governor General

Answer 6

Queens representative at federal level.

• main role is to grant or withhold royal assent to legislation passed through federal parliament.

Question 7

Passage of a bill through parliament

Answer 7

First House:
- First reading
- Second reading
- Third Reading
Second house:
- Process is repeated in second house.
Royal Assent
Proclamation

Question 8

Strengths and weaknesses of upper house

Answer 8

Strengths:
- effective house of review as can scrutinise, debate and amend bills that pass through the lower houses, effective check on parliament.
- upper house members belong to a region or state, giving them a greater perspective than for example an electorate.
Weaknesses:
- rubber stamp or hostile senate in which both may cause ineffective level of scrutiny of bills.
- regional interests are often neglected due to party policy.

Question 9

Strengths and weaknesses of lower house

Answer 9

Strengths:
- as the people’s house, it’s democratically elected and reflects the views and values of the public. (only members of parliament that are wanted are voted in)
- each electorate is represented by one member, therefore the people have a clear spokesperson.
Weaknesses:
- because the lower house members are elected, necessary law reform can be prevented out of fear of voter backlash.
- parliaments role is to legislate, but only approximately 45% of sitting time is devoted to legislation.

Question 10

Division of law making powers

Answer 10

law making powers are powers or authority given to parliament to make laws in certain areas. They are split into exclusive, concurrent and residual powers.

Question 11

Exclusive powers

Answer 11

Only the commonwealth parliament has the power to legislate in this area.
eg. immigration, external affairs
these powers are either exclusive by nature, stated as being exclusive in the constitution or made exclusive by another section like defence (s114) and currency (s115).

Question 12

Concurrent powers

Answer 12

Both state and commonwealth parliaments can legislate in this area.
eg. marriage, taxation, making laws on indigenous peoples.

section 109 makes sure that when a state law is inconsistent with the law of the commonwealth, the commonwealth shall prevail and the the state law should be invalid to the extent of the inconsistency.

Question 13

Residual powers

Answer 13

Powers that are not listed in the constitution. only state parliament can legislate in these areas.

eg. health, crime-, education, road laws.

Question 14

Strengths and weaknesses of division of law making powers

Answer 14

Strengths:

• ensures areas in need of local expertise are handled at state level where policies can be more tailored to the population.
• ensures the commonwealth parliament’s power is regulated, by only allowing them to legislate on what is listed in the constitution.
• ensures laws do not overlap in their relationship to state laws and if they do overlap, section 109 prevents inconsistency.

Weaknesses:

• the high court has the power to change its interpretation of specific powers and restrictions, thus being ultimately in charge of the powers of parliaments.
• often power is given to the commonwealth, lessening the power of the states.

Question 15

Section 109

Answer 15

“when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

• when state and commonwealth law conflict in a concurrent area, commonwealth law prevails to the extent of the inconsistency.

must be challenged in the courts

Question 16

Strengths and weaknesses of section 109

Answer 16

Strengths/not acting as a restriction on State parliament:

• only inconsistent part of the act is invalid.
• don’t restrict residual areas.
• in order to be enforced, must be taken to the high court.

Weaknesses/acting as a restriction on state parliament:

• state law must be consistent with Cth law or else it is rendered invalid to the extent of the inconsistency.
• federal law will prevail.

Question 17

Constitution acting as a check on parliament

Answer 17

there are 5 key means by which The Australian constitution acts as a check on parliament in law making:

• the bicameral structure of the commonwealth parliament.
• the separation of the legislative , executive and judicial powers.
• the express protection of rights.
• the role of the high court interpreting the constitution.
• the requirement of a double majority in a referendum.

Question 18

Bicameral structure: Check on parliament

Answer 18

• both houses act as a house of review, scrutinising and debating bills as they pass through the houses to ensure that the laws are compatible with the views and values of society.
• section 28 requires elections for the house of reps to occur every 3 years, only wanted members are voted in.
• roles in upper house are centred scrutinising proposes legislation, debating policy, investigating the actions of the executive and introducing non-government bills all work to limit the impact the lower house can have

Question 19

Strengths and weaknesses of Bicameral structure as a check on parliament.

Answer 19

Strengths:

• senate is representative of states and territories.
• section 28 keeps government representative of society’s views and values.
• existence of two houses allows for review of legislation by the second house. this extra scrutiny provides checks and balances against abuse of power.

Weaknesses:

• ministers and senators often just vote down party lines.
• if government holds majority in both houses, rubber stamp senate, not enough scrutiny.
• A.C does not require state parliaments to be bicameral.

Question 20

Separation of powers

Answer 20

Legislative:
body exercising power- Parliament.
role- the power to make laws. How the law will be put into place or administered.

Executive:
Body exercising power- Governor General
role- the power to administer the laws and manage the business of the government.

Judicial:
body exercising power - federal courts.
role- the power to interpret and adjudicate the law including the validity of legislation and settle disputes.

Question 21

Strengths and weaknesses of the separation of powers as a check on parliament.

Answer 21

Strengths:

• provides independence between bodies that make the law and enforce it. - independent judiciary
• provides a system of limits which limits the power of certain bodies, preventing arms from acting outside their constitutional powers.
• it is entrenched and protected in the constitution.
• legislative arm are expert law makers and the judicial arm are experts in constitutional interpretation.

Weaknesses:

• there are overlaps between legislative and executive arms: all members in cabinet (executive) are also members of parliament (legislative).
• parliament delegates some law making to the executive arm.
• governor general must grant royal assent to a new bill (legislative) but is also part of the executive arm.
• constitution does not ensure that separation of powers applies to state parliaments.

Question 22

Referendum

Answer 22

The only way the wording of the constitution can be changed is through a referendum, set out in section 128 of the A.C.

Question 23

Double Majority

Answer 23

Requires majority of voters nationally (50% + 1) and the majority of voters in a majority of states (4 of the 6)voting ‘yes’.

Question 24

Passage of a Referendum

Answer 24

Parliament:
Must pass thyoughboth houses before being put to the people.
to..
People:
Governor General puts the bill to the people in the form of a yes/no question, it then must receive a double majority vote for ‘yes’.
to..
Governor General:
Royal assent is given by the. governor general.

Question 25

Strengths and weaknesses of referendums

Answer 25

Strengths:

• Is a democratic process which safeguards the constitution from rash or unneeded changes.
• section 128 allows the public to refuse a change that they do not support.
• the double majority is strict and has proven hard to achieve.
• double majority protects smaller states such as Tasmania and south Australia giving them an equal say with the larger states.
• the vote is compulsory, eligible voters must give their view ensuring its representative of the whole population.

Weaknesses:

• there have been 44 referendums since federation, of which only 8 have been successful.
• 13 out of 44 referendums have satisfied the first majority but 5 did not satisfy the second majority.
• public often votes with apathy, why change something that’s not broken.
• double majority is difficult to achieve, meaning that changes to the constitution are limited, even valid ones.

Question 26

Example of referendum

Answer 26

1951 Referendum:
Sought to bathe communist party in Australia.

Gained support in 3 states and 49% of voters nationally.

Question 27

Express rights

Answer 27

5 express rights:

• acquisition of property
• trial by jury for commonwealth indictable offences.
• free interstate trade and commerce.
• freedom of religion
• discrimination based on state of residence.

1 implied right:
- freedom of political communication

Question 28

Strengths and weaknesses of Express rights

Answer 28

Strengths:

• transparent, well protected and place restrictions on the commonwealth parliament.
• impose limits on what parliament can and cannot make laws about.
• breaches to these rights are enforceable by the high court.

Weaknesses:

• there is limited adaptability of either changing the express rights or adding further express rights due to the referendum process.
• the protected rights are limited insole, for example, many rights only apply to commonwealth parliament and not the state parliaments. some rights are also narrow, such as trial by jury.
• relatively few in numbers compared to other countries.

Question 29

Role of high court in interpreting The Australian constitution.

Answer 29

the high court was established by section 71 of the constitution.

• the high court can only change the interpretation of the constitution, not the words themselves.

Guardian of the constitution:
the high court is the only court with the power to give meaning to the words in the constitution.

act as a check on parliament:
parties who claim a state or government body has acted beyond its powers can challenge such actions in the high court.

gives meaning to words in the constitution:
the high court decides how the words are to be interpreted.

Question 30

Strengths and weaknesses of high court in acting as a check on parliament.

Answer 30

Strengths;

• judges are independent of the legislature and executive so act as an independent check on their exercise of powers.
• judges are appointed, not elected, so can make decisions free from political pressure.
• judges are experienced and experts in constitutional law so can bring these qualities to their decision making.
• the high court can act as an independent check to confirm if a law is an abuse of power.

weaknesses:

• the high court cannot change the actual words of the constitution and can only affect the meaning of words.
• judges are appointed by politicians and governments often appoint judges with leanings towards their side of politics.
• judges are reactive and have to wait until a case is brought to them.
• judges can only rule on the facts of the case before them.