SAC 3

Question 1

Who is the crown?

Answer 1

The crown (British monarch) is a part of the governmental system in Australia through its representatives (elected by the queen on advice from the PM/ministers):
- Governor General (federal level)- David Hurley
- Governors (6- one for each state)
Responsibility= to ensure the effective operation of the democratic system. This requires an effective electoral system, parliament, government and court system.

Question 2

roles of the crown

Answer 2

1. Granting Royal Assent- formal signing and approval of bills by the Crowns representatives before the bill becomes a law. Section 58 of the Constitution gives the GG this power.
2. Withholding Royal Assent- this rarely occurs, however the constitution sets out the circumstances in which the GG can withhold Royal Assent at a Federal level.
3. Appointing the Executive Council- this is made up of the leader of the government (PM/Premier) and senior ministers. This body gives advice on government matters and passes secondary legislation. The crown approves secondary legislation on advice from the Crown.

Question 3

what is the structure of Commonwealth Parliament?

Answer 3

• The Crown (represented by the Governor General)
• The House of Representatives (Lower House)
• The Senate (upper house)

Question 4

House of Representatives (lower house):

what?

Answer 4

• Political party (or coalition of parties) with the majority of elected MPs to the House of Representatives becomes the government. The leader of that party becomes PM, who appoints ministers to be responsible for different portfolios. It is known as ‘the house of government’
• Also known as the ‘people’s house’ as it reflects the majority opinion of the people at an election.
• Consists of 151 members that represents an electoral division – number of representatives for each state depends on population. Members elected for 3 years.

Question 5

House of Representatives (lower house):

roles

Answer 5

• Initiate and make laws: any member can introduce a proposed law (bill)
• Determine the government: after an election, the political party that has the most members in the house of representatives forms the government
• Represent the people: plays a role in forming a representative government, members are elected to represent the people and are given authority on behalf of the people. The proposed laws should reflect the views and values of the majority of the community
• Publicise and scrutinize government administration: to make sure legislation is debated and matters of public importance are discussed and members of party are able to ask the government ministers questions in relation to their work and responsibilities.

Question 6

Senate (upper house):

what?

Answer 6

• Provides equal number of representatives from each state regardless of population (12 per state, 2 per territory = 76 members)
• Senators elected for 6 years
• Acts as a House of Review: checks that proposed legislation meets the needs of the entire community.

Question 7

Senate (upper house):

Answer 7

• Acts as a house of review: the majority of bills are initiated in the lower house so the senate reviews the bills already passed through the lower house, therefore they can ensure that bills that are too radical or inappropriate are not passed through the parliament.
• Acts as a states’ house: under section 7 of the Constitution, the senate provides equal representation from each state regardless of its size or population. Therefore the senate represents the interests of the states in law-making
• Scrutinize bills through the committee process: made up of committees which assess legislative proposals to determine what effect the proposals would have on individual rights, freedoms and obligations, as well as the rule of law.
• Initiate and pass bills: the senate has the ability to initiate bills or pass bills that have been passed through the lower house.

Question 8

structure of the Victorian Parliament

Answer 8

• The Crown: the head of state and is represented by the Governor (currently Linda Dessau)
• The Legislative Assembly (lower house)
• The Legislative Council (upper house)

Question 9

The Legislative Assembly (lower house):

what

Answer 9

• When voting for the Legislative Assembly, Victoria is divided into 88 districts, one member is elected to represent each district that is elected for 4 years.
• Houses government (the political party with the majority of seats in the lower house forms the government. The leader of this party becomes Premier)
• It represents the majority of people
• Most bills are initiated here

Question 10

The Legislative Assembly (lower house):

roles

Answer 10

• Initiate and pass bills: this is the Legislative Assembly’s main role. Bills are usually introduced to parliament by the government
• Form government: the party with the most members in this house forms government
• Provide representative government: members of the Legislative Assembly are elected to represent the interests of the people
• Acts as House of Review: when a bill has been initiated and passed in the Legislative Council
• Control Government expenditure: the government must introduce a bill to the Legislative Council if axes are to be collected or money spent

Question 11

The Legislative Council (upper house):

what

Answer 11

• For the Legislative Council, Victoria is divided into 8 regions; 5 legislative council members (MLCs) are elected for each region (40 members); they are elected for 4 years
• MLC’s represent regional interests so people in less populated area have equal representation
• Bills can also be initiated here

Question 12

The Legislative Council (upper house):

Answer 12

• Acts as a House of Review: for bills passed by the Legislative Assembly; it does this by scrutinizing, debating, amending or rejecting proposed law
• Examine bills through its committee- has various committees that debate proposed law and advise the upper house whether bills should be supported
• Initiate and pass bills- it is more common for this to occur in the Legislative Assembly, but can be initiated here.

Question 13

residual powers

Answer 13

law-making powers that were not given to the Commonwealth Parliament under the Constitution at the time of Federation. They therefore remain solely with the states. E.g. criminal law, road laws, education, health, public transport.
Specific sections of the Constitution protect the power of the states to create laws in areas that were not given to the commonwealth.
- Section 106- recognises states Constitutions
- Section 107- recognises states’ law-making power
- Section 108- preserves existing laws to continue (subject to constitution)

Question 14

specific powers

Answer 14

law-making areas given to the Commonwealth at Federation are referred to as specific powers, they are specifically listed in the Constitution (inc sections 51 and 52). Specific powers may be concurrent (shared between Commonwealth and states) or exclusive (belonging solely to the Commonwealth)

Question 15

exclusive powers

Answer 15

law-making powers specifically outlined in the Constitution which only the Commonwealth passes. These relate to issues that require a national approach e.g. defence, currency, customs
They are exclusive due to there nature / prohibition on states outlined in other sections / they are states as being exclusive

Question 16

concurrent powers

Answer 16

law-making powers that both the Commonwealth and state parliaments share e.g. trade, taxation, marriage and divorce, postal

Question 17

Section 109

Answer 17

Deals with concurrent law-making powers
‘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.’

Question 18

John Mcbain v The State of Victoria (2000):

• FACTS
• ISSUE
• DECISION

Answer 18

• FACTS: Dr John Mcbain was providing Leesa Meldrum with IVF treatment; according to the Infertility Treatment Act 1995 (Vic), single women were banned from IVF treatment; The Victorian law was challenged by Mcbain, citing the Sex Discrimination Act 1984 (Cth); Mcbain argued that the Victorian law was inconsistent with the Commonwealth law
• ISSUE: Was the Victorian law inconsistent with the Commonwealth law?
• DECISION: The Federal Court found in favour of Mcbain on the basis of s.109 of the Constitution. The section of the Victorian Treatment Act 1995 that discriminated against single women was deemed

Question 19

the significance of section 109

Answer 19

• Establishes a consistent approach to how inconsistencies between Commonwealth and State laws are dealt with
• It can act as a restriction on the states’ independence in implementing legislation for their citizens as states may not attempt to make laws in areas of concurrent powers, as new laws risk being declared invalid

Question 20

limitations of section 109

Answer 20

• The states are not denied the power to pass inconsistent laws
• A states’ law is also not automatically invalid, it needs to be challenged in court
• If in the future Cth law is changed, and the state law still exists (i.e. but a challenge had been made a provision inoperable), then the state law will be revived
• If the High Court determines a state law inconsistent with Cth law pursuant s.109, it does not mean the whole state law becomes invalid, only the parts that conflict become inoperative
• S.109 only affects those laws in areas of concurrent powers. It does not impact states’ residual law-making powers

Question 21

what are the 5 constitutional checks on the law-making power of parliament?

Answer 21

1. The bicameral structure of the Commonwealth Parliament:
2. The separation of the legislative, executive and judicial powers
3. The express protection of rights
4. The role of the High Court in interpreting the Australian Constitution:

Question 22

Constitution acts as a check on parliament in law-making:

1. The bicameral structure of the Commonwealth Parliament:

Answer 22

The Commonwealth Parliament is bicameral in nature, this is outlined within section 1 of the Constitution requiring that there must be two houses.
Furthermore, these sections set out how the House of Representatives and Senate are to be composed; section 7 (Senate composed of equal number of elected senators from each state, directly chosen by the people); section 24 (House of Representatives composed of members directly chosen by the people); section 28 (house of representatives shall continue for three years, but may be dissolved sooner by the GG)

The senate as a house of review: most bills are introduces into the lower house therefore, the Senate will act as a house of review and review the bills passed by the lower house. IN theory, senators should vote according to not only the wishes of their political party, but also in the interests of their state, thus a broad range of views should be considered before a bill passes the Senate. However, a number of senators vote on bills according to the wishes of their political party rather than according to the interests of the state- “rubber stamp” = government holds majority in both houses and therefore the bill is not scrutinized OR “hostile Senate” = upper house is controlled by the opposition who take an aggressive approach to legislation passed in the lower house.

Question 23

Strengths of bicameral structure acting as a check on Cth Parl-

Answer 23

Allows for review of legislation by the second house = check on balances against misuse of power and identify any errors
If govt. holds slim majority in lower house then considerably more debate can occur in lower house
If opposition holds majority in Senate = upper house likely to review lower house bills more carefully

Question 24

Weaknesses of bicameral structure acting as a check on Cth Parl-

Answer 24

Where govt. controls Senate = ‘rubber stamp’ = dilutes the checking function of upper house
If govt. holds clear majority in lower house = significant debate is unlikely to occur = minimal check on govt.
Hostile senate = law-making can be stalled and legislative process not as effective

Question 25

Constitution acts as a check on parliament in law-making:

2. The separation of the legislative, executive and judicial powers

Answer 25

• Executive power- the power to administer the laws and manage the business of government.
• Legislative power- the power to make laws.
• Judicial power- the power to apply and enforce the law

Reasons:

• Helps to protect individual rights by providing checks and balances on the power of parliament
• The separation of powers prevents power from being held by one body. No one body can make, administer or rule on law
• The government and parliament must work together to pass law, and the independence of the judiciary must be preserved

Question 26

Constitution acts as a check on parliament in law-making:

3. The express protection of rights:

Answer 26

The Australian Constitution contains five express rights, meaning they are entrenched in the Constitution, meaning they can only be removed via a successful referendum. These act as a check on parliament as any law make which infringes an express right can be declared invalid by the High Court

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

Question 27

Constitution acts as a check on parliament in law-making:

4. The role of the High Court in interpreting the Australian Constitution:

Answer 27

The high court hears cases in relation to the Constitution and interprets its words and can deem law unconstitutional if they believe a parliament has gone beyond its power.
- Section 71 – establishes the High Court
- Section 75- provides that the High Court can consider if Cth and state legislation is within the law-making powers of the Constitution
- Section 76- provides the High Court with the jurisdiction to hear disputes arising regarding the Constitution and its interpreting
The High Court has 3 main roles in interpreting the Constitution:
- Acts as a guardian of the Australian Constitution
- Acts as check on abuse of power
- Gives meaning to the words of Constitution

Question 28

Constitution acts as a check on parliament in law-making:

5. The requirement for a double majority in a referendum

Answer 28

The only way the words of the constitution can be changed is through a referendum. This is a compulsory and binding national vote to change the wording of the Constitution, therefore the constitution can only be amended with the approval of Australian electors. This process is set in section 128, and has 3 stages

Question 29

what is the process for a referendum?

Answer 29

This process is set in section 128, and has 3 stages:

• Stage 1: The Parliament – after a proposal for change is made, a bill is drafted. The bill must be passed by both houses of Commonwealth Parliament, one house twice (if rejected in one house, the GG may submit a proposal to the people)
• Stage 2: The People- 2-6 months later a compulsory referendum is presented to the Australian voters. A double majority is required for the referendum to be successful (majority of all voters need to vote yes AND majority of voters in a majority of states need to vote yes
• Stage 3: The Governor-General- the bill is presented to the GG for royal assent

Question 30

Strengths of the double majority requirement acting as a check on parliaments law-making powers

Answer 30

Allows public to refuse to support proposed change
Double majority requirement is strict and has proven to be difficult to achieve
Compulsory vote means eligible voters will have a say
Voters are informed due to complex process so vote should reflect democratic will of people
Protects smaller states

Question 31

Weaknesses of the double majority requirement acting as a check on parliaments law-making powers

Answer 31

Public may not understand the complex details of the proposal so may vote ‘no’ through fear of the unknown/mistrust of politicians
Double majority provision is difficult to achieve, valid changes to the Constitution may be unlikely
Undemocratic outcome as majority of population may approve but due to state majority requirement may be unsuccessful
Time consuming and costly process
The only action the states can do is lobby strongly for their votes to vote ‘no’

Question 32

Strengths of the High Court acting as a check on parliaments law-making powers

Answer 32

Judges are independent and executive- decisions made are based on legal principles rather than political pressure
Law can be overturned by individuals who bring the case to the High court – judges are able to scrutinize laws made
Decisions are properly made as the judges have access to a range of legal resources and expertise
High Court can act as an independent check to confirm if there has been an abuse of power
Avoids challenged to laws being made too easily due to difficulty in bringing a case to the High Court

Question 33

Weaknesses of the High Court acting as a check on parliaments law-making powers

Answer 33

Judges can only rule on the facts of the case- cannot create general principle of law outside the immediate case
Cannot intervene unless a case is brought before the court
Cost of litigation can be expensive – so law may not be challenged
Decision may depend on the composition of the High Court justices – some more conservative
The High Court’s role is limited to interpreting the Constitution- they cannot change the words

Question 34

Strengths of express rights acting as a check on parliament’s law-making powers

Answer 34

They impose limits on parliament when making law in certain areas
High court can provide judicial check and declare law invalid
Cannot be removed by the Cth Parl – only by referendum
High court can act quickly in declaring ultra vires
Stability enables public to be aware of them

Question 35

Weaknesses of express rights acting as a check on parliament’s law-making powers

Answer 35

Can only be changed by referendum = limited chance for additional rights
Cost of initiating a court case is high
Limited in scop
Cth not prevented from passing laws that potentially contravene express rights- have to be challenged
Relatively few express rights compared to other countries

Question 36

Strengths of the separation of powers as a check on parliament’s law-making powers

Answer 36

Allows for the executive (govt) to be scrutinized by the legislature (parl)
Judiciary is independent
Ministers are subject to scrutiny and debate
When senate is controlled by opposition = greater scrutiny
Separation is entrenched in Constitution (difficult to change)

Question 37

Weaknesses of separation of powers as a check on parliaments law-making powers

Answer 37

Legislative and executive powers are combined in reality
Judges are appointed by executive = executive could be seen as influencing judiciary
Where govt controls the senate, there is far less scrutiny of bills
If opposition controls senate = obstruct bills for political gain (hostile senate)
Only provides for separation of powers at a federal level, no at state level

Question 38

Significance of section 7 and 24 of the Australian Constitution:

Answer 38

Section 7 – sets out matters related to the Senate
Section 24 – sets out matter related to the House of Representatives
- Both require the Commonwealth Houses of Parliament to be ‘directly chosen by the people’
- These two sections enshrine the system of representative government into the Constitution.
In a series of cases, including Roach v Electoral Commissioner (2007), the High Court has interpreted the words in these sections in relation to voting in general elections

Question 39

Roach v Electoral Commissioner (2007):
FACTS
OUTCOME
SIGNIFICANCE

Answer 39

• Facts: In 2006, the Electoral and Referendum Amendment Act 2006 (Cth) banned all prisoners from voting in elections. Under a previous act made in 2004, only prisoners serving sentences longer than 3 years were banned from voting. Vicki Lee Roach was serving a 6 year sentence and challenged the constitutional validity of both acts in the High Court.
• Outcome: the High Court found the 2004 Act to be valid but ruled the 2006 Act to be inconsistent with the principle of representative democracy established in sections 7 and 24 of the Constitution which require the parliament to be ‘directly chosen by the people’, which legally protects the right to vote. Chief Justice Gleeson ruled that the right to vote could be removed from prisoners for serious criminal misconduct but could not be removed for prisoners serving sentences less than 3 years. Ultimately ruling that the government should only restrict a person’s right to vote if it necessary to preserve a representative government.
• Significance: the high court:
• found the Cth parliament had acted unconstitutionally by denying prisoners the right to vote
• affirmed that there is a constitutionally protected right to vote which uphold the principle of representative government
• upheld constitutionally requirement that Commonwealth Parliament must be directly chosen by the people.
• held that sections 7 and 24 do not allow for unreasonable restrictions to be placed on the ability of people to vote
• performed an important check on executive and legislative power

Question 40

The 1999 Referendum on the Republic-
proposals
results

Answer 40

1) To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of members of the Commonwealth Parliament
Results = 58.87% voted against the proposed change; majority support was not gained in any states
2) To alter the Constitution to insert a preamble (an introductory part of a statute that outlines its aims and purpose
Results = 60.66% voted against the proposed change; majority support was not gained in any states

Question 41

why did the 1999 referndum fail?

Answer 41

• Australians are traditionally cautious of Constitutional change. The proposal to have a President was unfamiliar and caused concern among voters
• Public opinion varied on whether to have a President as head of state. Traditional monarchists argued that a constitutional monarchy provides stable government. This was enough for those in doubt to be convinced to maintain the status quo
• Even those who supported having a President though thought one should be elected by the people not the Commonwealth Parliament
• Leading up to the election, PM John Howard urged a ‘no vote’ on the basis of maintaining its ties with Britain
• The information sent out by the Australia Electoral Commission was extremely detailed, causing some voters to feel overwhelmed by the proposed change

Question 42

what was the significance of the 1999 referendum?

Answer 42

• Demonstrated the ability of the people to protect the Constitution from being changed
• Highlighted the importance of s.128 requiring the peoples support to alter the Constitution
• Clear that the majority of voters nationally and in every state wanted to maintain the current model of political system as set out in the Constitution
• Change would’ve substantially changed the way Australia is governed. Ultimately, the proposal, was supported by the Commonwealth Parliament, was not successful because it did not have the support of the Australian people
• Therefore, the referendum provided a check on the power of Commonwealth parliament

Question 43

The High Court and the division of law-making powers:

Answer 43

Section 75 of the Constitution gives the High Court the jurisdictions to hear cases involving:
- Disputes in which the Commonwealth parliament is a party, OR
- Disputes between states, or between residents of different states, or between states and a resident of another state
Consequently, the High Court has heard in relation to law-making powers and has made decisions in cases which have affected the division of powers between the Commonwealth and state parliaments. Since 1920 the High Court have had a tendency to grant additional powers to the Commonwealth, thus reducing the law-making powers of the states.

Question 44

External affairs power

Answer 44

under section 51 (xxix) the Commonwealth Parliament has the power to create laws in relation to ‘external affairs’. The commonwealth has relied on this power to pass legislation that reflects international agreements Australia has entered into. This gives the Commonwealth Parliament the power to make laws in areas of law-making which are neither exclusive nor concurrent areas of law (thus, potentially can legislate in an area of residual power if the treaty topic covers that area)

Question 45

• International treaties

Answer 45

A binding agreement between countries which is governed by international law.
Can be bilateral (between 2 countries) or multilateral (between 3 or more countries)
Step 1= sign the treaty- executive power (government)
Step 2= ratify the treaty- role of parliament (binds Australia under international law)
Step 3= pass domestic legislation- terms of treaty will not being law until parliament passes legislation that includes terms of treat
E.g. Refugee Convention + Australian passed the Migration Act (step 3)

Question 46

• International declarations:

Answer 46

A non-binding agreement between countries which set out certain aspirations or intentions of the parties to the agreement. Can be influential in the development of government policy and can lead to a treaty being made
E.g. the Declaration on the Rights of the Child 1959 became the Convention on the Rights of the Child 1989

Question 47

Limitations imposed on Commonwealth Parliament in relation to the external affairs power

Answer 47

• Extending beyond the Treaty: in the Tasmanian Dam case, the H/C also stated the CTH cannot legislate on matters which extend beyond the specific content of the treaty
• Bona fide agreement: the international agreement must be genuine
• Constitutional rights: CTH Parl is limited by express rights contained in the Constitution – can make legislation invalid if interfere with express rights
• Declarations v Treaties: so far the H/C interpretation have focused on external affairs power in relation to treaties only, not declarations. Therefore declarations may be a limitation on the CTH Parl’s use of the external affairs power to pass legislation. However, the H/C’s interpretation has been broad so it is likely that CTH laws are giving effect of international declarations are also likely to fall within the CTH’S external affairs power.