The people and the Australian Constitution SAC3

Question 1

features of the westminster system

Answer 1

-the crown is head of state
-bicameral in structure meaning 2 houses
-parliament is the ultimate lawmaking authority
-parliaments action should be representative of the people
-parliament should be accountable and responsible for their actions

Question 2

name the constitution act

Answer 2

The Australian Constitution Act 1900 (UK)

Question 3

key features of the constitution

Answer 3

describes the composition and how cth parliament will function
identifies and describes the lawmaking powers of cth parliament
outlines the roles and powers of executive govt
outlines the roles and powers of the high court
outline 5 express rights of Australian people
defines the r/ship between state and cth parl in lawmaking

Question 4

role of the governor general

Answer 4

kings representative in Australia
represent the crown and exercise the powers and functions given to the crown under constitution, acts on advice from executive council

-give royal assent to cth bills making them into laws
-appoint times of holding parliament sessions
-dissolve the HoR or senate and bring an election
-perform ceremonial roles, official opening and closing of court each year.

Question 5

house of represnetatives features

Answer 5

lower house
151 seats
each member/seat represents an electorate w approx same number of votes
voters elect on member for their electorate held every 3 yrs
designed to rep interest of people as the peoples house
political party w majority seats forms govt and leader becomes pm

Question 6

house of representatives role

Answer 6

-determining government, parties with majority seats in lower house forms govt, party must maintain support of majority of members in lower house
-providing representative govt, elected members represent approx same number of votes in each electorate
-providing responsible govt, indiv members have the opp to present the views of their electorate by presenting petitions or raising issues w ministers in question time

Question 7

senate key features

Answer 7

upper house
12 members for each state and 2 from each territory
allowing each state to have equal say in law making processes regardless of pop size

-senators directly elected by voters
-exception of financial bills senate has equal power to those of HOR making laws
equal senators from each state allows laws to be equally reviewed by each state

Question 8

senate role

Answer 8

main role is to uphold views of state w making laws

-reviewing legislation, senate reviews leg passed by HOR, often senate scrutinizes legislation as ‘house of review’, can originate, amend or reject any proposed law
-providing for representative government, a function of senate is to safeguard interests of states, as each state elects equal no of senators = equal rep amongst states regardless of pop size
-providing for responsible govt, parties formed govt do not need majority in senate, meaning may need to negotiate w other parties to ensure leg is passed, senate can present petitions and raise issues in question time

Question 9

who is the governor and what is their role?

Answer 9

the kings representative at a state level, w similar role to governor general who
- appoints minsters
-grants royal assent to legislation
-appoint parliament sitting times
-dissolve parliament to bring about an election

Question 10

the legislative assembly

Answer 10

lower house of vic parliament, with 88 members each elected by electorate w approx. 50 000 members, elected for 4 years
role-
-represent the interests of people who elected them into power
-form govt whereby leader of party becomes premier
-lawmaking where they consider and debate bills
-uphold representative govt
-uphold responsible govt

Question 11

he legislative council

Answer 11

upper house of vic parl w 40 members for 8 year term, voted by regions w electoral districts
roles-
-scrutinizing bills form leg ass
-representing their regions diff interests
-debating laws and amendments

Question 12

what is representative govt

Answer 12

notion that members of parliament must act in a away that reflects the views and values of the people who voted them into powers, decisions could align with what the community believes a priority. if mps x act in rep manner then may x be reelected
eg.
-passing a leg in response to com pressure
-introducing policies in response ot com needs

Question 13

what is a responsible govt

Answer 13

govt acting in a way that makes them accountable and answerable of their actions, expected to behave in an honest and moral manner
eg.
-providing leadership and being accountable for their actions
-participate in answering questions

Question 14

name the constitution act

Answer 14

Commonwealth of Australia Constitution Act 1900 (UK)

Question 15

what is the constiution

Answer 15

document setting out the fundamental principles and issues by which a country is to be governed, it establishes the structures of parliament, lawmaking powers as well as limitation, checks and balances and rights of the people.

eg.
how MPs are chosen
areas of lawmaking powers
how the constution can be changes
role of the High Court

Question 16

division of lawmaking powers

Answer 16

it recognizes that within the nine parliaments each parliament is the supreme law making body when acting within its jurisdiction
areas of lawmaking that are allocated to commonwealth and states to legislate within and their jurisdiction

Question 16

exclusive powers

Answer 16

areas of lawmaking that only com parl can legislate within, meaning cth parl has the authority and that the power is NOT shared
section 52
eg immigration, military and currency

Question 17

specific powers

Answer 17

those that are enumerated, listed, specified in the cons as belonging to the com parl
specifically mentioned in s51 cth can legislate in these areas

eg taxation, immigration , defense

Question 18

how are exclusive powers made exclusive

Answer 18

1. exclusive because it is stated in s52 are exclusive
2. exclusive by their nature, some powers are exclusive to cth due to nature of what they are referring to - b/c only cth can leg in
   eg. s51 iv borrowing money on public credit of cth
   s 51 xxxii control of railway for defense purposes
3. exclusive because states are prohibited from legislation
   s51 xii currency, coinage and legal tender, s115 a state shall not coin money
   s51 vi naval and military defense s114 a state shall not raise or maintain a naval or military force.

Question 19

concurrent powers

Answer 19

specified in the const and given to the commonwealth howver not been made exclusive therefore states can leg in these areas
shared between the cth and state

Question 20

residual powers

Answer 20

not specified in const and t/f belong ot the states and terriotires, do not have the jurisdiction to make laws on these matters unless states hand over these laws

Question 21

residual powers and financial assistance from the cth

Answer 21

s96 allows cth parl to make grants of money, and when they do it can impose conditions in the way in which the state spends that money

Question 22

what is s109

Answer 22

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

meaning when there is an inconsistency b/w the state leg and cth leg, the cth leg prevails and the state leg to the extent of inconsistency is invalid

Question 23

impact of s109

Answer 23

• if there is a conflict or inconsistency between state and cth in areas of concurrent power, the cth law will prevail
  -the inconsistency must be challenged or an indiv/group before the powers of s109 is enforced, meaning that no challenge = both laws will coexist

-if a state attempts to legislate in an area of concurrent powers, but a cth law already exists states are restricted from doing so.
s109 is only a restriction if there is an inconsistency or overlap
-inconsistency only applies to particular words or phrases that overlap not the whole act

Question 24

bicameral structure of parliment as a check on parl in constitution

Answer 24

parliment consists of 2 houses in law decision mkaing process

Question 25

bicameral structure of parliment as a check on parl in constitution

HOUSE OF REPRESENTATIVES

Answer 25

151 members in the LH partiicpate in debates and scrutinizing of bills
LH members are held accountable for actions causing transparency (resp govt)
elections every 3 years provide opp to chnage or elect new govt
must maintain confidence of party and if X may be forced to resign

Question 26

bicameral structure of parliament as a check on parl in constitution

HOUSE OF REPRESENTATIVES

Answer 26

151 members in the LH partiicpate in debates and scrutinizing of bills
LH members are held accountable for actions causing transparency (resp govt)
elections every 3 years provide opp to chnage or elect new govt
must maintain confidence of party and if X may be forced to resign

Question 27

bicameral structure of parliament as a check on parl in constitution

SENATE

Answer 27

once a bill successfully passed LH req receive support from UH and then royal assent
UH members from each state ensuring voices of states fairly heard rather than LH likely made mostly vic and nsw
if opp has majority in UH, then LH provides more balanced approach as senate may choose x pass bill

Question 28

bicameral structure of parliament as a check on parl in constitution

EVALUATE

Answer 28

+ structure allows revise as bill needs to pass 2 houses w scrutiny and debate t/f req high level of scrutiny ensuring laws are just
+ hostile senate, if senate x same party as govt then likely scrutinize bills to rep ppls voices

• rubber stamp effect, same party in LH and UH then easily pas likely to support their party
• debate stall causing delays, minorities and indep may reject or mkae amendments causing bills to be watered-down

Question 29

separation of powers as a check on parl in constitution

Answer 29

power is not concentrated in one body as shared between legislative function ( make laws -parl ), executive function (implement and administer) and judicial function (enforce and settle disputes - courts)

Question 30

separation of powers as a check on parl in constitution

how does this act as a check?

Answer 30

legislative function bills are scrutinized, challenged
3 separate powers allow power to not be concentrated and shared amongst 3 to minimize abuse and corrupt
courts are indep so not politically pressured

Question 31

separation of powers as a check on parl in constitution

EVALUATE

Answer 31

+Allows legislative to be scrutinized by executive, can refuse pass law if inapp
+ judiciary is indep to parl and govt so judges indep interpret and apply law
-leg and ex is combined reducing sep powers b/c practice administer law carried out by parl
- judges appointed by executive, may infl composition of benches in sup courts

Question 32

express rights

Answer 32

clearly stated in written in constitution –> x changed wihtout referendum
enforceable by high court, cth and state parl x pass law that infringes on 5 express rights

Question 33

name the 5 express rights

Answer 33

acquisition of property on just terms
trial by jury for indictable cth off
trade and commerce between states shall be free
freedom of religion
freedom from discrimination based upon state reside

Question 34

acquisition of property on just terms

express rights as a check on parl

Answer 34

s51 provides cth can aquire land if circumstances cth needs to incl
within areas in which it can make laws
cth must show just terms provide fair and reasonable comp

eg expansion of international airport

Question 35

trial by jury for indictable cth off

express rights as a check on parl

Answer 35

s80 rights to trial by jury for offences under cth law which are indic
acc person cannot elect trial by judge alone for any cth offence
majority verdict cannot beused for cth offences

eg child sex offences in foreign countries

Question 36

trade and commerce between states shall be free

express rights as a check on parl

Answer 36

s92 trade bw states shall be free of customs, taxes and import duties

freedom relates to trade, commerce and communications
x provide absolute guarantee of freedom of movement

Question 37

freedom of religion

express rights as a check on parl

Answer 37

s119 cth cannot make law to create national religion, impose any religion observance, prohibit right to free exercise of nay religion, no religious test is to applied as a qualification for public offence

cth cannot estbalish rel but can assist in practice by proviidding financial assiatance to religious schools
only cth limited in national security to ensure people follow ordinary laws of commmunity

Question 38

how do express rights act as a check on parli

Answer 38

erights are enrenced in const t/f not makr laws which infirnge on erights
safeguarded by high crt, det leg invalid if infringe e rights
stability and security over personal political freedom as req ref

Question 39

strengths of eright acting as a check on parl

Answer 39

erights can impose limits on parl law making eg s116 prohibits cth parl leg on practicing of any religion

Question 40

limitations of erights acting as a check on parl

Answer 40

only 5 rights for futher protection in right req referendum
x prevent parl pass laws, x stop process of parl legislating, x come into effect unitl challenged

Question 41

the high court acting as a check on parl

Answer 41

-guardian of const, hc can determine disputes re wording of the const in cl interpretation as guardian or protection of const
- acts as a check on abuse of power, indiv, groups can take a matter to the high crt that parl has acted beyond jurisdiction - ultra vires
-provide meanings to words within the const, when case comes before high crt can apply meaning to the const to decide
interpret to det if made in parl jurisdiction
-interpret const and has implied rights

Question 42

the impact of high court descions

Answer 42

alter division of lawmaking powers
determine parl has acted beyond its juris (ultra viras)
provide finality of const matter
imply further rights

Question 43

strengths of high court as check on parl

Answer 43

judges are politically indep, appointed not elected t/f x face political pressures, and makes decisions based on legal principles
s76 and s72 det high court safeguard of const, allowing indiv an avenue to bring matter to hc

Question 44

weaknesses of high court as check on parl

Answer 44

judges can only rule and establish common law on facts of case t/f not on general principles beyond case
cannot intervene unless brought to hc but isexpensive and time cons
limited to intepret const x chaning wording

Question 45

double majority requirement of referendum as check on parliament

Answer 45

a128 of const if successful will allow const wording to be changed
but req double majority meaning a yes vote of more than 50% of Australian voting pop and voter majority of stares 4/6

Question 46

double majority requirement of referendum as check on parliament

strenghts

Answer 46

s128 of const allow people involvement tin chanign const
protects smaller states as req state majority
compulsory vote t/f all eliglbe voters have power and impact
double majority is strict and diff t/f stable

Question 47

double majority requirement of referendum as check on parliament

limitations

Answer 47

complex wording may cuase people to not understand and may vote now if reluctant to initiate change
time consuming and costly
difficult ot achieve majority even inf strong desire to change may x occour as valid chnages are limited and req overwhelming support
increaidng power to cth parl if about increasing power to cth then some states may disagree and encourage no but limtied actions states can do

Question 48

s24 and s7 what do they state

Answer 48

that members for house of representatives and senate that members directly chosen by the people

Question 49

facts of roach case

Answer 49

roach challenged constitutional validity of cth act 2004 banning those serving 3yr sentence in prison from voting, 2006 prohibit all poisoner from votings

roach clariyfied whether const protect the right to vote

Question 50

what did roach case challenge

Answer 50

challenge leg stopping her from voting possible issue associated with applying the training principle of variety is
argued that complete ban in 2006 was invalid b/c interferred with representative govt s7 and s24 b/c x directly chosen by the people

Question 51

what did roach case high court decision

Answer 51

high court req for representative govt, restriction on parl power to decide who may vote
high crt found inconsis w principle rep govt as s7 and s24 “directly chosen by the people….’
high court protection right for aus adults to vote
complete ban 2006 is invalid, 2004 is valid

Question 52

impact of high court decision roach

Answer 52

affifmed const right to vote = protected by rep govt in s7 and s24 t/f s7 and s24 act as limit parl on leg re voting parl x leg on right to vote w/o good reason
high court acted as check on lawmaking power
held s7 and s24 allow unreasobale

Question 53

what were areas of const for 1967 referendum

Answer 53

s51 xxvi regarding cth parl being prohibited from legislating on fnp, instead is residual power for states
s127 aboriginal people to not be counted in reckoning pop (census)

Question 54

proposed changes of 1967 ref

Answer 54

IAs to be counted in national census
remove discriminatory provisions, to allow cth to leg on FNP like all australiasn –> concurrent power

Question 55

results of 1967 ref

Answer 55

90.77% of pop yes and 6/6 states
reflected overwhelming comm support

Question 56

impact of 1967 ref

Answer 56

s51 xxvi amended
s127 deleted

cth provide funding and legislate in areas of indig people
cth can direct goct spending towards indig affairs

Question 57

R V BRISLAN
-facts of case
-high court decision
-impacts of decision

Answer 57

FACTS
brislan charged due to not owning license for wireless as Wireless Telegphray Act 1905 cth
B challenged cth leg as argued not within power
s51 gave cth power to make law re ‘postal, telegraphic, telephonic & other services’

DECISON
hc interpreted meaning of like services in s51 to include wireless t/f wireless telegraphy act was valid

IMPACT
commonwealth widened scope of s51 and expanded cth power in regards to electronic communications
shift div to cth as cth can now leg re broadcasting and wireless as concurrent power

Question 58

what are external affairs powers

Answer 58

the ability of the commonwealth to make laws to implement international treaties and declaration ( power to manage aus affairs international law
treaties/conventions are formal agreements b/w 2 nations and are legally binding abt international law
decl = not intended to be binding instead aspirations or goals bu tnot bound

Question 59

s51 xxix re external affairs

Answer 59

cth has power to make always with respect to external affairs

cth has power to enter into international decl and treaties as executive power
cth has power to implement international decl adn treaties as legislative power
cth power to legislate with respect to external affairs

Question 60

impact of s51 on Australian law

Answer 60

all treaties must be tables in both houses of cth at least 15 sitting days prior to cth agreeing to ratify where they confirm the features and give approval - exectuive can remove
international treaty is not australian law only is australian parl passes an act

Question 61

tasdam case

facts

Answer 61

tas govt wanted to build a dam on gordon franklin river
this would lead to destruction of sig cultural sights and flora/fauna
to prevent this cth passed World Heritage and Convention Act 1983 cth
this prevented the clearing excavation and building of dam in protected site

Question 62

tasdam case

high court decision

Answer 62

high considered cth arg has ability to leg in dam building n s51 of const as allowed if authority to make law for areas of national concern
hc decided external affairs gave power to cth to make laws to fulfil aus oblig under international treaty
as aus signed onto to protect world heritage listed sites t/f aus was within jurisdiction to leg within this area

Question 63

tasdam case

impact of high court descion

Answer 63

hc shifted lawmkaing power from states in relation ot residual powers to cth where international treaty
t/f broadened cth lawmkaing powers in areas of residual powers meaning if cth is able to demonstrate basis for leg is to uphold treaty under their power of external affairs, they have ability to infringe upon res powers