The people and the Australian Constitution SAC3 Flashcards
features of the westminster system
-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
name the constitution act
The Australian Constitution Act 1900 (UK)
key features of the constitution
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
role of the governor general
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.
house of represnetatives features
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
house of representatives role
-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
senate key features
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
senate role
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
who is the governor and what is their role?
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
the legislative assembly
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
he legislative council
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
what is representative govt
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
what is a responsible govt
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
name the constitution act
Commonwealth of Australia Constitution Act 1900 (UK)
what is the constiution
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
division of lawmaking powers
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
exclusive powers
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
specific powers
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
how are exclusive powers made exclusive
- exclusive because it is stated in s52 are exclusive
- 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 - 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.
concurrent powers
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
residual powers
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
residual powers and financial assistance from the cth
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
what is s109
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
impact of s109
- 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
bicameral structure of parliment as a check on parl in constitution
parliment consists of 2 houses in law decision mkaing process
bicameral structure of parliment as a check on parl in constitution
HOUSE OF REPRESENTATIVES
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
bicameral structure of parliament as a check on parl in constitution
HOUSE OF REPRESENTATIVES
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
bicameral structure of parliament as a check on parl in constitution
SENATE
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
bicameral structure of parliament as a check on parl in constitution
EVALUATE
+ 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
separation of powers as a check on parl in constitution
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)
separation of powers as a check on parl in constitution
how does this act as a check?
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
separation of powers as a check on parl in constitution
EVALUATE
+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
express rights
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
name the 5 express rights
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
acquisition of property on just terms
express rights as a check on parl
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
trial by jury for indictable cth off
express rights as a check on parl
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
trade and commerce between states shall be free
express rights as a check on parl
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
freedom of religion
express rights as a check on parl
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
how do express rights act as a check on parli
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
strengths of eright acting as a check on parl
erights can impose limits on parl law making eg s116 prohibits cth parl leg on practicing of any religion
limitations of erights acting as a check on parl
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
the high court acting as a check on parl
-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
the impact of high court descions
alter division of lawmaking powers
determine parl has acted beyond its juris (ultra viras)
provide finality of const matter
imply further rights
strengths of high court as check on parl
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
weaknesses of high court as check on parl
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
double majority requirement of referendum as check on parliament
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
double majority requirement of referendum as check on parliament
strenghts
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
double majority requirement of referendum as check on parliament
limitations
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
s24 and s7 what do they state
that members for house of representatives and senate that members directly chosen by the people
facts of roach case
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
what did roach case challenge
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
what did roach case high court decision
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
impact of high court decision roach
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
what were areas of const for 1967 referendum
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)
proposed changes of 1967 ref
IAs to be counted in national census
remove discriminatory provisions, to allow cth to leg on FNP like all australiasn –> concurrent power
results of 1967 ref
90.77% of pop yes and 6/6 states
reflected overwhelming comm support
impact of 1967 ref
s51 xxvi amended
s127 deleted
cth provide funding and legislate in areas of indig people
cth can direct goct spending towards indig affairs
R V BRISLAN
-facts of case
-high court decision
-impacts of decision
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
what are external affairs powers
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
s51 xxix re external affairs
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
impact of s51 on Australian law
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
tasdam case
facts
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
tasdam case
high court decision
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
tasdam case
impact of high court descion
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
