U4 4.1.6 - The means by which Australian constitution acts as a check on parliament in law-making

Question 1

What are the three means by which the Aus. Constitution acts as a check on parliament law-making?

Answer 1

The role of the High court in protecting the principle of representative government, the separation of powers, and the express protection of rights.

Question 2

Strengths of the ability of the High court to protect the principle of representative government

Answer 2

• The High court is independent of parliament and makes decisions based on legal principles not politics
• The High court allows a person with standing the opportunity to challenge laws infringing on these principles
• The High court and principle are written in the constitution and cannot be removed without a referendum

Question 2

The High court

Answer 2

The highest court in the justice system, established by the constitution.
jurisdiction includes: disputes arising under the constitution or involving its interpretation, matters in which the Commonwealth is a party, disputes between states.

Question 3

regarding the constitution, what can the High court not do?

Answer 3

change the words of the constitution, they can only give meaning to the words.

Question 4

How is representative government protected by the constitution?

Answer 4

• The High court restricted the ability of the Commonwealth parliament to make laws that infringe on the rights of people to vote in elections.
• The High court protected the ability of people to freely communicate on political matters, so they can make an informed choice when voting for their members of parliament.

Question 5

Limitations of the ability of the High court to protect the principle of representative government

Answer 5

• The high court is only able to interpret the words, they can’t add anything new that expressly provides a ‘right’ to vote.
• The High court can only intervene and protect the principle when a person with standing challenges the opposing law
• The decision of the High court can be influenced by its composition and the Justices at the time

Question 6

Separation of powers; what are the three powers?

Answer 6

Legislative, executive and judicial powers

Question 7

what are legislative powers?

Answer 7

The power to make laws
- Power is held by the parliament (the constitution specifically states that the legislative power of the commonwealth is vested in the federal parliament)

Question 8

what are executive powers?

Answer 8

The power to administer the laws and manage the business of government
- Power is held by the Governor General but in reality is carried out by PM, senior ministers and government departments

Question 9

what are judicial powers?

Answer 9

The power given to courts and tribunals to enforce law + settle disputes
- At federal level; Power is vested in the High court and other federal courts

Question 10

Why are the powers separated?

Answer 10

• Prevents powers from being concentrated to one body
• Helps protect the rights of individuals by providing checks and balances on the powers of parliament
• No one body can make, administer and enforce law

Question 11

Strengths of the separation of powers

Answer 11

• Courts can invalidate laws made if they are outside parliaments power to do so
• independence of judicial powers is important when the Commonwealth is a party in a case
• Separation of powers is written in the constitution and cannot be removed without a referendum

Question 12

Weaknesses of the separation of powers

Answer 12

• Judges are appointed by the executive so the government can choose the judges they want to serve on the courts
• The ability of the judiciary to act as a check on parliament depends on peoples willingness to challenge laws
• Separation of powers in the constitution is only applicable to the Commonwealth, not the states

Question 12

What is an express right?

Answer 12

an express right or explicit right is a right that is specifically listed in the constitution and can only be removed through the referendum process.

Question 13

What are the five express rights?

Answer 13

The right to;
-freedom of religion
-interstate trade and commerce
-receive ‘just terms’ when property is acquired by the Commonwealth
-the right to trial by jury for indictable Commonwealth offences
-not be discriminated against based on the state in which you reside

Question 14

How do the express rights act as a check on parliament?

Answer 14

-they act as an explicit check on the powers of parliament
-if a law made by a parliament infringes on an express right it can be declared invalid by the High court

Question 15

Strengths of the express protections of rights

Answer 15

• Puts limits on the parliaments law making scope
• The High court is independent and makes decisions without political pressure and risk of voter backlash
• Written in the constitution and cannot be removed without a successful referendum

Question 16

Weaknesses of the express protections of rights

Answer 16

-Limited in number and scope
-An infringing law can only be declared invalid after being challenged
- A challenge can only be made by a person with standing which is expensive and time consuming