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Question 1

Bicameral parliament

Answer 1

• Refers to having two different chambers or houses
• On a Commonwealth level
  
  • Upper: the Senate
  • Lower: the House of Representatives
  • King’s representative: Governor-General
• On a State level
  
  • Upper: Legislative Council
  • Lower: Legislative Assembly
  • Kings’s representative: Governor

Note: the lower house always has more seats; party with most seats in the lower house forms (either the Federal or State) governemt.

Question 2

The division of law-making powers

Answer 2

• Is the constitutional division of law-making powers between the Commonwealth and state parliaments.
• Avoids any abuses of power and shares the responsibility of law-making amongst different law-making bodies.
• Three types:
  
  • Exclusive
  • Concurrent
  • Residual

Note: if listed in the Constitution = belongs to the Commonwealth government

Question 3

Exclusive powers

(NOT to be confused with EXECUTIVE power)

Answer 3

• Law-making powers that only the Commonwealth are granted; exclusively listed in the Constitution.
• For example, laws about:
  
  • Currency
  • Customs and border protection
  • Medicare

Must know examples

Question 4

dua

Concurrent powers

Answer 4

• Law-making powers that are granted to both the Commonwealth and the State
• Any laws that are not listed as exclusive to the Constitution
• Means that state and federal laws may conflict (which is where section 109 becomes important)
• For example, laws about:
  
  • Marriage and divorce
  • Taxation
  • Banking

Must know examples

Question 5

Residual powers

Answer 5

• Law-making powers that are not granted to the Commonwealth Parliament in the Australian Constitution and therefore belong to the State Parliaments
• For example, laws about:
  
  • Education
  • Criminal law
  • Police

Must know examples

Question 6

What does Section 109 of the Constitution state?

Answer 6

• Inconsistency of laws
  
  • 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 7

Explain the significance of section 109

Answer 7

• Resolves inconsistencies
  
  • Once the law has been challenged before the courts, the Commonwealth law will prevail and the inconsistent section of the state law will be declared invalid.
• Restricts the law-making powers of the states
  
  • In regards to concurrent powers
  • Whilst states retain the ability to pass laws on these matters, their ability to maintain these laws can be limited. This is because any part of state law that is inconsistent with federal law, will be declared invalid when challenged in the courts.

Question 8

A political party

Answer 8

• Is an organisation that represents a group of people with shared values and ideas, and which aims to have its members elected to parliament.

Question 9

A coalition

Answer 9

• Is an alliance or joining together of two or more political parties, usually to form government.

Common in a ‘hung parliament’

Question 10

The House of Representatives (HoR)

Answer 10

• Composed of 151 members, each one representing one of Australia’s electorates
• The party or coalition that holds the majority of seats in the HoR forms the Australian Government, and their leader becomes the Prime Minister.

An electorate is a geographical area of Australia

Question 11

Three roles of the HoR

Answer 11

• Make and initiate laws
  
  • They can
• Determine the government
  
  • When a political party holds a majority of seats in this House after an election they become the Federal government.
• Control government expenditure
  
  • They can initiate money bills for taxes to be collected and money to be spent

Only both lower houses can control government expenditure

Question 12

Roles of the Crown in law-making

Answer 12

• To grant royal assent
  
  • The Governor-General will sign a bill on behalf of the
    Crown after it has been approved by both Houses of the
    Commonwealth Parliament. This is the final step for a bill to become law and usually happens on the advice of the prime minister.
• To withhold royal assent if appropriate to do so
  
  • This means that they have the authority to not grant royal assent on laws. However, this is rare.
• Appoint the Executive Council

Question 13

What are the three ways in which the Australian Constitution acts as a check on Parliament?

Acting as a ‘check on Parliament’ refers to limiting the law-making powers of Parliament to ensure there is no misuse of power

Answer 13

• (H)ave (S)ome (E)tiquette:
  
  • The role of the High Court in protecting the principle of representative government.
  • The separation (NOT division) of Legislative, Exclusive and Judicial powers.
  • The express protection of rights.

Question 14

What is the principle of representative government (RG)?

Answer 14

• The notion that members of Parliament are elected by the people to make laws and represent them on their behalf in Parlianent.
• Enshrined in section 7 (the Senate) and section 24 (the House of Representatives) – which are chambers ‘directly chosen by the people.’

Question 15

Explain the role of the High Court in protecting the principle of RG

With reference to Sections 7 and 24 of the Constitution

Answer 15

• The High Court interprets the meaning of sections 7 and 24 to uphold the principle of RG. They:
  
  • Restrict the ability of Parliament to make laws that infringe on rights of people to vote
  • Protect the ability of people to freely communicate on political matters so that informed votes can be cast during elections.

Question 16

3 strengths in the ability of the High Court to protect the principle of RG (and, consequently, restrict Parliament).

For ‘evaluate’ task word

Answer 16

• Judges are independent of the executive and legislature.
  
  • This means that decisions on cases are based on legal principles alone rather than political pressure, so processes that promote the principle are more likely to upheld, even if they are contrary to the will of Parliament.
• The establishment of the High Court is enshrined in section 71, while the principle of RG is enshrined in sections 7 and 24.
  
  • This means that a successful referendum would be required to abolish these sections, which is highly unlikely.
  • Also means that the wording of s7/24– ‘directly chosen by the people’– is clear and will be interpreted by the High Court for a long time.
• The existence of the High Court allows those whose rights have been infringed to bring the case to court and have the law overturned.
  
  • Keeps Parliament accountable for legislation

Note: executive refers to the government, legislature refers to Parliament

Question 17

Weaknesses in the ability of the High Court to protect the principle of RG.

For ‘evaluate’ task word

Answer 17

• Judges can only rule of the facts of any given case.
  
  • This means that they cannot create general principles of law outside of the case, which limits their ability to protect the principle of RG more broadly if the case brought to them does not address issues relating to it.
• The High Court is limited to interpreting the Constitution.
  
  • This means that they cannot change wording or add words, even if the section is vague and they need to clear up wording, unless a successful referendum takes place.
  • Also means that interpretations are subject to change, such as the ability of people to vote in elections and the extent of the freedom of political communication, if a future High Court interprets the Constitution differently.
• Unless a case is brought before them by a person with standing (i.e. directly affected; rights infringed) then nothing can be done to change the law
  
  • As High Court can be expensive, it means those not willing to pay will not have their rights addressed.
• In order to challenge a law in the High Court, a person must have standing.
  * Laws created by parliament that infringe on rights may therefore, remain in force if no one has the standing or financial means to bring it before the court to have their rights addressed.

Question 18

Explain the separation of Executive, Legislative and Judicial powers

Define + who it is vested in according to the Australian Constitution

Answer 18

• The Constitution establishes three separate types of power within our parliamentary system:
  
  • Executive power is the power vested in the Gov-Gen to administer law and manage the business of government
    
    • However, in practice, it mostly done by Cabinet (i.e. Prime Minister, senior ministers and government departments).
  • Legislative power is the vested in Parliament to make laws
    
    • Includes the Senate and HoR
  • Judicial power is the power vested in courts and tribunals to enforce the laws and resolve legal matters

Question 19

Key reasons for the separation of powers

Answer 19

• Prevents any abuses of power by bodies involved in the creation of laws and the administration of justice
• Upholds the rule of law and ensures one body cannot simultaneously make, administer, and apply the law
• Ensures parliament cannot prosecute and adjudicate legal matters, the same way judges cannot hold seats in parliament where the laws are being made.

Question 20

How do the Executive and Legislative powers overlap?

Answer 20

• The power to manage the business of government and administer the law (executive power) resides with Cabinet, which is also involved in creating legislation (legislative power).
• Therefore, in practice, it is Cabinet that exercises executive powers, as opposed to the Governor-General.

Question 21

Strengths in the ability of the separation of powers to act as a check on parliament

Answer 21

• The judiciary is independent of the parliament and the government.
  
  • Means the decisions of judges are not based on political pressures
• Despite the overlap between the executive and legislative powers, the Ministers are subject to scrutiny in parliament during Question Time where the opposition tries to expose flaws and pick apart bills.
• The judiciary have the power to declare any laws ‘ultra vires’ if it has been passed by the Commonwealth Parliament beyond their law-making powers in the Constitution.
  
  • This restricts the Commonwealth Parliament’s legislative power, ensuring it cannot legislate outside the scope of its exclusive and concurrent powers.

Question 22

Weaknesses in the ability of the separation of powers to act as a check on parliament

Answer 22

• Though the judiciary must remain completely
  independent, judges are appointed by the executive.
  
  • Consequently, the composition of the judiciary may be somewhat influenced by the political motivations and values of the executive of the day.
• The legislative power and the executive power are combined.
  
  • This decreases the ability of the separation of powers principle to restrict the powers each arm have - if there is a rubber stamp situation, it becomes even more detrimental.
• In order to challenge a law in the High Court, a person must have standing.
  
  • Laws created by parliament that are invalid may therefore, remain in force if no one has the standing or financial means to bring an allegedly invalid law before the court and have it deemed ultra vires.

Question 23

Tasmania Dam Case

Answer 23

• Treaty signed by Australia was the World Heritage Convention, which sought to protect World Heritage areas
• The Tasmanian government sought to build a dam in an area listed in the World Heritage List, passing the Gordon River Hydro-Electric Power Development Act 1982 (Tas), which was within their residual powers.
• The World Heritage Properties Conservation Act 1983 (Cth) was introduced and prohibited the Tasmanian government from constructing the proposed dam.
• Tasmania argued that the passing of this law was unconstitutional and that it was within their residual power to continue construction of the dam.
• The Commonwealth government brought it to the High Court.
• The High Court decided that the extent of the Commonwealth’s obligations extended to protecting national heritage areas under the World Heritage Convention (or any international treaties), which comes under section 51 (xxix) – external affairs. Section 109 meant that the Commonwealth Act prevailed, rendering the Tasmanian Act inoperable.

Question 24

Strengths in the ability of express rights to act as a check on parliament

Answer 24

*

Question 24

Significance of the Tasmania Dam Case

Answer 24

• The High Court ruled that where the Commonwealth had signed a treaty, it could also create law based on that treaty, even in areas considered residual powers belonging only to the states. This significantly enhanced the ability of the Commonwealth to legislate on matters of international concern, such as the environment.
• The majority judges delivered a broad reading of the external affairs power in the Constitution.
• Since this precedent was created, it has been reaffirmed by the Court in a number of cases, such as Richardson.
• The significance of this decision is enhanced by the fact that any Commonwealth law made on the basis of a treaty will make invalid any state legislation that is inconsistent with the Commonwealth law.

Question 25

Express rights

Answer 25

• An express right (i.e. explicit; entrenched right) is a right that is specifically listed in a document or constitution – relates primarily to how to run a country.
• The Australian Constitution contains five express rights.
  
  • Though we do not have a bill of rights, most of our rights (i.e. the Human Rights Charter) exist within common law → can be abolished by the Commonwealth Parliament at any time.
  • Freedom of religion
  • Trade within the Commonwealth
  • Acquisition of property
  • Trial by jury
  • Discrimination by state

Question 26

Referendum

Answer 26

• A referendum is a national vote, in which the whole country needs to vote either yes or no towards the proposed changes to the Constitution.
• It relies on a double majority, meaning that over 50% of the whole country must vote yes, as well as over 50% of the voters in 4 out of the 6 states confirming the changes.
• This is only put to the whole nation after it is passed through both houses of federal parliament, meaning it could take years before it gets to the people after both houses have read, debated and voted on the changes.

Question 27

Rubber stamp

Answer 27

• A term used to describe a situation in which the upper house of parliament automatically approves decisions made in the lower house because the government holds a majority of seats in both houses and members of the government generally vote along party lines.

Question 28

Hostile upper house

Answer 28

• • A situation in which the government does not hold a majority of seats in the upper house and relies on the support of the opposition or crossbench to have their bills passed

Question 29

Limitations on the ability of the Commonwealth to make laws in relation to the external affairs power

Answer 29

• The High Court has held that the Commonwealth cannot make laws that expand beyond what is in
  the treaty. That is, the law must conform to the treaty.
• The power does not enable the Commonwealth to make laws that infringe on express rights
  (which you will learn about in Chapter 11). If legislation was passed by the Commonwealth which did infringe on an express right, such as the limited right to freedom of religion, the legislation is likely to be found invalid.
• The treaty must be bona fide or genuine (though it is very unlikely that an international treaty would not be genuine or real, and so this issue is unlikely to arise).
• The Commonwealth’s ability to make laws in relation to residual areas of power does not take those powers away from the state entirely. The states retain their law-making power, such as in relation to the environment, but their use will be limited where, for example, the Commonwealth legislates in that area in relation to a treaty obligation.

Question 30

Strengths of a bicameral parliament

Answer 30

• In a hostile upper house situation;