U4 AOS1: Australian Constitution acting as a check on parliament law making Flashcards
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<p>Bi cameral structure of Commonwealth Parliament</p>
Has an upper and lower house, specified in s1 of the AC.
Designed to act as a check on parliaments law-making role. Senate acts as a ‘house of review’ and ‘states house’
Most bills are introduced into the lower house, which means that the Senate will, act as a house of review and as a state’s house. This means that the Senate’s role is to review bills already passed by the lower house. It also means that when reviewing bills, senators should in theory vote the interests of their state.
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<p>Legislative powers</p>
The power to make laws, resides with the parliament
- s1 of the AC states that at federal level the legislative power shall be vested in the federal parliament
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<p>Executive powers</p>
The power to administer the law and manage the business of government.
- Vested in GG under chapter 11 of AC
- S61 states that the executive powers of the Commonwealth are vested in the Queen, only exercisable by the GG
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<p>Judicial powers</p>
The power given to the courts and tribunals to enforce the law and settle disputes
- Under chapter 3 of the AC, vested in High court and other federal courts
- L & J must be kept seperate. only a court or tribunal has the power to decide of a law (made by parliament) has been contravened
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<p>Express protection of rights</p>
Express right: A right that is specifically listed in a document or constitution
AC contains 5 express rights are entrenched in the Constitution (can only be amended or removed by referendum)
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<p>Double majority</p>
S128 - Sets out that the Australian Constitution can only be changed through a referendum (double majority process) The referendum process acts as a restriction on the powers of parliament, because the Commonwealth Parliament cannot change the Constitution outside of this process thus acting as a check on parliament power.
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<p>Stages of passing a bill through parliament</p>
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1) Introduction and first reading
- Bill is introduced and title is read out
2) Second reading
- Bills purpose is explained debated and voted on
3) Committee/consideration in final stage
- Bill is considered in detail, clause by clause, amendments most likely to occur during this stage
4) Third reading
- Bill is voted on in final form
5) Bill passes through first house
6) Same procedure
7) Royal assent
- The Queens representative (GG = Federal, G = at state) signs and approves bill before becomes law
8) Proclamation
- The act comes into operation
9) Bill becomes a law
Strengths of bicameral parliament
- Allows for a review of legislation by second house (errors and omissions identified, this scrutiny allows to check on abuse of power)
- If Gov holds slim majority, allows for considerable debate in lower house, ensuring that bills truely reflect the V&V Of royal commissions
- Hostile senate - Gove, doesn’t control senate and/or large number of minorities / independents, more likely to review bills passed through lower house more carefully increasing the efficiently of the checks
Weaknesses of bicameral parliament
- If gov holds majority in lower, debate and negotiations unlikely to occur deceasing checks
- when Gove controls upper house - ‘rubber stamp’ Confirming the decisions made in the lower house dilutes the checks the upper house has
- Increase in minor parties / independents in Senate does ensure robust debate and views, but could stall lawmaking or lead to ineffective laws (laws with substantial amendments) to satisfy these parties
Separation of powers
A doctrine established by the AC that ensures the three powers of our parliamentary system (Executive, legislative and judicial) remain seperate. The principle provides a set of checks and blanches to ensure that no single body has the power to make, implement, apps and interpret laws.
Strengths of Separation of powers
- Allows for executive to be scrutinised by the legislature. Provides checks and balances in that legislature, the law-maker can refuse to pass legislation that is inappropriate
- Judiciary is independent of parliament of gov. Independence is vital - Commonwealth is party in court case
- Entrenched in the AC. Abolish would require a referendum
Weaknesses of Separation of powers
- Gov controls the Senate - less scrutiny applied to the laws and therefore the excursive of legislative power E and L combined
- Judges appointed by the executive. May result in the perception that the executive is influencing the composition of the benches of superior courts
- AC only provides separation of powers at federal level and not state
Express rights
S116 Freedom of religion
S92 Right to free interstate trade and commerce
S51 xxxi Right to receive ‘just terms’ when property is acquired by the Commonwealth
S80 Right to trial by jury for indictable Commonwealth offences
S117 Right to be discriminated against on the basis of the state in which one resides
S116 Freedom of religion
The Constitution prohibits the Commonwealth from making laws regarding religion. This ensures that an individual has the right to practice and choose their own religion.
HOWEVER: The Constitution only restricts the Commonwealth parliaments from passing laws regarding religion and does not restrict the states.
S92 Right to free interstate trade and commerce
Trade between states must be free. This is an economic right. This prevents the trade out of states being different to within the state.
HOWEVER: There are some restrictions.