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.
S51 xxxi Right to receive ‘just terms’ when property is acquired by the Commonwealth
The Commonwealth must provide just terms when acquiring property which means they must may the person fair compensation (money). There must be a purpose for acquiring the property for example the building of an airport.
S80 Right to trial by jury for indictable Commonwealth offences
For an individual being brought before the courts and accused of a Commonwealth indictable offence such as treason, the accused person has the right to trial by jury.
HOWEVER: Most crimes come under state legislation and the High Court has also rues that ‘indictable’ means to be tried on ‘indictment’ therefore this right can be avoided.
S117 Right to be discriminated against on the basis of the state in which one resides
The Constitution states that no one shall be subject to discrimination based on what state you reside. This also applied to the state governments as well as the Commonwealth governments.
HOWEVER: Other specific discrimination is not protected under the Constitution.
High court
Established under s71 of the AC
S76 gives power to Commonwealth parliament to provide the HC with the jurisdiction to heat disputes arising under the Constitution or involving it interpretation
Roles of the High court
Act as guardian to the AC
- Explaining what the Constitution means and decides how it should be interpreted which can only be done by the HC, hence considered to be the ‘guardian’ of the AC
Acts as a check on any abuse of power
- Parties may feel like a state, territory, or Commonwealth parliament has made a law beyond its power and can initiate a legal case in the HC - rules depending on whether the legislation is constitutional or not.
Can only be done by a party directly affected by the law challenged (very expensive)
If a parliament has passed law outside its own power, then the High Court can declare the law ultra vires.
If the High Court declares legislation invalid the parliament’s options are:
• to amend the law so that the unconstitutional areas are removed from it
• to amend the Constitution, which would require a referendum.
Gives meaning to the words
- Needs to interpret and decipher the constitution and its written words and apply meaning of those words. The High Court must consider the facts of the case and decide whether a statute that has been passed is unconstitutional.
Advantages VS disadvantages of Express rights
Advantages
- Impose limits on parliament in law making
- Can only be removed by a referendum process
Disadvantages
- Limited ability to add further rights
- Cost of initiating a court action is high
- Can only be changed by a referendum
In the past HC has
Interpreted the Constitution to determine whether a law has been made within the parliament’s lawmaking power. In doing so, the High Court’s interpretation has at times shifted the division of law-making powers
Interpreted the Constitution and has implied rights within the Australian Constitution. The High Court has, in particular, found that there is a freedom of political communication, and a right that the Houses of the Commonwealth Parliament be directly voted for by the people.
Advantages VS disadvantages of High court
Advantages
- Judges are independent of parliament and free from political pressure thus decisions based on the principal of law.
- Allows public to pursue cases and have unconstitutional laws overturned
Disadvantages
- Judges can only rule the facts of the case brought before them
- Cannot intervene in dispute over parliament authority unless brought to the HC, Expensive and complex
How does the HC act as a check on parliament
In enabling the High Court to ascribe meaning to legislation the High Court is able to act as a check on parliament. This is as it ensures that the law is applied in accordance with the society upon which it is binding, ensuring its relevance and applicability to contemporary Australian society.
Further, High Court justice may comment obiter dicta their approval/disapproval of a particular law as to ensure that the gap between the legislative and judicial branches is kept to a minimum.
3 stages of double majority
1) The parliament: A bill setting out the proposed alteration is set out and must be passed through both houses of Commonwealth parliament. If the bill is accepted by one house and rejected by the other, after a period of 3 months it can be passed through the first house again.
2) The people: The proposed change is put to the people / voters no less than 2 months or no later than 6 months after the bill has been passed through parliament. The Referendum is submitted to all those electors who are required to vote for the election of members of the HOR in each state and territory. Yes of no vote required.
3) Double majority provision: For a referendum to be successful, it must receive a double majority. It must have the majority of Australia and 4 out of the 6 states in favour of the proposed change. A double majority protects the smaller states from being dominated by the larger ones.
4) Governor General: Royal assent is given by the Governor General and the wording of the Constitution will be changed, if not then sent back to parliament
Ensures that each state has an equal voice regardless of size and population
Double majority acting as a check on parliament
The double majority provision ensures that any proposed referenda has the support not only of the majority of Australian citizens, but also the majority of the Australian states and their state legislatures.
This ensures that it is not just left in the hands of Federal Parliament to approve or reject a proposal; as by the time it reaches Parliament, a proposal already has the support of the majority of the nation and state legislatures behind it.
Advantages VS disadvantages of the Double majority
Advantages:
- S118 allows the public control over change
- Requirement is strict
Disadvantages:
- Voters may not understand complexity of referendum
- Double majority requirement is difficult to achieve.
Referendum
A method used for changing the wording of the AC. A referendum requires a proposal to be approved by the Australians people in public vote by a double majority
