U4 AOS1 The Parliament & The People (2)

Question 1

List 3 roles of the Legislative Assembly in law-making

Answer 1

Initiating most new legislation, and initiating all legislation that imposes taxation or spends Victorian government revenue, as the Victorian Constitution explicitly prevents such billing being initiated in the Legislative Council;

Representing the people in law-making, as the members of the Legislative Assembly are directly chosen by the people in their community, therefore as representatives of that community they should reflect the opinions of those within their electorate when introducing, debating or suggesting amendments to legislation. If they fail to do so they risk being voted out of office at the next election;

Providing responsible government;

Controlling government expenditure;

Question 2

List the types of powers in the division of powers

Answer 2

Exclusive, concurrent, and risidual;

Question 3

Describe exclusive powers, where it is protected in the Constitution, and examples

Answer 3

Law-making powers granted only to the Commonwealth Parliament, as the state parliament are not permitted to pass legislation on these matters. For example, the control of armed forces protected by section 51 (vi), 52 and 14 of the Consitution.

Question 4

Describe concurrent powers, where it is protected in the Constitution, and examples

Answer 4

Law-making powers granted to Commonwealth Parliament that are shared with the state parliaments. That is, both Commonwealth and the states pass laws in areas of concurrent power. Protected by section 51 of the Constitution. For example, railway construction, banking and marriage.

Question 5

Describe risidual powers, where it is protected in the Constitution, and examples

Answer 5

Law-making powers not granted to the Commonwealth Parliament in the Australian Constitution, that are the responsibility of the state parliaments. Protected by sections 106-108 of the Australian Constitution. For example, criminal law, roads, and education.

Question 6

What is the meaning of section 109 of the Australian Constitution?

Answer 6

If an inconsistency arises between state and Commonwealth legislation, the timing of each law’s creation is irrelevant. As if they are in conflict with one another, the Commonwealth law will prevail to the extent of the inconsistency. Meaning only those sections of state law that are inconsistent with Commonwealth law will be declared invalid and the remaining sections of the state law that are not in conflict with Commonwealth law continue to operate.

Question 7

Describe the importance of section 109 of the Australian Constitution

Answer 7

The concurrent law-making powers of the Commonwealth Parliament, and the state parliament create risk of conflict between the state laws and national laws as it is possible that two laws on the same topic will be inconsistent thereby it is resolved by The Australian Constitution in section 109. It also creates a restriction on the law-making powers of the states in the areas of concurrent law-making power.

Question 8

Where is the bicameral system established and protected in the Constitution?

Answer 8

The bicameral system is established and protected by sections 7, 24, and 28 of the Australian Constitution.

Question 9

Strengths of the bicameral system acting as a check on parliamentary law-making powers

Answer 9

If parliament consisted of one house, the government in control of that house, could pass legislation that benefits the majority of voters and mistreats unpopular minorities in society. Therefore, the provision of a second house to review and pass legislation is an important way to ensure legislation is reviewed and scrutinized before being passed, and radical changes to the law, and unjust new laws are not rushed into operation.

Question 10

Limitations of the bicameral system acting as a check on parliamentary law-making powers

Answer 10

It is possible that one political party may control the majority of seats in both the Senate and the House. In such a case that house tends to act as a ‘rubber stamp’, with legislation being rushed through without review and debate, meaning the bicameral structure does not act as a limit on parliamentary law-making power.

Australian Constitution does not specify that all state parliaments must be bicameral.

Question 11

List the types of power in the separation of powers

Answer 11

Executive, legislative, and judicial powers;

Question 12

Describe executive powers, where it is protected in the Constitution, and examples

Answer 12

The ability to administer laws and to conduct the business of government such as the collection of taxed, granted to the Crown, but in practice exercised by minsters who are in charge of the government departments. Protected by section 61 of the Australian Constitution which outlines that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General.

Question 13

Describe legislative powers, where it is protected in the Constitution, and examples

Answer 13

The ability to make laws granted to the parliament. Protected by section 1 of the Australian Constitution which outlines that the legislative power shall be vested in the Commonwealth Parliament.

Question 14

Describe judicial powers, where it is protected in the Constitution, and examples

Answer 14

The ability to resolve criminal and civil disputes, sometimes imposing sanctions and awarding damages by applying law to the facts of the case, granted and exercised by the courts. Protected by section 71 of the Australian Constitution which outlines that the judicial power shall be vested in the courts.

Question 15

List three reasons for the separation of powers

Answer 15

Protects the stability of government, protects freedom of the people, and provides independence between the bodies that make law (legislature and executive) and those who enforce it (judiciary) so that not one body has absolute power or control over the way our laws are made, implemented and enforced.

Question 16

Describe the responsibilities of judiciaries

Answer 16

Responsible for ensuring whether the parliament has or has not passed laws in accordance with the Constitution.

Question 17

List 2 ways in which judiciaries independence is promoted

Answer 17

Judges are appointed until the age of 70 and cannot be removed by ministers unless misconduct is proven and both houses of parliament vote to remove a judge, and ministers or members of parliament who unfairly criticize judges’ decisions may be found in contempt of court (a serious criminal offence).

Question 18

Strengths of the separation of powers in limiting parliamentary law-making power

Answer 18

The separation of powers is enshrined in the Australian Constitution, and therefore cannot be changed or abolished without a referendum, in accordance with section 128 of the Australian Constitution.

Judges will determine whether legislation breaches the Constitution in a way that is independent and based on law opposed to politics, thereby restricting parliamentary law-making power.

Question 19

Limitations of the separation of powers in limiting parliamentary law-making power

Answer 19

The Australian Constitution guarantees the separation of powers at Commonwealth level (acting as a check on the law-making of the Commonwealth Parliament), but does not establish the separation of powers at state level.

Judges are appointed by the executives, so the executive branch of government can influence the composition of the bench.

Question 20

List the 5 express rights and where they are protected in the Constitution

Answer 20

Right to just terms when Commonwealth acquires property (s. 51 (xxxi))

Right to jury trial for Commonwealth indictable offences (s. 80)

Right to free interstate trade (s.92)

Right to freedom of religion (s. 116)

Right to no discrimination based on state of residence (s. 117)

Question 21

Describe one strengths and limitation of the s.51 right to act as a check on law making by Parliament

Answer 21

The Commonwealth can only pass legislation to compulsorily acquire property for Commonwealth purposes such as immigration, and is not empowered to pass law to acquire property for any reason it sees fit. However, this section does not apply to the states as it does not require the states to provide just terms if a state Parliament passes a law acquiring property from a person or business.

Question 22

Describe one strengths and limitation of the s.80 right to act as a check on law making by Parliament

Answer 22

Guarantees individuals a jury trial if charged with an indictable offence under Commonwealth law, and Commonwealth cannot legislate to have an indictable offence tried by judge alone. However, Commonwealth can pass laws creating serious criminal offences and declaring such offences are to be tried summarily by judge alone, limiting the effect of section 80.

Question 23

Describe one strengths and limitation of the s.92 right to act as a check on law making by Parliament

Answer 23

Commonwealth and state parliament may not pass laws designed to restrict individuals movement from one state to another. However, the High Court has states that a law that has some other valid purpose but has the side-effect of restricting movement between states might be valid.

Question 24

Describe one strengths and limitation of the s.116 right to act as a check on law making by Parliament

Answer 24

The Constitution cannot pass laws that are designed to restrict the free practise of religion nor impose a religion on any individuals. However, s. 116 does not prevent Commonwealth passing laws about religion. For example, legislation granting money to religious schools does not breach section 116. This right is also not absolute as Commonwealth can limit the practise of a religion in the interest of national security.

Question 25

Describe one strengths and limitation of the s.117 right to act as a check on law making by Parliament

Answer 25

State laws cannot be passed that impose a burden on a person because they live in a different state. However, few High Court cases have involved the interpretation of section 117, as a result it remains unclear which laws will or will not violate section 117.

Question 26

Describe the role of the High Court in interpreting the Australian Constitution as a check on parliamentary law-making power

Answer 26

Decides whether the Commonwealth or the State parliaments have made a law that is ‘ultra vires’ or ‘beyond its power’. Legislation that breaches the Constitution is declared ultra vires (beyond power);

Interpret and give meaning to the words in the Constitution, by doing so the High Court can uphold and protect the system of government established by the Constitution. If the right that is not expressly stated in the Constitution, it may in fact be implied.

The court will only decide whether legislation passed by the Commonwealth or state parliament is valid or not under the Constitution when the validity of the legislation is challenged.

Question 27

If a law is declared ultra vires, Parliament must do what?

Answer 27

Amend legislation so that the unconstitutional provisions are removed from it, or take the matter to a referendum in order to change the Constitution itself.

Question 28

Describe one strengths and limitation of the High Court in acting as a check on parliamentary law-making power

Answer 28

The High Court will declare legislation invalid if it is outside the Parliament’s law-making jurisdiction as defined by the constitutional division of powers. For example, limit Commonwealth power by ensuring it legislates only on matters within the exclusive and concurrent powers. However, the court cannot be proactive in limiting Commonwealth and state parliaments’ powers. It can only declare legislation breaching the Constitution invalid after the legislation has been challenged.

Question 29

List 3 other factors that affect the referendum process

Answer 29

Support from the major political parties: political parties will urge their supporter to vote along party lines, so a referendum is much more likely to pass if it has the support of both major political parties;

Timing: referendums are often held at the same time as election. This means electors may be more concerned about who they will vote into government, and not focus on the referendum process. This leads to uncertainty, which leads to a ‘no’ vote;

Level of Understanding: a lack of understanding or ignorance will most likely lead to a negative vote;

Question 30

Australia’s response to past referendum’s show that..

Answer 30

A strong resistance to change (i.e., want to maintain the system of government as it operates now and protect the Constitution from proposed changes), and a skepticism of Federal Parliament (i.e., are reluctant to increase Commonwealth power, usually choosing to protect the Constitution’s existing division of law-making powers).

Question 31

List two ways in which voters can initiate Constitutional change

Answer 31

By creating public pressure for change through the media or demonstrations, and or lobbying their local member of parliament to initiate constitutional change.

Question 32

Describe the process of a referedum

Answer 32

A change or suggestion in the form of a bill for the wording of the Constitution to change must pass by absolute majority in both houses of Parliament;

If the bill passes by absolute majority in one house but not the other, the Governor-General may still submit the proposal for a referendum.

Two to six months later, the change is put to the voters in Australia in a compulsory yes or no vote.

A successful referendum, or people voting to change the Constitution, receives a ‘yes’ vote from the majority of voters Australia-wide, and a ‘yes’ vote from the majority of voters in the majority of states, that is at least four out of the six states, and receives royal assent from the Governor-General.

Question 33

Describe one strength and limitation of requiring a double majority in a referendum as a check on parliamentary law-making power

Answer 33

The limitation is more significant because the double majority provision is so difficult to achieve particularly the need to have support from the majority of voters in the majority of states. However, although the double majority limits the ability of the Commonwealth Parliament to change the words of the Australian Constitution, the day-to-day operation of the Constitution (especially the division of law-making powers) has been changed significantly through High Court interpretation of those words.

Question 34

Victorian Parliament

Answer 34

All elected members of the Legislative Assembly, and Council, from all political parties including the Governor.

Question 35

Commonwealth Parliament

Answer 35

All elected members from the House of Representatives and the Senate from all political parties, including the Governor-General.

Question 36

The division of law-making power

Answer 36

The distribution or division of law-making powers between the Commonwealth and state parliaments.