U4AOS1

Question 1

House of Representatives

Answer 1

Represent the people-
Members are elected to represent the people and given authority on behalf of the people. Therefore, the proposed laws should reflect the views and values of the majority of the community.

Control government expenditure-
A bill must be passed through both houses of parliament before a government is able to collect taxes or spend money, but only the lower house can introduce money bills.

Question 2

Senate

Answer 2

Act as a house of review-
Since the majority of the bills are passed through the lower house, the senate (upper house) reviews the bills passed through the lower house to ensure that the bills passed through the parliament are not seen to be too radical or inappropriate.

Scrutinise bills through the committee process-
The Senate has a number of committees made up of various senators whose role it is to assess legislative proposals to determine what effect the proposal would have on individual rights, freedom, obligations and the rule of law.

Question 3

Legislative Assembly

Answer 3

Provide representative government-
Since members of the LA are elected to represent the interests of Victorians. The proposed laws should reflect the views and values of the Victorian People. If not then they are at a risk of being voted out of government at the next election.

Control government expenditure-
Same thing, they are only ones who can insite money bills, for taxes to be collected and to spend money the government needs to first introduce a bill in LA.

Question 4

Legislative Council

Answer 4

Act as a house of review, examine bills through committees, initiate and pass bills.

Question 5

Crown

Answer 5

Granting royal assent, withholding royal assent.

Question 6

Residual powers

Answer 6

Law making powers left with the states and not listed in the Constitution.
Cth Parl cannot make laws in these areas and various sections of the Const. protect the power of the states to create law.
However, States can refer areas of residual power to the Commonwealth (eg. international security/terrorism after 9/11).
Examples of Residual powers are: Health, crime, public transport, primary and secondary education

Question 7

Exclusive powers

Answer 7

Law making powers listed in the Constitution and can only be exercised by the Cth Parl.
Some powers are exclusive because they are listed in s.52 of the Const, some by other sections, some are exclusive by nature.
Eg. Defence, currency, immigration

Question 8

Concurrent powers

Answer 8

Law making powers listed in the Constitution and shared by Cth and state parliaments.
If an area of law-making power is listed in the Constitution and is not exclusive, then it is a concurrent power.
Eg. Trade, taxation, marriage, postal services

Question 9

Section 109

Answer 9

Designed to help resolve conflicts between state and Cth laws in areas of concurrent power.
“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”
Eg. McBain v Victoria (2000) Federal Court of Australia

Question 10

Discuss significance of s.109

Answer 10

S.109 can act as a substantial restriction on state parliaments since their powers are constrained in areas of concurrent power, for example: if there is already existing Cth legislation or if Cth legislation that will come in the future.
However, s.109 does not operate proactively/automatically. State parls can pass inconsistent laws and both remain operable unless/until someone brings a case to the High/Federal Court and it is determined if they are inconsistent or not.
The state law is also invalid to the extent of the inconsistency only, not the entire thing, meaning only a part of the Act will be considered invalid instead of the whole act.

Question 11

Checks on parliament

Answer 11

A process or structure designed to restrict parliament’s law-making ability in some way and reduce the potential for the abuse of power by the parliament/government

Question 12

Bicameral structure of Cth Parl

Answer 12

Section 1 or Chapter 1 of the Constitution requires the Cth parl to have two houses - HoR and Senate.
Allows for multiple readings and debate of bills by two houses. Because the HoR has a government majority and is where legislation is usually introduced, the Senate is designed to operate as a house of review. If there is a government majority in both houses, the Senate becomes a ‘rubber stamp’. If there isn’t, there is a ‘hostile’ Senate.

Question 13

Evaluation of bicameral structure

Answer 13

A ‘hostile’ Senate can scrutinise and review bills much more carefully, especially given their extensive committee system.
This structure is entrenched in the Constitution.
However, If the government has a majority in both houses, the Senate becomes useless (rubber stamp) merely confirming the decisions passed by the lower house.
The recent increase in independents/minor parties can reduce the efficiency/effectiveness of law-making and give cross bench members exclusive power in their negotiation with the government.

Question 14

Separation of powers

Answer 14

The Constitution establishes three separate branches in the parliamentary system, to ensure no branch holds absolute power over the political/legal system. Legislative power (ch1), executive power (ch2), judicial power (ch3). Judicial branch can declare laws passed by the legislative branch ultra vires. Courts are independent, and free from political interference

Question 15

Evaluation of separation of powers

Answer 15

Judicial branch is strictly independent. Free from political interference, it is difficult to remove judges from their position as their tenure is protected by the Const., and they can only be removed for substantial reasons (never happened). If someone believes a law is unconstitutional they can bring a case to HCA.
Federal separation of powers is entrenched in the Constitution.
Judges are appointed by executive - can be perceived as executive influencing composition of courts.
Executive and legislative branches are combined, and cannot provide a strong check on the legislature

Question 16

Express protection of rights

Answer 16

The 5 rights stated in the Constitution, entrenched.
Random because they were not intended to be in the Constitution and are expressed as limitations on parliament in law-making, and accidentally provide rights.
If a law is passed infringing an express right, someone can bring a case to the HCA who can declare it invalid.

Question 17

Religion

Answer 17

116
Cth Parl cannot make a law which:
* Establishes a state religion
* Imposes any religious observance
* Prohibits free exercise of any religion
* Requires a religious test as requirement for holding any Commonwealth office

Restriction on Commonwealth

• The right allowing free exercise of religion may be limited when considering national security, or while ensuring people follow the laws of the country

Question 18

Trade within the Commonwealth

Answer 18

92
* Interstate trade & commerce must be free
* Parl prevented from treating interstate trade differently from trade within state
* Freedom of movements between states should be provided w/o burden/hindrance

Restriction on both
See Clive Palmer example
* Extreme situations, such as the covid-19 pandemic, may lead to the government enforcing restrictions seen as ‘reasonable’ and ‘necessary’ in order to ensure the safety of citizens, which may be allowed to breach this right

Question 19

Acquisition of property on just terms

Answer 19

51(xxxi)

Cth Parl must:
* Provide just terms when acquiring property
* Pay fair & reasonable compensation for property that’s compulsorily acquired

Restriction on Commonwealth

• This right only applies to the Cth Parl, & not states
• However, High Court found that this section may apply to state legislation if passed under a Cth funding agreement

Question 20

Jury trial

Answer 20

80

• There must be a jury trial for indictable Cth offences under criminal law
• High Court found that the decision of jury must be unanimous in such a trial

Restriction on Commonwealth
* Most indictable offences are crimes under state law, & this section only applies to Cth offences
* The High Court ruled that indictable = ‘crimes tried on indictment’
◦ This means the government can avoid s80 & jury trials for most serious offences by declaring it a summary offence

Question 21

Discrimination on the basis of state residence

Answer 21

117
* It’s unlawful for state & Cth governments to discriminate against someone on the basis of the state in which they reside

Restriction on both
* High Court has said that states can favour their own residents in limited circumstances, eg. the right for only residents of a state to vote in elections for that state -> potentially leading to conflict of interest

Question 22

Evaluation of express protection of rights

Answer 22

Entrenched in the Constitution. Anyone who believes parliament has passed a law infringing on an express right can take a case to the HCA who can declare the relevant part of the Act invalid.
Legislation infringing on express rights is not automatically invalid - must be taken to HCA first.
5 rights are limited in number and scope, not designed to provide comprehensive rights protection.
Unlikely to get more, since they can only be added by referendum.

Question 23

Role of high court

Answer 23

HCA’s role is to hear cases brought before it and interpret the words in the Constitution. Has original jurisdiction over constitutional cases. Cannot change the wording of the Constitution, but can determine their meaning and apply them in cases. In doing so, can narrow/explain the meaning of the words. HCA is seen as the guardian/protector of Constitution and ensures parliament is not going beyond their constitutional power (ultra vires). If HCA rules that part of an Act is unconstitutional, parliament cannot abrogate it.

Question 24

Evaluation of role of high court

Answer 24

Strict independence of the HCA, decisions made on legal principles not political pressure. Decisions made by the most experienced and expert legal minds in the country, ensuring thorough consideration and well reasoned decisions. Decisions regarding interpretation of the Constitution cannot be abrogated.
HCA justices cannot proactively invalidate legislation, must wait for a relevant case to be brought before them. Decisions of HCA may depend on composition of the bench, some are more conservative than others. HCA can only interpret the Constitution and cannot change the actual wording

Question 25

Roach case facts

Answer 25

A 2006 Act prohibited all prisoners from voting in federal elections, instead of just prisoners serving >3 years. Vicki Lee Roach challenged this and the 2006 Act was seen as inconsistent with the system of representative democracy established by s7 and 24 (require houses of parliament to be ‘directly chosen by the people’). Could be limited for a substantial reason, and the 2004 Act was considered to be constitutionally valid, but not the 2006 one.

Question 26

Significance of Roach case

Answer 26

The case upheld the principle of representative government provided in s7 and 24. This is a significant restriction on the law-making power of the Cth Parl, who can’t pass a law restricting this right other than for ‘substantial reasons’. However, HCA upheld the validity of the 2004 Act, and didn’t grant universal adult suffrage. The significance was confirmed by the HCA in the 2010 case of Rowe, where it was held that the Cth cannot unnecessarily deny access to voting in Australia.

Question 27

Double majority requirement in referendums

Answer 27

A referendum is the method used for changing the wording of the Australian Constitution, detailed in s128. Needs to go through three stages - Parliament (Constitution Alteration Bill), the people (vote yes or no) and governor general (royal assent).
A majority of voters in the whole of Australia (including territories) must vote ‘yes’.
A majority of voters in a majority of states (4 out of 6) must vote “yes”.

Question 28

Evaluation of doubt majority requirement

Answer 28

Requires the public’s approval, parliament cannot do so unilaterally and Cth isn’t able to increase power in an unrestrained manner. Requirement for a majority of voters in a majority of states ensures that the views of voters in less populous states aren’t overridden by the views of more populous states.
The people still need to wait for parliament to pass a Constitution Alteration Bill before a public vote. Requirement has proven so difficult that sometimes even legitimate proposed changes have not gone through (eg., simultaneous elections in 1977). Public may not understand complex details of the proposal and may just vote no in order to maintain the status quo.

Question 29

Facts of 1967 referendum

Answer 29

Two proposed changes - 1. Whether indigenous people should be included in the federal census. 2. Whether Cth parl should be allowed to make laws regarding Indigenous people. This was the most successful referendum in Australia’s history. 90.8% voted yes across Australia and the majority of voters in all states voted in favour of the changes.

Question 30

Significance of 1967 referendum

Answer 30

Very significant as it included the Abroiginal people in the census, a basic right that was previously denied. It expanded the law-making power of the Commonwealth. Allowed a consistent approach to law-making regarding Indigenous people across Australia, rather than states/territories having inconsistent laws.
Some argue the change in division of law-making power led to Cth making laws/policies that negatively impacted indigenous people. Eg. Hindmarsh Island Bridge Act 1997 (Cth) removed protections to allow the construction of a bridge in SA. Two Indigenous women challenged this Act, arguing that s51 of the Constitution as amended by the 1967 referendum only authorised the Cth Parl to make laws benefiting Aboriginal people. Majority of HCA disagreed, saying that ‘race power’ could be used for not beneficial actions.

Question 31

Ability of Aus people to protect/change Constitution

Answer 31

Referendums: - lobby the government to initiate or not initiate a Constitution Alteration Bill in Cth Parl, publicly support/argue for a particular side in a referendum, vote.
Individuals/groups taking cases to the HCA: Need standing, process is time consuming, expensive, potentially stressful and risky.

Question 32

International treaties

Answer 32

Binding agreements between countries setting out terms which countries agree to follow. Governed by international law. Countries can either sign or ratify a treaty. Signing shows the country agrees with the treaty, ratifying makes it binding.
Executive has power to negotiate and enter into treaties. Government must table the treaty in both houses of parl before the Cth government agrees to ratify a treaty. It is NOT an Australian law.

Question 33

International declarations

Answer 33

Non-binding agreements between countries. Usually set out aspirations of the parties. Likely that the HCA would hold that Cth laws which give effect to an international declaration would also fall within the external affairs power.
However, it could be argued that international declarations are not binding agreements and are too vague to be transformed into domestic legislation. Cth would also still need to show the law was related to achieving declaration obligations.

Question 34

External affairs power

Answer 34

Under s51 of the Constitution, the Cth Parl has the power to make laws in relation to external affairs. In various cases, the HCA has decided that this gives the Cth Parl the power to legislate and give effect to International agreements, even in areas of residual power. They can legislate on a residual power if the treaty obligations cover that area. S109 would apply to these laws as well. The Cth Parl can use its ‘external affairs’ power to legislate to implement treaty obligations, even in areas of residual power.

Question 35

Tasmanian Dam Case (1983) Facts

Answer 35

In 1974 Australia ratified an international treaty regarding world heritage and listed an area in TAS for protection. In 1982, the TAS parl passed an act to dam part of this area. In 1983, Cth passed an Act prohibiting construction. TAS argued the Cth Act was unconstitutional because it was in residual power areas. Cth argues valid under ‘external affairs’. HCA agreed with Cth.

Question 36

Significance of Tasmanian Dam Case

Answer 36

Allowed Cth Parl to move into areas of residual law-making powers when implementing treaty obligations, increasing law making power of Cth Parl and eroding powers of the state parliaments, due to HCA’s broad interpretation of ‘external affairs’. Since this case, the interpretation has allowed Cth Parl to pass laws related to areas such as racial discrimination and human rights.

Question 37

Analysis of HCA interpretation of ‘external affairs’

Answer 37

Multiple HCA cases held that the Cth Parl is able to legislate in areas where it has no specific constitutional power if it is giving effect to international obligations. Given this broad interpretation, and the large number of international obligations accepted by Australia, the external affairs power gives Cth Parl wide constitutional power to make laws on any subject. In Polyukhovich (1991) this meaning was further expanded to any subject that is external to Australia.

Question 38

Limitations imposed on Cth Parl

Answer 38

Legislation must give effect to the specific obligations in the international treaty, doesn’t enable Cth Parl to expand far beyond what is written in the treaty. The international agreement must be bona fide (genuine) and the legislation must not infringe constitutional implied or express rights.