U4AOS1A Flashcards
definitions ONLY
What is the upper house and lower house of the Australian Parliament?
Upper House: Senate (76)
Lower House: House of Representatives (151)
What is the upper house and lower house of Victoria?
Upper House: Legislative Council
Lower House: Legislative Assembly
What are the roles of the House of Representative (lower house)?
1. To make and initiate laws
The lower house is usually the first to see and vote on a bill when it is presented to parliament. This takes up most of their time as they need to debate and vote on bills. If there is an area of law that needs to be addressed a member of the House of Representatives may put forward a private member’s bill.
2. Determine the government
The party who has a majority of seats (at least 76) in this House after an election becomes the national government. As most legislation is initiated in the lower house by government ministers, government policy and values are reflected in the bills put forward.
3. Act as a house of review
When a bill passes through the Senate, the House of Representatives will be next to review and vote on the bill before it continues on to the Governor-General for royal assent.
What are the roles of the Senate (upper house)?
1. Act as a house of review
When a bill passes through the House of Representatives, the Senate will be next to review and vote on the bill. They can also insist on changes to the proposed law before they accept it.
2. Allow for equal representation of the states
At the time of federation, the Senate allowed for an equal number of representatives from each of the six states. This was particularly important for the smaller states who were worried that their voice would be drowned out by states with larger populations.
3. Initiate and pass bills
Like the House of Representatives, the Senate can produce bills, pass bills, and reject bills from becoming law.
What is the role of the Legislative Assembly (lower house)?
1. To initiate and pass bills
The main function of the Legislative Assembly is to initiate new laws. The proposed law is usually initiated by a government minister and the role takes up a large amount of time.
2. Represent the people
Members are to be held accountable for their actions in parliament and are examined by opposition members about their ideas. They represent the electorate that they were elected for, and so they should be considering their needs when in parliament.
3. 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.
What is the role of the Legislative Council (upper house)?
1. Act as a house of review
Like the Senate, the Legislative Council’s main function is to review the bills that have been passed from the Legislative Assembly. They have a number of committees that debate the proposed laws at length and recommend whether they should be accepted.
2. Scrutinise government administrative
Ministers who are members of the upper house can be questioned by members of the opposition about policies and proposed legislation during question time.
3. Initiate and pass bills
The Legislative Council can produce bills, pass bills, and reject bills from becoming law. However it is more likely that the bill will begin in the Legislative Assembly.
What are the roles of the Crown?
1. Granting royal assent
After the bill has been debated and voted through both houses of parliament, the Governor-General (or Governor) will give their approval in order for it to become a law.
2. Withholding royal assent
The Governor-General (or Governor) has the authority to refuse royal assent so that a bill does not become law, however this is rare.
3. Appointing the Executive Council
The Executive Council consists of the Prime Minister (or Premier), the senior ministers, and the assistant ministers. Their role is to give advice to the Crown’s representative on matters such as whether to approve regulations.
What are the THREE law-making powers (OR division of powers) of the State and Commonwealth Parliament?
1. residual powers
2. concurrent powers
3. exclusive powers
What are residual powers?
Powers left over for the States once the concurrent and exclusive powers were decided during federation. And the Commonwealth Parliament has no authority making laws in the residual areas.
Some examples of residual powers include:
- Public transport
- Education
- Criminal law
- Road laws
What are concurrent powers?
Powers that both the States and Commonwealth share when making laws. Basically, any laws that are not listed as exclusive to the Commonwealth can be considered concurrent.
Some examples of concurrent powers include:
- Trade
- Taxation
- Marriage
- Divorce
- Postal/telecommunication services
What are exclusive powers?
Powers that only the Commonwealth can make laws about. The Constitution has exclusive powers exclusively listed within it, as well as some implied powers due to other sections of the Constitution.
Some examples of exclusive powers include:
- Defence
- Currency
- Customs/border protection
What is Section 109 of the Australian Constitution?
Section 109 defends the right of the Commonwealth to make laws (on concurrent areas) that render the State laws invalid. This means that if the State and the Commonwealth have opposing views on the legislation, the Commonwealth will always win.
Why is Section 109 significant?
Section 109 serves as a restriction on State Parliaments and the laws they try to create
This means that they cannot make laws for the sake of it, or for personal gain, because the Commonwealth Parliament can create their own laws to invalidate them
It also ensures that our laws are consistent
Meaning that we don’t have multiple laws on the same area that contradict one another. Without this consistency, the laws would be confusing and society would be less likely to follow them
However, Section 109 does not automatically come into effect prior to law making
The law can be created by a State Parliament and must be challenged through a court process. Only then, once looked at extensively, will the State law be declared invalid
Section 109 - The Tasmanian Dam Case
- Tasmanian Government sought to build a dam, which was within their residual law-making power
- Dam raised environmental concerns and was in the area that was ultimately included in the World Heritage List
- The Commonwealth intervened, passing legislation to prohibit construction of the proposed dam
- Majority of the High Court held that external affairs power extends to the Commonwealth’s power to pass laws to give effect to international treaties
- The interpretation was significant for both Commonwealth and States: it substantially increases the power of the Commonwealth to move into a law-making area previously considered to be a residual power
- It could mean that it can intervene in state matters if the intervention is required to give effect to international treaties
- Could occur even if the subject-matter of the treaty is not otherwise within the Commonwealth’s power
- The decision has been affirmed since, and the Commonwealth has relied on its external affairs power to make laws in other areas, such as in relation to sexual conduct involving consenting adults in private
- Concerns have been raised about the scope of power, with some suggesting it should be narrowed or reduced
What are the THREE factors that affect Parliament in law-making?
1. Bicameral structure
2. International pressures
3. Representative nature
What is bicameral structure?
Refers to having two houses or chambers.
What are the strengths to bicameral structure?
- Multiple readings of bills
- Reflects society’s values when in Parliament → - Hostile upper house, Elections
- In a rubber stamp situation, laws can be passed quickly
What are the weaknesses of bicameral structure?
- Takes a long time for bills to become law
- Can approve the bill based on party’s wants, rather than debating it (rubber stamp)
- Hostile upper house can make the process longer
What are international pressures?
Are demands or forces applied to parliaments to persuade them to make laws to address matters of international concern.
Types of pressures:
- The need to prevent terrorist attacks
- The increased risk of cyber-attacks and hacking of major corporations
- The increased challenges of climate change
- The need to protect the rights of vulnerable or minority groups, like asylum seekers and First Nations peoples
- Increasing the age of criminal responsibility
- Addressing global pandemics, natural disasters and wars
What is representative nature?
Australia’s parliamentary system runs on the basis that the members that are elected into power should represent the views of the people.
If these members fail to make laws that reflect the views of the people they are supposed to represent, then they risk not being re-elected into their position for the next term.
What are the strengths to the representative nature - diversity?
- We are seeing an increase in the number of female politicians being elected into parliament (59 in the House of Representatives, and 43 senators currently)
- Individuals and communities can still reach out to their local members of parliament to appeal for changes to the law, in which those members can raise this on sitting days
What are the weaknesses to the representative nature - diversity?
- Certain groups of people may have their interests misinterpreted or ignored due to a lack of diversity in either house
- The current representation of First Nations members or those of non-European backgrounds is severely low compared to the general population of Australia
What are the strengths to the representative nature - regular elections?
- Voting is compulsory in Australia. This can be positive as it tries to fully consider the views of the majority during elections
- Four-year terms are lengthy enough that it shows whether the members of parliament have implemented beneficial laws for the people
What are the weaknesses to the representative nature - regular elections?
- If members of the public are ill-informed about their candidates then it can cause the vote to be useless
- It limits the ability of the government to implement long-term solutions out of fear for re-election
What are the THREE constitutional checks on Parliament in law-making?
1. Role of the High Court in protecting the principle of representative government
2. Separation of the Legislative, Executive and Judicial Powers
3. Express Protection of Rights
What are the Role of the High Court in protecting the principle of representative government?
A representative government is the notion of the members of parliament being elected by the people to make laws on their behalf and represent them in parliament.
What are the strengths of the Role of the High Court in protecting the principle of representative government?
- Judges are independent of the executive and the legislature, therefore decisions on cases in the High Court are based on legal principles alone rather than political pressure
- The judges of the High Court are experienced in making decisions, meaning that the final judgements are properly made
What are the weaknesses of the Role of the High Court in protecting the principle of representative government?
- Judges can only rule on the facts of the case, meaning that they cannot create general principles if it is not brought before them
- The decision by the High Court may depend on the presiding justices, as some are more conservative in their decision making than others, and may wish to side with the Parliament or previous precedent about this section
Describe the Roach v Electoral Commissioner case?
- Those who served time in prison were unable to vote regardless for how long they were serving
- ^ this was an issue because the Constitution was able to continue making laws about prison laws whilst the “prisoners” were unable to vote on their rights
- Prisoners’ rights were not achieved
- Vicke took the issue to the High Court
Decision:
- Prisoners who served more than 3 years in prison were now able to vote again (3 years because it’s every 4 years to be elected hence laws will change by then).
- Because Vicke was still unable to vote despite being sentenced to prison for 6 years.
What is the Separation of the Legislative, Executive and Judicial Powers?
Executive power: adminster laws and manage government business
- section 61 states it is the role of the Governor-General (but carried out by Prime Minister and Government ministers)
Legislative power: power to make laws and lies with Parliament (under section 1)
- the legislative and executive powers are combined at a Federal level
Judicial power: power given to courts and tribunals to enforce laws and settle disputes
- section 71 states it must be seperate to the legislative arm
What are the strengths to the separation of powers?
- The principle of separation of powers is entrenched in the Australian Constitution, and to abolish it would require a referendum
- The separation of powers allows for the executive arm to be scrutinised by the legislature (parliament). This allows the parliament to refuse to pass legislation that is inappropriate
What are the weaknesses to the separation of powers?
- 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
- The ability of the judiciary to act as a check on parliament is dependent on a person’s willingness (and means) to challenge laws
What are the express protection of rights?
1. freedom of religion
2. trade with the Commonwealth
3. acquisition of property
4. trial by jury
5. discrimination by state
What is the Freedom of Religion?
Section 116 states that the Commonwealth Parliament cannot make a law that:
- Establishes a state religion
- Imposes any religious observance
- Prohibits the free exercise of any religion
- Requires a religious test as a requirement for holding any Commonwealth office
What is the Trial by Jury?
Section 80 states that there must be a jury trial for indictable Commonwealth offences under the criminal law, and the jury in such a trial must reach a unanimous decision. Section 80 is limited for two reasons:
- Most indictable offences are under state law, and this section applies to Commonwealth offences only.
- The Government can avoid a trial by jury by declaring that the offence is a summary offence (though this is unlikely)
What are the strengths to express rights?
- Any person who believes a law infringes these rights can take the case to the High Court, and if successful the law will become invalid
- The High Court is independent and will make decisions protecting express rights even if they are against government or popular opinion
What are the weaknesses of express rights?
- The cost of initiating a court case is high, therefore people may be less likely to initiate the case about their infringed rights
- Express rights are few in number compared to other countries, due to them having a Bill of Rights in conjunction with a Constitution (or within it)
