U4AOS1A - Parliament & Constitution Flashcards
(61 cards)
1
Q
Define Australian Constitution
A
- A set of rules and principles
- Guide the way Australia is governed
- Set out in the Commonwealth of Australia Constitution Act
2
Q
Define constitutional monarchy
A
- A system of government
- Monarch is the head of the state
- Constitution sets out the powers of the parliament
3
Q
Define Federation
A
- Union of sovereign states
- Gave up some of their powers to a central authority to form Australia
4
Q
Define government
A
- The ruling authority with the power to govern
-
Formed by political party/ies (coalition)
- Holds the majority in the lower house in each parliament
- Members of parliament that belong to this political party form the government
5
Q
What is the High Court?
A
- The ultimate court of appeal in Australia
- Has the authority to hear and determine disputes arising under Australian Constitution
6
Q
What is parliament?
A
- A formal assembly of representatives of people
- Elected by the people
- Gathers to make laws
7
Q
Define representative democracy
A
- A system of government
- All eligible citizens vote to elect who will…
- Represent them in parliament
- Make laws
- Govern on their behalf
8
Q
Define rule of law
A
-
Principle that everyone in society…
- Is bound by law
- Must obey the law
- Laws should be fair and clear
- Makes people willing and able to obey them
9
Q
What is common law?
A
- Law made by judges
- Decisions made in cases
- AKA case law or judge-made law
10
Q
What is statute law?
A
- Law made by parliament
- AKA Acts of Parliament or legislation
11
Q
What are the Houses of Commonwealth Parliament?
A
- Upper - Senate
- Lower - House of Representatives
- King’s Representative - Governor-General
12
Q
Describe the Senate
A
- Upper Commonwealth House
- Consists of 76 elected members
- Each state elects 12 representatives
- Both Territories elect 2 each
- Each Senator elected for 6 years; half elected every 3
- Senate CANNOT initiate money bills
13
Q
What is the Senate’s role in law-making?
Remember 2 in detail
A
-
House of Review
- Passed through HoR, Senate is next to review
- Can insist on changes before they accept
- Allow for equal representation of states
- Equal representatives from each 6 states
- Important for smaller states to be heard
- Section 7 of the Constitution provides that the Senate should have equal representation from each state regardless of its size or population to protect the interests of the states
S in Senate for ‘States’
NOTE : Do not have to remember these exact two, as long as you know another two in detail
14
Q
Describe the House of Representatives
A
- Lower Commonwealth House
- Sometimes referred to as “the people’s house” as it reflects the current opinion of the people at an election
- Party who holds the majority of seats in this House form the Australian Government, their leader becomes Prime Minister
-
151 members
- Each member represents an electoral division of Australia and holds their position for 3 years
15
Q
What is the House of Representatives’ role in law-making?
Remember 2 in detail
A
-
Scrutinise government administration
- Ministers must be members of parliament
- Expected to be answerable and accountable for their decisions, policies and actions (Responsible Government)
- Upheld by enabling members to question ministers about their policies and legislative mandate during question time
- Gov. decisions and policies can also be investigated and scrutinised through committees
-
Control government expenditure
- Bill must pass through both houses of parliament before a government can collect taxes or spend money
- Only house that can introduce money bills
NOTE : Do not have to remember these exact two, as long as you know another two in detail
16
Q
What are the Houses of Victorian Parliament?
A
- Upper - Legislative Council
- Lower - Legislative Assembly
- King’s Representative - Governor
17
Q
Describe the Legislative Council
A
- Upper State House
-
40 elected members
- Eight districts of Victoria elects 5 members each
- Each member elected for 4 years
18
Q
What is the Legislative Council’s role in law-making?
Remember 2 in detail
A
-
Scrutinise government administration
- Ministers who are members of the upper house can be questioned by opposition members about their policies and proposed legislation
- During question time
- Government decisions can be scrutinised in the committee process
-
House of Review
- Similar to Senate
- Review for bills passed by the Legislative Assembly
- Scrutinises, debates and (on occasion) amends or rejects legislation initiated by the government
- Through the above, the upper house can apply many of the important checks and balances in the law-making process
NOTE : Do not have to remember these exact two, as long as you know another two in detail
19
Q
Describe the Legislative Assembly
A
- Lower State House
- 88 members who represent the 88 electoral districts of Victoria
- Party who holds majority of the seats form the Victorian Government
- Leader = Premier
- Each member represents an electoral division of Victoria and holds their position for 4 years
20
Q
What is the Legislative Assembly’s role in law-making?
Remember 2 in detail
A
-
Initiate and pass bills
- Main function
- Usually introduced to the Legislative Assembly by a government minister (although any member may introduce a bill)
- Takes up most of the Legislative Assembly’s work - Consideration and debate of a bill can take a long time
-
Form the government
- Political party that has the most members in the Legislative Assembly forms government
- Most bills initiated in the form of government bills - Reflect policies laid down by the Premier of Victoria and senior ministers
NOTE : Do not have to remember these exact two, as long as you know another two in detail
21
Q
Describe the Crown
A
- Term that means ‘British Monarch’
- Part of our system of Government
-
Representatives for King Charles appointed
- Represented by six Governors at state
- One Governor-General at Commonwealth
- Governor-General, Governors and Premier appointed by the Crown on the advice of the Prime Minister
22
Q
What is the Crown’s role in law-making?
A
-
Granting royal assent
- After the bill is debated on and voted through both houses of parliament - Governor-General or Governor gives their approval in order for it to become a law
-
Withholding royal assent
- Governor-General or Governor has the authority to REFUSE royal assent so that the bill does not become law
- Rare
-
Appointing the Executive Council
- Executive Council consists of…
- Prime Minister/ Premier
- Senior Ministers
- Assistant Ministers
- Role to give advice to the Crown’s representative on matters such as whether to approve regulations
- Executive Council consists of…
23
Q
Define royal assent
A
-
Formal signing and approval of a bill
- Governor-General at a Commonwealth level
- Governor at a State level
- Proceeding this, the bill becomes an Act of Parliament
24
Q
Describe residual powers
Division of Powers - Types
A
- Powers left over for the States
- After concurrent & exclusive powers were decided during federation
- Commonwealth Parliament has no authority
- Examples…
- Public transport
- Education
- Criminal law
- Road laws
NOTE: Residual powers are referred to as “left over” because they are NOT explicitly written in the Constitution
25
Describe concurrent powers
## Footnote
Division of Powers - Types
* Powers that **both the States and Commonwealth share** when making laws
* Any laws that are **not listed as exclusive to Commonwealth**
* Examples...
* Trade
* Taxation
* Marriage
* Divorce
* Postal/ telecommunication services
## Footnote
NOTE: 'Con' as a prefix means together
26
Describe exclusive powers
## Footnote
Division of Powers - Types
* Powers that **ONLY the Commonwealth** can make laws about
* **Constitution** has **exclusive powers explicitly stated**
* Also **some implied** powers due to other sections
* Examples...
* Defence
* Currency
* Customs/ border protection
27
Compare law-making powers in terms of who they're held by
* Residual
* **State ONLY**
* Exclusive
* **Commonwealth ONLY**
* Concurrent
* **Commonwealth and State**
28
Compare law-making powers in terms of if they're expressed in the Constitution
* Residual
* **No**
* Exclusive
* **Yes**
* Concurrent
* **Yes**
29
Compare law-making powers in terms of what Sections protect them in the Constitution
* Residual
* 10**6**
* 10**7**
* 10**8**
* Exclusive
* 5**1**
* 5**2**
* Others
* Concurrent
* **51**
30
Compare law-making powers in terms of if the Constitution allows them to be referred to another parliament
* Residual
* **Yes**
* Exclusive
* **No**
* Concurrent
* **No**
31
What does Section 109 of the Constitution state? What does this mean?
* *'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**'*
* **Defends the right of the Commonwealth** to make laws (concurrent) that render State laws invalid
* If the State and Commonwealth have **opposing views**, **Commonwealth will always win**
32
Why is Section 109 of the Constitution significant?
* Serves as a **restriction on State**
* State **cannot make laws for the sake of it** or for **personal gain**
* Commonwealth can **create their own laws** to **invalidate State**
* Ensures **laws are consistent**
* Won't have **multiple laws** for the **same area** that are **contradictory**
* **Without** this...
* Laws would be **confusing**
* People **less likely to follow**
## Footnote
NOTE: Does not automatically come into effect
Law must be created by State in order to be challenged
33
What is the significance of the Tasmania Dam case?
* Commonwealth and Tasmania had **conflicting views**
* Involved an **international treaty**, which Commonwealth is responsible for
* Tasmania wanted to build a **dam** in an area included in the **World Heritage List**
* High Court interpreted **'external affairs'** in **Section 51** as **including treaties**
* Commonwealth passed the **World Heritage Properties Conservation Act 1983**
* Impacted **residual powers** of states
* **High Court** decided that Commonwealth is **eligible to make laws to fulfill obligations in relation to treaties**
* Rendered **Tasmanian conflicting law invalid**
* *Gordon River Hydro-Electric Power Development Act*
* Decision of High Court was **_significant_** because...
* Commonwealth are now **enabled to have authority** over things that were **previously residual** on the condition of it **involving a treaty**
* It was **affirmed in other cases** - Richardson v Forestry Commission of Tasmania/ Lemonthyme Forest case
## Footnote
First few points are context on the case
34
What are factors that affect the ability of parliament to make law?
* **R**epresentative Nature
* **I**nternational Pressures
* **B**icameral Structure
## Footnote
(RIB - Yummy!)
35
What is meant by the term Bicameral Parliament?
* Having **two houses or chambers**
* *Commonwealth* → Section 1 of Australian Constitution 1900
* *Victorian* → Section 15 of Constitution Act 1975
36
What are limitations of Parliament being Bicameral?
| In relation to law-making
* *No majority*
* Limit government being able to implement **law reform**
* Two houses makes law-making process **time consuming**
* Hostile upper house → More **time** alotted to **convincing crossbench/opposition**
* *Majority*
* **Automatically approve** when has majority → Risk **mistakes w/o debate**
* **Prevent upper house** from being a **house of review**
37
What are strengths of Parliament being Bicameral?
| In relation to law-making
* *No majority*
* Ensures bills have been **well thought** → Reflect **values of society**
* Easily **scrutinised**
* Encourages **debate**
* *Majority*
* More **efficient** → Rubber Stamp
38
Outline the steps in making a law
* **House of Representatives** - Draft
1. 1st Reading → **Introduced**
2. 2nd reading → **Members debate and vote on main idea**
3. House Committee → **Public inquiry, report back to HoR**
4. Consideration in Detail → **Members discuss and make changes**
5. 3rd Reading - **Final form, voting**
6. Pass ✔️
* **Senate**
1. 1st Reading
2. 2nd Reading
3. *Senate* Committee
4. *Committee of the Whole*
5. 3rd Reading
6. Pass ✔️
* ***Governor-General***
1. Royal Assent → Signed ✅👑
2. Bill becomes Act of Parliament 🧑⚖️
39
What are international pressures?
* **Demands or forces** applied to parliaments to **persuade** them to make **laws to address matters of international concern**
* Australia is an active member of the global community → Also **founding member of United Nations**
* Expected to uphold values like *human rights + limiting impact on climate change*
40
What are sources of pressure?
* **Local or National**
* Local activist groups who organise petitions
* National corporations who earn large profits
* Non-Government Organisations
* **International**
* International activists who gain a large following
* Other countries who may criticise Australia to change laws
* The UN or one of its bodies → Economic and Social Council
* Large Transnational Corporations → Google and Meta
## Footnote
Do not have to remember all
41
How are international pressures successful in restricting Commonwealth?
* Able to address important matters through the form of the law
## Footnote
More detail can be used with case information on an assessment
42
How are international pressures unsuccessful in restricting Commonwealth?
* Australia has to **follow the actions of other countries**
* Member of **United Nations**
* More **scrutiny and judgement worldwide** to follow the values of human rights and combating climate change
43
Describe the representative nature of parliament
* Members elected into power should **represent the views of the people**
* Failure to do so → Risk *not being re-elected*
44
State points for diversity in parliament
* Increase in **female** politicians → 59 HoR, 43 Senators
* More **First Nations** members → 2022; 8 Senators, 3 HoR
* Individuals and communities can **reach out to local members** of parliament
* Parliament can **rely on other law reform bodies and institutions** to **gauge views of the community**
45
State points against diversity in parliament
* **First Nations/ non-European members are low** compared to general Australian population
* Groups can have **interests misinterpreted or ignored** due to a **lack of diversity**
* Some members may find it **difficult to understand the importance** of an issue
* Can result in **underplaying** it or **pushing for it to be passed**
46
Describe how the views of the majority affect the acts of members of parliament
* Public feels a **law needs to be changed**
* Petition
* Demonstration
* Social Media for awareness
* Contact local member of parliament
* Push parliament members to **try and act on behalf of the people**
* However if the views are **controversial or unpopular** → Members may be **reluctant** to vote them
47
What are strengths of regular elections?
* Public **vote out** any members of parliament **not representing views**
* 4 year period is **enough to show** whether members of parliament have **implemented beneficial laws for the people**
48
What are weaknesses of regular elections?
* **Not held on a fixed date**
* Can be manipulated so that it is during a time a certain government has the **most public support**
* 4 years **limits ability** of government to implement **long-term solutions** because of the **threat of re-election**
49
What are 3 ways the Constitution acts as a check on parliament in law-making?
* **Separation** of **legislative, judicial and executive powers**
* **High Court** protects the principle of **representative government**
* **Express protection of rights**
## Footnote
(SHE - Slay~! 💋)
50
Why does parliament require restrictions in law-making?
* Need to make sure they **don't abuse their power**
* Although they are the supreme law-making body they **do not have absolute power**
51
What is the High Court responsible for?
## Footnote
In relation to checks - Constitution
* Principle of *representative government*
* **Section 7 - Senate**
* **Section 24 - House of Representatives**
* Members in each house of the Commonwealth Parliament are *'directly chosen by the people'*
* High Court **determines the meaning** of Section 7 + 24
* **Restricts** the ability of Commonwealth to make **laws that infringe on the rights of people to vote** in elections
* **Protects** the **ability of people to freely communicate** on **political** matters
52
Briefly describe the Roach V Electoral Comissioner case
## Footnote
High Court as a check
* Electoral and Referendum Amendment Act 2006 → **Prevented all prisoners from voting**
* Change from previous act of only people serving 3 years or over being restricted
* Roach **challenged the constitutional validity**
* High Court deemed new act immoral but **old act from 2004 valid** → **Revert back**
* Interpreted **'directly by the people'** as inclusive of prisoners - **Section 7 & 24**
* Should only be prevented from voting if: *Unsoundness of mind, treason, serious criminal misconduct*
* Decision ***significant*** because...
* Even though Commonwealth is the supreme law-making body they **do not have absolute power**
* Individuals **can still challenge decisions** when part of a minority
* High Court gives insurance that when Acts of Parliament do not reflect views of the people they **can be altered** upon further consideration
53
How is the High Court successful in restricting Commonwealth?
* Judges **independent of the executive and legislature**
* Decisions **based on legal principles** alone rather than political pressure
* *Not impacted by the people*
* *Not aligned with the views of a political party*, can ensure objectivity
* **High Court + Principle of representative government** are contained in the **Constitution**
* Can **only be abolished if there is a referendum**
* **Cannot** change the Constitution on a *spontaneous, opinionated* basis - Also applies to if **new political groups are introduced** and want to alter something to align to their views
## Footnote
Do not have to be these two points - Can be the other two in detail
54
How is the High Court unsuccessful in restricting Commonwealth?
* Judges can **only rule on the facts of the case**
* Cannot make decisions based off of implications or potential consequences - Must base off of **exact wording**
* **Limited to interpreting** the Constitution **rather than changing the wording**
* In the case where a section is **vague**, they **cannot add words or phrases to make it clear without a referendum**
* Can **only make a precedent** - E.g They interpreted it in a certain manner in previous years
## Footnote
For the first point, in an evaluate question most of the mark would be based on referencing the case or creating a hypothetical
BUT it does not have to be these two points - Can be the other two in detail - Just make sure they match your strengths
55
What is the separation of powers?
## Footnote
Who is responsible for the laws
* Three types of powers that ensure that **no body has absolute power**
* **Executive** 👑 → Administer laws and manage government business - **Section 61** Role of Governor-General
* **Legislative** 📖 → Power to make laws and lies with Parliament - **Section 1**
* **Judicial - Judge** 🧑⚖️ → Power given to courts and tribunals to enforce laws and settle disputes - **Section 71** *Separate to legislative arm* (no one body has full power)
## Footnote
Executive and Legislative are combined at a Federal level - Prime Minister in lower house
56
How are the separation of powers successful as a check on Parliament?
* **Executive arm scrutinised** by parliament
* A **wide range of perspective** to decide whether something is appropriate (a lot of people in Parliament)
* Executive Council makes **separate decisions** about law reform and then present to parliament
* Upper house controlled by opposition
* **Hostile upper house** - Debate is encouraged
57
How are the separation of powers unsuccessful as a check on Parliament?
* Legislative and executive are **combined**
* Decreases **ability** of separation of powers **to restrict** each arm
* **People in executive council part of lower house** - Same ideas (Prime Minister, Senior Minister, Governor-General)
* Government **controls Senate**
* **Less scrutiny**
* **Rubber stamp**
58
What is an express right?
* Right explicitly listed in a document or constitution
* Australian Constitution currently has **5 express rights**
* Cannot be modified or removed unless there is a successful referendum
59
What are the 5 express rights?
* ★ **Freedom of Religion** - **Section 116**
* Cannot make a law that establishes a state religion
* Protects free exercise of any religion
* **Trade within the Commonwealth** - Section 92
* Interstate trade and commerce must be free (also applies to people)
* **Acquisition of Property** - Section 51 (xxxi)
* Just terms must be provided when acquiring property
* **Trial by Jury** - Section 80
* Indictable Commonwealth offences
* **Discrimination by State** - Section 117
* Unlawful for state and Commonwealth to discriminate on the basis of what state they reside in
## Footnote
Don't need to remember sections
Freedom of Religion tends to come up on exams
**Not as essential to remember rights - More about strengths & weaknesses for a evaluate**
60
How are express rights successful in restricting Commonwealth?
* **Limits** on what parliaments can make laws about
* **Cannot be removed** by Parliament **unless through a referendum**
61
How are express rights unsuccessful in restricting Commonwealth?
* Protection of rights **does not prevent Parliament from passing law** → Will need to be **challenged in court before becoming invalid**
* Because express rights can only be changed via referendum, it is **difficult**
* Makes it **hard to add other rights**
