Unit 4 AOS 1 Flashcards
Role of Crown
- Grant/Withhold royal assent
- Appoint the Executive Council
Role of HOR
- Initiate bills
- Determine the party to form government
- Represent people, scrutinise administration
- House of review
- Control expenditure
Role of Senate
- House of review
- Initiating bills
- Scrutinising bills
Role of Legislative Assembly
- Initiate+pass bills
- Determine party forming gov.
- Represent people
- Expenditure
- House of review
Role of Legislative Council
- House of review/scrutinise
- Initiate bills
Concurrent eg.
Taxation, marriage
Residual Constitution Sections
106, 107. 108
Residual example
Crim. law, roads, edu.
Exclusive eg.
- Where
Defence, currency
- s.51
109
Where there is an inconsistency between Commonwealth and state legislation, Commonwealth legislation will prevail to the extent of the inconsistency
McBain v. Victoria
- IVF Treatment Act (Vic) - must be married/in de facto relationship
- Sex Discrimination Act (Cth) - can’t deny IVF based on marital status
How does Constitution act as a check on Parliament
- Bicameral system
- Separation of powers
- Express rights
- High Court
- Double majority
Bicameral
- Strengths
- Weaknesses
Strengths
- 2 houses allow for scrutiny of bills, identifies errors and omissions
- Periodic elections allow for unpopular government to unelected
- Slim majority or is in minority in low house, more debate likely
Weaknesses
- If they hold both majorities, unlikely to scrutinise bills - rubber stamping, passing according to party policy
- Passing bills through both houses is time consuming, delays to law reform
- Hostile senate can stall or create significant compromises
Separation of Powers
- Judiciary is independent, important where Commonwealth is a party
- Executive can be scrutinised by the legislature, can refuse to pass legislation sought by exec.
- overlap between leg. and exec., reduces level of scrutiny
- Judges appointed by exec., exec. can influence composition of the bench
- If gov. controls both houses, less scrutiny on exec.
Express rights
- Freedom of religion (116)
- Free interstate trade and commerce (92)
- Receive “just terms” when property is acquired by the Commonwealth (51 (xxxi))
- Trial by jury for Commonwealth indictable offences (80)
- Not to be discriminated against based on state of residence (117)
Express rights
- Strengths
- Weaknesses
- Effective limits on law-making powers
- Can be fully enforced by HC
- Only removed by referendum (128)
- HC can swiftly declare ultra vires
- Only changed via referendum, thus hard to add more
- Cost of initiating case is high
- Protected rights are limited in scope
Double Majority
- 128 allows people to refuse a change, checks Parliament’s power
- DM is strict and hard to achieve, change requires significant support (8/44 have succeeded)
- DM protects smaller states as each state counts equally
- Public may not understand complexities of proposal
- Important changes hard to take place
- Time consuming and costly (1999 = $66m)
High Court
- Judges independent of leg. and exec, based on legal principles not politics
- Difficulty of bringing case provides challenges to easily making laws
- Judges are experienced in Constitution
- HC allows individuals to bring matters to court, MPs not above law
- HC cannot change the actual wording of Constitution, only meaning/interpretation
- Judges can’t intervene in a dispute until it’s brought forward
- Large requirements mean valid cases not brought
1999 referendum
- Only 45% supported the change to add President and remove Monarchy by changing the preamble of Constitution
- 45% nationally supported a republic, no states
- 39% supported changing preamble
- Caution of change
- No popular ownership, opinion varied
- Disagreed with model
- No bipartisan support
- Lack of education, confusing question
1967
- s.51 (xxvi) allowed Cth. to legislate with respect to “the people of any race, other than the Aboriginal race.”
- s. 127 provided that Aboriginal people would not be counted during a census
- Removed words against Aboriginals
- 90% nationally, 80%+ in all states
- Change necessary and wanted
- Championed by people, popular ownership, bipartisan support
- Straightforward question
- Lots of awareness campaigns
Brislan Case 1934
- s.51 (v), Cth. can legislate with respect to “postal, telegraphic, telephonic and other like services.”
- Wireless radio, under Wireless Telegraphy Act 1905 (Cth)
- Defendant argued law was ultra vires
- HC interpreted “other like services,” extended Cth’s powers to legislating in the area of broadcasting to a wireless set - thus, broad range including electronic and wireless communication of data
International treaties
Binding agreement between countries, negotiated by exec. branch
Ratified by parliament
International declarations
Non-binding
Sets out intentions and aspirations
May lead to binding treaty later
Commonwealth vs. Tasmania
- Tas. wanted to build dam on Franklin River (residual)
- Cth. passed legislation: World Heritage Properties Conservation Act 1983 (Cth)
- Tas. challenged them in legislating in residual areas
- Cth argued external affairs power (s.51 xxix)
- HC ruled that Cth. could legislate under external powers when necessary to enact obligations
- Expanded Cth. powers, could legislate in residual areas
