Unit 4 AOS 1

Question 1

Role of Crown

Answer 1

• Grant/Withhold royal assent
• Appoint the Executive Council

Question 2

Role of HOR

Answer 2

• Initiate bills
• Determine the party to form government
• Represent people, scrutinise administration
• House of review
• Control expenditure

Question 3

Role of Senate

Answer 3

• House of review
• Initiating bills
• Scrutinising bills

Question 4

Role of Legislative Assembly

Answer 4

• Initiate+pass bills
• Determine party forming gov.
• Represent people
• Expenditure
• House of review

Question 5

Role of Legislative Council

Answer 5

• House of review/scrutinise
• Initiate bills

Question 6

Concurrent eg.

Answer 6

Taxation, marriage

Question 7

Residual Constitution Sections

Answer 7

106, 107. 108

Question 8

Residual example

Answer 8

Crim. law, roads, edu.

Question 9

Exclusive eg.
- Where

Answer 9

Defence, currency
- s.51

Question 10

109

Answer 10

Where there is an inconsistency between Commonwealth and state legislation, Commonwealth legislation will prevail to the extent of the inconsistency

Question 11

McBain v. Victoria

Answer 11

• IVF Treatment Act (Vic) - must be married/in de facto relationship
• Sex Discrimination Act (Cth) - can’t deny IVF based on marital status

Question 12

How does Constitution act as a check on Parliament

Answer 12

• Bicameral system
• Separation of powers
• Express rights
• High Court
• Double majority

Question 13

Bicameral
- Strengths
- Weaknesses

Answer 13

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

Question 14

Separation of Powers

Answer 14

• 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.

Question 15

Express rights

Answer 15

• 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)

Question 16

Express rights
- Strengths
- Weaknesses

Answer 16

• 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

Question 17

Double Majority

Answer 17

• 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)

Question 18

High Court

Answer 18

• 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

Question 19

1999 referendum

Answer 19

• 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

Question 20

1967

Answer 20

• 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

Question 21

Brislan Case 1934

Answer 21

• 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

Question 22

International treaties

Answer 22

Binding agreement between countries, negotiated by exec. branch
Ratified by parliament

Question 23

International declarations

Answer 23

Non-binding
Sets out intentions and aspirations
May lead to binding treaty later

Question 24

Commonwealth vs. Tasmania

Answer 24

• 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