Unit 4 AOS 1 Flashcards
Definition: Parliament
Democratically elected members (lower and upper house) + Governor General +King
Definition: The Constitution
Alongside the monarchy, recognised as the source that grants lawmaking authority to Parliament and the High Court
Structure of parliament:
Bicameral = two houses that participate
House of Reps:
Structure
-151 seats/76 required to secure government
-Voted by population from their electorate every 3 years
-Leader becomes PM
Senate: Structure
-Rep interests of States and Territories regardless of population
-12/state, 2/territory
Definition: Government
Party which has won the latest election and hold the most seats in the LH
(Currently Labour-Albanese)
Roles: Governor General
(2)
-Grant royal assent: to bills on behalf of the crown, after is it approved by both houses, to enact it to law
-Suggest amendments: to proposed bills. In the event of a mistake/ req change=return bill to parliament (granted by s 58 of Constitution)
Roles: House of Reps
(3)
-Introduce bills: which reflect needs of soc/areas of reform, eg: s 53 of Constitution req bills rel to gov spending be initiated in LH
-Scrutinise legislation: introduced by the senate to reflect soc views
-Form government: when most seats elected/in hung parliament seek support from independents to form government
Roles: Senate
(3)
-Act as house of review: to bills introduced by the LH
-Ensure equal rep of states: due to having equal no. of members = smaller states have a voice
-Introduce bills (rare)
How is Victorian Government formed?
-Elections every 4 years
-Party req majority seats in the lower house (45/88 in LA)
-Voters vote for a member in their district (appx. 50,000)
-Leader of LA =premier
-Voters also select 5 members in LC per region (5x8 members = 40)
Roles: The Crown/Governor
(2)
-Grant royal assent; on behalf of the crown
-Chair executive councils: act on advice of Executive Council + meet w ministers to discuss leg matters
Roles: Legislative Assembly
(3)
-Initiate new legislation introduced by Ministers
-Represent people of Vic in lawmaking: rep voters in district based on community feedback
-Review and amend legislation (opposition)
Roles: Legislative Council
(2)
-Scrutinise legislation introduced by the lower house
-Initiate bills (except for bills re gov funding)
Purpose of The Constitution:
Establish a rule book for the way in which Australia is governed
Specific Powers:
+section
Section 51 and 52 establish the areas of law Cwlth parliament is able to legilate on
Comprised of exclusive, concurrent
Exclusive Powers:
+section example
Powers only given to the cwlth parliament excl states
Eg: s51 = power over currency, in conjunction with s115 which establishes that it is an exclusive power of cwlth
Concurrent powers:
+example
Powers shared by the state and cwlth however if an inconsistency = cwlth prevails
eg: marriage and education
Residual Powers:
Powers not explicitely stated by the constitution reside with the state
eg: prisons, criminal law, public transport
Example of differing state laws
Roal rules:
Provisionary licence at 18 vs 17 (Vic vs NSW)
Section 109 of the Constitution states:
When a law of state is inconsistent with the law of The Commonwealth, the latter shall prevail and the state law will become invalid to the extent of the inconsistency
When might an inconsistency occur:
(2)
-When both state and cwlth legislate in concurrent areas
-when state and cwlth attempt to legislate in own areas of lawmaking and a conflict still arises
Operation of S109
(3)
1) The commonwealth shall prevail- regardless of which was passed first
2) To the extent of the inconsistency- only conflicting sections are invalid
3) States can still legislate within the area- with limitations in specific circumstances
Case of S109:
McBain v Victoria 2000
(Federal)
Dr McBain was made to deny IVF services to single and lesbian women, as per the Infertility Treatment Act 1995 (Vic). However this contradicted the Sex Discrimination Act 1984 (Cwlth) which states it is an offence to deny a service based on sexual orientation/status
Thus S109 operated to make state leg invalid
Impacts of S109 on States:
(3)
1) Requires a case to be brought before the courts
2) Can restrict state bill initiation if cwlth already exists- cannot overide
3) If cwlth legislation which previously caused an inconsistency, is changed or removed state is able to legislate again
Influence of the High Court case on division of powers: Name
R v Brislan; Ex parte Williams 1935
Influence of the High Court
-S75 + S76 gives jurisdiction to interpret the Constitution and resolve matter btw cwlth and states
-Descision sets binding precedent/ parliament may not abrogate (HC not bound by previous descisions)
-Able to declare law/ part of law ULTRA VIRES (beyond powers) = invalid
HC precedent can be changed when:
(2)
1) A refferendum occurs changing the constitution
2) A subsequent case is brought to the HC and a different interpretation is given
Impact of R v Brislan:
-HC req to interpret s51(v) of the constitution which gave cwlth power to legislate in areas of “postal telegraphic, telephonic and other like services”
-Brislan argured cwlth x have power to fine for a wireless radio bc x “like services” tf ultra vires
-Broad interpretation of “like services” deemed wireless radio and future technology within cwlth power
-Therefore increased lawmaking power of cwlth and set binding precent for future cases (HC not bound)
Factors that affect law making
(3)
1) Bicameral structure
2) International pressures
3) Representative nature of parliament
Bicameral structure:
Composition of the upper house
+eg
1) Composition of the upper house: Occurs when the political party in government does not hold majority seats in the upper house= req negotiations with cross benchers and independent parties. tf have disproportionate level of power (balance of power)
eg: Pandemic management Bill 2021 where amendments occurred to give indep more say in order to gain approval
Bicameral Structure:
Hostile Upper house
Occurs when government does not hold majority in the upper house
As a result the opposition and crossbenches deliberately try to block or reject initiatives
Causing delays and a lack of reform
Bicameral Structure:
‘Rubber stamp effect’
Occurs when government hold majority seats in both houses
Less likely to critically examine or scrutinise bills thus showing approval without adequate checks
However allows efficient passing of bills without delay
eg: Workchoice Act 2005 whereby the liberal national coalition passed the bill
Bicameral Structure:
Number of sitting days
Reffers to the amount of days which MPs are req to attend Parliament to consider and debate bills+qna
Can cause delays thus delegative power exists to other statutory bodies
eg: 2022 64 days lower house 51 days upper house
International Pressures:
Treaties
Agreement between two or more countries re human rights
Acknowledged by signing which binds country to terms
Ratification occurs = Cth parliament produce bill to formally acknowledge
Royal assent = legal effect
eg: International covenant on civil and political rights
–> Aus Human Rights Commision Act 1985
Internatinal Pressures:
Declarations
Not legally binding:
Establish aspirational rights and obligations
Pressures Cth to produce bills to uphold principles
eg: UNDRIP in 2007
International Pressures:
The United Nations
Aim to promote HR and peace
Granted power to act on a range of issues
Considered an international treaty tf can impose sanctions
Criticise Aus tf causing age of criminal responsibility from 10-12 by the end of 2024
International Pressures:
Other
(Greenpeace)
Independant campaign group which pressures preservation environmental causes
Strengths: Int Pressures
-Declarations place pressure on parliement to uphold obligations
-Treaty legally binding
-UN+WTO can impose sanctions for poor international conduct
Weaknesses: Int Pressure
-Dec x legally binding
-x obligation to ratify treaties
-many pressures conflict req Aus to prioritise
eg: economic conflict with environmental
Strengths: Bicameral Structure
-acts as a check and balance for bills increasing quality
-rubber stamp effect increases efficiency
-only most imp bills passed via house of review
Weaknesses: Bicameral Structure
-Hostile upper house unnecessarily causes delays
-rubber stamp effect reduce quality of review
-lengthy process
Limitations: Brislan Case
-Another case can still challenge cth legislative power
-HC judges x bound by HC precedent
Representation in Parliament:
(What?)
Acting and speaking on behalf on groups
Avg MP= male, over 45, Aus, Uni educated
Representation:
Reflecting the Community
Although elected, lack of diversity exists
MP w intentions of speaking on behalf of disadvantaged groups=lack lived experience tf not able to represent views
However still use methods such as petitions and demonstrations to express views
Parliament can also use law reform bodies such as Vic law reform commission to increase rep
Representation:
Regular elections
Enable constant change in veiws to be met
3 year term (clth) 4 year term (state) ensures efficiency and commitment to promises
Manditory voting ensures participation and all demographics to be accounted for
Example: proposed change to represent
extend the safety notice of DV victims from 14 days to increase protection and safety.
Not made to attend court to do so to decrease trauma
Increased police power for DV matters
Strengths:
Representation
-Regular elections and 3/4 yr term increases efficacy
-increased women in parliament
-compulsory voting increases participation and account for all demographics
Weaknesses:
Representation
-Lack of minority representation
-May x chose to reform in maj concern out of fear of not reelected bc upset minorities
-3/4 year term not long enough to commit to reform= shallow election promises
Checks on Clth Lawmaking Powers:
(3)
1) Representative government
2) Separation of powers
3) Express rights
Representative Government:
(check)
S7 + S24 state that all MP’s should be democratically elected by the people
In order to reflect views of people
Role of the High Court as a check:
S75 + S76 = jurisdiction
-Parliament cannot abrogate
-Only way to change constitution of referendum if parliament disagree with HC ruling
-Cases req standing and leave for HC
-Outside of abilities= ultra vires
Roach v Electoral Commisioner 2007
2006 Howard gov passed Electoral Refferendum Act, banning all prisoners from voting in fed elections
-2004 previous Act made inelegible is serving sentence over 3 years
-Roach, (6 yr server) = deemed conflict with S7 and S24 and reduced representation of parliament
-HC agreed + deemed act ultra vires
-Role of S24 and S7 affirmed + acted as a check for clth
Strengths: HC as a check
-Deem invalid (ultra vires)
-Independent judiciary = not subject to politics and popularity tf IMPARTIAL
-Parliament x abrogate
Weaknesses: HC as a check
-Req a case to be able to interpret constitution or declare ultra vires
-diff to establish standing and leave for HC
-cost and time of case disincentivises bringing to HC
Separation of Powers as a check
Aims to prevent abuse of concentrated power
Legislative S1: power to make laws, eg: cwlth+ houses
Executive S61: power to administer or enact the law, eg: GG/police
Judiciary S71: power to apply and interpret the law, eg: courts
Strengths: Separation of powers as a check
-Ensures check and balance on powers of parliament to minimise abuse of power
-independent judges not subject to politics
-written into constitution tf x removed w out reffurendum
Weaknesses: Separation of Powers
-Clear overlap between legislative and executive tf limit separation
-diff to prove standing to take challenge invalid law in HC
-not guaranteed at state level due to contitution being federal doc
Express Rights as a check:
1/5
1) Right to acquisition of a property on just and fair terms
SECTION 51 xxxi: ability to take property for any purpose w in scope of power with market value return
Express rights as a check:
2/5
2) No discrimination based on state
SECTION 117: cannot apply or create laws in a discriminatory manner based on state of residence
Express rights as a check
3/5
3) Trial by jury for indictable commonwealth offences
SECTION 80:
For above oddences and not guilty plea trial by jury is a right eg human trafficking
-does not prevent states from judge alone trials
Express rights as a check:
4/5
4) Freedom of interstate trade and commerce shall be free
SECTION 92: cannot restrict the flow of trade and goods and services eg taxes and tarrifs of a protectionist nature
Express rights as a check:
5/5
5) Right to freedom of religion
SECTION 116:
cannot make law that restricts, imposes, promotes discrimination of religion.
Not applicable to states
Strengths: Express rights as a check
-Only change via referendum
-enforceable by HC=ultra vires
-Political independence of judiciary in HC
Weaknesses: Express rights as a check
-only 5
-req bring to HC
-establish standing
-referendum to create new rights tf unlikely
