Unit 4 Aos 1

Question 1

What is the Australian constitution?

Answer 1

Document outlining a set of principles and rules that Australia is governed on.Came into affect on January the 1st 1901 when Australia became a federation.The Australian constitution is set out in the commonwealth of Australia institution act and is a formal written constitution.

Question 2

What does the Australian constitution do?

Answer 2

-establishes the common wealth parliament and outlines its structure,including the 2 houses, house of representatives (lower house) and the senate (upper house)
-Establishes the high court of Australia and gives it the powers to interpret the constitution
-It sets out matters relating to the states.For example the constitution provides that state laws will continue to enforce in the state that made them unless they are altered or repealed
-Constition establishes the law-making powers held by the commonwealth parliament
-Constitution provides a wording in which allows the Australian constitution to be changed (through a referendum)
-Provides a series of protections (Also known as checks) to ensure that all areas of government operate in a manner consistent with key principles that underpin democracy.

It is because of the Australian constitution that the central foundations of our political and legal systems are established

Question 3

What makes up commonwealth parliament?

Answer 3

-The king (represented by the governor general of Australia);The Governor general is appointed by the crown on the advice of the prime minister of Australia.

-The senate (Upper house);Made up of 76 members called senators,each state elects 12 representatives, 2 from each mainland territory.Each senator represents the interests of their state or territory, senators serve 6 year terms.

-House of representatives ((Lower house);Whichever party has the most political members in the house of reps gains government.The leader of this party becomes prime ministers, the second party with the most becomes the opposition.Consists of 151 members each representing their electorates voters in each electorate vote in the federal election for the members that they want to represent their electorate in the lower house. This member is expected to represent their views.

Question 4

What is the role of the crown in the lawmaking powers of the commonwealth?

Answer 4

-Granting royal assent: Formal signing and approval of a bill by the governor-general allowing a bill that has passed through both states to become an act of parliament (statue law)
-Witholding royal assent:crown has the power to withhold royal assent, refusing to make a bill an act of parliament,however this rarely occurs, as the crowns representative will often approve bills on the advice of the prime minister, premier or ministers.
-Appointing the executive council

Question 5

What are the 3 main roles of senate in the lawmaking powers of the commonwealth?

Answer 5

-Acts as a house review:Most bills are initiated within the lower house,therefore the senate will review these bills passed before they can become law.Senate can pass a bill without amendment, with amendment(unless its a money bill, where they can only request an amendment), or reject a bill.
-Allows for equal representation for the states:All states have equal representation,limits power discrepancies ensures the needs and wants of all states are considered.
-Intiates bills:Senate can initiate bills
-Scrutinise bills and government administration:Senate standing committee for the scrutiny of bills, their role is to assess legislative proposal and determine the affect proposals have on individuals rights,freedoms and obligations as well as the rule of law.Through question time senators can ask questions of ministers and about government administration.

Question 6

What is the role of the lower house in the lawmaking powers of the commonwealth?

Answer 6

-Intiate and make laws:bills are often introduced into the house of reps, bills are debated,scrunitinised and considered by a parliamentary committe before it goes through the senate where it can further move to become a law.
-Determine the government:As most legislation is initiated in the lower house by government ministers(government made by whomever has the most members in the house of reps at a time), government ministers and government policy will often be reflected in the legislation introduced.
-Act as a house of review:If a bill has been initiated and passed through senate the lower house will act as a house of review, acting as a second house to decide on whether the bill should become law, if the house of the rep pass the bill then it is sent to the government general where it can be made into law.
-Control government expenditure:bill must be passed through both houses before government can collect taxes or spend money, only the house reps can introduce money bills however.
-To represent the people:Plays a role in upholding representative government.As members are elected by the people they have the authority and responsibility to act on behalf of the people.
-Scrutinise government administration:House of reps enables members to Question ministers about their policy and legislative mandates during question time.

Question 7

what are the 2 key roles of the commonwealth parliament of Australia?

Answer 7

Make laws and represent the people of Australia.2 separated houses ensure the power is not only held by one group.

Question 8

What makes up the Victorian bi-cameral parliamentary system?

Answer 8

-The king (the six governors):
Six governors are appointed by the crown, on the advice of the primers of the states.Main responsibility is to ensure that the democratic system operates effectively.

-Legislative council (Upper house):
40 members, for the purpose of deciding these members victoria is divided into 8 regions,each consisting of 11 electorates, 5 are selected from each region, 4 year terms.

-Legislative assembly (lower house):
88 members, for the purpose of victorian state elections, victoria is divided into 88 electorates, with voters in each electorate voting who they want to represent them in the legislative assembly.Members are expected to represent the needs of their electorates.Party with most people in the legislative assembly becomes government with the leader being known as the premier of victoria,similarly to commonwealth parliament party with the second most becomes opposition, shadow ministers are created.

Question 9

Whats the role of the crown in Victorian parliament and their law making powers?

Answer 9

Law making powers of the crown (Six governors appointed by the crown on the advice of the premiers of the states) include;
-Granting royal assent: Formal signing and approval of a bill by a governor, allowing a bill that has passed through both states to become an act of parliament (statue law)
-Witholding royal assent:crown has the power to withhold royal assent, refusing to make a bill an act of parliament,however this rarely occurs, as the crowns representative will often approve bills on the advice of the prime minister, premier or ministers.
-Appointing the executive council:Governer general or governors are responsible for appointing the executive council which consists of; Leader of government (prime minister or premier),Senior ministers, assistant ministers. The role of the executive council is too give advice to the crowns representative on matters such as whether to approve regulation.

Question 10

Whats the role of the Legislative council (upper house) in Victorian parliament and their law making powers?

Answer 10

-To act as a house of review:Main role is to act as a house of review for laws that have been passed through the legislative assembly. Does this by scruinitizing,debating and on occasion amending or rejecting a bill.
-Initiates and passes bills:Bills can be passed through legislative council however less common.
-Scruitnise government administration:Ministers who make up the legislative council can be scrutinized by opposition ministers about their policies and proposed legislation during question time.

Question 11

Whats the role of the Legislative assembly(lower house) in Victorian parliament and their law making powers?

Answer 11

Role of legislative assembly in law making:
-Initiate and pass bills: State law is typically initiated in the legislative assembly by a government minister, lots of time taken to debate and introduce bills
-Forms government:Political party with most members in the legislative assembly forms government, most bills are initiated by the legislative assembly, therefore bills introduced will typically reflect the policies laid down by the premier of victoria and senior ministers
-Scrutinise government administration:Ministers can be questioned by opposition about policy and proposed legislation during question time and government deicsions and legislative proposals are subject to parliamentary scrutiny.
-Represent the people: members of the legislative assembly are to represent the people and those whom voted for them in their electorates.
-Act as a house of review:Acts as a house of review in the law making process when a bill has been initard and passed by the legislative council
-Control government expenditure:For taxes and money to be spent bill must be introduced in the legislative assembly, legislative assembly controls government expenditure as it can only pass money bills.

Question 12

What do exclusive law making powers refer too?,what part of the consitution supports exclusive powers, and what are some examples of exclusive powers?

Answer 12

Law making powers held by only the commonwealth parliament, and only the commonwealth parliament can make laws in those areas.These powers cannot be referred to another parliament

Exclusive powers are supported in section 51 and 52 of consitution

Defence
Currency
customs /Border protection

Question 13

What do concurrent law making powers refer too?,what part of the consitution supports concurrent powers, and what are some examples of concurrent powers?

Answer 13

Concurrent powers are Law making powers shared by both the commonwealth and state

Concurrent powers are supported in section 51 of constitution

Marriage and divorce
Tax
Trade
Postal,telegraphic,telephonic and similar services.

Question 14

What do residual law making powers refer too?,what part of the consitution supports residual powers, and what are some examples of residual powers?

Answer 14

Law making powers left with the states, commonwealth parliament generally has no authority to make laws in these areas.States can choose to give up their residual powers and give it too parliament.

Not mentioned in the constitution

Road laws
Crime
Public transport
Education

Question 15

What is section 109 of the Australian constitution?,what is its significance?.

Answer 15

The section states that when there is inconsistency between state and commonwealth legislation in regards to concurrent powers the commonwealth will prevail.Section of the act that is inconsistent within state law becomes invalid.

Its signficant because:
-It outlines what’s to be done when there’s a clash between commonwealth and state parliament law.
-Section 109 of the constitution is designed to resolve conflicts and inconsistencies between state and commonwelath law
-Upholds clear law by (allowing high court to) invalidate inconsistencies
-Gives Commonwealth has more power- concurrent powers
-Discourages states from making inconsistent law

Section 109 is Insignificant because:
-Inconsistent law:Section 109 is does not automatically make a law invalid- a party must challenge in the high court.

Question 16

What is the significance of the high court, and the division of law making powers?

Answer 16

High court has the jurisdiction under section 75 of the constitution too hear and determine cases involving the commonwealth or a person being sued or suing the commonwealth is a party, and/or disputes between the states or residents of different states or between a state and a resident of another state.

Question 17

What was the R v Brislan case?

Answer 17

*Section 51 of the Constitution gives the Commonwealth power to legislate on postal, telegraphic and other ‘like services’.
*The Commonwealth Parliament had passed the Wireless Telegraph Act 1905 (Cth) which required all owners of wireless sets (radios) to hold a licence.
*The defendant (Brislan) was charged with not holding a license.
*Brislan challenged the validity of the legislation, arguing that broadcasting to a wireless set was not a service as it did not meet the definition under s51, claiming that it was not a “similar service” (Postal,telegraphic,telephonic and similar services.)(v).

Question 18

Why was the R v Brislan case signficant/insignificant?

Answer 18

Significant:
-High courts interpretation resulted in a shift in the division of law making powers from the states to the commonwealth, as it defined this area of law as concurrent?,this also meant if 2 laws made were in contradiction to eachother in accordance to section 109 of the constitution the commonwealth legislation would prevail.
-Case Increased Commonwealth’s law-making power as by defining radio ‘like service’ telegraphic under s51 const, By labbeling radio as a Concurrent area of law it allows the commonwealth to make laws about radio
-R v brislan case was significant in it possible modern application, as the high court labeled radio as a “like service” this may also extend to other things like internet and tv, allowing the commonwealth to make laws about that.

Insignificant:
Whether other communication tech labelled as “like services” have not been tested/challenged in the high court. Therefore in the future the High court may choose to invalidate commonwelath law,labelling laws such as online gambling as invalid and beyond the commonwealths law making powers.

Question 19

What was the Tasmanian dam case?

Answer 19

Tasmanian government sought to build a damn which was written in their residual law.The damn however raised environmental concern and was in an area that was within world heritage listed protection.The commonwealth chose to interven passing legilsation preventing the dam from being built, as the commonwelath had obligations as a signatory of the world heritage treaty to protect national heritage and to “ratify” the treaty.It was then therefore left to the high court to interpret section 51 of the constitution which gives commonwealth the power to legislate in relation to external affairs.

Question 20

Why was the Tasman dam case significant/insignificant?

Answer 20

Significant
-Significant point because it allows the high court to decide and make legislation in an area of residual power to implement international treaty signed.
-Signficant because it gives commonwealth more power and the states less power.
-Gives commonwealth more power to make laws in areas, normally residual (eg. dams) under external affairs powers if= signed an international treaty and need to put this into action.
-The external affair powers can be used to implement obligations under treaties, means that commonwealth can make legislation in regards to issues like the environment (although an residual power) if it were to effect an international treaty
-Decision in this case has been affirmed since
-In future its significant because it means commonwealth can gain more powers by signing treaties.

Insignificant:
The Commonwealth cant expand beyond the scope of the treaty. (still a risidual power)
-Must be a bonafide/legitatimate treaty
-Only works for treaties
-cant contradict an express rights

Question 21

What are the 3 factors that affect the ability to make law?

Answer 21

Note: the ability to make a law includes, the ability to make effective laws,representative laws and to just make law in general.

3 factors include;
 the bicameral structure of parliament;
Parliament with 2 houses.In the commonwealth parliament these 2 houses are known as the house of reps and the senate.In the victorian parliament the 2 houses are known as the legislative assembly (lower house) and legislative council (upper house)

 international pressures
Demands made on parliament from within australia or internationally to make or not make laws that address matters of international concern.
Australia is an active participant in the global community and a signatory to a number of treaties, because of this it has an obligation to ratify (make laws in support of their signage) international treaties, acting as an international pressure.
Other international pressures include;
-Local activism/petitions and local protests
-International activists such as greta thunberg, international requests
-Critisisement by economic and social organizations such as the UN.
-Non government organizations:such as the human rights watch and amnesty international
-Large transnational corporations (TNCs) such as meta and google

 the representative nature of parliament
 Principle at the basis of our democratic system.It ensures that that members of parliament engage with and listen to the views and concerns of their electorates and of the people.Often when discussing the representative nature of parliament 3 key factors are discussed (the diversity of parliament, the willingness of parliament to act in accordance with the views of the majority, regular elections)

Question 22

How does the bicameral structure of parliament affect the ability of parliament to make laws, make representative laws, make effective laws?.

Answer 22

How it can help assist the making of laws, (effective laws) that reflect the peoples views,
2 levels of houses allows for review of legislation by the second house.This review process acts as a quality control ensuring bills can be double checked and scrutinized and amendments can be suggested.Allows for checks of any misuse of power.
If the government does not have majority in the upper house (which is mainly the case), this can increase the ability of the upper house to act as a check on parliament (as they dont have the inherit bias to support their party.It means there is no guarantee that a bill will be passed in both houses, specifically for more controversial bills this can allow for more robust discussion
The challenging and complex process of getting a bill through both houses (having to convince independents,minorites,etc.Ensures that there are several opportunities for bills to be considered,debated and voted on.it means that parliament can act swiftly when needed, passing urgent bills, this was demonstrated during covid

How it can be detrimental in the making of laws:
If the government also controls the upper house (senate) it tends to become a “rubber stamp” confirming all decisions made about legislation in the lower house.This bias can lead to bad and ineffective bills being passed,diluting the ability of the upper house to act as a house of review.While this may mean that the government is able to easily and time effectively pass bills this may negatively mean that legislation made is less effective or representative of the community given a the lack of scrutiny and review.
-While the upperhouse not being controlled by government is beneficial as it allow for more rigorous scrutiny and debate it ultimately means that members of the crossbench have a disproportionate high level of power compared to the size of their voter base, therefore leading to questions around whether they are actually representing the views and values and being representative of what the people want.
-The 2 houses and the complex law making process can slow down the legislative process, given the number of stages and opportunities for debates, while this is necessary to ensure proper and rigorous consideration of laws it also means that the legislative process may be too slow.
-The pace of law reform/how long it takes can often be effected by the many duties and responsibilities of those within the upper and lower house

Question 23

How do international pressures affect the ability of parliament to make laws, make representative laws, make effective laws?.

Answer 23

How can international pressure help make laws?
-International pressure can ultimately help encourage parliament to make laws in the best interest of the people,Things like international treaties can help hold australia accountable and ensure that australia plays a key role in addressing global concerns.
International pressures can help encourage governments and make them more willing to make laws on an issue, depending on where the pressure is coming from and how supportive the australian people are willing for change.

How can international pressures negatively affect the ability of parliament to make law?
-International pressures may be conflicting and lead to division.
-International pressures may be be in alignment with the views of Australians.
-Powerful bodies and organisations can have a large impact on the way in which people vote and therefore how our government and parliamentary system looks

Question 24

How does the representational nature of parliament affect the ability of parliament to make laws, make representative laws, make effective laws?.

Answer 24

How does the representative nature of parliament aid in law making?
-As individuals are able to communicate with their local members of community, and use their voice using petitions and demonstrations to communicate their opinions, this can help ensure that legislation made reflects their values.
-Parliament is elected by the people through recurring and frequent elections and is able to make views and values reflecting the people, if they fail to do so they will not likely get re-elected.
-The representative nature of parliament encourages members of parliament to listen to the views of the community.
-Requirement under the constitution to hold frequent elections ensures that the public is able to vote out an office in government that fails to act in the majority.

The negatives of the representative nature of parliament in aiding law making
-While australia is a diverse country some criticize the fact that its parliament does reflect the same diversity i.e lack of representation for indigenous australians and women, some arguing that this means that some groups views and interests will not be well represented.However some argue that this does not affect parliament’s ability to make effective laws.
-The need for parliament to reflect the views of the people may mean that they support only populist reform and avoid making legislation around contentious issue , especially near election time.
-Government may not initiate law reform in areas where there is opposition from well organised and “loud” opposition groups, in the name of appeasing to public views
-It may be difficult for parliament to asses majority views where there are conflicting views on a topic

Question 25

What are the 3 ways in which the Australian constitution acts as a check on parliament in law-making?

Answer 25

-the role of the High Court in protecting the principle of representative government;
Principle of representative government is protected within section 7 and 24 of the constitution. At times the high court has been called on to determine the meaning of these sections, in doing so the high court acts as a “guardian” of the constitution protecting the principle of representative government

-the separation of the legislative, executive and judicial powers:
Legislative power-Power to make laws, held by parliament
Executive power-Power to administer the laws and manage the business of government, given to the governor general
Judicial power- Power given to courts and judges to enforce the law and settle disputes

-the express protection of rights:
Express rights:rights that are explicitly listed in a document and the constitution.

Question 26

How does the role of the High Court in protecting the principle of representative government, act as a check on parliament in law making?.

Answer 26

Principle of representative government is protected in the constitution.High court at times has been called to determine the meaning of these sections, high court therefore acts as a guardian of the constitution protecting representative government by;

-Protecting voting in elections, Restricting the ability of commonwealth parliament to make laws that infringe on the rights of the people to vote in elections, allowing them to choose their members of parliament
-Protecting freedom of political communication,Protecting the ability of people to freely communicate on political matters so they can cast effective and informed votes when choosing their members of parliament
Limitations on the ability of the high court to protect the principle of representative government, acting as a check on government;
-High court is limited to interepreting the words and phrases of the austrlaian constitution, cannot add new words or phrases, is only able to interpret.
-High court can only intervene and protect the principle of representative government if a person challenges the law
-The interpretation of the high court is dependent on its composition, some judges will be more conservative in their approach to interpretation whereas some will be more progressive.

Question 27

What are the strengths/ weaknesses of the high court in acting as a check to protect the principle of representative government.

Answer 27

strengths:
-Judges are independent and act with impartiality.Judges make decisions on legal principle rather than political pressure, this allows the court to uphold processes that promote representative government even if they are contrary to the wishes of parliament.
-Existence of the high court allows individuals who have an interest in a case to bring the matter to court and have legislation overturned.
-Judges in high court are experienced
-Both high court and the principle of representative government are found within the Australian constitution and therefore require a refferendum in order to be changed.

Weaknesses:
-High court judges can only protect representatgive government if a case is brought infront of them.
-The decision of the court may depend on the composition of the court
-Interpretation of the consitution and the scope to which representative government applies may change depending on what future courts may interpret.

Question 28

What are the strengths and weaknesses of the separation of powers to act as a check on parliament in law making?

Answer 28

Legislative power-Power to make laws, held by parliament
Executive power-Power to administer the laws and manage the business of government, given to the governor general
Judicial power- Power given to courts and judges to enforce the law and settle disputes

Strengths
-While parliament is the supreme law making body, Courts have the power to invalidate,strike down or declare a statue void that has been passed beyond parliaments law making powers.
-Judiciary is independent of the legislature and executive.This independence is vital especially when the commonwealth is a party in a case before the courts.Ensures decisions about the application of law, can be made without worry of political backlash as the judiciary is separate.
-seperation of powers is listed within the constitution, cannot be abolished without a refferendum.

Weaknesses
- Legislative and executive power in reality are interlinked.This can decrease the ability of the seperation of powers to act as a check.
-Judges are appointed by the executive.May cause a perception that the executive seeks to influence judicial benches.The government is able to choose which judges they want to serve on the court some people believe they may choose judges in alignment with their own agendas.
-Ability of judiciary to act as a check is dependent on weather people want to bring cases to court, and challenge laws.
-Separation of powers in the constitution does not extend to states.

Question 29

What are the strengths and weaknesses of the express protection of rights to act as a check on parliament in law making?

Answer 29

Express rights:rights that are explicitly listed in a document and the constitution.
Australian constitution contains 5 express rights these are;
-Right to freedom of religion
-Right to free interstate trade and commerce
-Right to receive “just terms” when property is acquired by the commonwealth
-Right to trial by jury for indictable commonwealth offenses
-The right to not be discriminated against on the basis of the state in which you reside.

Strengths
-Express rights are entrenched within our constitution and cannot be removed unless their is a successful referendum.Referendums are difficult to pass this therefore meaning its a strong check.
-The high court is independent and will make decisions protecting the express rights even if they are contrary to the views or wants of government.
-Allows high court to declare laws ultra vires (beyond parliament law making powers) when a matter is brought before it.

weaknesses
-Limited number of express rights, since referendums are so difficult to pass
-For the high court to hear a challenge against actions of parliament a case must be brought before the court.
-Express rights dont stop commonwealth parliment from making a law, law must still be challenged and brought before the court.