Unit 4 (aos 1) the people and the law makers

Question 1

Role of Commonwealth Parliament

Answer 1

The Commonwealth parliament of Australia consists of the king represented by the governor-general, the senate (upper house) [ 76 members 12 from 6 states and 2 from each territory] and the House of representatives (lower house) [ 151 members] . Key roles are to make laws and represent the people of Australia.

Question 2

Role of Victorian Parliament

Answer 2

The Victorian parliament consists of the king represented by the governor of Victoria, the Legislative council (the upper house) [40 members , 8 districts represented by 5 ministers , on a 4 year term] and the Legislative assembly (the lower house [ 88 members, 1 from each district]. Key roles are to make laws and represent the people of Australia.

Question 3

Compare Victorian and Commonwealth Parliaments - Similarities

Answer 3

• Both crown representatives grant or withhold royal assent, and are the apex of their structures of parliament.
• Both upper houses act like a house of review, cannot initiate money bills and can initiate and pass other bills.
• Both lower houses are the houses of government, can initiate and make laws, can publicise and scrutinise government administration and they represent the people.

Question 4

Compare Victorian and Commonwealth Parliaments - Differences

Answer 4

• The Commonwealth has a governor-general as a king representative, while Victorian parliament has a governor.
• Commonwealth’s upper house is the Senate which has 76 members from 6 states (12 per state) and 2 territories (2 each), irrespective of population, determined by the Constitution. Victorian parliament’s upper house is the Legislative Council which has 40 members from 5 regions, amount of representatives per region being determined by its population.
• The Commonwealth’s lower house is the House of Representatives which has 151 seats, whereas the Victorian parliament’s lower house is the Legislative Assembly which has 88 seats.

Question 5

Role of the Crown in law-making

Answer 5

Part of the Australian system of government and is represented by one governor-general and six state governors. Crown representatives in Australia are responsible for ensuring that the democratic system operates effectively. They are are required to grant royal assent, approving bills to make them law, also having the power to withhold royal assent but they normally approve bills on the advice of the Prime minister. They appoint the executive council including the Prime minister, state premiers, senior ministers and assistant ministers, who are all meant to give advice to the crown’s representative on matters such as whether to approve regulations.

Question 5

Exclusive powers

Answer 5

Powers which can only be exercised by the commonwealth parliament. Examples of powers include defence which is section 51 (vi) and made exclusive by section 114, customs and border protection which is section 51 (iii) made exclusive by section 90 and currency which is section 51 (xii) made exclusive by section 115.

Question 6

Concurrent powers

Answer 6

Law-making powers that both the commonwealth and state parliaments share. Examples of powers include trade section 51 (i), taxation section 51 (ii) (GST for commonwealth stamp ad payroll tax for states), marriage and divorce section 51 (xxi and xxii), and communication services like postal, telegraphic, telephonic and similar services in section 51 (v).

Question 6

Explain significance of Section 109 of the Australian Constitution

Answer 6

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. Section 109 doesn’t automatically allow states to pass an inconsistent law, the law needs to be challenged before it is declared invalid. Section 109 can act as a restriction on the states in implementing their legislative programs and mandates.

Question 7

Residual powers

Answer 7

Law-making powers left with the states at the time of federation. Not listed in the Constitution. Powers are areas of law such as criminal law, medical procedures, road laws, education and public transport.

Question 8

Discuss the significance of one High Court case which has had an impact on state and Commonwealth law-making powers - Explanation (TAS DAM CASE)

Answer 8

In the Tasmanian Dam case, the Tasmanian Parliament had residual power to build a dam but this was inconsistent with the Commonwealth’s World Heritage Conservation Act. As a result of this case, the Commonwealth Parliament was able to move into a law-making area previously considered a residual power and was able to intervene in a state matter.

Question 8

Discuss the significance of one High Court case which has had an impact on state and Commonwealth law-making powers - Strengths (TAS DAM)

Answer 8

This high court case has given Commonwealth the ability to make laws in a number of areas, allowing them to improve the state’s laws overall.

Furthermore, this acquired ability of Commonwealth can be used to implement obligations under treaties, even if the Commonwealth otherwise has no express constitutional power to create laws in relation to the subject matter of the treaty.

Question 9

Discuss the significance of one High Court case which has had an impact on state and Commonwealth law-making powers - Weaknesses
(TAS DAM)

Answer 9

On the other hand, the power doesn’t enable the Commonwealth Parliament to make laws that infringe on express rights. If legislation was passed by the Commonwealth which did infringe on an express right, such as the right to freedom of religion, the legislation is to be invalid.

Moreover, the High court has held that the Commonwealth cannot make laws that expand beyond what is in a treaty, meaning the law must conform to the treaty.

Question 10

Explain Bicameral Structure of the Commonwealth Parliament

Answer 10

The Bicameral structure of Parliament is a factor that can affect the ability of Parliament to make law. Both the Commonwealth and Victoria have a bicameral parliament, which means they have two houses. Section 1 of the Australian Constitution requires Commonwealth to be bicameral, the Constitution Act 1975 (Vic) requires Victorian parliament to be bicameral.

Question 10

Explain how the signing and ratifying of international treaties can place pressure on the Australian government to change the law. With an example of a pressure

Answer 10

Signing and ratifying international treaties pressure the Australian government to change state laws to meet international obligations and maintain its global reputation. Ratification makes treaties legally binding, bringing about necessary law changes, through the force of global obligations and reputation. For example, climate change applies pressure on Australia to create laws and regulations to reduce emissions. Coal is one of Australia’s biggest exports, and therefore revenue generator. In the past, while Australia has set targets to reduce emissions, those targets have been criticised for being too low. However, in 2022, the Commonwealth parliament passed the Climate Change Act 2022 (Cth), which enshrined into law: an emissions reduction target of 43% from 2005 levels by 2030, and net zero emissions by 2050. Pressure on Australia to act on climate change is coming from the UN, groups like Greenpeace, other countries an individuals like Greta Thunberg. Pressure on Australia to not act on climate change is coming from the coal and mining organisations, certain and political parties, like the one nation party.

Question 11

Explain the representative nature of parliament

Answer 11

Australia is a diverse country, and Australia’s parliament is expected to represent the values of all our communities. However, across all Parliaments in Australia while female representation is increasing, the number of First Nations members of Parliament or those who have non-European backgrounds are below the general population. Some have argued that this means some groups and their interests are not well represented. Although, some argue that they can understand the community through other ways, like petitions, demonstrations, and bodies like VLRC.

Question 12

Evaluate the role of the High court in protecting the principle of representative government

Answer 12

Parliament is the supreme law-making body of Australia, but doesn’t have absolute power due to the Constitution. Section 71 of the Constitution provides the High court with jurisdiction to hear matters where Commonwealth is a party, and disputes between states. Also interpretation of the Constitution disputes, given by Section 76.

The existence of the High court allows individuals who have an interest in the case to bring the matter to court and have a law overturned, especially ones not upholding the principle of representative government, reinforcing that members of parliament are not above the law.

Furthermore, both the High court and the principle of representative government are contained in the Constitution and therefore can only be abolished if there is a referendum.

On the other hand, High court judges cannot protect the principle of representative government unless a case is brought before them. These cases are often complex and expensive for the average person, and standing is required.

Moreover, the interpretation of the scope of the principle, such as the ability of people to vote in the elections and the extent of the freedom of political communication, could be subject to further change if a future High court interprets the constitution differently.

Overall, the High court effectively protects the principle of representative government through the Constitution

Question 13

Evaluate the separation of powers

Answer 13

The doctrine (or principle) of the Separation of Powers requires the three main branches of the Australian parliamentary system, the Executive which administers the law, the Legislature which makes the law and the Judiciary which enforces the law, which operate independently of each other. It provides checks and balances so that no one branch has absolute power over the functions of the political and legal system, and as such is one of the core principles of the rule of law.

The separation of powers is specifically provided for in the Australian Constitution, therefore cannot be abolished without a referendum.

Furthermore, despite the overlap between the executive and legislative branches of government, there are still some measures in place to ensure the executive is independent from the legislature.

On the other hand, the separation of powers in the Australian Constitution doesn’t extend to states, although the states, although the states separately provide for separation of powers in state constitutions or statutes.

Moreover, the ability of the judiciary to act as a check on parliament is dependent on people’s willingness to change laws. That is, the courts can only act as a check on parliament- when there is a case before them, and that requires someone willing and able to initiate such a case.

Overall, the separation of powers effectively acts as a check on parliament by having delegated independent powers to control different areas.

Question 14

Evaluate the express protection of rights

Answer 14

An express right is a right that is specifically listed in a document or the Constitution. Express rights operate as an explicit check on the powers of Parliament.

Express rights are entrenched and cannot be removed or changed without successful referendum. Referendums are difficult to pass, so express rights will continue to act as a check on Parliament without risk of being removed.

Furthermore, the High court is independent and will make decisions protecting the express rights even if they are contrary to the views or preferences of the governments.

On the other hand, as referendums are so hard to pass, express rights in the Constitution have not increased in number or been amended since Federation. This reduces the checks on government as there is unlikely to be more rights added to act as a check on Parliament in the future.

Moreover, the express protection of rights doesn’t prevent the Commonwealth parliament from passing the law. It will require the law to be challenged in the court for the law to be declared invalid.

Overall, express rights are able to effectively act as a check on parliament as they are entrenched and are interpreted by the independent High court.

Question 15

Express rights

list all the express rights

Answer 15

**The five express rights in the Australian Constitution are:
1. the right to freedom of religion by preventing the Commonwealth from making laws establishing
a religion, imposing any form of religious ceremony or worship and prohibiting the exercise of any religion (section 116)
2. the right to free interstate trade and commerce (section 92)
3. the right to receive ‘just terms’ when property is acquired by the Commonwealth (section 51(xxxi))
4. the right to trial by jury for indictable Commonwealth offences (section 80)
5 the right not to be discriminated against on the basis of the state where you reside (section 117)