Unit 4 AOS 1a- parliament & the constitution

Question 1

role of the crown in law making

Answer 1

• the crown is represented by one governor general (federal), and 6 governors (state)
  roles of the crown in law-making:
• granting royal assent: approval of a bill by the governor general or governor
• withholding royal assent: refusal to approve a bill (rarely occurs)
• appointing the executive council: group comprised of the leader of gov, senior ministers and assistant ministers that is responsible for administering & implementing the law

Question 2

royal assent

Answer 2

the formal signing & approval of a bill by the governor general or governor so that the bill becomes an act of parliament.

Question 3

structure of commonwealth and victorian parliament consists of…

Answer 3

commonwealth:
- the governor general (represents the crown)
- the house of representatives
> 151 members, representing each electorate, 3 year term
> ‘peoples house’
- the senate
> 76 members, 12 from each state, 2 from each territory, 3 year term
> ‘states house’
victorian:
- the governor (represents the crown)
- the legislative assembly
> 88 members, represent each electorate, 4 year term
- the legislative council
> 40 members, 5 from each of the 8 regions, 4 year term

Question 4

the role of the lower house in law making

Answer 4

the house of representatives (commonwealth level) and the legislative assembly (state level)
- initiate & pass laws/ bills > most laws initiated in the lower house *
- form government > party with the most members in the house of reps forms gov *
- acts as a house of review
- control gov expenditure > money bills can only be introduced by the house of reps *
- represent the people > members are elected by the people and are given the power to act on behalf of the people, laws should reflect community views *
- scrutinise gov administration > members question gov ministers about policy

    *main roles

Question 5

role of the upper house in law making

Answer 5

the senate (commonwealth level) and the legislative council (state level)
- act as a house of review > review and pass bills introduced by the lower house by scrutinising, debating and amending or rejecting legislation
- scrutinise bills & gov administration > scrutinise introduced policy and activities and ask questions about gov administration during question time
- initiate bills > uncommon in this house
- allow for equal representation of the states (senate only) > regardless of the size or population of each state

Question 6

constitutional division of law-making powers

Answer 6

• residual powers
• exclusive powers
• concurrent powers

Question 7

residual powers

Answer 7

• powers that remain soley with the states that are not listed in the constitution
• protected by sections of the constitution to create law in areas that were not given to the commonwealth parliament
• eg. criminal law, medical procedures, public transport, education

Question 8

exclusive powers

Answer 8

• powers outlined in the constitution that only the commonwealth parliament can exercise
  can be made exclusive by either:
  > their nature: laws relating to naturalisation, borrowing money on public credit of the commonwealth, control of railways for defence purposes
  > sections of the constitution: laws relating to customs & excise, naval and military forces and currency

Question 9

concurrent powers

Answer 9

• powers that the commonwealth and state parliaments share
  > all powers that are not exclusive to cwealth parliament
  > eg. trade, taxation, marriage & divorce

Question 10

the mcbain case (summary) in relation to section 109

Answer 10

• mcbain denied patients access to the IVF program based on their marital status, meeting the requirements of the victorian law, but contravening federal law
• vic gov passed Victorian infertility treatment act, which stated that to receive treatment, a woman must be married and living with her husband, or living with a man in a de facto relationship
• commonwealth passed the sex discrimination act, which made it unlawful to refuse a service to a person on the grounds of marital status
• the federal court upheld mcbains argument that the victorian law was inconsistent with the commonwealth law, and that on the basis of section 109, the commonwealth law should prevail
• victorian law was then considered invalid

Question 11

significance of section 109 in relation to the mcbain case

Answer 11

• high court ruled that on the basis of section 109, the commonwealth law should prevail
• the victorian infertility treatment act was then considered invalid to the extent of the inconsistency
• shows how section 109 acts as a restriction on the states in law making and can be used to resolve inconsistencies between federal and state laws

Question 12

what is section 109 of the constitution

Answer 12

• designed to help resolve inconsistencies between state & commonwealth laws
  > inconsistencies aries when concurrent powers are exercised by cth parliament to make a law, & state parliament makes a law in the same area that is inconsistent with the federal law
  > eg. mcbain case, inconsistent state and federal laws in relation to infertility treatment
• under section 109, the commonwealth law prevails to the extent of the inconsistency between the two pieces of legislation, & the state provisions that are inconsistent will be made invalid.
• section 109 does not operate automatically, the state law must be challenged in court to be made invalid

Question 13

significance of section 109 of the constitution

Answer 13

• acts as a restriction on the states in law-making, as it can declare state laws invalid if they are inconsistent with federal laws in that area, limiting the states ability to make laws in an area where commonwealth parliament has already exercised law making power
• it does not automatically operate, the inconsistent law needs to be challenged in court to be considered invalid

Question 14

factors affecting the ability of parliament to make law

Answer 14

• the bicameral structure of parliament
• the representative nature of parliament
  > diversity of parliament
  > willingness to act in accordance with the views of the majority
  > regular elections
• international pressures

Question 15

how does the representative nature of victorian parliament affect parliament’s ability to make law

Answer 15

• parliamentary system is expected to be representative of the people, meaning that it consists of members who are elected by the people to make laws on their behalf
• factors affecting representative parliament:
  > diversity of parliament
  > willingness to act in accordance with the views of the majority
  > regular elections

Question 16

DIVERSITY OF PARLIAMENT in enhancing & limiting the representative nature of vic parliament

Answer 16

• vic parliament does not reflect australias diversity
• female representation is increasing, however there is still a lack of representation of first nations people in parliament
  > means that certain groups of people or their interests may not be not adequately represented.
  > individuals, law reform bodies and pressure groups can impact law reform so that views of minority groups are considered in passing legislation

Question 17

WILLINGNESS TO ACT IN ACCORDANCE WITH THE VIEWS OF THE MAJORITY in enhancing & limiting the representative nature of vic parliament

Answer 17

• views of the community can be expressed through petitions, social media and contacting their local parliament member. these views can influence law making
  limiting:
  > parliament may introduce laws that are popular with voters, rather than laws that are necessary but less popular, in order to gain support and increase their likelihood of being reelected
  > can be difficult to predict the future views and needs of the community when introducing laws
  > can be difficult to assess the views of the majority in areas where there are conflicting views on contraversial issues
  enhancing:
  > ensures that the views and values of the community are consudered in law-making

Question 18

REGULAR ELECTIONS in enhancing & limiting the representative nature of vic parliament

Answer 18

• requirement for regular elections allows the public to vote out government who does not act in the interest of the majority
  > compulsory voting can undermine the principle of representative gov as it forces people to cast a vote even if they do not want to
  > can help to ensure that parliament has the support of the majority of people
  > victoria fixed term elections give parliament a specific period to implement their programs and provides certainty to voters as to when there will be an election

Question 19

bicameral structure of parliament

Answer 19

• means that a proposed bill must be passed by a majority of members in both houses of parliament before it can become law
  form of quality control as,
  > the second house double checks the bill and may suggest amendments
  > there is no misuse of law making
• can enable the ability of parliament to make law, if gov holds the majority in the upper house
• can limit the ability of parliament to make law, if the opposition holds the majority in the upper house (hostile upper house)

Question 20

how does the bicameral structure of parliament affect parliament’s ability to make law

Answer 20

• senate acts as a check on government
• this can limit parliaments ability to pass a law if they do not hold majority in the senate, as it has to undergo thorough scrutiny and could be rejected or passed with amendments.
  > means that gov has to get support of minor parties and crossbenchers to have their bills approved in the senate
• having a gov majority in the senate can enable parliament to easily pass laws, but more difficult for the senate to fulfill its role as a house of review, as rubber stamping could be used to approve all introduced bills without being properly scrutinised

Question 21

international pressures

Answer 21

international pressures are demands or forces applied to parliament to persuade them to make law to address matters of international concern
> recent examples include pressure to address the concern of climate change, which australia has responded to by passing the climate change act, and to change the age of criminal responsibility
- sources of international pressure come from local activists and international activists, other countries, the UN, non-government organisations and large transactional corporations
- as part of the global community, australia is a signatory to various international agreements and has passed laws to recognise its commitments under treaties

Question 22

how do international pressures affect the ability of parliament to make law

Answer 22

• where the pressure is coming from and how supportive people are of the change can impact whether parliament will respond to the issue
• governments may be faced with competing pressures or views on particular issues
  > eg. the need to reduce emissions vs aus reliance on coal for energy and revenue
• being a signatory to international treaties can mean parliament is obligated to introduce laws and limits their ability to introduce laws based on Australian peoples views

Question 23

the means by which the australian constitution acts as a check on parliament in law making

Answer 23

• the role of the high court in protecting representative government
• the separation of powers- legislative, judicial, executive
• the express protection of rights

Question 24

role of the high court in protecting the principle of representative government

Answer 24

• the principle of representative government: parliament and gov costist of members who are elected by the people to make laws on their behalf, this is enshrined in the constitution
• the high court protects this principle by:
  > restricting the ability of parliament to make laws that infringe on the rights of people to vote in elections, so that they can choose the members - any law that interferes with this right is declared invalid
  > protecting the ability of people to freely communicate on political matters, so they can make informed votes - implied right in the constitution

Question 25

strengths & weaknesses of the high court in protecting the principle of representative government

Answer 25

strengths:
- judges are independent and can make decisions based on legal principles and not political pressure
- high court allows people with an interest in the matter to bring it to court and have a law overturned
- high court and the principles of representative government are contained in the constitution
weaknesses:
- judges can only rule the facts of cases brought before them and cannot create general principles outside the case - broad protection
- can only be protected if a case is brought to court, which can be expensive and complex for a person
- decisions can depend on whether a judge is more conservative or active

Question 26

summary of a high court case which had an impact on the division of law making powers (brislan case)

Answer 26

• key issue of the brislan case was the high courts interpretation of the constitution, which gives power to the commonwealth to legislate ‘postal, telegraphic, telephonic and other like services’
• williams was charged with owning a wireless set without a licence
• she challenged this in the High court, arguing that the constitution did not give power to the cth parliament to make law in relation to radio broadcasting
• high court decided that broadcasting to a wireless set is within the commonwealth’s law making power, as it falls under ‘telegraphic, telephonic and other like services’

Question 27

how did the brislan case impact the division of law making powers

Answer 27

• the outcome of the brislan case changed the division of powers by extending the commonwealth’s power at the expense of the states
• brislan case could have significance for future types of communication and technological advances due to rapid advancements in technology

Question 28

the separation of powers

Answer 28

the constitution requires that all three powers at the federal level are to operate independently of each other, to ensure no one body has absolute control over the political & legal systems.
- executive power
- legislative power
- judicial power

Question 29

executive power

Answer 29

• power to administer laws & manage the business of government.
• vested in the governor general & is carried out by the prime minister, senior ministers & government departments (cabinet)

Question 30

legislative power

Answer 30

the power to make laws, resides with parliament

Question 31

judicial power

Answer 31

• power to enforce the law and settle disputes
• vested in the high court and given to courts and tribunals.
• must be kept separate from legislative power
• courts are independent of political influence to protect against misuse of power
• only a court or tribunal has the power to decide if a law made by parliament has been contravened.

Question 32

combined executive and legislative power

Answer 32

• powers are combined
• executive power placed into the hands of the cabinet, who decides general government policy & formulates proposed laws to be introduced
• head of executive is prime minister
• closely linked by the fact that laws passed by parliament must receive royal assent

Question 33

how does the separation of powers act as a check on parliament in law making

Answer 33

• prevents power from being concentrated in one set of hands
• helps protect individuals rights by providing checks and balances on the power of parliament
• means that no one body can make a law, administer a law and rule on its legality.

Question 34

evaluating how the separation of powers acts as a check on parliament in law making: strengths

Answer 34

• judiciary power is independent of legislative and executive, meaning that courts are free of political influence and misuse of power
• separation of powers is outlined in the constitution, ensuring a constant check on law making and ensuring there is no misuse of power
• the power to make laws (legislative) is separate from the power to rule on a laws authority (judicial) ensuring a balance in power

Question 35

evaluating how the separation of powers acts as a check on parliament in law making: weaknesses

Answer 35

• legislative and executive power are combined, as the government has the power to both make and administer laws, decreasing the ability of the separation of powers to act as a check as there is a concentration of power in govs hands
• judges are appointed by the executive, and could make choices about which judges to appoint based on their own views

Question 36

the express protection of rights

Answer 36

5 express rights contained in the australian constitution, which act as a check on the power of parliaments, if a law infringes an express right, it will be made invalid by the high court
- the right to freedom of religion
- the right to free interstate trade and commerce
- the right to receive ‘just terms’ when property is acquired by the commonwealth
- the right to trial by jury for indictable commonwealth offences
> limited, as most indictable offences are under state law
> only extends to the most serious offences
- the right to not be discriminated against on the basis of the state where you reside

Question 37

strengths and weaknesses of the express protection of rights

Answer 37

strengths:
- impose limits on parliament when making law in certain areas, protecting the people from parliament being able to make any law it wants
- entrenched in the constitution and cannot be removed without referendum, providing a constant check on parliament
- the high court is independent and can make decisions to protect these rights
weaknesses:
- some rights are of a limited scope, such as the right to jury being limited to commonwealth indictable offences
- express rights have not been amended since federation, so none have been added to provide a further check on parliament
- if a law is made which imposes a right, it can only be made invalid if it is challenged in court