UNIT 4 AOS1 - SAC 1a (constitution) Flashcards

Question

Explain the division of law-making powers.

Answer 1

* The law-making powers of the state and Commonwealth parliaments, including exclusive, concurrent and residual powers. * Law-making powers are powers given to parliament to make laws in certain areas. * Those powers are exercisable by parliament, which is the supreme law-making body in Australia. The Australian Constitution divides law-making powers into: * Residual powers * Exclusive powers * Concurrent powers

Answer 2

Residual powers – the law-making powers left with the states. The Commonwealth Parliament has no authority to make laws in these areas. * Residual powers are the powers that were left with the states (not given to the Commonwealth parliament under the Constitution). * Residual powers are not listed in the Constitution. * Examples: criminal law, medical procedures, road laws, education and public transport.

Answer 3

Exclusive powers – law-making powers that are held only by the Commonwealth Parliament, and only that parliament can create laws in these areas. * An exclusive power is a power that can only be exercised by the Commonwealth Parliament. * They are specifically mentioned in the Constitution (in section 51 and 52). * Some powers that are held by the Commonwealth are made exclusive by other sections of the Constitution (for example, section 114 in relation to naval forces). * Other powers are exclusive by their nature (such as naturalisation). * Examples: defence, currency, customs and border protection. * Referred to as ‘heads of power’.

Answer 4

Concurrent powers – those law-making powers that are shared by the Commonwealth and the state parliaments. * These are powers that both the Commonwealth and the state parliaments share. * Concurrent powers are listed in the Constitution (section 51). * Examples: trade, taxation, marriage and divorce, postal, telegraphic, telephonic and similar services. NOTE: if States made a law that conflicted with Commonwealth's laws, S109 within the Constitution states that Commonwealth's laws will always override that of the states.

Answer 5

"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.' MEANING..... Where there is conflict between state and Cth law, Cth parliament's law will be valid and supreme to that of the state law. The section of the state law that is proven by the High Court to be inconsistent with the Commonwealth law will become invalid (in areas of concurrent power only).

Answer 6

R estriction = can act as a restriction on State Parliaments only if Commonwealth Laws already exist which govern a certain area. I nvalidate = does not invalidate entire state legislation, only those parts of the legislation that are inconsistent with the Cth law. C oncurrent power = ONLY applies to laws made in areas of concurrent power. C hallenged = The state law does not become automatically invalid, it must be challenged in the High Court by Cth government and must be successful in their case. O perate = Even if challenged in High Court, the HC justices may not feel that they are inconsistent with one another and can operate together. - EG: Cth cannot use s.109 to invalidate a state law, if that law is in an area of residual power.

Answer 7

- Section 109 is designed to resolve inconsistencies between state and Commonwealth laws. - Under section 109, if there is a conflict between state and Commonwealth laws, the Commonwealth law will prevail to the extent of the inconsistency. State law provisions that are inconsistent with the Commonwealth law will be invalid and unenforceable.

Answer 8

* Section 109 can act as a restriction on state parliaments. * State parliaments may recognise that in areas where a Commonwealth law already exists, they are not able to pass a law. However, section 109 does not automatically operate (states are not denied power to pass laws, and laws are not automatically invalid when passed). * A potentially inconsistent law needs to be challenged in court, and the court will determine whether the laws are inconsistent. * If at some time in the future the Commonwealth law is changed, the state law would be in force and have effect.

Answer 9

John McBain v State of Victoria (2000)

Answer 10

S8 of the Infertility Treatment Act (Vic.) Provided that, in order to receive treatment, a woman must be: - Married and living with her husband on a genuine domestic basis OR - Living with a man in a de facto relationship. S22 of the Sex Discrimination Act 1984 (Cth) - Provides that it is unlawful for a person to refuse to provide a service on the grounds of their martial status. - Martial status is defined as single, married, living separately, divorced, widowed or de facto spouse.

Answer 11

Justice Sundberg ruled that the Victorian Infertility Treatment Act violated Section 22 of the Sex Discrimination Act, making it inoperative due to Constitutional provisions. The Victorian legislation infringed the prohibition on discrimination found in section 22 of the Sex Discrimination Act (Cth) and was this inoperative because of section 109 of the constitution.

Answer 12

- The High Court has heard significant cases involving disputes over law-making powers between the Commonwealth and state parliaments. - The decisions in some of these cases have affected the division of powers between the parliaments in Australia - High Court has been more inclined to grant additional powers to the Commonwealth

Answer 13

The Brislan Case = R v Brislan (1935)

Answer 14

ISSUE = whether the Wireless Telegraphy Act 1905 (Cth) passed by the Cth parliament was constitutionally valid. CONSTITUTION (relevant section) = s.51(v) Gives the Cth Parliament the power to’ legislate with respect to postal, telegraphic, telephonic and other like services’.

Answer 15

FACTS - Cth Parliament passed the Wireless Telegraphy Act. - The act required all owners of wireless sets (radios) to hold a license. - The defendant did not possess a license and was charged with not holding one while having a radio. - The defendant challenged the validity of the Wireless Telegraphy Act in the High Court. - The basis for her argument was that wireless sets were not a service that could fall into the meaning of s.51(v) and there was no section mentioning ‘wireless sets’ in the Constitution. - Therefore the Cth parliament did not have the power to legislate in the area.

Answer 16

DECISION OF THE COURTS - High Court interpreted s.51(v), specifically ‘other like services’ and determined a wireless set did fit within the meaning of s.51(v). - Therefore, the Cth Parliament did have have the power to legislate on wireless sets. - The Wireless Telegraphy Act was valid.

Answer 17

- Shift in the balance of power from the states to the Cth. - This decision increased the powers of the Cth Parliament by extending the meaning of s.51(v) to include the ability to legislate on wireless sets (radios). - Wireless sets were not mentioned in the CC and therefore before this decision would have remained as a residual power. - This decision permitted the Cth p’ment to move into an area of law-making that had previous been reserved for the states alone. - Future laws passed by the states in this same area, would be restricted by s.109 and would need to be consistent with the Cth law.

Answer 18

* A bill needs to be passed in identical form by a majority of members in both houses of parliament for it to become law. * Both the Commonwealth and Victoria have a bicameral parliament, which means they have two houses (chambers). ➜ The requirement for the Commonwealth Parliament to be bicameral is contained in the Australian Constitution (section 1). ➜ The requirement for the Victorian Parliament to be bicameral is contained in the Constitution Act 1975 (Vic).

Answer 19

- Most bills are introduced in the lower house (as this is where government is formed). - Since all bills must be passed by both houses of parliament before they can become law, the composition of the upper house becomes important as to whether parliament is able to make laws.

Answer 20

- Hostile upper house: a situation in which the government does not hold a majority of seats in the upper house and relies on the support of the opposition or crossbench to have their bills passed. - The crossbench can force the government to make changes (amendments) to their bills or can reject government bills entirely by voting with the opposition. - A diverse upper house can be seen as an opportunity for a more effective parliament and more effective law-making. The government may be forced to consider a wider range of views and, in the process, better reflect community interests. - It can also prevent or obstruct the ability of the government to implement law reform, and can allow a small group of independent members or members of a minor party to hold a disproportionately high level of power compared to the size of their voter base.

Answer 21

Rubber stamp: a term used to describe a situation in which the upper house of parliament automatically approves decisions made in the lower house because the government holds a majority of seats in both houses and members of the government generally vote along party lines. - This allows the government to introduce whatever bills it likes and implement all its legislative program. - This can prevent the upper house from adequately fulfilling its role as a ‘house of review’ or representing the broader interests of the community.

Answer 22

- There are several stages in the passage of a bill, which means that the law-making process can be slow at times. - The number of sitting days in parliament means that the law-making process does not happen all the time.

Answer 23

Strengths: - Existence of two houses allows for scrutiny of all bills by both houses. - If government holds slim majority in lower house or is in minority in lower house, extra debate likely in lower house (means that proposed legislation is more thoroughly examined. This can lead to higher-quality laws as issues are more likely to be identified and addressed). - A Senate with large numbers of cross-benchers or opposition senators will review bills very carefully. - Commonwealth Parliament must be bicameral pursuant to the Constitution (enhances the quality of governance through checks and balances, thorough scrutiny of legislation, diverse representation). Weaknesses: - If the Government holds a majority in both houses, the upper house is unlikely to fully scrutinise bills. - This situation is unusual, but it can mean reforms are stalled as passage of bills subject to intense negotiation with independents and minor parties. - Law-making can be stalled or significant compromises may need to be made in order to pass bills. This may not reflect the will of the majority of voters. - Australian Constitution does not specify that all state parliaments must be bicameral.

Answer 24

Because Australia is an active participant in the global community, and because it is a signatory to or has ratified international treaties, sometimes our governments are subjected to international pressures, which can impact on the ability of parliament to make law. * International pressures are demands or forces applied to parliaments to persuade them to make (or not make) law to address matters of international concern. This can include: * Local activists who organise petitions for change * International activists who seek to generate change across the globe * Other countries, which may urge Australia to change its laws or which may criticise Australia in relation to its legislative reform * The United Nations * Non-government organisations (NGOs) * Large transnational corporations (TNCs). - Politicians and governments can be influenced by political pressure from international forces including other countries, international organisations. - Being a signatory to, or having ratified, international treaties can subject the Australian government to international political pressure if it fails to uphold the basic principles they contain.

Answer 25

* Australia’s parliamentary system is expected to be representative of the people. * At both Commonwealth and state levels, parliament and government consist of members who are elected by the people to make laws on their behalf. * If these members fail to make laws that reflect the views and values of the people, or fail to address the needs of the community, they will jeopardise their chance of being re-elected. ➜ This essential parliamentary principle is the basis of our democratic system. It helps to ensure that members of parliament engage with and listen to the views and concerns of the electorate.

Answer 26

Section 7. The Senate - The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

Answer 27

Section 24. Constitution of House of Representatives - The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.

Answer 28

* Australia’s parliaments have not generally reflected the diversity of the Australian community. * In relation to law-making, some have argued that because of a lack of diversity, certain groups of people or their interests are not represented well enough. * On the other hand, some argue that the diversity of parliaments does not affect their ability to represent people in parliament, and that there are means by which members of parliament can understand the needs and interests of their communities.

Answer 29

* The representative nature of parliament encourages members of parliament to listen to the views of the community and make laws in accordance with these views. When people see the need for a change in the law, they may undertake a range of activities, such as: * Forming a petition * Organising a demonstration * Using social media * Contacting their local member of parliament. * The fact that our parliament and government is representative of the people means that these activities can often be influential in promoting law reform. * However, members of parliament may introduce and support laws that are popular with voters rather than passing laws that may be necessary, but are unpopular with voters. ➜ Another limitation associated with the representative nature of parliament is that members of parliament and governments may be reluctant to initiate law reform in areas where there is a highly vocal group of people who do not support the change in the law.

Answer 30

* To achieve representative government, regular elections must be held so the people can vote for politicians to represent them in parliament. * If the government does not represent the needs of the majority of the people during its term in office, it is likely to be voted out of office at the next election.

Answer 31

* Although parliament is the supreme law-making body in Australia, it does not have absolute power. * The Australian Constitution prevents parliament from having absolute power by providing ‘checks’ on parliament.

Answer 32

* Section 76 of the Constitution gives the High Court the power to hear disputes arising under the Constitution or involving its interpretation. * The High Court cannot change the words of the Constitution, but it can change what those words mean.

Answer 33

* The principle of representative government is enshrined in the Australian Constitution. * Section 7 sets out matters related to the Senate and section 24 sets out matters related to the House of Representatives. * Both sections require the Commonwealth Houses of Parliament to be directly chosen by the people. The High Court has been seen to have acted as a ‘guardian’ of the Constitution by protecting the principle of representative government in the following ways: * Restricting the ability of Commonwealth Parliament to make laws that infringe on the rights of people to vote in elections, so that they can choose the members of parliament * 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.

Answer 34

STRENGTHS: - Judges are independent of the legislature and executive so act as an independent check on their exercise of powers. - Judges are appointed, not elected, so can make decisions free from political pressure. - Judges are experienced and experts in Constitutional law so can bring these qualities to their decision-making. - The High Court can act as an independent Check to confirm if a law is an abuse of power. WEAKNESSES: - The High Court cannot change the actual words of the Constitution and can only affect the meaning of the words. - Judges are appointed by politicians and governments often appoint judges with leanings towards their side of politics. - Judges are reactive and have to wait until a case is brought to them. - Judges can only rule on the facts of the case before them.

Answer 35

- The bicameral structure of parliament - International pressures - The representative nature of parliament

Answer 36

- The role of the High Court in protecting the principle of representative government. - The separation of the legislative, executive and judicial powers. - The express protection of rights.

Answer 37

- It acts as guardian of the Australian Constitution - It acts as a check on any abuse of power - It gives meaning to the words

Answer 38

REPRESENTATIVE GOVERNMENT - The High Court does this by explaining what the Constitution means, and deciding how it should be interpreted. - High Court is the only court that can do this, it is often considered to be a ‘protector’ or ‘guardian’. - By interpreting the words of the Constitution, the High Court can influence the day-to-day application of the Constitution. - This helps to ensure that it remains relevant to the Australian people.

Answer 39

REPRESENTATIVE GOVERNMENT 1. Individuals, groups, state, territory and Commonwealth bodies may argue that a territory, state or Commonwealth parliament has made a law that is beyond its power. 2. The matter can be brought to the High Court to rule on whether a new law is constitutional. 3. Can only be carried out by a party with standing; that is, by a person or group that is directly affected by the law being challenged. 4. Then the High Court can declare the law ultra vires. If the High Court declares legislation invalid which infringes on constitutional rights, the parliament’s options are: - Amend legislation so that unconstitutional parts are removed. OR - Amend constitution so that the conflict no longer remains (this requires a referendum).

Answer 40

The Australian Constitution establishes three separate types of powers in our parliamentary system, and requires them to operate at a federal level independently of each other: - The purpose of this is to ensure that no one body has absolute power or control over the functions of the political and legal systems. It is one of the core principles of the rule of law. These powers are the: * The executive power * The legislative power * The judicial power.

Answer 41

Executive power: is to administer the laws and manage the business of government. * At a Commonwealth level, this power is vested in the Governor-General. * At a state level, this power is vested in the Governor. * In practice, the executive power is carried out by the prime minister (or premier), senior ministers and government departments.

Answer 42

Legislative power: is the power to make laws. * The legislative power of the Commonwealth is vested in the federal parliament. * At a state level, the legislative power is vested in each of the state parliaments. * The legislative power and the executive power are combined at a federal level. - In practice, the power to administer the law and carry out the business of government (the executive power) is placed in the hands of the cabinet rather than the executive.

Answer 43

Judicial power: is the power given to courts and tribunals to enforce the law and settle disputes. * Legislative power and judicial power must be kept separate. * Although governments appoint judges, the courts are independent of political influence. - Section 71 states that the judicial power of the Commonwealth shall be vested in the courts. - Only a court or tribunal has the power to decide if a law (made by parliament) has been contravened. It is the sole province of the High Court to decide disputes on issues involving the Constitution although, as a secondary role, the courts have the power to make law through the application of precedent and the interpretation of statutes. - The courts are independent of political influence. In this way, citizens are safeguarded from the misuse of political power or corruption in the resolution of disputes.

Answer 44

The principle of separation of powers prevents power from being concentrated in one set of hands and helps to protect individual rights by providing checks and balances on the power of the parliament. No one body can make law, administer law and also rule on its legality.

Answer 45

DPP v Besam; DPP v MHK Issue: several politicians made comments that were critical of sentences handed down by the court towards terrorists. They were forced to apologise and admit they should not have made comments that may influence the exercise of judicial powers in relation to sentencing.

Answer 46

STRENGTHS: - Allows executive to be scrutinised by the legislature - legislature can refuse to pass legislation sought by the executive. - Judiciary is independent of the other two arms. This is especially important in cases where the Commonwealth is a party. - As the Senate is normally controlled by the cross-bench, the legislature normally closely reviews decisions of the executive arm. - Ministers are still subject to question time in parliament so that legislature can review and expose decisions made by executive arm. WEAKNESSES: - In reality, there is significant overlap between the legislature and executive - ministers are in both arms. This reduces the level of scrutiny provided. - Judges are appointed by the executive so the executive can influence the composition of the bench. - When the government controls both houses, there will be less discussion and scrutiny regarding decisions of the executive.

Answer 47

An express right = is a right that is specifically stated in the Australian Constitution. - Express rights operate as an explicit check on the power of parliaments. - Any law made by parliament that infringes an express right can be declared invalid by the High Court. - By comparison, rights that exist as common law and rights created by legislation can be abolished at any time by the Commonwealth Parliament legislating to override them. - These five rights are protected because parliament cannot pass legislation that infringes against the protected rights.

Answer 48

1. The right to freedom of 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).

Answer 49

Section 116 provides that the Commonwealth cannot make a law which: 1. Establishes a state religion. 2. Imposes any religious observance. 3. Prohibits the free exercise of any religion. 4. Requires a religious test for applicants seeking a job in the Commonwealth Government. - The word ‘religion’ has been given a broad meaning when interpreted by the High Court. - As established in Williams v Commonwealth (2012), Section 116 does not prevent the Commonwealth from funding certain religious programs in schools – however, the Constitution does not give the Commonwealth the actual law-making power to fund these programs.

Answer 50

- (section 92) - Must be free. - This prevents laws limiting the movement of goods between states or laws imposing taxes on the goods of one state that are being sold in another state. - In Cole v Whitfield Tasmanian laws protecting crayfish stocks were deemed invalid, while Western Australian gaming laws discriminating against outside companies were deemed invalid.

Answer 51

- (section 51) - Provides the Commonwealth must provide just terms when compulsorily acquiring property from others. - This includes both tangible (such as land) and intangible (such as intellectual property) property as well as goods. - JT International v Commonwealth ruled that plain packaging tobacco laws did not acquire property from tobacco companies, thus allowing them to claim just terms.

Answer 52

- (section 80) - There must be a jury for trials involving indictable Commonwealth offences. - Whilst this sounds like a broad right, it is limited because most indictable offences come under State legislation and therefore are not covered by Section 80. - The High Court held in Brown v The Queen (p345) that the Section 80 right is mandatory and cannot be altered by the election/choice of a defendant wishing to be tried by a judge alone.

Answer 53

- (section 117) - It is unlawful for state and Commonwealth governments to discriminate against a person based on the State in which they live. - This means that states cannot unreasonably impose different laws on those who live in other states. - The High Court ruled that states can limit voting in elections to residents of their own state, and Street v Queensland Bar Association invalidated a regulation preventing non-resident barristers from acting.

Answer 54

STRENGTHS: - Impose effective limits on law-making powers of the Commonwealth. - Rights can be fully enforced by the High Court, the independent judicial arm. - Rights can only be removed by way of referendum pursuant to Section 128. - High Court can act swiftly in declaring a law ultra vires. - Opportunity for the public to become aware that such rights exist. WEAKNESSES: - Express rights can only be changed by a referendum. - Cost of initiating a court case is high. - Rights that are protected are limited in scope. - The protection of rights does not prevent the Commonwealth Parliament from passing the law. - Australia has relatively few express rights compared to other countries.