Unit 4: People and the Constitution

Question 1

Division of Power: Exclusive Powers

Answer 1

These are specific powers, some are made exclusive to the commonwealth by other section of the constitution.

Only Commonwealth can pass law

Example:

Coining Money s115

Defence and military forces s114

Question 2

Division of Power: Concurrent Powers

Answer 2

Shared between BOTH federal and state parliaments

It is also specified in the Constitution

MUST MENTION: that, in s109 states that if there is an inconsistency, then the commonwealth law shall prevail.

Can’t be referred to other parliament

Examples: Marriage, Taxation and Bankruptcy.

Question 3

Division of Power: Residual Powers

Answer 3

It is not enumerated in the constitution so no specific powers.

Reserved ONLY for states.

s.106-107 protects states laws making powers and constitutions

Can be referred to other parliament.

Example: Criminal law, public transport

Question 4

Concurrent Powers and s109 significance
and
Case example

Answer 4

s.109: Inconsistency of laws
meaning that Commonwealth legislation will prevail to the extent of the inconsistency.

Example Case: McBain v Victoria (2000)
s.109 seen here as the Sex discrimination was made by the commonwealth which prevailed over the infertility act which was made by the state.

Question 5

Restriction on State Law Making

Answer 5

s. 114 can’t raise armed forces

s. 115 Can’t coin money

Question 6

Restrictions on Commonwealth Power

Answer 6

s. 116 can’t legislate about religion

e. g can’t create a national religion or force a religious practice (christmas)

Question 7

How the Australian Constitution acts as a check on for parliament in law-making: the 5 checks

Answer 7

Parliament is the supreme law-making body. However, it does not have absolute power to create laws as the Australian Constitution acts as a check on Parliament.

These checks are:
The bicameral structure of the Commonwealth Parliament.

Separation of Powers: the legislative, executive and judicial powers.

The express protection of rights

The requirement for a double majority in a referendum

Question 8

How the Australian Constitution acts as a check on for parliament in law-making: Bicameral structure of the Common wealth Parliament

Answer 8

Bicameral means two houses: Upper/Lower

Where the upper house has to scrutinize legislation to ensure that it will be effective and appropriate.

If the government holds a majority in the senate. The senate will act as a ‘rubber stamp’ doing so passing bill will not get scrutinized. E.g Howard and workchoices

Question 9

Bicameral Checking Process: Strength & Weakness

Answer 9

Strength:
1. Existence of two houses allows for review of legislation by the second house.

The scrutiny provides for checks and balances against abuse of power. Review process also identifies errors and omissions in bills.

However,
Weakness:
1. If the government holds a majority in the lower house, then debate and negotiations in the lower house are unlikely to occur. Meaning that there will be minimal checks on activities of government as the party will vote according to the wishes of their party rather than scrutinize the legislation.

Strength:
2. Requirement for a bicameral parliament is stated in the Australian Constitution. Means that the Commonwealth Parliament is not able to pass legislation which abolishes either house.

So only way bicameral nature can be changed is through a referendum process.

Operates as a check as on parliament as it cannot pass legislation to alter the structure of parliament itself.

HOWEVER,
Weakness:
2. lower house is usually controlled by government, and members of parliament typically vote according to their views of their political party and not their conscience.

Which dilutes the checks on law making, as it means that laws that are supported by the majority of people, but are not in line with the government own policies and views are unlikely to go through parliament

Question 10

Bicameral Checking Process: Acting Hostile

Question 11

Check on Parliament Law Making: The Separation of Powers

Answer 11

Acts as a check to parliament law making as:

no one body holds absolute authority

It prevents the misuse of power and provides a system of checks and balance

It is also established in the Australian Constitution

Legislative: Parliament, make laws
Executive: Crown and Ministers, Administer laws
Judicial: Judges and Courts, Interpret and apply laws

Question 12

Check on Parliament Law Making: The Separation of Powers - Reason

Answer 12

Prevents power being concentered in one branch of the government.

Provides a series of checks and balance on power of government so no arm can both make a ruling and also rule on its legality.

Example Case: Besim and MHK
About: several politicians made comments that were critical of sentences handed down by court towards terrorists.

They were forced to apologized and admit that the comments should not have been made as it could influence the exercise of judicial powers in relation to sentencing

Question 13

Strength and Weaknesses: Separation of Power

Answer 13

Strength:

1. Allows executive to be scrutinized by the legislature. Legislature can refuse to pass legislation sought by the executive

However,

Weakness:
1. There is significant overlap between the legislature and executive. Ministers are in both arms. This reduces the level of scrutiny provided

Strength:
2. The judiciary is independent in parliament and government. This independence is vital when the commonwealth is a party in a case heard before the court. It allows judges to interpret and apply the law which they themselves have not made.

However,
Weakness:
2. Judges are appointed by the executive. This may be perceived as the executive influencing the composition of the benches of the superior court. so the government on the day can essentially chose which judges they want to hear cases on the day.

Question 14

Australian Constitution on Check on Parliament: Protection of Rights. Express Rights

Answer 14

Express rights are very well protected. Can only be changed via referendum. However the rights are limited.

Example of Alqudsi v Quuen
Where in this case the court denied their application for Judge alone juries and making them participate in a trail by jury.

Not upholding trial by jury for indictable federal offences.

Question 15

Strength and Weaknesses: Express Rights acting as a check on Parliament.

Answer 15

Strength:
1. Impose effective limits on law making powers of the Commonwealth.

However,
Weakness:
1. the protection of rights does not prevent the Commonwealth Parliament from passing the law.

Strength:
2. High court can act swiftly in declaring a law ultra vires ( outside their power)

However,
Weakness:
2. Cost of initiating a court case is high

Question 16

Check on Parliament: Role of High Court

Answer 16

Guardian of the Constitution, protector of it. Acts as check on any abuse of power. Case must be brought by a person with standing.

Example: Brislane Case
Where brislan was charged & fined for not having a license to own a wireless set.
She argued that the constitution did not give the power to Commonwealth because wireless sets are not expressly stated.
Commonwealth claimed that ‘other like services’ implies any communication device such as a wireless set.
However, the HCA determined that wireless radios did fall under ‘other like services’ and therefore the Wireless Telegraphy Act remained valid. Brislan lost.
Effect of the Brislan case shifted power away from the states

Question 17

Strength & Weakness: High Court acting as a check on parliament

Answer 17

Strength:
1. Judges are independent of the executive and the legislature and therefore decisions made on cases are based on legal principles rather than political pressure. It allows a rigorous consideration of the laws that are relevant to the case without judges having an interested in the outcome.

However,
Weakness:
1. The judges can only rule on the facts of the case that is brought before them, and they can’t create general principles of the law outside the case.

Strength:
2. If parliament made a law outside its power. The high court can act as an independent check to confirm if there has been any abuse of power.

However,
Weakness:
2. High Court may depend on the composition of the High Court Justices, as some justices are more conservative in their approach to interpreting the constitution

Question 18

Requirement of a double majority in a referendum

Answer 18

1. Overall Majority across all voters in Australia includes NT + ACT
2. A majority of voters, vote yes in a majority of states >4/6
3. After that royal assent GIVEN CHANGE MADE

Question 19

Strength and Weaknesses: Double Majority Requirement

Answer 19

Strength:
1. The Constitution cannot be changed without the approval of a majority of voters.

However,
Weakness:
1. The public may not fully understand the proposal. Example the republic

Strength:
2. Double majority provision is hard to achieve, so any successful referendum will need significant support across the community. Example the Aboriginal Referendum

However,
Weakness:
2. Important changes often cannot take place due to the difficulty of achieving the double majority

Question 20

Aboriginal People Referendum

Answer 20

Prior the referendum law making on aboriginal issues were residual

made the constitution like discriminative against the aboriginal as commonwealth could make laws for ‘the people of any race, other than the aboriginal race’

over 90% of voters said yes and all 6 states

Question 21

Aboriginal People Referendum: Significance to the power balance

Answer 21

Increased the powers of federal parliament and limited the states

shifted division of power meaning federal could now make laws about aboriginal people

Was residual however it is now concurrent meaning it could also be made by the commonwealth and s109

Question 22

Section 7 & 24 establish principle of representative government

Answer 22

Established a representative Government

Should be responsive to public needs and concerns

It is a structural protection in the constitution that indirectly protects our rights

Question 23

Implied freedom of political communication

Answer 23

Established by High Court

Constitution established a system of representative government where they can only operate if freedom to communicate about political issues exist.

Question 24

The right to vote

Answer 24

High Court ruled that legislation under s7 & 24 cannot unnecessarily interfere with voting because if they were to interfere parliament is not chosen directly by the people

Question 25

Case of wireless set Brislan

Answer 25

Facts: s51 constitution gives commonwealth power to make laws with respect to ‘postal, telegraphic, telephonic and other like services’

Defendant charged with not holding license for wireless set which was a requirement by federal law

challenged court on basis that it is not other like service

Question 26

Brislan Outcome and significance

Answer 26

Interpreted ‘other like services’ to include wireless sets

Extended Commonwealth Parliament power to legislate in this area.

Restrict law making by state. Its also expanded concurrent powers to include wireless sets.

s109 gives complete power to federals.

Question 27

International Treaties and declarations

Answer 27

International treaties is a binding agreement between countries.

Involved two or more countries, signing numerous treaties covering a variety of topics, trade, environment and human rights

Treaties are then ratified by the Parliament

However,

the treaties, while binding between Australia and other countries only become law if Commonwealth Parliament passes relevant legislation

International Declarations:

non-binding agreement between countries.

Sets out intentions or aspirations which can lead to a binding treaty being made at a later time

Question 28

Tasmanian Dams Case

Answer 28

Shifted Balance of Powers

Federal Parliament signed a treaty to protect areas on the world heritage list and placed areas of Tasmania on it