unit 4 sac 1 Flashcards
what are residual powers
law making powers left with the states at the time of federation and are not listed in the Australian Constitution. the commonwealth parliament has no authority to make laws in this area. S106, 107 & 109 of constitution protect this power
eg. road laws, public transport
what are concurrent powers
law making powers that both the commonwealth and state parliaments share. S51 of the constitution protects these laws.
eg. tarde, taxation, marriage & divorce
similarities between residual and concurrent powers
- protected by constitution
- the laws affect the states
- both held by state parliament
differences between residual and concurrent powers
- residual powers aren’t expressed in constitution, concurrent are
- concurrent powers are held by both commonwealth and state parliaments, residual is just state
- S106,107,108 protects residual powers. S51 protects concurrent powers
whats the significance of S109
- can act as a restriction on state parliaments, this is achieved by providing that if a state law is made in an area where a commonwealth law already exists, the federal law will prevail over the state law to the extent of its inconsistency. so state laws are constrained where a commonwealth law exists.
- it imposes a consistent approach to the way inconsistencies will be dealt with. that is, there is no doubt that the commonwealth law will prevail.
implications of S109
- does not automatically operate such that the state parliament lacks the power to pass a law which is inconsistent with commonwealth law.
- the law has to be challenged before declared invalid (2 laws have to be inconsistent)
- if in future commonwealth law is changed, and state law continues to exist, then state law will be in force and hav effect
what is the role of the house of reps?
- initiate and make laws - main function is to initiate new laws. any member can introduced a proposed law, this is known as a bill (private members bill)
- 2. represent the people - forms a representative government. members are elected to represent the people and act on behalf of the people, laws should reflect the views of community - determine the government - after an election, the political party that has the most members in the House of reps forms the government
- act as a house of review - when a bill has been initiated and agreed upon in the senate, the house of reps will act as a house of review.
whats the role of the crown?
- withholding royal assent - the crowns representative has the power to withhold royal assent (refuse to approve a bill and therefore make it in Act of parliament). this rarely happens though
- appointing executive council - the GG appoints this to prime minister and premiers and senior ministers. EC gives advice on government matters as well as approve secondary legislation. secondary legislation are rules and regulations made by government bodies such as government departments.
what is the separation of powers?
the powers include
- executive powers
- legislative powers
- judicial power
purpose of the separation of powers
- ensures no one body has absolute power or control over the functions of the political and legal systems
- helps to protect individual rights by providing checks and balances on the power of the commonwealth parliament
- the government and parliament must work together to pass laws and the judiciary must be preserved
what are executive powers?
the power to administer the laws and manage the business of government, which is vested in the Governor General as the queens representative. set out in S61
what are legislative powers?
the power to make laws which resides with the parliament. set out in S1
what are judicial powers?
the power given to court and tribunals to enforce the law and settle disputes,. set out in S71
