UNIT 4 the australian people and constituition Flashcards
westminister system:
definition
5 x key features
framework in which our parliamentary system is based and originalised from britain
key features
1- crown is head of the state
2- bicameral structure=two houses
3- plmt is the ultimate law making body
4- plmt actions are representative of the people
5- plmt should be responsible for their actions
federation:
- definition
- when was australia federated
- 3 purposes of federation
def: unification of states(colonies) to form an independantly recognised country
aust= 1st jan 1901
1- create a central authority on political issues
2- each colony retain some authority
3- balance the interests of states
the constituition
definiton?
legislation?
6 x key features?
def= an act that outlines political and legal structure along with identifying law making powers between the commonwealth and state parliaments
legislation= Australian constituition Act 1900
key features:
1- describes composition on how commonwealth will function
2- identifies law making powers of parliament
3- roles and powers of executive govts
4- roles and powers of high crt
5- 5 x express rights of australian ppl
6- defines relationship bw state and cth parliament
what are the three functions of the government and describe
legislative function- outlines structure of the cth parliament and its law making powers (making laws)
executive function- function of govt and roles of ministers/ administering laws
judicial function- establishes and outlines the power of the high court as the most superior court in australia
THE CROWN
definition?
4 x roles of the governer general?
def= crown refers to the monarchy under queen elizabeth 11. formal head of state
roles=
1-grant royal assent-allowing laws to be passed down
2- appoint times of holding parliament sessions
3- dissolve senate and house of rep
4- perform ceremonial roles=opneing and closing parliament
HOUSE OF REPRESENTATIVES
definition?
5key features?
3 x roles?
def= lower house. govt is formed after a federal election whereby voters nominate who they would like to represent them in each seat
features=
1- 151 members/seats
2- each member has an electorate which contains same number of votes
3- voters elect one member every three years
4- hors= peoples house, represent peoples interests
5- political party majority of seats
roles:
1- main role is to make laws that are passed by both houses
2- scrutinising government= where legislation is debated
3- controlling government spending= can collect taxes and allocate spending of public money
what are the three structures of the victorian parliament
governer
legislative council
legislative assembly
the governer vic plmt
definition
4 x roles
the governer is reprsentative of the queen at state level
roles:
1- appoint ministers
2- give royal assent
3- appoint parliament sitting times
4- dissolve parliament to bring about an election
legislative assembly:
definition
roles
definition:
lower house of the victorian parliament. consists of 88 representatives are elected by constituints and each electorate represents approximately 50,000 voters.
roles:
- represents the interests of people
- lawmaking where bills are considerd
- uphold representative govt
- uphold responsible govt
legislative council
definition
3 x roles
def: the upper house of the victorian plmt. consists of 40members representing 8 regions
roles:
1- scrutinising bills
2- representing regions
3- debating laws and amendments
SENATE
definition?
3 x key features?
3x roles?
def= upper house consists of 76 members from eachstate and territory allowing for an requal say
features:
1- directly elected by voters on electoral roll
2- senators are elected for a term of 6 years
3- equal number of senators allow laws to be reviewed and equally represented
roles:
1- main is uphold the views of the state when making laws
2- providing for a responsible govt= senate can call govt to account for their actions made
3- scrutinising govt= administering laws, protecting rights of citizens
functions of the council vs the assembly
x2 functions
represenative govt:
-assembly= elected to represent sapproximately same number of electors
-council= safeguard interests of people in all areas of victoria
controlling govt spending:
assembly= govt can only allocate taxes of spending of money
council= -
representative government
definition?
3 x examples?
members of parliament must act in a way that reflects the views and values of the people
examples:
- passing/amending laws
- introducing policies
- upholding interests of the region
responsible government
definition?
3 xexamples?
must act in a way that makes them accountable and answerable for their actions
examples:
- ministers providing leadership
- participate in answering questions
- participate in royal admissions
the australian constituition
definition?
4 x key features?
states the fundamental principles or rules by which a country is to be governed. establishes structures of parliament,lawmaking powers and limitations
features:
- how mps are chosen
- area of lawmaking powers
- how the constituition can be changed
- role of the high court
what is division of powers
areas of powers that are divided or allocated to commonwealth and states to legislate with jursidiction
specific law making powers
definition?
3 x examples?
those that are listed/ specified in the constituition as belonging to the commonwealth parliament
examples:
taxation
immigration
defence
exclusive powers
definition?
2 x examples
areas of law only commonwealth and parliament can legislate within. power is not shared
examples:
- control of public services
- control of railway
concurrent powers
definition?
examples x 2
those that are specified and given to the commonwealth, however have not been made exclusive therefore states can legislate in the area.
shared between the commonwealth and the states
examples:
- marriage
- divorce
residual powers
definition?
what sections
not listed or specified in the commonwealth constituition and therefore belong to state and territories. commonwealth can have power over these if state hand them over.
sect 106 and 107
section 109
what is it?
what is the impact?
what: when the constituition was developed there may be conflicts or issues that arise when 2 parliaments try to legislate in same area
impact: provides a way to resolve conflicts between commonwealth and the states when attempting to legislate in the same areas
section 109 as a method to resolve conflicts
x2
1- if conflict in concurrent powers commonwealth laws will prevail
2- inconsistancy must be challenged by commonwealth or group before sect 109 is enforced- meaning if there is no challenge laws can co exist
sect 109 as restiction to state lawmaking powers
x3
1- if a state attempts to legislate in an area of concurrent powers but a commonwealth law already exists, states are restricted
2- sect 109 is only resticted in inconstancies overlap
3- inconsistancy only applies to particular words or phrases
JOHN MCBAIN V STATE OF VICTORIA
what was the legal issue?
what did infertility treatment act 1995 state?
what was the decision of the federal act?
how was sect109 used?
legal issue: dr mcbain ivf treatment was deemed illegal for ms meldrum as she was single
act: people who are eligible for ivf are:
- married and living with their husband
- living with a man in a defacto relationship
decsion of fed crt:
held that legislation between cth and govt were inconsistant.
- challenged by the act of victoria
-in favour of mcbain
sect 109:
- decided cth legislation prevailed state legislation of victoria law that denied ivf treatment on the basis of marital status
why was john mcbain vs victoria not a high court case?
because mc bain wasnt challenging the constituition however challenging victorian parliament legislation
bicameral structure of plmt
definition
def: the parliament consists of two houses that participate with the decision making process when making laws. commonwealth consists of house of reps and the senate
how does the house of reps act as a check in the bicameral structure?
x3
1- lower house is wherre governement is formed and bills are introduced reflecting majority of the people
2- members of the lower house must be accountable for their actions to ensure transparency
3- elections are held every three years to provide australian people a chance to elect a new govt
how does the senate act as a check in the bicameral structure
x3
1- once a bill has successfully passed the lower house, it must also recieve support from the upper house to get royal assent
2- upper house compromises of equal numbers from each state to ensure voices of the state are heard fairly
3- members of the senate must be answerable and accountable for their actions
2 x strengths of the bicameral structure
1- allows for review: only laws that are ineffective may not be passed
2- ‘hostile senate’ meaning bills are more likely to be reviewed and scrutinised more clearly
2 x weaknesses of bicameral structure
1- ‘rubber stamp effect’ where a political party controls both lower and upper house therefore bills and amendments may not recieve same level of scrutiny
2- laws will generally only be passed if the federal govt supports it therefore will not be in line with govt
seperation of powers
definition
an idea or belief based on upon the notion that power should not be concentrated or given to one body as this will lead to abuse or lack of transparency. therefore checks and balances occur
what are the three seperation of powers
1- legislative function= power to make laws which is excersised by govt
2- executive function= power to implement and adminisiter the laws which is excersised by governer generals
3- judicial function= power to enforce law and settle disputes which is excersised by courts
how does seperation of powers act as a check on plmt?
1- the legislative function provides the ability to make laws given to plmt where new bills are proposed
2- by having three seperate powers allows power to not be concentrated and therefore shared> minimising the abuse of power
3- even though parliament is supreme lawmaking authority judges have certain powers to overrule and amend
strengths of the seperation of powers
x2
1- judiciary is independent of parliament therefore allows judges to independently interpret and apply the law
2- the principle of seperation of powers is entrenched in the constituition therefore would require a referendum to abolish
weaknesses of seperation of powers
x2
1- legislative and executive power are combined therefore decreasing the ability to act as a check
2- where govt controls senate is far less scrutiny therefore powers by legislative and executive are combined
what are express rights
defintion?
rights that are clearly stated in the australian constituition. As such these rights cannot be changed or removed unless there is a successful referendum
express rights are fully enforceable neither state or cth can pass any laws that infringe upon any express rights
what are the five express rights
1- acquisition of property on just terms
2- right to trial by jury for commonwealth indictable offences
3- trade and commerce between states shall be free
4- freedom of religion
5- freedom from interstate discrimination
1> express rights:
acquisition of property on just terms
what does this mean?
- cth plmt can make laws to take property from australian individuals by that it must be on just terms
for example using property for military bases or airports
2> express rights:
trial by jury for indictable offences
what does this mean?
section 80 of constituition guarantees right to trail by jury under cth law if offences are indictable
-an accused cannot elect to have a trial by a judge alone
- majority veridcts cannot be used for cth offences
3> express rights :
trade and commerce between states shall be free
what does this mean?
trade between states and territories shall be free, that is , free of customs, taxes , and import duties
high court have found that
- freedom relates to trade commerce and communications
- does not provide absolute guarantee of freedom of movement
4> express rights:
freedom of religion
what does this mean?
cth cannot:
- make a law to create national religion
- impose any religious observance
- prohibit free excersise
- no religious test is to be applied to the public
5> express rights:
freedom from discrimination based upon state residence
what does this mean?
under section 117 it is unlawful to:
- discriminate against a person based on the fact they live in another state
how do express rights act as a check on plmt?
x2
1- express rights are entrenched in the constitution and therefore cth cannot make laws that infringe these rights
2- express rights can only be changed or amended by a successful referendum
strengths of express rights
x2
express rights impose limits on plmt lawmaking therefore this protects the public against parliament being able to make any laws it wnats to
- the high court can declare laws ultra vires therefore the high court can act efficiently to declare the law made by plmt out of its jurisdiction
weaknesses of express rights
x2
1- there are only five express rights therefore for further rights to be added a successful referendum must occur which is rare
2- express rights dont prevent parliament from passing laws meaning it doesnt stop parliament from the action itself of passing the law
the high court acting as a check on parliament
what does this mean?
x3 points
1- the high court acts as a guardian to the constituition= hc is only court that can determine disputes to do with the wording of the constitution and therefore is the protector of it
2- it acts as a check on abuse to power
3- provides meaning to wording of the constituition
what are 3 x impacts of the high court decisions
1- alter the division of lawmaking powers= gives more powers to cth over that of states
2- reinforces boundaries of express rights
3- imply further rights for the people
strengths of the high court acting as a check on plmt
x2
1- high court judges are experienced and specialist therefore should be able to make consistant and legally sound decisions
2- complexity of bringing matter to high court therefore avoids the arbitrary challenges from being brought forward and safeguards the stability of the constituition
weaknesses of high court acting as a check on plmt
x2
1- high court can only rule on facts of the case therefore cannot create general principles of law
2- the high courts role is limited to interpreting the constituition
the requirement of a double majority for the referendum
what is a referendum?
what is a double majority ?
ref= a national vote to change the wording of the constitution
double majority= provision with section 128 of the constitution that, if successful, will allow the wording of the constitution to be changed.
refers to achieving a yes vote to the referendum
weaknesses of the double majority as a check on plmt
x2
1- time consuming and costly as referendum takes a long process for it to be implemented and the last referedum cost 66mill
2- difficult to achieve a double majority as made as even if overwhelming support difficult to change the constitution
strengths of the double majority as a check on plmt
x2
1- is strict therefore majority of voters are given the right to determine whether a change of wording for the constitutuion is made
2- protects smaller states for example tasmania therefore larger states may support the change not alone to determine the success of the referendum
section 7 and 24 meaning
section 7:
sets out matters related to the senate
section 24:
matters related to house of rep
both require to be chosen directly by the people
both enshrine the system of representative govt
roach vs federal election 2007
Facts, outcome and significance
facts:
- 2006 electoral referendum amendment banned all prisoners from voting in elections
- vicki roach was serving a 6 year sentence. she challenged constitution in the high court
outcome:
- the high court found that 2004 act to be valid but 2006 act was in consistant with the principle of represenative democracy
- unconstitutional because sect 7 and 24 require plmt to be chosen directly by the people legally protects the vote
significance:
- high court found that the cth parliament acted unconstitutionally by denying prisoners the right to vote
- held that sect 7 and sect 24 do not allow for unreasonable restrictions to be placed on the ability of people to vote
the purpose and process of a referendum
purpose:
-protect words of the constitution from being arbitatarily changed and if changed it is done with overly public support
process:
- the initiation of a referendum can only come from the parliament
- people of australia vote ‘yes’ or ‘no’
- if the referendum meets the double majority
facts of the 1967 referendum
- until 1967 the cth was prohibited in making laws with indigenous australians
- section 127 did not allow fn ppl to be included in the population
- people found these unfair and discrimination> barrier to policy making
- may 1967= referendum held to determine whether the cth should have pwr to legislate
changes from the 1967 referendum
- whether indigenous people should be included in the national census
- remove any provisions to discriminate against other indig ppl
if passed= concurrent pwr
results of the 1967 referendum
- majority of voters in favour
- 90.77% voted ‘yes’
- reflected communities views and values of being equally treated
impact of the referendum
- section 51 was amended
- section 127 was deleted
cth could provide legislation and funding to indigenous ppl
2 x strengths of referendums
1- needs a double majority therefore ensures that there is overwhelming support for change rather than just 51% of population, the voices of the state are also considered
2- process requires a consitutional alteration, bill passed by plmt
2 x weaknesses of referendum
1- referendum are very rare, last one was in 1999, expensive and require by partism support from both sides of politics
2- people may not be fully aware or educated by the change as a result they may vote ‘no’
the high court and division of powers
under section 75 the high court has the jurisdiction to hear dispute:
- cth suing another person
- disputes between states or residents
R VS BRISLAN
facts
hc decisions
impacts
facts:
- in 1905 the cth passed wireless telegraph act cth) which req all wireless radios hold a license
- the defendent ms brislan owned a radio however not licensed was charged anf fined
- she challenged the validity of the act arguing cth did not have the ability to legislate under such areas> said word wireless was not mentioned in constitution
hc decision:
- to reoslve case high court referred to sect 51 of const where cth can make laws for “ other services” to do with electric communication
- cth did not have ability to make laws in this area
impact:
- hc had to interpret wordinf of the constitution> broad interpretation
- interpretation expanded power of cth ability to legislate in that area
- it set precedent to cth allowing television, satellite, communication
- area is now a concurrent power
what are external affairs powers
refers to the ability for cth to make laws to implement international treaties and declarations
power to manage affairs that australia is involved in internationally
what are treaties/conventions
formal agreement between two or more nations. legally at international level eg. human rights
what are declarations
not intended to be binding, more aspirations or goals that a state aims to achieve but are not bound to implement
impact of section 51 on external affairs
constitution sets out powers in relation to international declaration and treaties
1- cth has power to enter into international declarations and treaties= executive powers
2- cth has power to implement international delcarations and treaties which is legislative pwr
impact of external affairs on aust
all treaties must be seen in both houses of cth is 15 days prior to cth agreeing to ratify treaty
therefore international treaty not australian law. can only apply if plmt passes an act
what is ratification
process where a nations plmt confirms and gives its approval to an international treaty signed by govt.
binding and international
the dam case
facts
hc decision
impact of hc decision
facts:
- tas govt wanted to build a dam on the junction of gordon franklin river
- if built= destruction of nature and habitats
- to prevent this the govt passed the world heritage and conversation act 1983= prevents destruction, cleaning,excavation and building
- tas argued cth didnt have the ability to prohibit this
high courts decision:
- high crt considered cth ability to legislate in dam buildings under sect 51 of the constitution
- high crt gave external power in order to fulfill australias obligations
- as australia signed to world heriatge list tf australia is within its jurisidction
impact:
- hc shifted law making powers from states in relation to residual powers to that of cth w an international treaty
- broadened cth lawmaking powers in area of residual powers
if cth are able to demonstrate basis for legislation under external affairs= ability to infringe upon residual powers
limitations of external affairs
3
- the power cannot extend upon limits of treaty
- bona fide agreement= must be honest and transparent decisions
- the power of cth parliament to uphold treaties is limited by express rights
