Week 2 Everything Flashcards
On a Federal level, s1 of the Australian Constitution provides
“The legislative power of the Commonwealth shall be vested in the Federal Parliament, which shall consist of the Queen, A Senate, and a House of Representatives, and which is hereinafter called ‘The Parliament” or the Parliament of the Commonwealth’.
Section 1 of the Constitution
Section 1 of the Constitution therefore is the section which enabled and gave rise to the very existence of the Commonwealth Parliament of Australia. s 1 is also the section which created a bi-cameral form of Government – that is, a Government consisting of two Houses of Parliament.
Legislative power is the power to make law. Federal v State
In Australia and on a Federal level, this power is exercised by the Federal Parliament (that is, both Houses of Parliament).
On a State level, this power is exercised by the various State and Territory parliaments
Law made by Parliament on a Federal, State or Territory level, is known as
legislation – e.g. an Act of Parliament, or a Statute.
Whether on a State, Territory or Federal level, law made by Parliament is ‘supreme’.
This means that if there is a contradiction or inconsistency between law made by Parliament (on any level) and a decision of any Court in the Australian Court hierarchy (on any level), to the extent of that contradiction or inconsistency, Parliamentary law will prevail. This is known as the supremacy of Parliament (on any level of Government). The supremacy of parliament therefore, means that Parliament is the ‘sovereign lawmaker’.
The structure of parliament
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Lower House – Federal Parliament
The House of Representatives is the ‘people’s house’, providing equal representation for the people of Australia. Australia is divided into electorates – about 150 – with roughly equal numbers of voters, each of which elects a representative. The political party with the majority of members in the House of Representatives forms executive government. The Prime Minister is traditionally a member of the lower house.
Upper House – Federal Parliament
The Senate is the ‘States’ house’. It protects the rights of the States. There is an equal number of Senators from each State (12) in order to protect the interests of the less populous States. The Territories are represented by 2 Senators each. The founders of the Constitution recognised the danger that the Lower House would favour those States, and the composition of the Upper House addressed that risk by giving the States the opportunity to oppose any biased legislation.
Before a proposed law is approved and passed by both Houses of Parliament, it is referred to as a ‘Bill’.
Bills are drafted by Parliamentary Counsel who specialise in drafting legislation. To become law, a Bill must pass three ‘readings’ in each of the two Houses of Parliament. It must then receive the Royal Assent.
The first reading
The first reading is a formal reading of the Bill’s title and a distribution of the copies of the Bill. This usually takes place in the House of Representatives. There is no debate.
The second reading.
The relevant Minister delivers a speech outlining the content and objectives of the Bill and members debate the Bill.
The third reading
The third reading involves voting on the Bill. If a majority votes for the Bill, the Bill is passed and is subsequently sent to the Senate - the Upper House where the same procedure is followed. If the Bill is passed by a majority vote at the third reading, then it has passed both Houses of Parliament and is sent to the Governor-General for Royal Assent.
A Bill that has been successfully passed by both Houses of Parliament is not law until it receives the Royal Assent of the Crown Representative.
On a Federal level, the Crown Representative (representing the Queen) is the Governor-General. Traditionally, the Crown Representative acts on the advice of the executive government.
How to dissolve Federal Parliament
In relation to the Federal Parliament, S.57 of the Australian Constitution provides that if the Upper House fails to pass a Bill passed by the Lower House, and after three months the Bill is once again passed by the Lower House and rejected by the Upper House, the Governor-General is empowered to dissolve both Houses, known as a double dissolution.
Parliament in operation: Proposal, Drafting and Submission to the Houses
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Three readings of a Bill
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The decision to change existing law or to introduce new law may arise for three reasons:
The executive government decides to change the law or create a new law to implement its policies.
The executive government is pressured by one or more sources (shown in the transparency following) to do so.
A member of Parliament who is not a member of the executive government may initiate the proposed change to or creation of a new law. This is referred to as a Private Member’s Bill.
Pressure to change the law comes from
Public servants
Law reform body
Media
Courts
Government policy
Lobby groups
Judicial power
Judicial power is the power to interpret the law and to apply it in the resolution of particular disputes. Judicial power is exercised by the courts.
A court hierarchy:
allows a system of appeals, allows different forms of hearing according to the gravity of the case, and facilitates the operation of the doctrine of precedent. Each court in the hierarchy has its own jurisdiction.
Federal court hierarchy
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State court hierarchy
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Jurisdiction
Jurisdiction refers to the scope of the court’s authority, either Federal or State. Each of the Courts on either level has original and appellate jurisdiction as well as criminal and civil jurisdiction.
The Adversarial System:
The system of dispute resolution used in modern Australian courts is called the adversarial system. The parties ‘fight it out’ until one of them is declared a winner by an impartial referee in the form of a judge. Within strict rules of procedure and evidence, the parties have complete responsibility for the conduct of their case.
