Legal-Unit 4 AOS 1 PART ONE

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What is the Australian Constitution

a set of rules and principles that guide the way Australia is governed

Common law

law made by judges through decisions made in cases

constitutional monarchy

a system of government, where the monarch is the head of state and the constitution sets out the powers of parliament

strength of a bicameral parliament

• The use of 2 houses acts as a means on ‘quality control’ & ensures bills are rigorously reviewed and debated, and the government cannot drastically alter the law without appropriate scrutiny

strength and weaknesses of a bicameral parliament- hostile senate

• A hostile upper house prevents the government from passing bills that align solely with their political view rather than the views and values of their constituents. As there’s more opportunity for higher levels of debate over bills, improving quality of law-making

weaknesses

• May cause delays at the speed to which bills are passed

• Particularly stubborn MPs who hold the ‘balance of power’ may force the government to alter bills in their interest which may not represent the broader population. They may have disproportionately high power compared to the size of their voter base.

strength and weaknesses of a bicameral parliament- rubber stamp senate

• A rubber stamp senate makes it easy for government to pass bills with few barriers from conflicting parties, increasing efficiency

  weakness

• When the government holds majority in both houses they may ‘rubber stamp’ bills, diluting the role of the upper house in scrutinising and debating legislation. Thus making it less effective or representative of the community due to lack of review.

strength and weakness of a bicameral parliament- stages of a bill

• The detailed law making process is necessary to ensure proper consideration and scrutiny of law

  weakness

• The law making process can slow down the legislative process, due to the number or stages and opportunity for debate which can causes delays and a lengthy process
  side note[ more controversial bills will take longer]

strength and weakness of bicameral parliament - sitting days

weakness

• As MPs have duties external to the law-making process, such as being active in the community they have relatively few sitting days which can delay the pace of law reform

on the other hand

• there are secondary legislation and committees who debate legislation to make lawmaking effective

what are international pressures?

Demands or forces applied to parliament to persuade them to make, or not make, law to address matters of international concern

What is the role of section 109

Section 109 is designed to resolve conflicts and inconsistencies between state and Commonwealth laws.

why do inconsistencies arise

often these inconsistencies arise due to concurrent powers, for example the commonwealth and state parliament make 2 contradicting laws in the same area

what is section 109

When the law of the 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.

1st express right

• right to freedom of religion by preventing the Commonwealth from making laws establishing a religion, imposing any form of religious ceremony or worship and prohibiting the exercise of any religion

• section 116

2nd express right

• the right to free interstate trade and commerce

• section 92

3rd express right

• the right to receive ‘just terms’ when property is acquired by the Commonwealth

• section 51xxxi

4th express right

• right to trial by jury for indictable Commonwealth offences

• section 80

5th express right

• right not to be discriminated against on the basis of the state where you reside

• section 117