CH10 - Law Making Powers

composition of the commonwealth parliament

the crown, governor general
the senate, upper house 76
the house of rep, lower house 151

role of the house of representatives

initiate and make laws
determine the government
act as a house of review
control government expenditure
represent the people
scrutinise government administration

initiate and make laws house of rep

includes bills that change or amend existing law
bill is debated, scrutinised, and considered by a parliemtnary committee

control government expenditure - house of reps

bill must be passed through both houses of parliament before a government can collect taxes or spend money, but only the house of reps can introduce money bills

money bills

proposed law that imposes taxes and collects revenue, also known as an appropriation bill

scrutinise government administration - house of reps

government is expected to be answerable and accountable for their decisions, policies and actions
upheld by enabling members to question ministers about their policies and legislation during question time

role of the senate in law making

act as a house of review
allows for equal representation of the states
initiate bills
scrutinise bills and government administration

act as a house of review senate

decide whether to pass a bill with or without amendments in the case of a money bill, or request amendments
can insist on changes before law is passed
acts as an important check on government law making particularly if they don’t have majority

initiate bills - senate

except money bills, very rare

scrutinise bills and government administration - senate

• has a number of committees that can scrutinise legislation or particular government activities, policy or expenditure

• senate standing committees for the scrutiny of bills that assesses proposals and the affect they would have on individual rights, freedoms, obligations and the rule of law

rule of law

the principle that everyone in society is bound by law and must obey it, law should be fair and clear so people are willing and are able to obey them

composition of the victorian parliament

• the king, governor of victoria

• legislative council, upper 40

• legislative assembly, lower 88

role of the legislative assembly

• initiate and pass bills

• form government

• scrutinise government administration

• represent people

• act as a house of review

• control government expenditure

role of the legislative council

• act as a house of review

• initiate and pass bills

• scrutinise government administration through committee process

the crown

1 governor at federal, 6 at state

roles of the crown in law making

• granting royal assent

• withholding royal assent

• appointing the executive council

granting royal assent

• required to approve bills before they can become laws

• normally given as a matter of course on the advice of the pm, ministers at cwth, premier of vic

withholding royal assent

• refusing to approve a bill

• rare

• constitution specifies circumstances where governor general can withhold royal assent at federal level

appointing the executive council

• group consisting of the pm and senior ministers

• responsible for administering and implementing the law by giving advice about the gov and departments such as whether to approve regulation

exclusive powers overview

• cwth

• 51 and 52

• currency, foreign affairs, defence

concurrent powers overview

• cwth and state

• 52

• marriage, taxation, banking

residual powers overview

• state

• 106, 107, 108

• public hospitals, public schools

residual powers

• law making powers left to the state

• not listed in the constitution

• criminal, medical procedures, road laws, education, public transport

exclusive powers

• powers which can only be exercised exclusively by the cwth

• defence, currency, customs and border protection (immigration, imports and exports, border security)

• 90, 114, 115

concurrent powers

• law making powers they share

• trade, taxation, marriage and divorce, postal, telegraphic, telephonic and similar services

taxation concurrent powers

• cwth - income tax, GST

• state - stamp duty, payroll tax

purpose of section 109

helps resolve conflicts and inconsistencies between state and commonwealth laws

section 109

when a law of a state is inconsistent with a law of the cwth the latter shall prevail, and the former shall, to the extent of the inconsistency be invalid

how does section 109 work

• can act as a restriction on the states to implementing their legislation

• doesn’t automatically operate, law needs to be challenged in court to be declared invalid

• if the cwth law is abrogated or changed in the future and the state law continues to be in existence it will be in force and have effect

• even if they don’t appear to be conflict the high court has held that a state law will be inconsistent if the cwth intended it to be a complex statement on a particular subject matter or area

• cwth can sometimes explicitly state that state laws continue to operate

jurisdiction of the high court in law making

• given under section 75

• commonwealth or person suing or being sued on behalf of it is a party

• between states

• residents of different states

• state and resident of another state

what is the brislan case

1980s case involving wireless set

constitution and legislation involved in the brislan case

• section 51v grants cwth power to legislate on postal, telegraphic, telephonic and other like services

• cwth passed the wireless telegraphy act 1905 which required all wireless set owners to have a license

details of the brislan case

defendant dulcie williams was convicted and fined for owning a wireless set without a license

arguments in the brislan case

• defendant challenged the validity of the act, arguing that the constitution gave no power to the cwth the make laws in relation to radio broadcasting and therefore the act was ultra vires

decision of the brislan case

• majority justices held that wireless sets were a form of telephonic service and fell within the scope of section 51v

significance of the brislan case

• resulted in a change to the division of cwth law making powers to include broadcasting to a wireless set

• somewhat reduced state powers as they can’t make any conflicting laws

• significance for future types of communication and technological advancements as section 51v talks about “other like devices”

limitations/controversies of the brislan case

• some commentators argued that it gave the cwth too much power

• while it’s arguable that brislan provides the cwth with the power to regulate the internet as a like service it hasn’t been confirmed by the high court case

• bringing a case to court requires standing, and it’s expensive and time consuming