Unit 4 AOS 1 – Parliament, Constitution & Courts

Vocabulary flashcards covering key constitutional, parliamentary and judicial terms from Unit 4 AOS 1 lecture notes.

Royal Assent

Formal approval of a bill by the Governor-General (or Governor) required before it becomes law.

Executive Council

o   group that is designed to give advice to the Crown’s representative on matters, such as whether to approve regulations.

o   Consists of: The leader of the government – prime minister (federal) and premiers (state), Senior ministers, Assistant ministers

Money Bill (Appropriation Bill)

Proposed law that imposes taxes or allocates government spending; can only originate in the lower house.

Residual Powers

Law-making powers retained by the states after federation (e.g., criminal law, education, roads).

Exclusive Powers

Areas where only the Commonwealth Parliament can legislate (e.g., defence, currency, customs).

Concurrent Powers

Law-making powers shared by the Commonwealth and states (e.g., taxation, marriage, trade).

Section 109

Constitutional clause stating that when state and Commonwealth laws conflict in concurrent areas, Commonwealth law prevails to the extent of the inconsistency.

purpose of section 109

·       Designed to aid in the resolution of conflicts/inconsistencies in between Commonwealth and state laws.

o   These issues arise when concurrent powers are exercised by the Commonwealth Parliament and one or more state parliaments

§  E.g. the Commonwealth and state both make laws concerning an issue, and they are conflicting

·       Generally, where there is an inconsistency, commonwealth law will prevail

McBain v Victoria (2000)

Case where Commonwealth Sex Discrimination Act overrode Victorian Infertility Treatment Act under s109 regarding IVF access.

R v Brislan (1935)

High Court case extending Commonwealth power to wireless (radio) broadcasting under s51(v).

significance of the brislan case

o   Improved and qualified the Commonwealth Parliament’s law making powers to include broadcasting to wireless sets.

o   Somewhat reduced the State’s power

o   Had an impact on future cases

§  Clarified that other methods of communication like radio broadcasting and television broadcasting does fall under section 51 of the Constitution.

o   Allows for the understanding that future developments in communication will fall under section 51 of the Constitution

o   Section 51 continues to be relied upon for the Commonwealth to regulate internet use

Bicameral Parliament

Legislature with two houses; requirement acts as a check by having each house review legislation.

Hostile Upper House

Situation where the government does not hold a majority of seats in the upper house and relies on the support of the opposition or crossbench to have their bills passed

how does a hostile upper house affect the ability of parliament to make law

• legislation can be more readily amended or rejected, reflecting the views of those who have the balance of power

• may obstruct ability of the government to implement law reform

• diverse upper house can be more effective, allows for debate and consideration of different views

Rubber-Stamp upper house

a situation in which the upper house of parliament automatically approves decisions made in the lower house because the government holds a majority of seats in both houses and members of the government vote along the party lines

how does the rubber stamp upper house affect the ability of parliament to make law

• can pass bills easily, undermining the review process

• Allows the government to pass whatever bills it pleases and to implement its legislative program, the only thing possibly preventing it from doing so is pressure of the public and risk of not being re-elected

• limits ability of upper house to act as a house of review or consider broader interests of the community

• bills introduced by a private member may be easily rejected

• bills are not sufficiently debated

Balance of Power

a situation where no single party has majority of seats in one or both houses of parliament, meaning the power to reject or approve bills is held by a small number of people

how does the law making process affect the ability of parliament to make law?

·       Parliament is often criticised for being slow to pass laws due to the complexity and intricacy of the process

o   However as proven during the time of COVID, parliament can act with speed when required.

Sitting Days

Days on which parliament meets; legislation can only be debated and voted on during these periods.

Delegated (Secondary) Legislation

Rules made by bodies other than parliament under authority of an Act, e.g., regulations by local councils.

International Pressure

demands or forces applied to parliaments to persuade them to make law to address matter of international concern eg. increased challenges of climate change, addressing pandemics, naturals disasters and wars

sources of international and political pressures

• local activists

• international activists who seek to general global change

• other countries

• UN or one of its bodies

• NGOs

Climate Change Act 2022 (Cth)

Federal law setting a 43 % emissions-reduction target by 2030 and net-zero by 2050.

• was a result of Australian groups and individuals urging parliament to make a change

Representative Government

Principle that parliament is elected by and accountable to the people, enshrined in ss7 and 24 of the Constitution.

how does the representative nature of parliament affect the ability of parliament to make law?

• if members fail to make laws that reflect views of the people, they jeopardise their chance at being re-elected

diversity of parliament

• female representation is increasing

• the proportion of first nations and non- european backgrounded members is not a good representation of their population

• parliamentarians can therefor not appropriately represent their views, values and needs

willingness to act in accordance with the views of the majority

• encourages MoP to listen to views of the community

• MoP may introduce laws that satisfy the majority to be re-elected but may ignore the need to create necessary legislation

• Mop may make laws to make a point, but may have negative or no effect

• MoP may have difficulty assessing how to go about addressing controversial issues

High Court of Australia

Court established by s71; interprets the Constitution, hears federal appeals, and checks parliament’s powers.

• gives high court power to hear disputes arising under the constitution

principle of representative government

• essential part of democracy and Australia’s parliamentary system is the fact that parliament and the government consist of members who are elected by the people to make laws on their behalf

• principle of representative government is enshrined in the constitution (s7 and s24)

• high court has had to determine the meaning of s7 and 24, protecting the principle of representative government by restricting ability of Commonwealth parliament to make laws infringing on right to vote and protecting ability of people to freely communicate on political matters

Section 7

Constitutional section requiring Senators to be ‘directly chosen by the people,’ underpinning representative government for a term of 6 years.

Section 24

Constitutional section requiring members of the House of Representatives to be ‘directly chosen by the people.’

protecting voting in elections

high court has found that a law is likely invalid if it interferes unreasonably with the ability of people to vote at elections

Roach v Electoral Commissioner (2007)

High Court case recognising limits on laws that restrict prisoners’ voting rights; upheld representative government.

• electoral and referendum act 2006 banned all convicted and sentenced prisoners from voting in elections

RESULT: prisoners who did not commit indictable offences can still vote

Implied Freedom of Political Communication

found that there was an implied right of freedom of political communication in the Australian constitution

Australian Capital Television v Commonwealth (1992)

Case that first recognised the implied freedom of political communication by striking down a ban on political ads.

Lange v ABC (1997)

Case that confirmed and refined the implied freedom test, linking it to representative government.

limitations on the high court to protect the principle of representative government

·       The high court is limited to interpreting words, rather than being able to add or remove words

·       The high court can only intervene and protect the principle of representative government if a person challenges the law

o   This requires a person with standing (directly affected by the issue/law), costs, and time to do so.

·       The interpretation of the high court will depend on its composition

o   Some justices have a more conservative approach and are reluctant to adopt a liberal mindset.

STRENGTHS: the high court’s role in protecting the principle of representative government and therefore acting as a check on parliament in law-making

• Judges are independent from government branches, base decisions on legal principles (not politics), and can uphold representative government even against parliament’s will

• The High Court allows individuals to challenge laws, ensuring parliament is not above the law.

• Judges can overturn laws that breach representative government principles.

• High Court judges are skilled and have access to extensive legal resources.

• Both the High Court and representative government are protected by the Constitution and can only be abolished via referendum.

WEAKNESSES: the high court’s role in protecting the principle of representative government and therefore acting as a check on parliament in law-making

• Can only decide on the specific case presented; cannot create broad legal principles without relevant cases.

• Cannot act unless a case is brought, and such cases can be costly, complex, and require legal standing.

• Outcomes may vary depending on the Court’s composition and judicial philosophy (e.g., conservative vs liberal interpretation).

• The scope of the principle’s interpretation can change if future courts take a different view

Separation of Powers

Division of governmental powers into legislative, executive and judicial branches to prevent concentration of power.

• the purpose is to ensure that no one body has absolute control over the functions of the political and legal systems

Executive Power

Authority to administer laws and manage the business of government (governor general/ governor but in practise carried out by the prime minister)

Legislative Power

power to make laws, resides in parliament

Judicial Power

power given to courts and tribunals to settle disputes and enforce the law (high courts, court hierarchies and other courts bested with federal jurisdiction)

judicial and legislative systems

• The judiciary and legislature must remain separate — only courts/tribunals can decide if laws are broken, though courts can also make common law.

• Government appoints judges, but courts are intended to remain politically independent to prevent misuse of power and corruption.

• Federal judges’ impartiality is supported by secure tenure until age 70 and protection from removal except in cases of proven misconduct approved by parliament.

legislative and executive powers

·       In practice, both the powers to make laws and to carry out the business of government is held by the Cabinet.

o   The Federal Cabinet consists of the Prime Minister and senior Ministers

o   The State Cabinets consist of the Premier and Ministers

·       The role of the Cabinet is to decide on government policy as well as formulate bills to be introduced in parliament.

o   Thus, in practice, the executive power is not held by the monarch or its representative, but by the prime minister.

·       Executive and legislative power are also closely linked through the path of a bill in becoming a law.

o   Laws are first passed by parliament (legislative) and then must receive royal assent (executive)

reasons for the separation of powers

·       It prevents power from being held by one set of hands and provides a check on the power of parliament

o   No singular body can make law, administer law, and rule on its legality.

·       The government and parliament must work together to pass laws, but the independence of the judiciary should be protected

o   If a person feels that the parliament has passed a law that breaches the constitution or their human rights, they can take the matter to court, which operates independently of politics.

strengths of separation of powers

• Parliament makes laws, but courts can strike down any law passed beyond parliament’s legal powers.

• The judiciary’s independence ensures impartial decisions, free from political influence or electoral pressure, even when the Commonwealth is involved.

• Some safeguards keep the executive independent from parliament, such as banning certain Commonwealth employees from being MPs.
  Courts can only check parliament if someone brings a case.

• The separation of powers is entrenched in the Constitution and removable only by referendum, but it does not apply to states (which have their own provisions).

Express Right

Right expressly written in the Constitution, changeable only by referendum (s128). any law made by parliament that infringes an express right will be deemed invalid

Freedom of Religion (s116)

Express right preventing the Commonwealth from establishing a religion or prohibiting its free exercise.

right to Interstate Commerce and Free Trade (s92)

Express right ensuring interstate trade and commerce shall be ‘absolutely free.’

·       The purposes of this right:

o   Prevents parliament from treating interstate trade differently than intrastate trade

§  Restricts taxes being imposed on goods moving between states

o   Provides freedom of movement between states without burden

§  Because the right mainly refers to movement of goods but also applies to people

Just Terms (s51(xxxi))

Express right requiring the Commonwealth to pay fair compensation when acquiring property.

Trial by Jury (s80)

Express right to a jury for indictable Commonwealth offences, with unanimous verdict required.

Freedom from State Residence Discrimination (s117)

Express right prohibiting laws that discriminate against people based on the state in which they live.

Statutory Interpretation

Process by which courts determine the meaning of words in legislation when resolving disputes.

Drafting Error

Mistake or ambiguity in a statute that can trigger judicial interpretation to clarify meaning.

Effect of Interpretation

Outcome where court-defined meaning becomes part of the law and may create precedent.

Doctrine of Precedent

Common-law principle that lower courts follow legal reasoning of higher courts in the same hierarchy.

Binding Precedent

Precedent that must be followed by lower courts when the material facts are similar.

Persuasive Precedent

Precedent that courts may consider but are not obliged to follow, e.g., from another jurisdiction.

Ratio Decidendi

Legal reasoning for a court’s decision; the binding element of precedent.

Obiter Dictum

Comments ‘by the way’ in a judgment that are persuasive but not binding.

Reversing Precedent

When a higher court on appeal overturns the precedent set in the same case by a lower court.

Overruling Precedent

When a higher court in a later case decides a previous precedent of a lower court was wrong, replacing it.

Distinguishing Precedent

When a court avoids following a precedent by finding material differences in facts.

Disapproving Precedent

When a court expresses disagreement with a precedent but still follows it; may influence future change.

Judicial Conservatism

Philosophy where judges show restraint and avoid major law-making, deferring to parliament.

Judicial Activism

Approach where judges consider social values and may broadly interpret the law to achieve justice.

Costs of Litigation

High expenses for legal representation and court fees that can deter cases needed to create precedent.

Requirement for Standing

Rule that only parties directly affected by a matter can bring a case to court.

Supremacy of Parliament

Parliament’s ultimate law-making authority to create, amend or repeal any law within its power.

Codification of Common Law

Parliamentary action that incorporates and strengthens court-made principles in statute form.

Abrogation of Common Law

Parliamentary legislation that overrides or cancels a court-made precedent, except for constitutional rulings.

Balance of Power (Upper House)

Position held by crossbench or minor parties who can decide whether legislation passes in a hung chamber.