The People and the Law Makers - Unit Four AOS1

Constitutional monarchy

• Monarch (the king) and two houses (chambers)

• The Australian constitution that sets out the rules for how Australia is governed

•   bicameral parliament – representative democracy – all eligible citizens vote to elect people who will represent them in parliament

The west minister system - 2 features

• responsible government – the government (or executive) is responsible for administering and carrying out laws and is accountable for its actions (elections ensure accountability due to the risk of not being elected again)

• Separation of powers – Ensures that no single body – the parliament, the executive or government, or the court – can hold all three of the main law making powers - The power to make laws, the power to administer or carry out the law, the power to interpret how the law is to be applied

Law making by the parliament

• “supreme law making body”

• Main role is to make laws on the behalf of the people

• Laws made by parliament have received royal assent and is called statute law (an act of parliament)

Law making by the courts

• Main role is to apply existing law to resolve disputes and hear cases

• Judges in superior courts (the supreme court and the high court) can make and change laws when deciding cases that have been brought before the court

• Laws made by courts or judges is common law

• Judges in superior may clarify the meaning of words and phrases in a statute so that it can be applied to resolve the dispute (statutory interpretation)  

The Australian constitution

A set of rules and principles that guide the way Australia is governed – Commonwealth of Australia Constitution Act 1900

Role of the constitution

• defines the relationship and distributes power between the Commonwealth and 6 states

• sets out the structure of parliament and power to make laws (bicameral)

• provides a mechanism to which the constitution can be changed – referendum

• provides “checks” to ensure that all areas of government operate in a manner that is consistent with key principles that underpin a democracy  

• established the “High Court” – gives it power to interpret the constitution

The house of representatives – lower house

• 151 members -  each represents one of Australia’s 151 electorates (geographical location) and are elected as a spokesperson for around 100000 Australians

• Voters of electorates vote for their representation in the lower house (must represent views of people in their electorate) in a federal election (every three years)

• Government of the day (and their leader - prime minister) is determined by the political party which achieves the majority of members elected to the HOR

·       Prime minister appoints ministers to look after certain portfolios (eg. Health)

• The party with the next greatest number of elected members becomes the opposition (alternative government) – The leader of the opposition appoints shadow ministers who scrutinise the activities of the corresponding government ministers

Role of the HOR

• Initiate money bills

• Represent the people in law making

• initiate new legislation

• scrutinise government administration

Initiate money bills

Section 53 of the Australian constitution requires that all bills in relation to government expenditure must be initiated in the HOR (EG. Taxation, appropriation bills – laws to purchase)

Represent the people in law making

Members of the HOR are chosen by the people - they should reflect the values and perspectives of the majority of the electorate that they represents(if they don’t they risk being voted out in the next election)

• Section 24 of the constitution

• “responsible government”

Initiate new legislation

Ministers (members of the HOR) can introduce bills to be debated and voted on - generally because the government of the day is formed in the HOR most new laws (approx. 95%) start here.

• new laws or proposed changes to existing laws

Scrutinise government administration

HOR will act as a house of review on laws introduced within the senate – making amendments if necessary

• upholds “responsible government” by enabling members to question ministers during question time – government decisions and policies may be investigated

The Senate

• 76 elected members – senators (each state elects 12 representatives and each territory elects 2)

• “states house” as each senator represents the interests of their state or territory

• Elected on a 6 year term (half of them are elected every three years)

• Cannot initiate money bills but can request the HOR to make amendments

Role of the Senate

• Act as a states house

• Initiate legislation

• Scrutinise legislation

Act as a states house

The constitution guarantees that all states have equal representation in the senate to ensure legislation us not passed that favours the larger states at the expense if smaller states

Scrutinise legislation

Debates and scrutinises bills introduced by the HOR – ensuring laws are appropriate and achieve their purpose

• The majority may not be compromised by the government of the day and therefore allows for a wider range of political perspectives to be considered when debating new bills

• Committee system – enables scrutiny before bills become laws

Initiate legislation

• Can initiate legislation excluding money or expenditure laws

• The Government of the day does not often have a majority in the Senate, allowing minor parties or independents to initiate Bills about social issues or niche topics that the major parties might be ignoring.

• Compared to the HOR, the Senate initiates very few Bills (only about 5-10%).

The role of the crown

King of England is our monarch – he exercises that power through the Governor General

• Appointed by the king on the advice of the prime minister

• Once legislation has passed the house of representatives and the senate it must receive Royal Assent from the Governor General before it becomes an Act of Parliament

Roles of the crown

• grant royal assent

• Withhold royal assent if appropriate

• Suggest potential amendments to legislation

• Summon execuative counil

grant royal assent

The governor general will sign a bill on behalf of the crown after it has been approved by both houses of the Commonwealth parliaments

• The final step for a bill to become law

Withhold royal assent

Under section 58 of the constitution the governor general can refuse to grant royal assent to a bill only if appropriate

Suggest amendments to legislation

If a mistake is found in the bill after it has been passed through both houses a minister would advise the governor general to return the bill to parliaments with the suggested change

Summon executive council

The governor general is responsible for selecting and appointing the Executive council who advises the governor general on government matters while also seeking approval for modifications to particular laws.

Legislative assembly

• 88 electoral districts - Each representative of an “electoral district”  whose interests they represent

• The voters in each district vote in a state election for who they want to be their representative - every 4 years

• The political party that holds the majority forms the governments Leader becomes premier

• Party with the next highest number of elected members becomes the opposition which the leader of the opposition appoints ministers to and whose role is to scrutinise the corresponding government ministers

Roles of the legislative assembly

• determining government

• providing responsible government

• providing representative government

• Scrutinising legislation

Determining government

The party or parties in coalition with a majority in the lower house forms government as the government they get to control the legislative agenda

Providng for responsible government

Members of the Legislative Assembly have the opportunity to put forward the views of their electorate by presenting petitions or raising issues with ministers during Question Time

Providing for representative government

Members of the legislative assembly are elected to represent approximately the same number of electors – the electoral system ensures that the legislative assembly represents the interests of the majority of voters

Scrutinising government

Legislation is debated, ministers make policy statements, matters of public importance are discussed, and ministers are questioned during Question Time

• review and vote on legislation introduced by the legislative council

Legislative council

• represents regional interests

•   40 members – Victoria is divided into 8 regions consisting of 11 electorate – 5 members of the legislative council are elected for each region and elected to serve a fixed four year term

Role of the legislative council

• reviewing laws

• providing for representative government

• providing responsible government

• scrutinising government

Reviewing laws

Mian role is to review and pass legislation for the state of Victoria passed by the legislative assembly so that it can become a law– can originate, amend or reject proposed laws (with the exception of money/budget bills)

Providing for representative government

To safeguard the interests of people in all areas of Victoria – as each region elects an equal number if representatives in each region

Providing for responsible government

Members of the legislative council may be made up of a wider range of minor political parties and independent members - the Legislative Council is not composed of members from the party forming government it may be more effective in requiring the government to account for its actions.- individual members have the opportunity to present petitions and to raise issues during Question Time (debating bills – happens .

Scrutinising government

can supervise administrative laws, protect the rights of citizens, present conflicting views in open debate and gather and disseminate information – when the legislative council is not composed of a majority of members form the oarty forming government it may more effectively queston government actions

Governer

• The head of State in Victoria is the king of England who exercises his authority through the governor

• The governor must give Royal Assent to all bills passed by the Legislative Assembly and Legislative council before it can become a law

Governers role

• Appointing ministers

• Dissolving the Legislative Assembly in certain circumstances

• Calling for an election

• They are also expected to be a-political and therefore are not permitted to vote in elections

The purpose of the division of constitutional law making powers

The parliament shall, subject to this constitution, have the powers to “make laws for the peace, order and good government of the commonwealth”

• Most of these (specific) powers are set out in s51 and are referred to as the “40 heads of power” – can only be concurrent or exclusive as residual powers are not set out in the constitution

Residual powers

Not listed in the constitution – some left out deliberately and others developed as areas of law over time

• Section 107 – every power of the states shall continue unless exclusively given to the commonwealth or withdrawn from the state

• EG. Education, Vic roads, health services

Concurrent powers

• Listed in s51 of the Constitution – states and commonwealth both legislate in these areas

• All specific powers that are not exclusive are concurrent – everything else in s51

• EG. Marriage, lighthouses and taxation

Exclusive powers

• Listed in s51 and s52 of the constitution– states cannot legislate in these areas

-        Exclusive by nature – inherently nationwide issues

-        EG. Defence force, immigration

EG s115 forbids the state parliaments from coining currency therefore making this an exclusive power

Significance of section 109 of the consitution

• Contains concurrent powers that are shared by the commonwealth and state parliament

• Established a solution for inconsistencies between power under section 109 “when a law of a 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”

• The law will not be abolished - only the inconsistency with the commonwealth

How can section 109 be enacted

Requires a case to be put forward within the courts for an inconsistent state law to be deemed invalid – only the high court of Australia under section 109 can determine a state law inconsistent and only when the state law has been challenged by the commonwealth (must be challenged)

importance of section 109 of the consitution

Creates a restriction on the law making powers of the states within the areas of concurrent law making powers – the states can pass laws but their ability is limited because any part of state law under the concurrent powers that is inconsistent with federal law will be invalid when challenged in the high court

• state laws previously deemed invalid to come into for e if the commonwealth law is changed or removed

Section 109 - Impacts upon

• States independence – section 109 although seeks to eliminate inconsistencies between the state and commonwealth parliament can be restrictive on states ability to make laws appropriate for their citizens

• State government may decide not to create laws in areas of concurrent power as the new laws are at risk of being declared invalid – even if only sections are declared invalid states will be unable to expand upon those sections of the Act

Section 109 - does not impact upon

• States are still relatively independent as section 109 only affects laws made within areas if concurrent powers – no effect on residual powers and states are free to make laws within those areas

• If a law challenged in the High Court is found to be unconstitutional, the Court may declare only specific parts of the law invalid, allowing the remainder of the Act to still stand as valid law.

The high court

• original jurisdiction is set out in s75 and s76 of the constitution - to act as the guardian of the constitution

• The way the high court interprets the constitution becomes binding on the states and the commonwealth and cannot be overturned by parliament

• This interpretation can shift the division of powers between the state and commonwealth

• The majority of cases with high court interpretation for law making powers in the Constitution have ruled in favour of the commonwealth - the commonwealth has gained power at the expense of the states residual law making powers  

R v Brislan (1935) - Facts

• The Cth Parl’ passed an Act in 1905 requiring that all people who owned a wireless set (old style radio) must have a licence - Wireless Telegraphy Act 1905 (Cth)

• Defendant was charged for not holding a licence

• The defendant challenged this, claiming that the Cth Parl’ did not have the jurisdiction to make this law as it is not explicitly stated in the Constitution

R v Brisland (1935) - Legal Issue

• S.51(5) of the Constitution, which gives the Cth power to make laws in relation to ‘postal, telegraphic, telephonic, and other like services’, was challenged

• Cth claimed that this was a ‘like service’

• Brislan claimed it was not, and therefore outside of the Commonwealth Parl’s scope of law-making powers

R v Brislan (1935) - Decision

The High Court ruled in favour of the Commonwealth, interpreting that ‘other like services’ applied to the wireless device

R v Brislan (1935) - Significance/ Impact of this case:

Broadened the definition of ‘other like services’, giving more power to the Cth to legislate in a broader range of areas that would previously have come under state’s residual law-making powers

• Shift power from state to Commonwealth

R v Brislan (1935) - impact

• The high court broadened interpretation of section 51 (v) which gives the commonwealth power over “postal, telegraphic, telephonic, and other like services”

• The high court determined radio broadcasting was a “like service” because it was involved with the conveyance of intelligence by electricity – shifting this from a residual to a commonwealth parliament

• This case set a precedent that allowed the commonwealth to assume power over later inventions – television, internet, and the NBN on the assumption they are “other like services”

R v Brislan (1935) - Does not impact

• The commonwealth can not proactively claim power over new inventions – the high court can only rule on the matter if a party standing brings a specific case before it

• Legislation passed in the Brislan precedent can still be challenged in the high court – may be declared invalid if a future court finds a new technology not sufficiently similar to those listed in s51 (v)

• If the high court was to rule against the commonwealth regarding a specific technology parliament cannot overrule that constitutional interpretation – the commonwealth would lose that law making power entirely until another case or referendum occurs

 

factors that affect the ability of parliament to make law, including:

-        the bicameral structure of parliament

• two houses (chambers)

• the requirement for the Victorian parliament to be bicameral is contained in the Constitution Act 1975 (Vic)

• Bicameral means that a bill must be passed in identical form by a majority of members in both houses of parliament for it to become a law

• The second house double checks or suggests possible amendments and reviews to ensure there is no misuse of law making

Impact of the bicameral structure

• The majority of laws introduced are by the government of the day however can be introduced by any member of parliament (private members bill)

• If the government does not hold the balance of power in the senate or legislative council it affects the ability of the government to pass laws – this can impact the government from passing law reform it promised to the people when it was elected

• As a result hey must gain the support of the cross benchers (hold the balance of power and are known as power brokers) who are made up of minor parties (independents, one nation, greens)

Hostile Senate

When the Senate is mostly controlled by an opposition and minor parties 

Hostile senate - positives

• Laws are scrutinised, rep the people better

• minority groups may have more protection from tough or unjust laws

Hostile senate - negatives

• laws can take longer to make

• bill process negotiation may change the law significantly

• The opposition or stubborn MPs holding the balance of power may block legislation unnecessarily which forces government to change laws and less represent the views of the community

• Minor parties and independents often represent a very small minority of the population therefore it is questionable whether they should have this much power

Rubber stamp

Government holds majority of seats in both the upper and lower house

Rubber stamp positives

• Legislation is able to pass and be inacted quickly

• The government is able to pass law reform that it feels it has a mandate to pass as the elected government of the day

• Laws rep most people values anyways if government is majority of senate

Rubber stamp - negatives

• may not fully rep the people - strips the senate of its intended role as a house of review and checking  mechanism

• The legislation may not be properly scrutinised

International pressures

demands or forces applied to parliaments to persuade them to make laws that address matters of international concerns

• Australia was a founding member of the United Nations in 1945 – aims are “maintain peace and security, achieve international corporation and develop friendly relations among nations”

• Australia is a sovereign state – we are not bound to follow demands of other countries and can enact our own legislation for the good of our own people

*Sovereign state – A country with a defined territory that administers its own government nd is not subject to or dependent on another power*

Examples of international pressures on Australia

• The UN has criticized Australia’s treatment of asylum seekers

• Its expansion of mining natural resources (harmful for the local environment)

• The US has recently urged Australia to increase its defence spending

• Diplomatic alliances – agreements Australia has with the UK and US to work together and support each other to achieve common objectives

• Trade relations – Australia is dependant on other countries for trade and must maintain good relations to buy and sell products with trading partners such as China and India

EG - Age of Criminal responsibility

the age at which a child is deemed to be capable of forming the intention to commit an offence under criminal law and therefore can be found guilty of commiting a crime.

• In Victoria the age is 10

• Doli incapax – the presumption that a child aged between 10-14 does not have the criminal intent however this can be rebutted with evidence

Sources of pressure

The United Nations:

• In 2017, the UN sought a response from Australia as to why Australia was “out of step” with the rest of the world in terms of the age of criminal responsibility

• In 2019 the UN committee on the Rights of the Child noted its serious concern about the age in Australia and called on it to ensure the age was at an internationally accepted level

Non - Government organisations

EG. Amnesty International and Human Rights Watch

• Have expressed concerns about the effects of criminalisation on children – particularly young first nations people who are disproportionately represented in prison statistics (detained at a rate 17 times higher then that of a non-indigenous person)

the representative nature of parliament

Australia’s parliamentary system is expected to be representative of the people – commonwealth and state parliaments consist of members who are elected by the people to make laws on their behalf

-        if they fail they jeopardise their chance of being re-elected

Representative nature of parliament

*supreme law making body (parliamentary supremacy)*

• principle and process that underpins duty to be “representative” is the electoral system

• democratic society – the laws and processes that govern peoples lives and are created by elected representatives - highlighted in s7 and s24 of the constitution

• Constitution Act 1975 (Vic), states – members of the legislative assembly and legislative council must be elected from their representative district

• Each MP is elected by the people

How may the representative nature be limited

• Vic parliament, 2022 outlined the average MP was male, university educated, born in Australia and turning 45-64 during the election year – therefore women, young or elderly people are underrepresented

• Diverse population and minority group representation in law making is limited, members may lack the lived experience of certain demographics and will likely not be able to represent community in law making

EG

• Birthplace – 27.6% of Australians were born overseas

• First nations people – 3.2% identify as being from a first nations background

• Religion – 43.8% of Australia’s population identified as being christen

Impact of regular elections

Commonwealth electoral Act 1918 (Cth) mandates voting compulsory for all Australian citizens – 18 years or older enrolled on the electoral roll*

• Constitution Act 1975 (Vic) – voting every four years - S28 Constitution Ctn level – 4 years HOR, 6 years senate

Regular elections ensure that government is mindful to act in the best interest of the people – failure to do so may risk being voted out of office next election

• Compulsory voting – can be perceived as forcing those who don’t wish to engage cast a vote that may be uninformed and not representative of law making desires

• Short periods In office allows for constant pressure in government to swiftly enact legislation to improve society – the fear of loosing office prompts MPs to act to benefit the society