Unit 4 AOS 1 SAC

australian consititution

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

federation

the union of sovereign states that gave up some of their powers to a central authority to form Australia

parliament

a formal assembly of representatives of the people that is elected by the people and gathers to make laws

constitutional monarchy

a system of government in which a monarch is the head of state and a consititution sets out the powers of the parliament

constitution

a set of rules and principles that guide the way a country or state is run. Some Countries have unwritten constituions; others have formal, written ones

representative democracy

a system of government in which all eligible citizens votes to elect people who will represent them in parliament, make laws and govern on their behalf

High Court

ultimate court of appeal in Australia and the court with the authority to hear and determine disputes arising under the Australian Consititution

Westminster System

a parliamentary system of government that developed in Britain and upon which Australia’s parliamentary system is modelled

responsible government

a legal principle which requires the government to be answerable to elected representatives of the people for its actions and which requires the government to maintain the confidence of the majority of the lower house, if the government loses public support it can be voted out

government

the ruling authority with power to govern, formed by the political party or parties that holds majority in the lower house in each parliament

parliamentary system established by the constitution

• 1 federal parliament

• 6 state parliaments

• 2 territory parliaments

key principles of westminster parliamentary system

• responsible government

• seperation of powers

constitution acting as a check of government power

limits parliament’s law-making powers

legislature

a legal term used to describe the body having the primary power to make law (i.e parliament)

bill

a proposed law that has been presented to Parliament to become law. Becomes an Act of Parliament once it has passed through all formal stage of law-making

royal assent

formal signing and approval of a bill by the Govenor-General or Govenor, after which, the bill becomes an Act of Parliament

statutory interpretation

process by which judges give meaning to the words or phrases in an Act of Parliament so it can be applied to resolve the case before them

law reform

the process of constantly updating and changing the law so it remains relevant and effective

bodies that make australia’s laws

• Parliament

• The Courts

how do courts make law through statutory interpretation

• judges clarify the meaning and words in acts

• can create new legal principles

cabinet

(senior government ministers + prime minister)

helps shape government policy and decides which law changes should be introduced to parliament

rule of law

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

principles that uphold the rule of law

• The Australian Constitution limits parliament’s power

• Judges are independent from parliament and government (ministers and politicians are tried fairly without political bias)

• Laws can be openly criticised, and peole can try to influence change

• People can assemble and protest without fear

• Individuals can challenge laws in court

• Judges can interpret legislation when its meaning is unclear

DPP v Fowler (2020) (VIC) Rule of Law Example

• police officer convicted of recklesly casuing injury after kicking a man during an arrest

• despite officer’s long, honourable career, the court emphasised that police hold special power and must act lawfully

demonstrates that even authority figures are accountable under the law

clause 5 of the consititution

reinforces that all laws bind everyone, including courts and judges, which strengthens the rule of law across Australia

House of Representatives

the lower house of the Commonwealth Parliament

Senate

the upper house of the commonwealth parliament

bill of rights

a document that sets out the most important rights and/ or freedoms of the citizens in a particular state or country

role of the constitution

established the nature, functions and limits of government and determines the power and duties of the government

features of the australian constitution

• establishes the Commonwealth Parliament and how the House of Representatives and the senate should be composed

• establishes the high court of australia

• sets out matter relating to the states

• established the law-making powers held by the Commonwealth Parliament

• provides a mechanism to change the Australian Constitution - a referendum

Govenor General

the King’s representative at the Commonwealth Level

Political Party

an organisation that represents a group of people with shared values and ideas, which aims to have its members elected to parliament

Coalition

an alliance or joining together of two or more political parties usually to form government

minister

a member of parliament who is a member of the party in government and is in charge of a particular area of government (i.e education/health/transport, etc.)

opposition

the political party that holds the second-largest number of seats in the lower house- questions the government about policy matters and is responsible for holding the government to account

private member’s bill

a bill introduced to parliament by a member of parliament who is not a government minister

hung parliament

a situation in which neither major political party wins a majority of seats in the lower house of parliament after an election

money bill

a proposed law that imposes taxes and collect revenue

representative government

a political system in which people elect members of parliament to represent them in government

election

the process used where eligible people vote to choose a person to hold a postion in a body or oganisation

committee system

a system used by federal, state and territory parliaments in Australia involved the use of seperate working parties to investigate a wide range of legal, social, and political issues and report back to the parliament about the need for law reform

parliamentary committee

a small group of members of parliament who consider and report on a single subject in one or both houses, can come from any party

crossbenchers

members of parliament who are not members of either the government or opposition- named after the sets of seats provided in Parliament for them the ‘crossbench’

components of commonwealth parliament

• King (represented by the Govenor -General)

• Senate (upper house)

• House of representatives (lower house)

Features of the House of Representatives

• 151 members

• political party, or coalition that achieves majority of members elected to the House of Representatives becomes the government

• the party with the next highest number of elected members becomes the opposition

Roles of the House of Representatives

• initiaiting and making laws

• determining the government

• representing the people

• acting as a house of review

• scrutinising government administration

• controlling government expenditure

Features of the Senate

• upper house

• has 76 elected (12 from each state, 2 from each territory)

• elected for 6 years

• elected by proportional representation

• main role is to review laws that have passed through the House of Reps

Roles of the Senate

• acting as a house of review

• allowing for equal representation of the states

• scrutinising bills and government administration

• initiating and passing bills

governor

King’s representative at state level

legislative council

upper house of the Victorian Parliament

legislative assembly

lower house of the Victorian Parliament

Components of the Victorian Parliament

• King

• Legislative Council

• Legislative Assembly

Features of the Legislative Assembly

• lower house

• political party that wins majority of seats forms government

• 88 members (each representing 1 electorate)

role of legislative assembly in law-making

• initiate and pass bills

• form government

• represent the people

• act as a house of review

• control government expenditure

• scrutinise government administration

features of the legilsative council

• primary role of the legislative council is to act as a house of review

• made up 40 members of Parliament

  • 5 members elected from the 8 regions across Victoria

roles of the legilsative council in law-making

• acting as house of review

• scrutinising government administration

• initiating and passing bills

executive council

a group consisting of the Prime Minister and senior ministers or premier and senior members that is responsible for administering and implementing the law by giving advice about the governent and government departments

main roles of the crown in law-making

• granting royal assent

• withholding royal assent

• appointing the exeuctive council

Granting royal assent

• governor-general and govenor of each state is required to approve bills before they can become law

• royal assent is given on the advice of the Prime Minister/ Premier or the ministers

Withholding royal assent

The Crown’s representatives have the power to refuse to approve a bill

Appointing the Executive Council

• the govenor-general and govenor are responsible for appointing the executive council

• the role of the executive council is to give advice on government matters as well as approve secondary legislative

residual powers

powers that were not given to the Commonwealth Parliament under the Australian Constitution and which therefore remain solely with the states (as opposed to concurrent powers and exclusive powers)

not listed in the constitution

exclusive powers

powers in the Australian Consititution that only the Commonwealth Parliament can exercise (as opposed to residual powers and concurrent powers)

mentioned specifically in the Consititution

concurrent powers

powers in the Australian Constitution that may be exercised by both the Commonwealth and the States

examples of residual powers

• criminal law

• medical procedures

• road laws

• education

• public transport

examples of exclusive powers

• defence

• currency

• customs

• border protection

examples of concurrent powers

• trade

• taxation

• marriage and divorce

• postal, telegraphic, telephonic and similar services

Section 109

• designed to resolve conflicts and inconsistencies between state and commonwealth laws

• if theres is a conflict between state and commonwealth laws, the commonwealth law prevails to the extent of the inconsistency

• state laws provisions that are inconsistent with the commonwealth law will be invalid and unenforceable

Example of S109 in action

McBain v Victoria (2000) (Discrimination in Fertility Treatments)

significance of S109

• can act as a restriction on state parliaments

• state parliaments may recognise that in areas where a commonwealth law already exists, they are not able to pass a law

limitations to s109

does not automatically operate

a potentially inconsistent law needs to be challenged in court and the court will determine whether laws are inconsistent

express rights

rights that are states in the Australian Constitution. These rights are entrenched meaning they can only be changed by referendum

High Court Jurisdiction

Has jurisidiction under section 75 of the constitution to hear and determine cases where

• the Commonwealth, or a person suing or being sued on behalf of the commonwealth, is a party

• betwen states, or between residents of differnet states, or between a state and the resident of another state

Overview of Brislan Case

defendant challenged the validity of the Wireless Telegraphy Act in the High Court

• argued that the constitution did not give the Commonwealth Parliament the power to make laws in relation to radio broadcasting

High Court determined the broadcasting to a wireless set was a form of telephonic service (in s51(v)) and therefore the commonwealth had the power to make laws in this area

significance of the brislan case

• this case changed the division of law making powers by extending the Commonwealth Parliament’s power to include broadcasting to a wireless set

• resulted in a shift in the division of law-making powers from the states to the commonwealth

• hold significance for future types of communications and technological advances

  • since comments made by the judges in this case such as “other like services” was designed to cover new developments, it is arguable that the Commonwealth has the power to regulate the use of the Internet

Tasmania Dams Case

• Commonwealth stopped Tasmania building a dam under “external affairs”

  • used World Heritage Convention to justify intervention

• High Court found Commonwealth law overrode Tasmanian law (s109)

signficance of Tasmanian Dams Case

• expanded meaning of external affairs —> can legislate on international treaties

• displayed increased Commonwealth power over states

• set precedent for using international agreements to regulate domestic issues

bicameral parliament

a parliament with two houses (chambers)

minor party

a political party that can pressure the government on specific issues to bring about law reform, despite not having enough member or electoral support to win government

balance of power

a situation where no single party has a 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

i.e. members of minor parties or independents

hostile upper house

a situation in which 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 bill passed

rubber stamp

used to describe a situation where the upper house of parliament automatically approves decisions made in the lower house because the government holds majority in both

private member

a member of parliament who is not a government minister

secondary legislation

rules and regulations made by secondary authorities that are given the power to do so by parliament (i.e. local councils, government departments)

United Nations (UN)

major international organisation established after WW2 to maintain international peace, security and cooperation among nations

International Treaty

legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws

ratify

confirmation by a nation’s parliament of its approval of an international treaty signed by its government

parliament expressly passes legislation that requires it by law to adopt various rights and responsibilities set out in the treaty

international pressures

demands made on parliaments from within Australia or beyond to make (or not to make) laws that address matters of international concern

petition

formal, written request to take some action or implement law reform

non-government organisation (NGO)

an organisation, generally not for profit, that function independently of any government

often do humanitarian work overseas and recieve government funding

transnational corporation (TNC)

a company that operates globally across international borders

doli incapax

the presumption that a child aged between 10 and 14 does not have criminal intent - can be rebutted by evidence

why are Australian parliaments subject to international pressures

Australia is an active participant in the global community

examples of international pressures

• local activists who organise petitions for change

• international activists who seek to generate change

• other countries which may urge Australia to change its laws or may criticise Australia

• the UN, NGOs, and TNCs

demonstration

a gathering of people to protest or express thier common concern or dissatisfaction with an existing law as a means of influencing law reform

Victorian Law Reform Comission (VLRC)

leading independent law reform organisation

reviews, researches and makes recommendations in state parliament about possible changes to Victorian laws

referendum

method used for changing the wording of the Australian Constitution

requires a propsal to be approves by Australian public in a vote by double majority

Representative Parliament

• parliamentary system is expected to be representative of the people

• parliament and government consists of members elected by the public to make laws on their behalf

• if MPs fail to make laws that reflect the views and values of the people, or fail to address the needs of the community they jeopardise their chances of being elected

Diversity of Parliament

• Australian Parliament generally does not reflect diversity of Australia

• some argue lack of diversity means certain groups of people or their interests are not well represented in law-making

• some argue that diversity of parliament does not affect their ability to represent people

what does representative nature of parliament encourage

members of parliament to listen to the views of the community and make laws in accordance with these views

means that protesting activities can be very influential in promoting law reform