legal studies unit 4 aos 1

bicameral parliament

a parliament that consists of two houses

purpose of a bicameral government

so that law is not made by only one single group of people

the crown

the british monarch

parliament

the ultimate law-making authority

federal system

where the country is divided into states, and each state has its own parliament. however, affairs that affect the whole country are decided by the commonwealth parliament

australian constitution

a set of rules that establishes the nature, functions, and limits of government

a bill

a proposed law. must pass through both houses with majority in identical form to become law

roles of the commonwealth parliament

make laws and represent the people

structure of the parliament of australia

king (government general), the senate, the house of rep

the house of rep roles

form government
propose, debate and vote on bills and amendments

examine issues in committees

decide on matters of national interest

represent the interest of the people in their electrorates

scrutinise executive government

control government expenditure

house of review for bills intiated in senate

structure of house of representative

150 members, each one representing an electorate

elections held every three years

the political party or coalition that achieves majority makes up govt

the senate roles

represent the interests of people in their states or territories

propose, debate, and vote on bills and amendments

decide matters of national interest

examine issues in committees

scrutinise executive government

act as a house of review for bills initiated in house of rep

structure of senate

76 members, 12 from each state and 2 from each territory

six year terms

victorian parliament role

make laws and represent people of vic

structure of vic parliament

king (governor), legislative council, legislative assembly

legislative assembly structure

the political party that wins the majority of seats forms government,, leader becomes premier

88 members, each representing one electorate

elected every four years

roles of legislative assembly

initiate and pass bills

form government

represent the people

act as a house of review

control government expenditure

scrutinise government administration

structure of the legislative council

40 members, five members from eight regions in victorian

elected every 4 years

role of legislative council

acting as a house of review

scrutinizing government administration

initiating and passing bills

the crown roles

granting royal assent, withholding royal assent, appointing executive council
symbolic power only

executive council structure

the leader of the government, senior ministers, and assistant ministers

executive council role

give advice to crown representative on whether to approve regulations

residual powers

left with the state, the commonwealth generally has no authority in these areas

not listed in the australian constitution, though specific sections of it protect these powers and reserve them for the states

examples of residual powers

criminal law, road laws, education

concurrent powrs

shared by commonwealth and state parliaments

stated in section 51 of the constitution

examples of concurrent powers

taxation, trade, marriage/divorce, postal, telegraphic, telephonic and such services

exclusive powers

law making power held only by the commonewalth parliament

stated in section 51 and 52

examples of exclusive powers

defence, currency, customs and border protection

section 109 of the australian constitution

“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”

purpose of section 109

resolve conflicts and inconsistencies between state and commonwealth laws when concurrent powers are exercise d by both

significance of section 109

acts as a restriction on the states in implementing their laws

workings of section 109

does not automatically operate, must be challenged in court before a law is deemed ultra vires

if a federal law is changed or abrogated in the future where the conflict is reolved, then state law comes into effect

the high court’s jurisidction

where the commonwealth, or a person being sued/suing on behalf of the commonewalth, is a party

between states, residents of different states, a state and a resident of another state

determines divison of law-making powers in contentious areas

brislan case facts

wireless telegraphy act (1905) → wireless set owners must hold a licence

defendent charged with not having a licence

they argue that section 51v of constitution does not include radio broadcasting as part of commonwealth’s law-making powres, so the legislation is invalid

the court ruled in favour of the commonewalth

significance of brisland

shifts law-making powers from the states to the commonwealth

‘telephonic, telegraphic, and like services’ interpreted to be technology that allows communication

enabled the commonwealth government to make laws on the internet and online services

factors that affect the ability of the parliament to make law

bicameral structure of parliament, international pressures, the representative nature of parliament

bicameral system upheld by…

the australian constitution section 1, constitution act 1975 (vic)

members of the senate

members of govt, memebrs of opposition, crossbenchers

no govt majority in senate

called a hostile upper house

allows more thorough debate and scrutiny of bills

but minor parties/independents may hold disproportionate amount of power over law-making

rubber stamp upper house

govt majority in senate

efficient as it allows the government to implement any desired law reform

negates the house of review function and allows the government to shut down private member’s bill easily

sitting days

the houses onyl sit for limited amount of days each year beacuse MPs need to spend time in the community. may reduce the time and oppprtunities to pass legislation

international pressures

demands made on parliaments, from within australia or beyond, to make or not make alws that address matters of international concern

international pressure topics

cyber safety

climate change

criminal responsibility age

international treaties

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

sources of international political pressure

local activists

international activists

other countries

the UN

Non government orgs

large transnational corporations

the representative nature of parliament

parliament is expected to be reflect the views and values of people and address the needs of the community as the members are elected by the people

if they fail, they may not be re-elected

factors that affect the representative nature of parliament

the diveresity of parliament

the willingness of parliament to act in accordance with the views of the majority

regular elections

diversity of parliament

parliament does not reflect the population’s diversity

gender rep is increasing but racial rep remains inequal

willingness to act in accordance with the views of the majority

parliament is encouraged to listen to the views of community

might not be a good thing bercause MPs might introduce laws that are popular rather than necessary

may also be hard to assess the views of the majority

compulsory voting weakness

forces those who are not interested to cast vote that may be ill-informed

compulsory voting strength

helps ensure our parliament and government support the majority of people and not just those who bother to vote

how the australian constitution checks the parliament in law-making

the high court, the separation of power, the express protection of rights

the role of the high court

act as a guardian of the constitution

checks abuse of power and can overturn any unconstitutional law

gives meaning to the words in the constitution

high court’s ability to interpret the constitution

section 76 gives the high court the power to hear disputes arising under the constitution or involving its interpretation

how the high corut protects the principle of representative government

restricting the ability of commonwealth parliament o make laws that infringe on the rights of people to vote in elections

protecting the ability of people to freely communicate on political matters

protecting voting in elections

commonwealth parliament cannot place substantial and unnecessary burdens on the right of the people to choose the members of parliament

protecting freedom of political communication

the high court found that there was an implied right of freedom of political communication in the constitution , as otherwise people would not be fully informed during elections

limitation on the high court’s ability to protect the constitution

they can only interpret the words

they can only intervene if a person challenges a law

the interpretation will depend on the composition of the judges in court

strengths of high court protecting the constitution

judges are independent, individuals can overturn law by bringing it to court, judges of high court are experienced and have lots of resources, the high court and principel of representative government cannot be abolished unless there is a referendum

weaknesses of high court protecitng the constitution

judges can only rule on the facts of the case brought before them, cannot protect constitution unless a case is brought before them, decision depend on the composition of the court, the interpretation can change in the future

separation of power

a doctrine established by the australian constitution that ensures the three powrs of our parliamentary system remain separate

purpose of separation of powre

to ensure that no one body has abosolute power or control over the functions of the political and legal system

the three power

executive, legislative, judicial

executive power

the power to administer laws and manages the business of govt

vested in governor general and governor by constitution, but carried out by PM and ministers/departments

legilsative power

the power to make laws

resides with parliament

combination of powers

legislative and executive are combined because the cabinet administers the law and carries out the business of government instead of the executive

judicial power

the power given to court and tribunals to enforce the law and settle disputes

vested in the high court and other defedal courts

legislative and judicial powres must be kept separate

imparliality of hiigh court judges

safegiuuards citizens against misuse of power and corruption

judges are protected by the fact that they are appointed until a certain age and cannot be removed unless there is proven bad conduct and parliament approves their removal

strengths of separation of powr

check and balance, judiciary is independent of the legislature and executive, measures in place to ensure the executive is indpenendent from the legislature, separation of powrs cannot be abolished without a referendum

weaknesses of seapration of powre

the legilsative power and executive powers are combined in reality, judges are appointed by the executive, people need to challenge laws for the judicairy to act as a check, the seapration of power does not extent to states

express rights

one that is psecifically lists in a document or constitution

explicit or entrneched right

the five express rights

right to freedom of religion, right to free interstate trade and commerce, right to receive just terms when property is acquired by the commonwealth, right to trial by jury for indictiable commonwealth offences, right not to be discriminated against on the basis of the state you reside

workings of express rights

can only be remvoed by using a referendum

are often limitations on the commonwealth parliament in law-making rather than positive rights for individuals

freedom of religion

section 116

commonwealth cannot

establish a state religion

impose any religious observance

prohibit the free execercise of a religion

require a religious test as requirement for holding any commonwealth office

right to tfree interstate trade and commerce

section 92

interstate trade and commerce must be free by any transportation means

provides freedom of movement between states

scope was limited as high court decided that some restrictions are acceptable as long as they do not impose a burden on interstate trade or discriminate against interstate trade

right to acquisition of property on just terms

section 51

commonwealth must pay fair and reaosnable compensation for property that is compulsorily acquired

property includes tangible, intangible, real, and personal property

commonwealth only able to acquire property for a purpose or area for which it has the power to make laws

does not apply to state legislature unless it is passed under a commonwealth funding agreement

right to jury trial

section 80

there must be a jury trial for indictable commonealth offences under the criminal law and a decision of a juey must be unanimous

this right is limited because:

most indcitable offences are crimes under state law and this section only applies to commonewalth

the high court has ruled that indcitable means crimes tried on indictment and the parliament gets to decide what this means

discrimination on the basis of state residence

section 117

unlawful for state and commonwealth government to discriminate against someone on the basis of the state they reside

high court has said that states can favour their own residents in limited circumstances such as only allowing them to vote in elections for that state

strengths of express rights

impose limits on parliament, cannot be removed or amended without a successful referendum, the high court can act swiftly to declare a law ultra vires, the high corut is independent

weaknesses of express rights

limited in scope, referendums are hard and so the rights have not increased or been amended since federation, does not stop the commonealth parliament from passing laws violating express rights as it has to be challenged before it can be declared invalid