legal studies 4.1

Commonwealth parliament - house of representatives

• Commonly referred to as the Lower House

• 151 members, each elected from equally populated electorates

• Elections held approximately every three years

• House of Government, where the Prime Minister sits

Commonwealth parliament - senate

• Commonly referred to as the Upper House

• 12 representatives from each State, and two from each territory

• Each Senator is elected for six years (half elected every three years)

Commonwealth parliament - governor-general

• The representative of the Crown

• Appointed on the advice of the Prime Minister

• Largely ceremonial role

Commonwealth parliament - bicameral structure

A parliament that operates with two houses – an upper and a lower

Victorian parliament - legislative assembly

• Commonly referred to as the Lower House

• 88 members, each elected from equally populated electorates

• Elections held every four years

• House of Government, where the Premier sits

Victorian parliament - legislative council

• Commonly referred to as the Upper House

• 40 representatives from eight ‘regions’

• Each Member is elected for four years

Victorian parliament - governor

• Governor

• The representative of the Crown

• Appointed on the advice of the Premier

• Largely ceremonial role

Commonwealth parliament: house of representatives - roles

Determine the government

• The political party with the most seats in the HoR becomes the Government of Australia

• Leader becomes Prime Minister

Initiate and make laws

• To make a new law, or amend an old law, it must be agreed upon by both houses and the Governor-General

• Most bills commence in the HoR – supply bills must commence there

Provide responsible government

• Ministers are accountable to parliament for their actions and decisions

• Prime Minister and ministers have to answer questions about this during question time

Commonwealth parliament: senate - roles

House of Review

• Most bills are initiated in the HoR, hence the Senate becomes the review house

• Government rarely has a majority in the Senate, therefore more scrutiny on legislation

Initiate and make laws

• Same law-making power as the HoR, bills must be approved by both houses

• Some bills are initiated in the Senate

• Supply bills must be initiated in the HoR

States’ house

• Historical role, as each state is equally represented regardless of population

• Initially to protect smaller states from being taken advantage of

Commonwealth parliament: governor-general - roles

Royal Assent

• To make a new law, or amend an old law, it must be agreed upon by both houses and the Governor-General - this is known as Royal Assent

• Formally signs a bill into law and makes it an Act of Parliament

Executive Council

• The GG formally heads the executive – outlined in the Constitution

• Acts on advice of ministers and Prime Minister

Reserve Powers

• Holds some powers that are not listed in the Constitution – does not need legislative approval to use them

• Includes the ability to dismiss a government or end parliamentary sessions

Victorian parliament: legislative assembly - roles

• Determine the Government

• Initiate and make laws

• Provide responsible government

• Represent the people

• Control government expenditure

Victorian parliament: legislative council - roles

• Initiate and make laws (except supply bills)

• House of review (scrutinise bills)

Victorian parliament: governor - roles

• Royal Assent

• Executive Council

• Reserve Powers

Types of law making power - division of powers

The splitting up of law-making responsibility between the Commonwealth parliament and state parliaments

Types of law making power - residual powers

• Not listed in the Constitution

• Some deliberately left to the states, others have developed as areas of law over time

• Commonwealth cannot legislate in these areas

• S 107: Every power of the State shall continue unless exclusively given to the Commonwealth or withdrawn from the State

Types of law making power - exclusive power

• Listed in the Constitution

• States cannot legislate in these areas

• Exclusive by their nature, due to another section of the Constitution, or listed in s52

Types of law making powers - concurrent powers

• Listed in the Constitution

• Both C’wealth and states can legislate in these areas

• All specific powers that are not made exclusive are concurrent, so everything else in s51

Discuss the extent to which the High Court has had an impact on the division of law-making powers and how its powers are distributed

The Commonwealth parliament has the power to legislate in areas of exclusive and concurrent powers. Exclusive powers are powers outlined in the Australian Constitution as being exercised solely by the Commonwealth parliament, such as currency. Concurrent powers are powers outlined in the Constitution belonging to both state and Commonwealth parliaments, such as marriage. Residual powers are powers not outlined within the Australian Constitution thus exercised solely by the states parliaments, such as areas of environmental law.

s109 of the Commonwealth of Australia 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.

s109 in Action - IVF access laws

Victorian Infertility Treatment Act 1995 (Vic):

• You must be living with or married to a man to access IVF

Commonwealth Sex Discrimination Act 1984:

• Unlawful to refuse service to someone on the basis of their marital status

John McBain v The State of Victoria and Ors (2000):

• IVF doctor successfully proves his patient, a single woman (Leesa Meldrum) has been discriminated against by the Victorian Act – the Victorian Act is invalid as far as it says that only women living with a man can have IVF.

Role of the high court - what

• The High Court is independent of parliament and government

• High Court has the power to rule on all matters involving the interpretation of the Constitution

Role of the high court - impact on law making powers

• There can sometimes be debate over meaning of words in the Constitution, which can lead to debate over who has law-making authority

• If a case is brought, The High Court rules on these debates, and can decide if parliaments are acting within their powers, or beyond them (ultra vires)

• If a parliament is acting ultra vires, the High Court can declare that legislation invalid

High court cases

FACTS

A brief summary of the situation. What is the name of the case, who is involved, what are they doing etc.

LEGAL ISSUE

What is each party claiming, and what specific laws/sections of the Constitution are involved?

DECISION

Whose favour did the High Court find in? Why?

IMPACT

The most important section – what was the lasting effect of the decision? How did it effect further cases? What are the limitations of the decision?

Tasmanian dams case - facts

In 1974 the Commonwealth Government signed the Convention for the Protection of World Cultural and Natural Heritage

In 1982 the Tasmanian Government passed legislation to construct a dam on the Franklin River – the environmental impact of this worried many people

Shortly after this the area was declared a World Heritage Site by UNESCO

In 1983 the Commonwealth Government passed the World Heritage Properties Conservation Act 1983 which placed restrictions on what could be done on heritage sites – this prohibited the building of the dam

Tasmanian dams case - legal issues

The Tasmanian Government argued that the Commonwealth Government did not have specific powers in the Constitution over the environment or electricity production; therefore they could not restrict the building of the dam

The Commonwealth argued that the external affairs power (s51(xxix)) gave them the power to make laws that cover matters covered by the treaty, regardless of whether they are in the Constitution or not

Tasmanian dams case - decision

Found in favour of the Commonwealth – the World Heritage Properties Conservation Act 1983 (Cth) was valid and the Tasmanian government could not build a dam on the Franklin River

The High Court established a broad interpretation of the External Affairs power:

s51(xxix) should be interpreted to give the Commonwealth the power to legislate over anything of legitimate international concern – if there is a treaty on a particular matter, then this suggests that the matter is of legitimate international concern.

Tasmanian dams case - impact

The Commonwealth has the ability to legislate on any matter covered by a treaty even if it is an area of power left to the states

Some academics have claimed that this could effectively give the Commonwealth unlimited law-making powers

This interpretation of External Affairs was a further development on earlier cases (R v Burgess, Koowarta v Bjelke-Peterson) and was subsequently influential in Croome v Tasmania, leading to the overturning of Tasmania’s laws which criminalised homosexuality

However, the treaty must be bona fide and the legislation passed must give effect to the treaty. Also, states still retain their powers overall

The high court and representative government - what

• Government must represent that views of the people, or they risk being voted out at the next election

• There are several sections of the Constitution that protect these concepts:

• s7: Establishes that members of the Senate shall be selected for 6 years, and must be “directly chosen by the people”

• s24: Establishes that members of the HoR must be “directly chosen by the people”

• s28: Establishes that members of the HoR will be chosen for 3 years

The high court and representative government -

• Parliament cannot legislate to remove elections – they are required by the Constitution

• The High Court has interpreted the meaning of “directly chosen by the people” to show that a substantial majority of the population must vote in an election

The roach case - facts

• The Commonwealth Electoral Act prevents anyone serving a prison sentence of over three years from voting

• In 2006 this was amended to prevent anyone serving a prison sentence of any time from voting

• Vicki Lee Roach was serving a six year prison sentence at this time. As she was personally affected by the law, she was able to challenge it in the High Court

The roach case - legal issues

• Centred around the interpretation of ss7 & 24 – to what extent are the public required to vote to meet the ‘directly chosen by the people’ wording

• Roach made multiple claims around this, including that the constitution has an implied right to vote, and that the act limited the operation of the system of representative government

The roach case - decision

• Found in favour of Roach – the Commonwealth law was unconstitutional.

• The Constitution establishes a system of representative democracy and elections, and in order to be truly representative a substantial majority of the population must be entitled to vote.

• The Commonwealth is able to determine who can and cannot vote in these elections within reasonable limits – that is, the right to vote can be removed if there is a substantial reason for doing so.

• The court held that removing the right from all prisoners was excessive; only those convicted of a ‘serious’ offences should be denied the right to vote.

The roach case - impact

• The Commonwealth has the ability to exclude people from voting if there is a substantial reason (unsound mind, treason, seriously violated community expectations), but the majority of the population must be able to vote to ensure representative democracy

• The Constitution does not include a personal right to vote (as it can be removed in limited circumstances) – there is no implied right to vote

Separation of powers - what

• The splitting of legislative, executive and judicial power to separate bodies:

• Legislative power: The power to make laws (Parliament) – Chapter 1 of the Constitution

• Executive power: The power to administer the laws and manage the business of Government (Governor General, but in practise carried out by the Prime Minister and senior ministers and Government departments) – Chapter 2 of the Constitution

• Judicial Power: The power to settle disputes arising under the law (High Court and other federal courts) – Chapter 3 of the Constitution

Separation of powers - how

• To prevent power from being concentrated in one body, and helps protect individual rights by providing checks and balances on the law-making powers of the Commonwealth Parliament

Express protection of rights - what

• Rights explicitly written in to in the Constitution (five only). These rights are entrenched because they cannot be changed or removed without following the referendum process in S128

• They are: s116 (limited freedom of religion), s117 (no discrimination based on state of residence), s92 (free interstate trade and commerce), s51xxxi (just terms for acquisition of property) and s80 (trial by jury for C’wealth indictable offences)

Express protection of rights - how

• The Parliament is restricted from making any law that breaches one of these express rights

• Any legislation that breaches these express rights will be declared invalid by the High Court (provided it is challenged by someone with standing)