LEGAL: U4 AoS1

The people, the law and the reform

On what date did the Australian Constitution come into force?

1 January 1901

What are the three elements of the Commonwealth Parliament?

The Crown (Governor-General), the Senate (Upper House) and the House of Representatives (Lower House).

How many seats in the house of representative?

150

How long is the term of office for members of the House of Representatives?

Three years.

What are the five main roles of the house of representatives?

1. form government

2. to initiate and make laws

3. to represent the people

4. to provide responsible government

5. to review bills

What does “form the government” mean in terms of being one of the roles of the House of representatives?

• The political party that has the majority of seats in the House of Representatives forms government (there are 150 seats so 76 seats is the minimum number of seats required to form government)

• The leader of the government is called the Prime Minister

• The Prime Minister appoints ministers - they are given a particular ‘area’ to look after (e.g. Minister for Health, Minister for Education etc.)

• The party with the next highest number of seats forms the opposition

What does “initiate and make laws” mean in terms of being one of the roles of the House of representatives?

• This means that government usually proposes laws (bills), which then get debated and scrutinised, before being passed to the house of representatives.

• Only the House of Representatives can initiate money bills e.g. relating to taxation

What does “represent the people” mean in terms of being one of the roles of the House of representatives? (I.V.E)

This means the House of Representatives plays a role in forming a representative government. Members are elected by the people and should reflect the views and values of the majority of the community

• Each member represents an equal number of people (approx. 100,000)

• Interests, values and expectations

What does “provide responsible government” mean in terms of being one of the roles of the House of representatives?

• This means that the ministers are responsible (answerable or accountable) to the parliament and therefore to the people

• They are questioned by opposition members about their policies and legislative mandate during question time 

What does “review bills passed by the Senate” mean in terms of being one of the roles of the House of representatives?

• Whilst most bills start in the House of Representatives, bills can also start in the senate.

• If the Senate passes a bill first, the House of Representatives will then review that bill.

What is the senate also known as?

The State’s House or The House of Review

How many members in the senate and what is their term length?

76 and they serve for 6 years

What are the 4 main roles of the senate?

1. Act of the house of review

2. act as a states house

3. to initiate and pass bills

4. to scrutinise bills and government administration

What is “act as a house of review” mean in terms of one of the roles of the senate?

• Since a majority of bills are initiated in the House of Reps., the Senate’s role is to review those bills. The Senate should ensure that bills which could be seen as too radical or inappropriate are not passed through the parliament and do not become law.

What is “act as a states house” mean in terms of one of the roles of the senate?

• When Commonwealth Parliament was created, smaller colonies were afraid of giving up too much power and were worried that bigger colonies would become more powerful in the Commonwealth.

• Section 7 of the Constitution provides that the Senate should have equal representation from each state, regardless of size and population.

• As a result, the Senate represents the interests of states and, in particular, to protect the interests of the smaller states.

What is “initiate and pass bills” mean in terms of one of the roles of the senate?

• This means that they can initiate their own bills as long as they are not money bills and can pass bills that have already been passed by the House of Reps - they can also make amendments to these bills

What is “scrutinise bills and government administration” mean in terms of one of the roles of the senate?

• The Senate has a large number of committees that can scrutinise legislation or particular government activities or policies and government expenditure 

• This includes the Senate Standing Committee for the Scrutiny of Bills which assesses bills to determine what affect these proposals would have on individual rights, freedoms and obligations

Name the three elements of the Victorian Parliament.

The Crown (Governor), the Legislative Council (Upper House) and the Legislative Assembly (Lower House).

What is the legislative assembly also known as?

The peoples house

How many seats in the legislative assembly and how long do members serve?

88 and they serve for 4 years

What are the 6 main roles of the legislative assmebly

1. To initiate and pass bills

2. To form government

3. To represent the people

4. To provide a responsible government

5. To review bills passed by the Legislative Council

6. Control government expenditure (meaning to pass money bills)

What is the legislative council also known as?

The house of review

How many seats in the legislative council and how long do members serve?

40 seats and members serve for 4 years

What are the 3 main roles of the legislative council?

1. To act as a house of review

2. To initiate and pass bills 

3. Scrutinise government administration (also known as to provide for responsible government)

Who/what is the crown?

The Crown refers to the British monarch and is part of Australia’s system of government through the King’s representatives:

• One governor-general (Federal)

• Six governors (State)

How is the crown chosen on a federal and state level?

federal: The governor-general is appointed by the King on the advice of the Prime-Minister

state:The governors are appointed by the King on the advice of the premiers 

What is the main responsibility of the crown?

The main responsibility of the Crown’s representatives is to ensure that the democratic system operates effectively. 

What are the 3 roles of the crown in law-making?

1. Granting royal assent

2. Withholding royal assent

3. Appointing the Executive Council

what does “granting royal assent” mean in terms in a role of the crown?

• The governor-general (at a federal level) and the governors (at a state level) are required to approve bills before they become law

• This process is known as royal assent

• Royal assent is normally given on the advice of the Prime Minister or ministers at the Commonwealth (federal) level and on the advice of the premiers or ministers at a state level

What is ‘Royal Assent’?

The formal signing and approval of a bill by the Governor-General or Governor after which it becomes an Act of Parliament.

what does “withholding royal assent” mean in terms in a role of the crown?

• The governor-general has the power to withhold royal assent

• This means that they can refuse to approve a bill and therefore it cannot become law

• No governor-general has ever refused royal assent

• At a federal level, the Australian Constitution outlines the circumstances in which a governor-general can withhold royal assent (this means that they can’t just withhold royal assent whenever they want and without reason) 

• Note: There is no process listed in the Constitution whereby the Governor can withhold royal assent

what does “appointing the executive council” mean in terms in a role of the crown?

• The governor-general and the governors are responsible for appointing the executive council

• The executive council is made up of the following:

  • The leader of the government on a federal level which is the Prime-Minister

  • Premier at a state level

• The executive council is a group consisting of the prime minister and senior ministers that are responsible for administering and implementing the law, giving advice about the government departments.

• The role of the executive arm is to manage, administer and implement laws and conduct the business of government

• They also need to give advice to the Crown’s representative on matters such as whether to approve regulations (in reality, the Crown’s representative acts on the advice of the Prime Minister or Premier when approving regulations)

DP2

Give three examples of exclusive powers.

Defence, Currency, Customs & Border Protection.

Name one way a Section 51 power becomes exclusive to the Commonwealth.

Another section prohibits the states from legislating in that area (e.g. s114 regarding military forces).

What is a ‘concurrent power’?

A power shared by both Commonwealth and state parliaments.

List three concurrent powers under Section 51.

Marriage, Taxation, Divorce and matrimonial causes.

What are ‘residual powers’?

Powers left with the states at Federation, not listed in the Constitution.

Which constitutional section entrenches residual powers?

Section 107.

What is the purpose of Section 109 of the Constitution?

To resolve conflicts between state and Commonwealth laws in concurrent areas by making inconsistent state law invalid to the extent of the inconsistency.

What does the phrase ‘to the extent of the inconsistency’ mean under s109?

Only the conflicting part of the state law is invalid; the rest remains operative.

Which IVF case illustrates Section 109 in action?

McBain v Victoria (2000).

Name one restriction Section 109 places on state parliaments.

They cannot enforce laws inconsistent with valid Commonwealth legislation in concurrent areas.

Give one limitation on the significance of Section 109.

A state law’s inconsistency must be challenged in court before it is declared invalid.

Under which sections does the High Court obtain jurisdiction to hear constitutional matters?

Sections 75 and 76.

What environmental dispute triggered the Tasmanian Dam case?

Tasmania’s plan to build a hydro-electric dam on the Franklin River.

Which head of power did the Commonwealth rely on in the Tasmanian Dam case?

Section 51(xxix) – the external affairs power.

What was the outcome of the Tasmanian Dam case?

The High Court upheld Commonwealth legislation protecting the site, ruling the state law invalid under s109.

Why is the High Court’s broad reading of the external affairs power significant?

It allows the Commonwealth to legislate on matters covered by bona fide international treaties, even in residual areas.

Name one limitation on the Commonwealth’s use of the external affairs power.

Legislation must be appropriate and adapted to implementing a genuine treaty obligation.

What is meant by a ‘bicameral’ parliament?

A parliament with two houses that must both pass a bill for it to become law.

How can a hostile upper house limit law-making?

It can block or heavily amend government bills, causing delays or preventing legislative agendas.

What is a ‘rubber-stamp’ upper house?

An upper house where the government holds a majority and passes bills with minimal scrutiny.

Roughly how many bills are introduced in Commonwealth Parliament each year?

About 200.

What is ‘secondary legislation’?

Rules and regulations made by delegated authorities under powers given by an Act of Parliament.

Name three possible sources of international pressure on Australia’s Parliament.

Foreign governments, United Nations bodies, Non-government organisations (e.g., Amnesty International).

Give one recent example of international pressure related to climate change.

UN criticism and Pacific nations urging Australia to strengthen its emissions reduction targets, leading to the Climate Change Act 2022 (Cth).

What is ‘representative government’?

A system where members of parliament are elected by, and answerable to, the people.

Which two constitutional sections require federal MPs to be ‘directly chosen by the people’?

Sections 7 and 24.

How does compulsory voting support representative government?

It ensures the elected government reflects the majority of the whole population.

Why might the desire for re-election lead to short-sighted law-making?

MPs may prioritise popular, immediate measures over necessary but unpopular long-term reforms.

List the three constitutional checks on Commonwealth Parliament’s law-making.

High Court’s role in protecting representative government, Separation of Powers, Express Protection of Rights.

How did Roach v Electoral Commissioner (2007) protect representative government?

It struck down a blanket ban on prisoner voting as inconsistent with s7 & s24’s requirement for choice ‘by the people.’

What did the Political Advertising Case establish?

An implied freedom of political communication necessary for informed voting in a representative democracy.

Name the three arms in the Separation of Powers.

Legislative, Executive, Judicial.

Why is the overlap between executive and legislative powers a weakness?

Cabinet ministers sit in Parliament, potentially reducing scrutiny between the branches.

What protects judicial independence at federal level?

Judges have tenure to age 70 and can only be removed for proven misbehaviour or incapacity.

List the five express rights in the Australian Constitution.

Freedom of religion (s116), Free interstate trade (s92), Just terms acquisition (s51(xxxi)), Jury trial for Cth indictable offences (s80), No discrimination based on state residency (s117).

Which section prevents the Commonwealth from establishing a state religion?

Section 116.

Which section guarantees free interstate trade and commerce?

Section 92.

Which constitutional provision requires the Commonwealth to pay ‘just terms’ when acquiring property?

Section 51(xxxi).

Which section ensures a jury trial for Commonwealth indictable offences?

Section 80.

Which section prohibits discrimination based on state of residence?

Section 117.

Define ‘statutory interpretation.’

The process by which courts determine the meaning of words in legislation.

Name four common reasons courts must interpret statutes.

Unclear parliamentary intention, broad terms needing specific application, ambiguous words, words whose meaning has changed over time.

What are two key effects of statutory interpretation?

Giving legal meaning to words (narrowing or broadening scope) and creating precedent for future cases.

What is a binding precedent?

A legal principle from a superior court that lower courts in the same hierarchy must follow when facts are similar.

Identify three sources of persuasive precedent.

Decisions of courts in other jurisdictions, lower courts, courts of equal standing, or obiter dicta statements.

How can a court ‘distinguish’ a precedent?

By showing the material facts of the current case are sufficiently different from those of the earlier case.

What is ‘reversing’ a precedent?

A higher court on appeal overturns the legal reasoning of the lower court in the same case, creating new precedent.

What is ‘overruling’ a precedent?

A superior court decides a previous precedent from a different case is wrong and establishes a new principle.

What does it mean when a judge ‘disapproves’ a precedent?

The judge expresses disagreement with an existing precedent but still follows it; the comment may encourage change on appeal or by parliament.

Define ‘judicial conservatism.’

A philosophy where judges show restraint and avoid broad or radical changes to the law, leaving reform to parliament.

Define ‘judicial activism.’

An approach where judges are willing to broadly interpret statutes and precedents, considering social values and rights to achieve justice.

How do high litigation costs limit courts’ ability to make law?

They deter many people from bringing or appealing cases, reducing opportunities for courts to develop precedent.

What is the ‘requirement for standing’?

Only parties directly and sufficiently affected by an issue can initiate court proceedings.

Why is parliament called the ‘supreme law-making body’?

It can make, amend or repeal any law within its constitutional power and can override (abrogate) common law.

What is ‘codification’ of common law?

Parliament passes legislation that confirms and incorporates a court-made principle into statute law.

What is ‘abrogation’ of common law?

Parliament passes legislation to cancel or override a court-made precedent.