How The Australian Constitution Acts as a Check on Parliament in Law-making: KK6

what are ‘checks’ on parliament’s law-making

a ‘check’ on parliament is a process or structure designed to reduce the potential for abuse of power or corruption, such as parliament making laws that exceed its power

what are the checks?

• the high court in protecting the system of representative government

• the separation of powers

• the express rights

1) representative government

the australian people vote in elections to chosen the politicians they want to make decisions and laws on their behalf

role of the high court

• high court established under section 71 of Aus Constitution

• section 76 gives the High Court the power to hear disputes arising under the Constitution or involving its interpretation

• cannot change (remove/add) words of the constitution, but it can interpret the meaning

  • for example, the high court ruling on the meaning of the words ‘external affairs’ under s.51 (xxix): tas dam case

• ultra vires

  • If the High Court finds that a parliament has made a law beyond its constitutional powers, this is called acting ultra vires (Latin for ‘beyond the powers’).

  • In such cases, the High Court can declare the law invalid and strike it down, meaning it has no legal effect.

• s.109

  • superior courts (e.g., Federal Court) can also determine inconsistencies between state and Federal law, and deem the law inoperable to the extent of the inconsistency: McBain case

representative govt - constitution sections

• Section 7 requires that senators must be “directly chosen by the people of the state”.

• Section 24 requires members of the House of Representatives to be “directly chosen by the people of the Commonwealth”.

‘directly chosen by the people’

• 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

• this requirement is said to be a ‘constitutional bedrock’, which means it is a non-negotiable

how does the high court and representative government act as a check on the parliament in law-making?

• parliament cannot legislate to remove elections - they are provided for in the constitution

• the hc has interpreted the meaning of ‘directly chosen by the people’ to show that a substantial majority of the population must vote in elections

background of the roach case

• In 2006, the Commonwealth Parliament passed legislation which banned all convicted and sentenced prisoners from voting in elections.

• previous act in 2004 meant prisoners who were serving sentences longer than three years were banned from voting

• Roach challenged the validity of the acts in the High Court

significance of the roach case

• High Court held that the 2006 Act was inconsistent with the system of representative democracy established by the Constitution

• infringed on section 7 & 24 which require parliament to be chosen directly by the people

• commonwealth can only restrict the right to vote for a ‘substantial reason’ (committed treason, prisoners more than 3 yrs, unsound mind)

• HC ruled that while the 2004 legislation was valid, it was unconstitutional for all sentenced prisoners to be denied the right to vote

protecting freedom of political communication - Australian Capital Television V Commonwealth case

• the Australian Capital Television V Commonwealth case dealt with the commonwealth legislation that banned all political advertising on radio and television during election periods under the political broadcasts and political disclosures act 1991 (cth)

• the high court held that the legalisation was invalid because it overrode an implied constitutional right - freedom of political communication

strengths of the high court in protecting the principle of rep government as a check on parliament in law-making

• Judges are independent of the executive and the legislature, and decisions are based on appropriate legal principles rather than political pressure. The court seeks to uphold processes that promote representative government, even if they are contrary to the will of the parliament

• The existence of the High Court allows individuals who have an interest in the case to bring the matter to court and have a law overturned. This reinforces that members of parliament are not above the law and the judges are able to overturn laws, such as those undermining the principle of rep gov

• The judges are experienced in making decisions and have available to them a wide range of legal resources, ensuring that decisions are appropriate.

• Both the High Court and the principle of representative government are contained in the Constitution and therefore can only be abolished if there is a successful referendum, therefore meaning that the Commonwealth can not remove them unilaterally

weaknesses of the high court in protecting the principle of rep government as a check on parliament in law-making

• Judges can only rule on the facts of the case brought before them. They cannot create general principles of law outside the immediate case, which limits the Court's ability to protect the principle of representative government more broadly if the case does not address issues relating to that principle.

• High Court judges cannot protect the principle of representative government unless a case is brought before them. Such cases are often complex and expensive for the ordinary person, and standing is required, therefore a law that does not uphold representative government may remain.

• The decision of the High Court may depend on the composition of the Court. Some justices are more conservative in their approach to the Constitution and may be reluctant to adopt a liberal approach to interpreting the Constitution.

• The interpretation of the scope of the principle, such as the ability of people to vote in elections, could be subject to further change if a future High Court interprets the Constitution differently.

2) separation of powers

• a doctrine established by the Australian Constitution that ensures the three powers of our parliamentary system remain separate

• ensures no one body has absolute power

executive power

• the power to administer the laws and manage the business of government which is vested in the Governor-General as the King’s representative

• section 61 states that the executive power is vested in the queen BUT in practise, this is carried out by the prime minister, senior ministers and govt departments

legislative power

the power to make laws, which resides with parliament

judicial power

• the power given to courts and tribunals to enforce the law and settle disputes

• section 71

overlap between legislative and executive arms

• the legislative power and the executive power overlap

• this means the power to administer the law and carry out the business of government (the executive power) is placed in the hands of the cabinet rather than the executive.

• members of the executive (prime minister, ministers ect) sit in parliament (legislative)

• the powers are also closely linked by the fact that laws passed by parliament must receive royal assent from the king’s representative to become law.

strengths of the overlap between the legislature and executive

weaknesses of the overlap between the executive and legislative

1. Reduced Independence and Separation

• One of the main weaknesses is that the overlap weakens the doctrine of separation of powers.

• Since members of the executive also sit in the legislature, it becomes difficult for Parliament to independently scrutinise the executive, especially if the government holds a majority in both houses.

• This concentration of power can lead to a “rubber-stamp” Parliament, where legislation is passed with minimal debate or challenge.

2. Party Discipline Reduces Genuine Oversight

• In Australia’s system, party discipline means MPs from the ruling party are expected to vote with the government, even if they disagree.

• Backbenchers (non-minister MPs from the government party) rarely challenge the executive.

• As a result, the executive isn’t truly being held accountable by Parliament, because everyone is following the party line.

• This reduces the effectiveness of Parliament in checking executive actions, weakening its oversight function.

3. Executive Dominance over the Legislative Agenda

• The executive controls the parliamentary timetable, which bills are introduced, and how much debate occurs.

• This dominance allows the executive to prioritise its own interests and limit scrutiny of controversial legislation.

• For example, bills may be rushed through the House of Representatives with limited time for MPs to review or propose amendments, undermining the deliberative role of Parliament.

the cabinet

• the Cabinet consists of the prime minister and senior ministers in charge of a range of portfolios (or the premier and ministers at a state level), whose main role is to decide on general government policy.

• Cabinet decide on what bills should be introduced to parliament.

importance of separating legislative and judicial

• only a court or tribunal has the power to decide if the law has been contravened

• role of the high court is to decide disputes on issues involving the constitution, however the courts can also make common law: NZYQ case

• the courts are independent of political influence

• this safeguards citizens against misuse of political power or corruption in the resolution of disputes.

• ensures that the legislature is held accountable

how does the separation of powers act as a check on the parliament in law-making?

• prevents the power to control the law being concentrated in one branch/arm/function

• helps protect individual rights by providing checks and balances of the law-making of Commonwealth parliament

• no one has ‘absolute power’

• this limits the ability of a branch to abuse its power beyond what is granted under the Australian Constitution.

strengths of of the separation of powers

weaknesses of separation of powers

• can only declare a law invalid if someone with standing brings the case before the court

• the executive and legislative branch are not completely separate in the australian system - members of the executive also sit in parliament (reduces independence of branches and allows the executive to dominate parliament)

• judges are appointed by the government - they may be able to influence decisions through their appointments (may choose judges that align with their ideological values)

• only for commonwealth parliament

nzyq v minister for immigration case - facts

• plaintiff (NZYQ) was a stateless refugee born in myanmar

• in 2012 - arrived in Aus, was kept in immigration detention until 2014

• in 2016 NZYQ pleaded guilty to a sexual offence against a child and was sentenced to 5 years imprisonment

• upon release, NZYQ returned to immigration detention while the govt examined ways of sending him overseas

nzyq case findings/significance

• High Court ruled that Australia's system of indefinite immigration detention was unlawful

• held that relevant section of the Migration Act (1958) dealing with obligation to detain 'unlawful non-citizen' did not comply with constitution

• High Court determined that if the purpose of detaining a non citizen is:

  • administrative - preparing non-citizen for deportation, or to get a visa = LAWFUL

  • punishment - indefinite detention, where realistic removal is not a prospect = UNLAWFUL as it breaches the separation of powers (unconstitutional) as only the courts have the power to detain someone for punishment

3) express rights

rights that are entrenched in the australian constitution, meaning that they can only be removed or changed by a referendum which was established by s.128

how do express rights operate as a check on parliament?

• the parliament is restricted from making any law that breaches one of the express rights

• any law that breaches these express rights will be declared invalid by the high court (provided that it is challenged by someone with standing)

five express rights in the aus consitution are:

• the right to freedom of religion

• the right to free interstate trade and commerce

• the right to receive ‘just terms’ when property is acquired by the commonwealth

• the right to trial by jury for indictable commonwealth offences

• the right not to be discriminated against on the basis of the state where you reside

religion

Section 116 of the Australian Constitution states that the Commonwealth Parliament cannot make a law which:

• establishes a state religion

• imposes any religious observance

• prohibits the free exercise of any religion - exception for national security or to ensure that people follow the laws of the country

• requires a religious test as a requirement for holding any Commonwealth office.

Williams v Commonwealth (2012) facts

• Williams challenged the Cth Govt’s power to fund a chaplaincy service running in a govt primary school

• the Cth Govt entered into a funding agreement with Scripture Union Queensland to provide chaplaincy services

• Williams argued the funding agreement was invalid because it was beyond the executive power of the Commonweahtlh (s61) and prohibited by s.116

• the challenge relating to s116 was dismissed bc chaplains were not employees of the commonwealth

Williams v Commonwealth (2012) decision

HC found that s61 did not empower the Cth to enter into a funding agreement - as there was no act to give authority to the funding agreement, it was deemed invalid

then, parliament passed legislation to allow the chaplaincy program to be funded by Cth

HC found in favour of Williams, declaring that the agreement was invalid in relation to the school because they had no legislation to support this

trade

• under section 92, interstate trade and commerce must be free

• prevents parliament from treating interstate trade differently from trade within a state

• provides freedom of movement between states, without burden or hinderance

• can also refer to movement of people between states

acquisition of property on just terms

• under s.51(xxxi) the commonwealth must provide just terms when acquiring property, that is the commonwealth must pay fair and reasonable compensation for property that is compulsorily acquired

• commonwealth is only able to acquire property for a purpose or area for which it has the power to make laws; for example airports and national parks

jury trial

• under section 80, there must be a jury trial for indictable commonwealth offences under the criminal law

• only provides a limited right as:

  • most indictable offences are crimes under state law, and this section only applies to Commonwealth offences

  • the High Court has ruled that indictable means 'crimes tried on indictment’. Therefore, the operation of section 80 only extends to those most serious offences. The Commonwealth Parliament decides whether a crime is tried 'on indictment' or not.

Alqudsi v The Queen 2016

Alqudsi was charged under commonwealth law for terrorism-related charges

Alqudsi put forward a motion to be heard by a judge only

Alqudsi was unsuccessful as he was required by section 80 to be heard by a jury

discrimination on the basis of state residence

under section 117 it is unlawful for state and commonwealth governments to discriminate against someone on the basis of the state in which the person resides

strengths and weakness by which express rights act as a check on parliament in law-making