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

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

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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’

  means it is a non-negotiable, foundational democratic principle in the australian parliamentary system

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

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strengths of the high court relating to checks

• Judges are independent of the executive and the legislature, and decisions are based on appropriate legal principles rather than political pressure.

• 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.

• 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 referendum.

weaknesses of high court relating to checks

• 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 and the extent of the freedom of political communication, could be subject to further change if a future High Court interprets the Constitution differently.

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 states that the judicial power of the commonwealth shall be vested in the courts

overlap between legislative and executive arms

• the legislative power and the executive power are combined.

• 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.

• 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.

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

• must be kept seperate

• 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

• although the states and federal governments appoint judges, the courts are independent of political influence

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

importance of the separation of powers

• 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

nzyq v minister for immigration case - background info

• 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 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)

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?

they act as a check on parliament in law-making as any law made by parliament that infringes an express right can be declared invalid by the high court

five express rights in the aus consitution are:

• the right to freedom of religion (s. 116)

• the right to free interstate trade and commerce (s. 92)

• the right to receive ‘just terms’ when property is acquired by the commonwealth (s. 51(xxxi))

• the right to trial by jury for indictable commonwealth offences (s. 117)

• the right not to be discriminated against on the basis of the state where you reside (s. 117)

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 - although this can be limited because of national security or to ensure that people follow the laws of the country, as established in Adelaide Company of Jehovah's Witnesses Inc. v Commonwealth

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

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 provided 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.

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 lawmaking