legal studies unit 4 aos1

what is the structure of the federal parliament?

the governer general, the house of representatives (lower house) and the senate (upper house)

what is the house of representatives and it’s role?

the lower house of parliament that has representatives of electorates and forms government (party that holds majority)

• initiate bills

• represents the people

• publicises government policies and bills

• acts as a house of review

• controlling government expenditure- australian government cannot raise or spend money without authorisation of parliament

what is the senate and it’s role?

the upper house that has representatives of states and territories

• act as a house of review

• act as a states house- senators consider the interests of the state they represent when voting on proposed laws

• scrutinise bills

• initiate bills

what is the structure of state parliament?

governer, legislative assembly (lower house) and legislative council (upper house)

is the role of legislative assembly the same as the house of representatives?

yes

is the role of legislative assembly the same as the senate?

yes except it does not have the role of acting as the states house

what is the role of the crown (governer general and governer)?

• grant royal assent/ approval of a bill to create a law

• witholding royal assent at commonwealth level

• appoint executive council- a group of government ministers who approve secondary legislation which is rules and regulations passed such as government departments and statutory authorities (eg: VCAA)

what are residual powers and examples?

law making powers retained by the states/ law making powers not listed in the constitution as being granted to the commonwealth

eg: criminal law, roads, education

what are exclusive powers and examples?

law making powers only held by the commonwealth

eg: defence and currency

what are concurrent powers and examples?

law making powers shared by commonwealth and the states

eg: taxation, marriage

what is are 2 examples of a restriction on state parliaments in law making made by the constitution?

• inconsistency with a federal and state law, federal law prevails (S.109)

• state cannot raise an army or defence force (S.114)

what are 2 examples of a restriction on state parliaments in law making made by the constitution?

• the federal government cannot interfere in state matters (S. 106 and 107)

• federal government cannot make laws n respect to religion (S.116)

what is the section 109 of the constitution and its significance?

inconsistency with a federal and state law, federal law prevails

• restricts state government law making as laws must be consistent with commonwealth legislation otherwise it can be deemed invalid

• laws can be passed that are inconsistent with Commonwealth legislation meaning section 109 of the constitution doesnt automatically operate and automatically deem it invalid

• inconsistencies must be challenged in court before inconsistency in law is invalidated

• if in the future the commonwealth law is changed or abrogated/ cancelled, the state law can continue to be in existence and have effect

what is the mcbain case and significance?

inconsistency with state law and commonwealth law within concurrent law making area of marriage

vic law states that only a married woman or a woman in a de facto relationship could access IVF treatment however commonwealth law makes it unlawful for a person to be refused goods and services based on marital status

section 109 was upheld

what is the power of external affairs and where is it from?

section 51 of the constitution which allows commonwealth to make laws regarding external affairs including obligations under international treaties

what is the tasmanian dam case and its significance?

tasmanian government passed act to create dam of the franklin river within the state’s law making power

however franklin became a UNESCO world heritage site and so commonwealth created an act to uphold UNESCO treaty

in high court tasmanian goverment argued that commonwealth government made law in area of residual area but high court upheld external affairs power of Commonwealth and was valid and section 109 was also upheld as therefore inconsistency in validity meant state law was deemed invalid

what does bicameral structure of parliament mean and why is it required?

two houses in parliament which is a requirement contained in section 1 of the constitution that states ‘‘a bill needs to be passed in identical form by a majority of members in both houses of parliament for it to become law’’

what are the different possible composititons of parliament?

• majority government in lower house, no majority in upper house

• minority government in lower house, no majority in upper house

• majority government in lower house, rubber stamp/ majority in upper house

what does minority government mean?

a hung parliament where neither political party wins the majority of seats in the lower house at an election meaning government is formed depending on independent and minor party support for the major political party

what are strengths of the bicameral structure of parliament?

• opportunity to check bill and suggest amendments

• debate occurs that considers wide range of opinions

• parliament can change law quickly if necessary if government has majority in both houses

what are weaknesses of the bicameral structure of parliament?

• passing legislation through two houses can slow law making process

• parliament only sits for certain number of days per year and can slow legislative process as laws can only be made in parliament sitting time

• parliament can be restricted in its law making ability as they can only pass laws that are presented to it

• hostile upper house can obstruct ability of government to implement its policy agenda

what are international pressures?

demands or forces applied to parliaments to persuade them to make or not make laws to address matters of international concern

where can international pressure come from?

• the UN

• other countries

• non government organisations

what is an example of international pressures impacting law making?

the age of criminal responsibility which in Victoria is 10 whilst the UN has nominated 14 to be the absolute minimum age of criminal responsibility

Australia’s age of criminal responsibility has been critisised as it has led to the overrepresentation of first nations youth, many young people come from disadvantaged backgrounds which should be addressed outside rather than inside and young people have difficulty engaging in the criminal justice system and the system can have long lasting negative effects especially on children

the un has sought a response as for the reason behind it and has called for it to act to ensure the age was internationally acceptable

this has resulted in NT and victoria introducing legislation that increase the criminal age of responsibility (victoria will raise i to 14 given effect by 2027)

how does representative nature of parliament affect the ability of parliament to make law?

• lack of diversity may mean lack of representation of views and values in bills

• bills can be made representative of society through pressure groups and law reform bodies that protest for minorities

• populist views may be adopted to ensure voter support

• parliamentarians can still represent others through empathy and awareness of issues faced

how is principle of representative government upheld ?

• in the constitution in section 7 and section 24 which require the commonwealth houses of parliament to be directly chosen by the people

• right to vote which has been interpreted from the sections of the constitution being upheld in high court

what is an example of the right to vote being upheld?

the roach case where 2006 act stated that all prisoners could not vote and 2004 act stated prisoners serving 3 years of more could not vote and this was taken to high court stating that it was inconsistent with the consitution where high court declared 2006 act invalid and so enshrined the right to vote but upheld 2004 act

what is the role of the high court?

• act as the guardian of the constitution by explaining what it means and deciding how it should be interpreted

• acts as a check on any abuse of power- ability to declare law ultra vires

• give meaning to words in the constitution

how does high court uphold the principle of representative goverment?

• judges are independent and can uphold principle of representative parliament without political pressure

• judges can overturn laws that do not uphold the principle of representative government and parliamentarians are not above it

• judges are experienced and have range of legal resources, ensuring decisions are appropriate

• both the high court and principle of representative government are contained in the constitution and can only be abolished through a referendum

what restricts the high court from upholding the principle of representative government?

• judges cant make general principles outside of law outside of the case bought to them

• judges cannot protect the principle of representative government unless a case is brought to court with standing

• some judges are more conservative and may not interpret the constitution liberally

• interpretations could change if a future high court interprets the constitution differently

what is executive power and who has it ?

ministers can enforce laws and manage the business of government

what is legislative power and who has it?

parliament has the power to make laws

what is judicial power and who has it?

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

how does the seperation of powers act as a check?

• the courts have the power to invalidate laws passed by parliament

• the courts are independent of the government and decisions can be made without political pressure

• measures in place to ensure executive is independent from legislature like certain government employees cannot be members of parliament

• seperation of powers is enshrined in constitution and cannot be abolished without a referendum

what restricts the seperation of powers from acting as a check?

• legislative power and executive power are combined because ministers are parliamentarians

• judges are appointed by the executive power

• the ability of the judiciary to act as a check on parliament depends on people’s willingness to initiate cases

• seperation of powers in the constitution doesnt extend to the states

what are express rights?

a right stated in the australian constitution that cannot be changed without a referendum

what are examples of express rights?

• right to freedom of religion

• right to a trial by jury for indictable commonwealth offences

• right to not be discriminated against based on the state you reside in

how do express rights act as a check?

• express rights impose limits on parliament for lawmaking in certain areas like not being able to make laws that restrict the exercise of religion

• express rights cannot be removed without a referendum

• high court can declare a law to be ultra vires/invalid

• high court is independent and can make decisions to protect express rights without political pressure

how is express rights restricted in acting as a check?

• express rights are limited in scope

• express rights havent been amended or increased in number since federation and barely limits government

• case with standing has to be presented to court in order to protect express rights

• protection of express rights doesnt limit parliament from passing law and can only be protected by court declaring it invalid