Unit 4 AOS 1.1

Commonwealth parliament structure

\-Australia follows a federal system

\-Each state and territory has their own parliament

\-One central commonwealth parliament deals with national issues

\-Representative democracy

Parliamentary sovereignty

\-Parliament is the supreme law making body

\-Parliament can repeal and amend its own laws

\-Parliament can make laws in futuro and ex post facto

\-Parliament can make laws on anything so long as it operates within its jurisdiction

constitutional monarchy

\-The monarch of england is australias head of state

\-A constitution establishes the legal framework of parliament and governance

Representative democracy

\-A government that is elected by the people, reflecting the views and values of the majority of people in law making

Rule of law

\-Our government is not above the law and should therefore be transparent and accountable for its actions

Rule by law

\-The people who make, administer and enforce the law are excluded from following the law

Constitution

-A set of rules that establishes the nature, functions and limits of a nations governance system

1. outlines the structure of parliament

2. establishes the high court

3. divides law making powers

4. provides a mechanism for changing the constitution

5. protects a limited number of express rights

Commonwealth parliament

\-has a bicameral structure (2 chambers)

\-Federal law making powers

House of representatives

\-Peoples house

\-Members represent the interests of the Australian people

\-151 members each representing an electorate of on average 80,000 people

\-More populous states have more members, no state will have less than five

HR role: Initiate and Make laws

\-New laws are generally made in the lower house as this is where government is formed

\-government is expected to enact laws which uphold their election promises for which they were voted in

\-create laws at a federal level

HR role: Determine Government

\-The political party or coalition of parties which holds a majority of seats (min 76 seats) forms government

\-federal level

HR role: Provide responsible government

\-ministers are accountable for their department

\-Ministers must implement policies and laws in their department area

\-Introduce money in department area

\-Answerable to parliament during question time

\-federal level

HR role: Represent the people

\-members are elected by the people to act on their behalf in law making

\-members must represent the views and values of the majority of people

\-represent the australian people

HR role: Scrutinise government

\-Ensure proposed legislation is examined carefully and debated thoroughly

\-Hold government accountable in its actions or inactions

\-federal level

Cabinet

\-Comprised of the prime minister and senior ministers of government

\-Determines governments legislative agenda and its priorities

The senate

\-states house

\-members represent the interests of the states

\-Each state has 12 representatives, whilst territories have 2

\-76 members total

\-Same legislative powers as the lower house except cant introduce monetary legislation

S role: Act as a house of review

\-Most bills are initiated in the lower house, this means the senate will review and debate the bill before it can be passed and initiated

\-propose any necessary changes

\-review federal legislation

S role: act as a states house

\-Under s7 the states must be equally represented in the senate regardless of population

\-ministers focus more on what their state needs as a whole

S role: Scrutinise bills

\-use a range of committees to examine proposed legislation at a federal level

\-usually to ensure rights and freedoms are not breached

S role: initiate and pass bills

\-able to introduce new legislation excluding money bills at a federal level

the crown (commonwealth)

\-as the monarch of commonwealth lives in England they are represented in parliament by the governor general

\-in theory holds the executive power

\-gives royal assent for a bill to pass

\-chosen by commonwealth parliament

Legislative assembly

\-lower house

\-88 members one for each electoral district

\-4 year term

\-members known as mlas

LA role: make laws

\-usually introduce by members of government so most bills are initiated in the lower house

\-initiate laws at a victorian level

LA role: form government

\-political party or coalition with the most seats in the legislative assembly will hold government

LA role: provide representative government

\-members are elected by the victorian people to reflect their views, values and interests

LA role: control government expenditure

\-for taxes or money related action a bill must be passed which can only occur in the legislative assembly

Legislative council

\-upper house

\-40 members, 5 from each of the eight electoral districts

\-4 year term

\-members are known as mlcs

LC role: act as a house of review

\-scrutinise, debate, amend or reject bills made in the lower house at a victorian level

LC role: examine bills using committees

\-several committees are used to debate proposed bills and make recommendations at a victorian level

LC role: initiate and pass laws

\-introduce new legislation excluding money bills at a victorian level

The crown (victoria)

\-the governor acts as the monarchs representative in victoria

\-provides royal assent

\-appoints the executive council

\-approves secondary legislation

residual powers

\-law making powers that only the states can exercise

\-not mentioned in the australian constitution (left to the states)

\-S106: states retain individual constitutions

\-S107: state parliaments continue to exist and retain power

\-S108: laws are specific to the state they were made in

Specific powers

\-powers that are listed in the constitution (most in s51)

Exclusive powers

\-law making powers that only the commonwealth parliament may exercise

\-EG. defense, currency, immigration

\-some powers listed in s51 are made exclusive in other sections

\-EG s51/21 gives commonwealth currency powers and s115 states that states do not control currency

\-some are made exclusive by nature such as immigration

concurrent powers

\-powers which both the commonwealth and states share

\-both the commonwealth and states can pass law in these areas

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Section 109 (australian constitution)

\-resolves conflicts between state and commonwealth law

\-’where a law of the state is inconsistent with a law of the commonwealth the commonwealth law shall prevail to the extent of the state laws inconsistencies’

\-inconsistent part of state law deemed invalid

Bicameral structure (commonwealth)

\-outlined in section 1 of the constitution

\-establishes to chambers of parliament

Bicameral structure strengths

\-two houses allows for review and identification of errors

\-if government holds a slim majority in the lower house considerable debate can occur before a bill is passed to the second house

\-if there is a hostile senate bills can be reviewed extensively

\-upper house is smaller allowing minor parties and independents to hold the balance of power (encourages cooperation with major parties)

Bicameral structure limitations

\-if government holds a majority debate in the lower house is unlikely to occur

\-’rubber stamp’ if government controls both houses

\-independents and minor parties can stall law making or mean laws are not as effective (balance of power in the senate)

executive power

\-the power to administer the law and manage the business of government

\-Section 61: the executive power rests with the queen and is exercisable by the governor general

\-In practice the executive power is exercised by the prime minister, senior ministers and their departments

legislative power

\-the power to make laws, residing with parliament

\-Section 1: Legislative power of the commonwealth shall be used in federal parliament

combined powers

\-in practice the executive and legislative are seperate but in practice they are combined

\-ministers exercise executive power

\-cabinet must ensure passed laws are enacted

judicial powers

\-the power given to courts and tribunals to apply the law and settle disputes

\-Section 71: judicial powers of the commonwealth shall be vested in courts, only a court can determine if law has been extravened

\-Section 72: courts are completely seperate from political influence

separation of powers reasons

\-Ensure that no one body has absolute power

\-protect individual rights

\-preserve the independence of the judiciary

\-uphold the rule of law

separation of powers strengths

\-allows the executive to be scrutinised by the legislature: law maker can refuse to pass legislation it deems inappropriate

\-Judiciary is independent of parliament: judges are not under pressure to make decisions, free to decide each case based on its merits

\-Ministers are subject to scrutiny: ministers can be scrutinised during question time, opposition can examine policies and bills

\-Senate composition: when the upper house is hostile, provides greater security

separation of powers limitations

\-Legislature is not always a check on parliament: if the government controls both houses less discussion will occur

\-Judges are appointed by the executive: allows the executive to influence the judiciary which may cause political undertones in decision making of judges

\-legislative and executive powers are combined: deteriorates the effectiveness of the separation

\-composition of the senate: if the opposition controls the senate it can obstruct bills for political gain rather than scrutiny

Section 116

-right to freedom of religion: commonwealth parliament cannot make a law which

1. establishes a state religion

2. imposes religious observance

3. prohibits free exercise of religion

4. requires a religious test to hold an office of the commonwealth

section 92

\-right to free interstate trade and commerce: trade must be free, provides freedom of movement between states without burden or hinderance

\-restricts imposition of taxes on the transfer of goods and services between states

section 51 (xxxi)

\-right to property acquired by the commonwealth on just terms: the commonwealth must pay fair and reasonable compensation for compulsorily acquired property

\-property can be tangible or intangible, real (immovable) or personal (moveable) intellectual

Section 80

\-right to trial by jury for commonwealth indictable offences: jury is require (12 jurors)

\-decision of a jury in such a trail must be unanimous

\-can be avoided by downgrading offences

section 117

\-right to not be discriminated against based on state residence: it is unlawful for both commonwealth and state parliaments to disadvantage a person based on the state where they reside

Express protection of rights strengths

\-Impose limits on parliament when making laws in certain areas

\-Any person with standing can enforce their rights in the high court: law can then be deemed invalid

\-Express rights cant be directly removed by commonwealth parliament: can only be changed through referendum

\-high court can quickly declare infringing legislation ultra vires: ensures commonwealth parliament can be directly challenged

\-have remained unchanged since federation: stability allows for wide awareness

express protection of rights weaknesses

\-can only be changed via referendum: limited ability to enumerate and protect new rights

\-cost of initiating high court action is large: difficult for many to challenge legislation in the high court leading to unchecked legislation

\-limited scope of rights: only 5, many apply only at a federal level, act more as a limit on parliament than rights of the people

\-infringements must be challenged: does not actually prevent commonwealth from passing infringing legislation

\-must have standing to initiate a high court claim: person who wishes to pursue their rights must be directly affected

High Court’s role

-hear cases that are before them and interpret the words of the constitution to resolve the dispute

1. guardian of the australian constitution

2. checks for abuse of power by commonwealth parliament

3. gives meaning to the words of the constitution

High court overview

\-Established under section 71

\-gains power under section 76

\-the commonwealth may be taken to court if their is a reasonable belief that they have acted outside of their jurisdiction

\-can declare law invalid or ultra vires

constitutional interpretation

\-high courts interpretation broadens or narrows the meaning of the words of the constitution but does not change the words themselves

High court process

\-when a dispute arises, high court must interpret constitutions wording

\-seven judges will hear the dispute and write individual judgements, a majority determines the outcome

High court’s impact

\-shifted the division of law making powers between the states and commonwealth parliament

\-given additional rights to australians

High Court strengths

\-judges are independent of the executive and legislative: decisions are made on legal principles and the merit of the case not political pressure

\-the high courts existence: allows individuals with standing to go to court and have law overturned (reinforces rule of law)

\-high court judges are experienced: have a wide range of resources available and can read broadly in terms of international cases

\-Difficulty of initiating a high court case: avoids challenges to laws from being made easily upholding a degree of social cohesion

high court weaknesses

\-judges can only rule on the facts of the case before them: judges cannot create general principles of law outside the case

\-judges cannot intervene in a dispute unless a case is before them: cases are expensive and complex

\-litigation in the high court is expensive: reduces the volume of cases to be heard, requirement for standing and a time commitment

\-High court judges are appointed by parliament: deteriorates separation of powers, judges may be politically influenced

\-Cannot change the constitution: limited in interpreting its structure and wording

s128

\-the only way to change the australian constitution is through a referendum

referendum

\-a yes/no vote on a proposed change to the wording of the constitution

referendum process stage 1

\-referendum bill must be passed by both houses of parliament or one house of parliament twice within three months

\-if passed AEC sends information out with reasons for and against proposed change

referendum process stage 2

\-referendum is put to the people not less than 2 months and not more than 6 months after passing parliament

Double majority standard

\-a majority of voters in the whole of australia must vote yes

\-a majority voters in a majority of states (4/6) must vote yes

referendum process stage 3

\-if approved by the people the referendum is given to the governor general who provides royal assent and the change is implemented

referendum strengths

\-s128 allows public to refuse support for a proposed change: commonwealth is not able to increase its power without support of the people

\-double majority is strict: proposed change can only happen if a majority of people are in support

\-protection of smaller states: larger states alone cannot determine a referendum

\-Vote is compulsory: all eligible voters must vote garnering a wide range of opinions and varying support

\-information is provided to voters: voters are given arguments for and against a proposed change allowing them to make an informed choice

referendum limitations

\-Conservative voters: a lack of understanding can mean voters choose to vote no out of fear

\-double majority is difficult to achieve: even valid changes are limited to where there is overwhelming support

\-Time consuming and costly: takes 6 to 8 months for vote to occur after passing parliament, longer to tally results, failed referendums may be a waste of money

\-undemocratic outcomes can occur: smaller states with greater voting power can block referenda even if there is majority support in larger states

\-States have no ability to stop referendum: can only encourage voters to vote no, can result in a shift of the division of law making powers towards the commonwealth