Chapter 10 Law-making powers

Flashcards on Law-making powers in Australia, based on lecture notes.

Constitution

A set of rules that establishes the nature, functions and limits of government and determines the powers and duties of the government.

Australian Constitution

Came into force on 1 January 1901.

Features of the Australian Constitution

Establishes the Commonwealth Parliament and how the House of Representatives and the Senate should be composed; establishes the High Court of Australia; sets out matters relating to the states; establishes the law-making powers held by the Commonwealth Parliament; provides a mechanism to change the Australian Constitution – a referendum.

Commonwealth Parliament

King (represented by the Governor-General), Senate (upper house), House of Representatives (lower house).

House of Representatives

The lower house, sometimes referred to as the ‘people’s house’, has 151 members, each representing one electorate in Australia.

Roles of the House of Representatives in Law-Making

Initiating and making laws; determining the government; representing the people; scrutinising government administration; acting as a house of review; controlling government expenditure.

The Senate

The upper house, sometimes referred to as the ‘states’ house’ or the house of review, has 76 elected members (12 from each state, and two from each territory). Each senator is elected for six years; the Senate is elected by proportional representation.

The Senate’s Roles

Acting as house of review; allowing for equal representation of the states; scrutinising bills and government administration; initiating and passing bills.

Victorian Parliament

King (represented by the governor of Victoria), Legislative Council (upper house), Legislative Assembly (lower house).

The Legislative Assembly

The lower house of the Victorian Parliament, there are 88 members, and its role is to initiate and pass bills, form government, represent the people, act as a house of review, control government expenditure and scrutinise government administration.

The Legislative Council

Primary role is to act as a house of review, made up of 40 members of parliament. Five members are elected from eight regions across Victoria.

Roles of the Legislative Council in Law-Making

Acting as a house of review, scrutinising government administration, initiating and passing bills.

The Crown

Part of the system of government in Australia through the Governor-General (at a federal level) and six governors (at a state level).

Main Roles of the Crown in Law-Making

Granting royal assent; withholding royal assent; appointing the Executive Council.

Royal Assent

The Governor-General and Governor of each state is required to approve bills before they can become law.

Australian Constitution

Divides the law-making powers into: residual powers, exclusive powers, concurrent powers.

Residual Powers

The powers that were left with the states (not given to the Commonwealth parliament under the Constitution). Examples: criminal law, medical procedures, road laws, education and public transport.

Exclusive Powers

Powers that can only be exercised by the Commonwealth Parliament, specifically mentioned in the Constitution (in section 51 and 52). Examples: defence, currency, customs and border protection.

Concurrent Powers

Powers that both the Commonwealth and the state parliaments share and are listed in the Constitution (section 51). Examples: trade, taxation, marriage and divorce, postal, telegraphic, telephonic and similar services.

Section 109 of the Constitution

Designed to resolve conflicts and inconsistencies between state and Commonwealth laws.

Under Section 109

If there is a conflict between state and Commonwealth laws, the Commonwealth law will prevail to the extent of the inconsistency. State law provisions that are inconsistent with the Commonwealth law will be invalid and unenforceable.

Significance of Section 109

Can act as a restriction on state parliaments. State parliaments may recognise that in areas where a Commonwealth law already exists, they are not able to pass a law.

High Court Jurisdiction

The High Court has jurisdiction under section 75 of the Constitution to hear and determine cases.

Section 51(v) of the Australian Constitution

Provides the Commonwealth power to legislate on postal, telegraphic, telephonic and other like services.

Significance of the Brislan Case

Changed the division of lawmaking powers by extending the Commonwealth Parliament’s power to include broadcasting to a wireless set.

Tasmanian Dams Case

The High Court was required to interpret the words ‘external affairs’ in section 51(xxix) of the Constitution.

High Court Held (Tasmanian Dams Case)

The external affairs power gives the Commonwealth Parliament the power to create laws to fulfil its obligations under an international treaty.

Significance of the Tasmanian Dams Case

As a result of the High Court’s interpretation of the external affairs power, the Commonwealth Parliament was able to move into a law-making area previously considered to be a residual (state) power.