legal studies 4.1a

Commonwealth parliament - structure

House of Representatives

• Commonly referred to as the Lower House

• 151 members, each elected from equally populated electorates

• Elections held approximately every three years

• House of Government, where the Prime Minister sits

Senate

• Commonly referred to as the Upper House

• 12 representatives from each State, and two from each territory

• Each Senator is elected for six years (half elected every three years)

Governor-General

• The representative of the Crown

• Appointed on the advice of the Prime Minister

• Largely ceremonial role

Victorian parliament structure

Legislative Assembly

• Commonly referred to as the Lower House

• 88 members, each elected from equally populated electorates

• Elections held every four years

• House of Government, where the Premier sits

Legislative Council

• Commonly referred to as the Upper House

• 40 representatives from eight ‘regions’

• Each Member is elected for four years

Governor

• The representative of the Crown

• Appointed on the advice of the Premier

• Largely ceremonial role

Commonwealth parliament - roles

House of Representatives

• Determine the Government

• Initiate and make laws

• Provide responsible government

• Represent the people

• Control government expenditure

Senate

• Initiate and make laws (except supply bills)

• House of review (scrutinise bills)

• Act as a State’s House

Governor-General

• Royal Assent

• Executive Council

• Reserve Powers

House of representatives - roles

Determine the government

• The political party with the most seats in the HoR becomes the Government of Australia

• Leader becomes Prime Minister

Initiate and make laws

• To make a new law, or amend an old law, it must be agreed upon by both houses and the Governor-General

• Most bills commence in the HoR – supply bills must commence there

Provide responsible government

• Ministers are accountable to parliament for their actions and decisions

• Prime Minister and ministers have to answer questions about this during question time

Senate - roles

House of Review

• Most bills are initiated in the HoR, hence the Senate becomes the review house

• Government rarely has a majority in the Senate, therefore more scrutiny on legislation

Initiate and make laws

• Same law-making power as the HoR, bills must be approved by both houses

• Some bills are initiated in the Senate

• Supply bills must be initiated in the HoR

States’ house

• Historical role, as each state is equally represented regardless of population

• Initially to protect smaller states from being taken advantage of

Governor general - roles

Royal Assent

• To make a new law, or amend an old law, it must be agreed upon by both houses and the Governor-General - this is known as Royal Assent

• Formally signs a bill into law and makes it an Act of Parliament

Executive Council

• The GG formally heads the executive – outlined in the Constitution

• Acts on advice of ministers and Prime Minister

Reserve Powers

• Holds some powers that are not listed in the Constitution – does not need legislative approval to use them

• Includes the ability to dismiss a government or end parliamentary sessions

Victorian parliament - roles

Legislative Assembly

• Determine the Government

• Initiate and make laws

• Provide responsible government

• Represent the people

• Control government expenditure

Legislative Council

• Initiate and make laws (except supply bills)

• House of review (scrutinise bills)

Governor

• Royal Assent

• Executive Council

• Reserve Powers

Types of law making powers

Division of Powers: the splitting up of law-making responsibility between the Commonwealth parliament and state parliaments

Residual Powers

• Not listed in the Constitution

• Some deliberately left to the states, others have developed as areas of law over time

• Commonwealth cannot legislate in these areas

• S 107: Every power of the State shall continue unless exclusively given to the Commonwealth or withdrawn from the State

Exclusive Powers

• Listed in the Constitution

• States cannot legislate in these areas

• Exclusive by their nature, due to another section of the Constitution, or listed in s52

Concurrent Powers

• Listed in the Constitution

• Both C’wealth and states can legislate in these areas

• All specific powers that are not made exclusive are concurrent, so everything else in s51

Extent to which the High Court has had an impact on the division of law-making powers

The Commonwealth parliament has the power to legislate in areas of exclusive and concurrent powers. Exclusive powers are powers outlined in the Australian Constitution as being exercised solely by the Commonwealth parliament, such as currency. Concurrent powers are powers outlined in the Constitution belonging to both state and Commonwealth parliaments, such as marriage. Residual powers are powers not outlined within the Australian Constitution thus exercised solely by the states parliaments, such as areas of environmental law.

What happens if a State and the Commonwealth parliament have contradictory laws?

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid

s109 in Action- IVF access laws

Victorian Infertility Treatment Act 1995 (Vic):

• You must be living with or married to a man to access IVF

Commonwealth Sex Discrimination Act 1984:

• Unlawful to refuse service to someone on the basis of their marital status

John McBain v The State of Victoria and Ors (2000):

• VF doctor successfully proves his patient, a single woman (Leesa Meldrum) has been discriminated against by the Victorian Act – the Victorian Act is invalid as far as it says that only women living with a man can have IVF.

Significance of section 109 of the Australian Constitution

Section 109 of the Australian Constitution establishes that when a validly made state law is inconsistent with a valid Commonwealth (federal) law, the Commonwealth law prevails. The state law is rendered inoperative to the extent of the inconsistency, meaning only the conflicting parts are invalidated.

Role of the high court

What

• The High Court is independent of parliament and government

• High Court has the power to rule on all matters involving the interpretation of the Constitution

Impact on law-making powers

• There can sometimes be debate over meaning of words in the Constitution, which can lead to debate over who has law-making authority

• If a case is brought, The High Court rules on these debates, and can decide if parliaments are acting within their powers, or beyond them (ultra vires)

• If a parliament is acting ultra vires, the High Court can declare that legislation invalid

High court cases

FACTS

A brief summary of the situation. What is the name of the case, who is involved, what are they doing etc.

LEGAL ISSUE

What is each party claiming, and what specific laws/sections of the Constitution are involved?

DECISION

Whose favour did the High Court find in? Why?

IMPACT

The most important section – what was the lasting effect of the decision? How did it effect further cases? What are the limitations of the decision?

Facts

The Commonwealth passed the Wireless Telegraphy Act 1905 (Cth) requiring all owners of wireless radios to hold a license

The defendant (Mrs Williams) had five wireless radios in her house, connected to an indoor aerial. She had no ‘wireless listening license’ and was charged and convicted

The defendant challenged the validity of the Wireless Telegraphy Act 1905 (Cth) in the High Court

Legal issues

The Commonwealth argued that s 51(v) ‘postal, telegraphic, telephonic and other like services’ included wireless radios as ‘like services’ as they involved communication

The defendant argued that as wireless radios were not mentioned in the Constitution, they were covered by the State’s residual powers; hence the Commonwealth act is invalid.

If the Commonwealth act was invalid, then Mrs Williams could not be charged under it, and would not have to pay the fine

Decision

“The common characteristics of postal, telegraphic and telephonic services, which is relevant in this connection, is, in my opinion, to be found in the function which they preform. They are, each of them, communication services. This is also the characteristic of broadcasting service in all its forms, which is therefore, in my opinion, a ‘like service’ within the meaning of s 51(v) of the Constitution. If a new form of communication should be discovered, it too might be made the subject of legislation as a ‘like service.”

The High Court interpreted wireless radios to be ‘like services’ as they perform a similar function; hence the Commonwealth Act remained valid

Impact

Immediate impact: The Commonwealth law remained valid, and Mrs Williams could be convicted under it.

Further impact: Broadened and clarified the interpretation of ‘like services’ to include all forms of communication, therefore broadening the power of the Commonwealth. Established these as concurrent powers, rather than residual.

It is now assumed that the internet is covered by this section of the Constitution, hence the Federal Government can regulate the NBN

Referring to one case, discuss how the High Court has impacted on the division of law-making powers

One case that had an impact on the division of law-making powers was R v Brislan. In this case, Mrs. Williams owned several wireless radios without a licence, which contravened Commonwealth law. She claimed that the Commonwealth was acting ultra vires in setting this law, and could not restrict her ownership of wireless radios as they are not mentioned in the Constitution. The Commonwealth, on the other hand, claimed that they could, as a wireless radio was a like service to postal, telegraphic and telephonic services, which were all listed in s51 (v) (including the term ‘like services’).

The High Court was required to determine the meaning of the term ‘like service’ and passed judgement that the term should be read to include anything relating to communication. This impacted on the division of powers, as it confirmed that wireless radio legislation was a Commonwealth power, meaning it was a concurrent power rather than a residual power (as claimed by Williams). As well as this, any communication devices that were developed in the future, such as the internet are now considered to be subject to this interpretation of ‘like services’ allowing the Commonwealth to legislate on this area. However, states can still legislate in these areas, provided they are not in conflict with any Commonwealth law.

Tasmanian dams case - facts

In 1974 the Commonwealth Government signed the Convention for the Protection of World Cultural and Natural Heritage

In 1982 the Tasmanian Government passed legislation to construct a dam on the Franklin River – the environmental impact of this worried many people

Shortly after this the area was declared a World Heritage Site by UNESCO

In 1983 the Commonwealth Government passed the World Heritage Properties Conservation Act 1983 which placed restrictions on what could be done on heritage sites – this prohibited the building of the dam

Tasmanian dams case - legal issues

The Tasmanian Government argued that the Commonwealth Government did not have specific powers in the Constitution over the environment or electricity production; therefore they could not restrict the building of the dam

The Commonwealth argued that the external affairs power (s51(xxix)) gave them the power to make laws that cover matters covered by the treaty, regardless of whether they are in the Constitution or not

Tasmanian dams cases - decision

Found in favour of the Commonwealth – the World Heritage Properties Conservation Act 1983 (Cth) was valid and the Tasmanian government could not build a dam on the Franklin River

The High Court established a broad interpretation of the External Affairs power:

s51(xxix) should be interpreted to give the Commonwealth the power to legislate over anything of legitimate international concern – if there is a treaty on a particular matter, then this suggests that the matter is of legitimate international concern.

Tasmanian dams case - impact

The Commonwealth has the ability to legislate on any matter covered by a treaty even if it is an area of power left to the states

Some academics have claimed that this could effectively give the Commonwealth unlimited law-making powers

This interpretation of External Affairs was a further development on earlier cases (R v Burgess, Koowarta v Bjelke-Peterson) and was subsequently influential in Croome v Tasmania, leading to the overturning of Tasmania’s laws which criminalised homosexuality

However, the treaty must be bona fide and the legislation passed must give effect to the treaty. Also, states still retain their powers overall

Explain the significance of one case in which the High Court’s interpretation of the Commonwealth Constitution had an impact on the division of law-making powers

One High Court case is the Tasmanian Dams case.

The Tasmanian government proposed to construct a dam on the Franklin River. The Franklin River was part of a world heritage site. The Federal government passed legislation which prohibited the damming of the Franklin River, implementing the Commonwealth’s obligations under a signed international treaty which sought to protect heritage sites. The Tasmanian government challenged this legislation, arguing that the Federal government had no power to pass it, and that the power to legislate on the Franklin River was part of their residual power over the environment.

The High Court found that the federal legislation was valid. It found that the federal parliament had the power to make laws under its ‘external affairs’ power (listed in section 51 of the Constitution). It found that the federal legislation gave effect to an international treaty and was an exercise of the Federal parliament’s external affairs power.

Whilst the case was significant in that it banned the construction of the dam, it has been significant for other reasons. The expansion of the meaning of ‘external affairs’ has meant that the Commonwealth can encroach into areas of residual powers where it enacts legislation which fulfils Australia’s international obligations. It therefore affords the Commonwealth government with a potentially wide constitutional power to make laws in residual areas, including the environment. This significance was seen in the ultimate outcome in Croome, which also saw the use of the external affairs power to expand into Tasmania’s laws regarding homosexuals.

Supremacy of parliament

Parliament is the supreme law-making body. Provided an area is within its law-making powers, parliament has the ability to pass any law they want.

However, there are several factors that may influence whether they have the will to do so…

Bicameral structure

What

• Bicameral means a parliament with two houses – an Upper and a Lower

• At Commonwealth level this is the House of Representatives and the Senate, and in Victoria the Legislative Assembly and Legislative Council

• Each house has a different voting method

• This leads to each house playing different roles (4.1.1)

How

• By having a different voting method for each house, one party (or coalition) rarely achieves a majority in both houses

• Six-year Senate terms also ensure a good spread of political views (Legislative Council runs to the same election schedule as the Leg. Assembly)

• Proportional voting in the upper house provides greater opportunities for minor parties to be elected, which can increase the range of community viewpoints represented in the Parliament

• Means legislation must be considered, debated, and agreed upon from multiple viewpoints, ensuring one party cannot abuse their law-making power

• This supports the role of the upper house to scrutinise and reviews the work of the lower house/the government

• Added onus on the lower house to vote in-line with the views of their electorate, or else they face losing the next election

Representative nature of parliament

What

• Australia is a representative democracy

• Elections held approx. every three years federally, and fixed four-year terms in Victoria

• Lower house electorates are equally populated areas – ensures everyone’s vote carries equal weight

How

• If Parliament passes a law that the public disapprove of, they may vote for someone else at the next election

• Ensures law reform is in line with public interests

International pressures

What

• As well as pressure from voters, politicians often have international pressures they need to address

• These pressures could include global pressure (external) to change the law regarding a domestic issue

• Or include domestic pressure (internal) to change the law in response to global issues

How

• Global bodies like the UN, or other countries, can influence Australia or Victoria to change our laws regarding a domestic issue

• This can occur through the development international treaties or declarations, or the work of global committees. If we don’t change the law, our international standing may be compromised

• Likewise, global issues can cause people to apply pressure to parliament domestically (protest, petition, use of the media)

• This links with the representative nature of parliament – if they don’t respond they risk voter backlash

Bicameral structure impacts affects

Affects

• A political party rarely achieves a majority in both houses, therefore legislation must be negotiated and may not be easily passed

• The lower house is expected to provide representative government – therefore they can’t pass laws the public don’t agree with

Doesn’t affect

• If a political party achieves a majority in both houses than they can pass law reform easily

• If both major political parties agree, then legislative change can be enacted quite quickly and easily

Representative nature of parliament affects

Affects

• The lower house is expected to provide representative government – therefore they can’t pass laws the public don’t agree with or they will be voted out at an election

• Often there are conflicting views about when change is necessary such that parliament may be reluctant to change

Doesn’t affect

• The public is likely to elect a parliament whose policies they agree with, thus the parliament won’t be restricted from legislating in these areas

International pressures affects

Affect

• Parliament is likely to respond to pressures from the international community – don’t want to risk our international reputation

Doesn’t affect

• No ability for international bodies or other countries to force parliament to change the law – parliament much more likely to respond to domestic pressures as they can lead to voter backlash

• If parliament believes acting on a global issue will lead to voter backlash, they will avoid legislating in this area