CH11 - the parliament and the constitution

factors that can affect the ability of parliament to make law

bicameral structure, international pressures, representative nature

what does a bicameral parliament mean

a bill needs to be passed in identical form by a majority of members in both houses

section 1, constitution act 1975

what does the bicameral system ensure

• form of quality control

• the second hosue double checks bill and makes amendments

• reviews proposed law to ensure no misuse of law making powers by the other house

majority composition of the lower house

• forms government

• legislative program or policies generally accepted

• able to reject bills without debate when introduced by a private member

minority composition of the lower house

• hung parliament

• majority parties must seek support of minor parties and independents to form government

• must constantly negotiate with minor parties and independents

• bills thoroughly discussed and debated

hostile senate

• no government majority

• government can face difficulties implementing it’s legislative policy agenda because the crossbench can force amendments or reject it

• can allow a small group of independent members to hold a disproportionately high level of power compared to their voter base

• limits and obstructs law reform

rubber stamp senate

• government majority in both houses

• effective way to pass legislation quickly

• can prevent second house from fully fulfilling its role

sitting days

• affects ability of parliament to make law

• don’t sit for many days so they can spend time in the community to be aware of the needs of the people

• parliamentary committees continue work

• has been crticised as it reduces time and opportunity to pass legislation

• can use secondary legislation to delegate their law making so they don’t have to pass every single law

the committee system

• assists the role of houses

• a strength of parliament as it performs a variety of roles including examining and evaluating the need for law reform

• legislative council has permanent standing committees that evaluate law reform in relation to economy,, infrastructure, environment, planning, legal and social issues

strengths of bicameral parliament

• second house can prevent gov passing legislation that aligns solely with its political agenda

• ensures all bills are reviewed and debated

• when they hold majority in both houses they can pass bills more easily increasing the speed new laws can be processed, overcoming the limited amount of sitting days

• hostile senate will conduct a higher level of review improving quality of parliamentary law making

weaknesses of bicameral parliament

• hostile senate can delay passing of bills

• if stubborn MPs hold the balance of power in the upper house they may force the gov to alter bills for their specific interests and not the broader population

• rubber stamp senate means bill may undergo little to no consideration

• law making process which involves a bill passing through both is lengthy, and there are limited sitting weeks

what are international pressures

demands or forces applies to parliaments to persuade them to make or not make law to address matters of international concern

sources of international political pressure

• local activists who organise petitions

• international activists

• other countries

• the UN

• non government organisations, amnesty international, human rights watch

• large transnational corporations

international pressure example - climate change

• 2015 paris agreement

• required countries to commit to a targets to reduce their emission which australia signed

• aus was criticised for setting targets too low by other countries and UN

• pressured by industry groups and members because coal is one of aus biggest exports and generated 45 billion in 2022

strengths of international pressures

• if aus is found to be in breach of the obligations within the treaty they signed and has ratified they’ll likely face criticism and consequences, influencing parliament to amend law

• can spark public interest in issues like human rights and climate change that countries like aus fail to uphold

• international treaties can be implemented by enacting legislation into domestic law of country

• international organisations like the UN have the power to impose sanctions on countries for breaching treaties which only they can remove

• the universal period review provides an opportunity for member states to recommend the need for law reform

weaknesses of international pressures

• limited ways UN member states and international organisations can enforce compliance with international law unless aus has ratified it or are a member of the international organisation

• might limit ability of parliaments to make laws tailored to unique needs and circumstances of their population

• international declarations are not legally binding

• international society may have conflicting iews and opinions, and parliament has to decide which pressures to accept and which to ignore

purpose of representative nature of parliament

• ensures politicians listen to the people, explain their legislative programs, and are answerable

• if members fail to make laws that reflect views and values of the people they might jepordise their chance of being re elected

representative nature of parliament

willingness of parliament to act in accordance with the views of the majority, the diversity of parliament, regular elections

the diversity of parliament

• parliament has generally not reflected the diversity of the rest of the country

• some argue that because of a lack of diversity certain groups and their interests are not represented enough

• some argue that it doesn’t affect law making ability, individuals and communities can communicate with their local members or use petitions/demonstrations to share their views

willingness to act in accordance with the views of the majority

• encourages members to listen to views of the community and make laws in accordance

• sometimes it isn’t a good thing, where in an attempt to be re elected members may introduce and support laws popular with voters rather than necessary but unpopular ones

• it can be difficult for government to accurately predict future views and needs and make laws, which is why laws in areas of technological advancement can lag behind

regular elections

• ensures that government is elected and supported by majority and not just people who have bothered to vote

• some argue compulsory voting undermines the principle of representative government because it forces uninterested people to cast a potentially uninformed vote

• government can call an early election such as when the political climate might best suit them

what would increasing government terms achieve

• encourage government to be more willing to introduce law reform with long term benefits as they’ll be less concerned with any short term negative impacts

• give voters more certainty

strengths of representative nature of parliament

• influences MPs to enact laws that represent views and values of the people

• regular elections place pressure on MPs to represent views of society at risk of not being re elected

• recently more women have been elected into parliament

• as of 2023 the commonwealth comprised a level of first nations representation proportionate to first nations population of australia

• an MP is able to cross the floor so it’s in line with the views of the society they represent

• compulsory voting ensures parliament is elected by the majority

weaknesses of representative nature of parliament

• compulsory voting may result in people casting uninformed votes

• members may not vote for law reform in areas where vocal minority groups are against the law even if it improves society as a whole

• lack of representation of minority cultural groups and women affecting parliaments ability to fully represent these demographics

• as of 2023 first nations people are not adequately represented in majority state parliament with few comprising a level of them proportionate to population

• MPs might feel compelled to vote with their political party instead of community

• political terms of 304 years may not be long enough

• communities can only vote for those who are nominated

what sections of the constitution was the high court established under

• section 71 gave jurisdiction for treaties, cwth as a party, disputes between states

• additionally, section 76 gave jurisdiction for disputes under the constitution

how does the high court protect the principle of rep government

• restricting ability of cwth to make laws that infringe on the rights of people to vote in elections

• protecting the ability of people to freely communicate on political matters

role of the high court

• acts as a guardian of the constitution

• acts as a check on any abuse of power

• gives meaning to the words of the constitution

acts as a guardian of the constitution high court

explain meaning, how it should be interpreted

acts as a check on any abuse of power

declaring it ultra vires

principle of representative government constitution

• section 7 the senate

• section 24 the house of reps

• state that both houses have to be directly chosen by the people

high court protecting voting in elections

the cwth can’t unnecessarily interfere in or place substantial burden on the people’s capacity to engage in political process, and if found to be is likely to be declared ultra vires

high court protecting freedom of political communication

• cases in 1982 established an implied freedom of political communication in the constitution

• not guaranteed because it’s not expressly stated so could change if future high court disagrees

test for whether a law infringes on the implied freedom

1. does the law effectively burden the implied freedom in its terms, operations or effect

2. if yes the purpose of the law legitimate, is it compatible with the maintenance of representative and responsible government

3. if yes to both is the law reasonably appropriate and adapted to advance the legislate subject in a manner consistent with the maintenance of a representative and responsible government

strengths of high court

• judges are independent of the executive and legislation and make decisions based on appropriate legal principles rather than political pressure

• allows cases to be brought to court so a law can be overturned

• judges are experienced in making decisions and can ensure they’re appropriate

• both high court and principle of representative government are contained in the constitution

weaknesses of high court

• judges can only rule on the facts presented and can’t create general principles of the law outside the case

• can only protect principle if case is brought before them which requires standing, is expensive and time consuming

• interpretations and decisions are dependent on composition

• interpretations of principles and implied rights can change if a future high court interprets it differently

executive power

the power to administer laws and manage the business of government, 61, governor general

legislative power

• power to make laws, 1, bicameral parliament

legislative and exeucitve

• the power to administer the law and carry out the business of government is placed in the hands of the cabinet, made up of the pm and senior ministers

• laws passed by parliament must receive royal assent

judicial power

given to courts and tribunals to enforce the law and settle disputes, 71, must be separate to safeguard against misuse of power

reasons for separation of powers

• helps protect individual rights by providing checks and balances on the power of parliament because no one body can make, administer law, and rule on its legality

• the government and parliament must work together to pass laws and the independence of the judiciary must be preserved

• the power to judge criminal guilt and punish must reside with the judiciary and wouldn’t be appropriate if the parliament was given sole power to prosecute and adjudicate on laws they made

strengths of the separation of powers

• while parliament is the supreme law making body the courts have the power to declare statutes ultra vires

• judiciary is independent of legislature and executive

• measures in place to ensure executive is independent from legislature despite overlap

• expressly stated in constitution

weaknesses of the separation of powers

• legislative and executive power is combined and can decrease the ability of the separation of powers to act as an ongoing check

• judges are appointed by the executive which may result in the perception that they seek to influence the judiciary

• ability of judiciary to act as a check is dependent on peoples willingness to challenge laws as they can only check if a case is brought before them

• separation of powers doesn’t extent to states although state constitutions do provide for it

express rights

specifically lined in a document or constitution, five, operate as an explicit check on the power of parliaments as any law that infringes upon them can be declared invalid

the five express rights

1. freedom of religion 116

2. free interstate trade and commerce 92

3. the right to receive just terms when property is acquired by the cwth 5xxxi

4. the right to trial by jury for indictable cwth offences 80

5. the right not to be discriminated against on the basis of the state you reside 107

freedom of religion

• cannot make laws that declare a particular religion as the official national religion

• impose any religious observance

• prohibits free exercise of any religion except in circumstances of national security

• also protects non believers by providing the right to have no religion

trade within the cwth

• interstate trade and commerce must be free whether by means of road or see

• prevents parliament from treating interstate travel differently from trade within a state

• provides freedom of movement

• high court accepted a state law that may impede entry of persons, animals or goods likely to cause harm

acquisition of property on just terms

• the cwth must pay fair and reasonable compensation for property that is compulsorily acquired

• can apply to tangible, intangible, immovable and movable property

• cwth only able to acquire property for a purpose or area it has power to make laws like airports and national parks

• no specification on what constitutes as just terms therefore compensation may be disputed or perceived as unjust

right to trial by jury for commonwealth offences

• must be unanimous

• only provides limited right to trial by jury because most indictable offences are crimes under state law

• and indictable has been ruled to mean crimes tried in indictment and therefore only extends to the most serious offences

• cwth decides whether a crime is tried on indictment

discrimination based on state of residence

• its unlawful for state and cwth governments to discriminate against someone on the basis of the state they reside

• for example someone living in nsw can’t be subject to victorian law that would place them in a worse position than if they were born in victoria

• however high court has said that states can favor their own residents in limited circumstances like voting

strengths of express rights

• impose limits on parliament law making in certain areas

• entrenched and cannot be removed or amended without successful referendum

• when matter is brought to the high court it can swiftly declare law is ultra vires

• high court is independent and will make decisions protecting the express rights even if contrary to views of voernment

weaknesses of express rights

• rights protected are limited in scope, only apply to cwth, or are narrow such as trial by jury

• given referendums are difficult to pass express rights have not been increased or amended reducing checks on government

• case needs to be brought for high court to challenge parliament, expensive, time consuming, requires standing

• express protection doesn’t prevent cwth from passing the law as it requires the law to be challenged in court for it to be declared invalid

standing

party must demonstrate a sufficient connection to and harm from the legal matter in question to have the right to have their case heard by a court