LEgal Studies aos 1 unit 4

moew

Describe the structure of Cwth and State Parliaments

Bicameral structure. upper, lower and Crown.

CWTH:

Crown= Governor General

Senate=76 members(12 states and 2 territories)
6 yr terms

HOR=151 members(1 electorate=80,000 votes)
3 yr terms
Party w/ majority forms government.

VIC:

Crown= Governor

Leg. Council=40 members(8 regions/5 members each) 4 yr terms

Leg Assembly =88 members (one from each electoral district)
4 yr terms
Party w/ majority of reps forms government

What is the role of parliament?

-Make laws for peace, order and good governance of Commonwealth
-Provide formation of gov. and checking of its actions
-Represent people
-Establish parliamentary committees to investigate issues.

What are the roles of the two houses and the crown?

Lower:
-Make laws (most)
-Form government
-Rep. people
-Control Gov. expenditure

Upper:
-Initiate laws{except money bills}
-States' House{however, party line voting}
-House of Review
-Scrutinise (rubber stamp)

Crown:
-Act as head of state
-Royal Assent
-Reserve Powers
-Open and close parliamentary sessions
-Appoints executive council (leader and senior mins)

What are exclusive powers and what sections of the constitution protect them?

Only Cwth can exercise.
Specific powers made exclusive by sections of Const.

eg. Defence, Currency, customs and Border Protections

Section of constitution makes other sections exclusive - eg.s in book.

What are concurrent powers and what sections of the constitution protect them?

-Both state and Cwth have authority to pass laws.
-s51 has powers where Cwth is not given exclusivity
-Powers are not taken from states, can be excessed by both.

eg. Trade, taxation, marriage/divorce, bankruptcy

What are residual powers and what sections of the constitution protect them?

Areas not listed in Const. are left to prerogative of states.

SPECIFICALLY LEFT TO STATES
-Criminal law, education, health, public transport

Other law making areas have developed since Const. was created and fell to states (IVF laws)

Therefore inconsistencies develop between states

States can refer to Fed. Parl to make uniform laws (Family Law)

eg. Driving laws, passengers for P-Platers and education can all differ.

Why is section 109 of the Const. important?
What is its purpose?

Deals with inconsistencies between state and Cwth laws in relation to concurrent powers.

"When a law of a state is inconsistent with a law of the Cwth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid"

•s109 must be triggered by HC decision.

Purpose=

To prevent inconsistencies in laws between states and Fed. Parls.
Restrict law making power of states

Which section of the Const. outlines a Bicameral Structure

s1. 2 houses of Parliament.

Explain the process of Checking Law Making, including what factors are reviewed.

Review Factors:
-Errors
-Loopholes
-Inconsistencies w/ other leg.
-Negative Impact?

-Any leg must be passed by both houses to be passed through Parl.
-Most bills start at LH, then same process occurs at UH(which is usually not controlled by gov.)
-Senators often vote along party lines

What does the House of Review do?

When gov doesn't have UH majority, bills can be scrutinised and amendments made to be more satisfactory to interests
Therefore, necessary leg is not passed in original form
If gov has majority in UH, there can be a 'rubber stamp' and bills may not be checked thoroughly for mistakes/issues

List some strengths and weaknesses for a Bicameral Structure

STRENGTHS
-Allows review
-Debate can occur if 'hung parliament'
-If senate is hostile to gov., more likely to scrutinise bill more carefully
-Protected by const.

WEAKNESSES
-If gov holds LH, negotiations/changes in Lh are unlikely to occur
-If gov holds UH, "rubber stamp"
-Increased independents and minor parties can water down/stall laws
-Laws generally only passed if Fed. gov. supports it
-No constitutional requirement for Vic Parliament to be bicameral (eg. QLD is not)

What is the Separation of powers and who is in which category?

Prevents misuse of power through checks and balances.

Executive= Crown, PM and Ministers, Gov. departments

Legislative= Upper and Lower Houses

Judicial= HC and other Fed courts

Reasons:
∫Ensures no one body holds absolute power
∫Provides check on power of Parl. to ensure it does not act outside of power
∫Protects stability of gov and peoples' freedom

Describe Executive Powers

Power to implement and administer laws

-In Cwth, GG exercises power on behalf of Queen
[In practice, they act on advice of gov.]
-Not truly separate to legislative because gov. ministers also sit in Parl.

Describe Legislative Powers

Power to make laws

-In Cwth, power lies w/ gov.

Describe Judicial Powers

Power to enforce the law and settle legal disputes
-In Cwth, held by courts (HC)
-Independence allows for people to retain confidence in system

What are the strengths and weaknesses of the separation of powers?

STRENGTHS
-Independent judiciary
-Ministers subject to scrutiny, even though Leg/Exc are linked
-When opposition holds UH, gov is scrutinised
-Entrenched in Const.

WEAKNESSES
-Leg and Executive not truly separate
-When gov. controls UH, far less scrutiny
-Judges appointed by executive
-Only provides separation at Federal level

What are express rights? AKA Entrenched/ Explicit

Some sections of Const. protect specific rights, written. They limit the ability of Parl. to infringe on the rights of people.

-Restrictions on ability to make laws that infringe on rights
-Limit Cwth Parl's law making ability
-5 of them and only changed by referendum
-To apply, case must be brought before HC to test validity of claim

Provide a brief description of the 5 express rights

FREEDOM OF RELIGION: s116

Parl. cannot make law which:
-Establishes state religion
-Imposes religious observance
-Prohibits free exercise of any religion
-Requires religious test as req. for holding any Cwth office.
Does not apply to states

FREEDOM OF INTERSTATE TRADE AND COMMERCE: s92

Prevents Parl. from treating interstate trade differently from trade within a state.
eg. Restricts taxes on goods moving between states

ACQUISITION OF PROPERTY ON JUST TERMS:
s51 xxxi

-Fair and reasonable compensation for property which was compulsorily acquired.

• Includes both tangible and intangible property
  -Does not apply to states unless HC passes under Cwth funding agreement.

TRIAL BY JURY:s80

Must ind.=state law. This is only for Cwth
HC can treat as summary.

FREEDOM FROM INTERSTATE DISCRIMINATION:s117

Cannot discriminate based on residence. (NSW resident in Vic eg.)

List the strengths and weaknesses of the express protection of rights.

STRENGTHS
-Imposes limits on what Parl can make laws on
-Can go to HC to make laws invalid [for infringing rights]
-Only referendum can remove them
-HC can act quickly to declare laws Ultra Vires

WEAKNESSES
-Difficult process to add rights to Const.
-Cost of HC challenge is high
-Limited in scope and many only apply to Fed Parl.
-Does not prevent Parl. from initially passing law
-Only 5

Define Ultra Vires

Outside of Parl's powers

Which sections refer to the HC?

s71: Only HC mentioned
s76(i): court of appeal, but also interprets const. and determines validity of leg.

What are the roles of the HC?

1)Guardian of Const.
2)Check on Abuses of Power
3)Gives meaning to words in Const.

Describe Guardian of Const.

HC has influence on day to day application of Const.

Discuss Check on Abuses of Power

Party can bring case before HC to determine if law is constitutional. (Party believes Ultra Vires)
Ultra Vires leads to:
-Parl. amends leg. to remove unconstitutional. parts
OR
-Attempt to amend through referendum
Can affirm that leg. is valid

Describe how the HC gives meaning to words in Const.

ºCan narrow or broaden interpretations of law making powers that shift DOP.
ºCan imply rights eg. Pol Com and Parl chosen by people.

Have a yarn about the strengths and weaknesses of the HC in interpreting the constitution

STRENGTHS

-Ind. judges
-Allows unconstitutional law to be overturned
-Experienced judges in Const. law generally make proper laws
-Ind. check to confirm abuse of power

WEAKNESSES

-Judges can only rule if case is brought before them
-HC can only intervene in disputes about Parl. if brought before them
-HC can only interpret law, not change Const.

What do sections 7 and 24 state?

s7: Senate shall be composed of senators for each state, directly chosen by the people of the state, voting, until the Parl. otherwise provides, as one electorate.

s24: HOR shall be composed of members directly chosen by the people of the Cwth, and the no. of such members shall be, as nearly as practicable, twice the no. of senators. The no. of members chosen in the several states shall be in proportion to the respective members of their people, and shall, until the Parl. otherwise provides, as one electorate.

Tiny description of Roach Case

-Serving 6 yr term.
-2004 act banned prisoners who are serving over 3 yr term from voting.
-2006 amendment banned all prisoners.
-Roach challenged, HC found 2006 inconsistent, but 2004 act stood.

What was the impact of the Roach case?

-Decision affirmed there is const. right to vote, which is protected by structure of rep. gov.
-Not implied right, but reflection of structural protection
-Cwth power decreased; cannot legislate to prevent the right to vote w/o good reason.

Tiny description of Brislan Case

Wireless device. Challenged that const. did not give Parl. the power.

Decision= under s51 (v), wireless was communication device and therefore should be considered 'other like services' clause.

What was the impact of the Brislan case?

-Meaning of s51(v) extended, to give more leg. power to Cwth Parl. (overrules states)
-Allowed for const. to better reflect changing tech on society
-Jones v Cwth (1965) found that tv's also fell under 'other like services' provision.

What is a referendum and how is a double majority achieved?

s128 included to outline process of change.
Yes/no format
Only way for words or phrasing of Const. to be changed

Double Majority:
-Majority of states[4/6 must get 50%]
-Majority of voters[50%]
-Territories count to overall vote, but not states.
-Protects smaller states

ºIf particular state will be adversely affected, there must be 50% from that state to pass.

List some strengths and weaknesses of the requirement for a double majority.

STRENGTHS

-Ensures public has a say
-Strict change requirements
-Protects smaller states
-Compulsory Voting
-Lengthy process req voters to be informed

WEAKNESSES

-Timely and costly
-Public may not understand complex details or be reluctant to change Const.
-DM difficult to achieve (unless overwhelming support)
-DM can be seen as undemocratic (if maj. people but not states)

What happened in the 1967 referendum?

Originally:
s51(xxvi)- Any race, other than Aboriginal, for whom it is deemed necessary to make special laws.
s127- Aboriginal natives were not counted as population.

Ref. had bipartisan support, all 6 states said yes and 90.77% of voters voted yes.

CHANGES:
s127 removed, s51 (other than aboriginals) part removed.

What was the impact of Equal Citizenship to Aboriginals on the DOP?

-Aboriginal affairs became concurrent power
-Increased law-making power of Cwth
-Cwth could spend money on Aboriginal initiatives, rather than relying on states
-Allowed for development of further laws and initiatives related specifically to Aboriginal people.

Differentiate between a treaty and a declaration

TREATY:
-Binding agreement between 2 countries that are governed by international law
-Bilateral or multilateral
-Exc and leg. must ratify by passing law (then appllic. in AUS

DECLARATION:
-Non-binding, sets out aspiration/intention
-Leads to treaty

What does 'External Affairs' mean?

s51(xxix)- External Affairs: Cwth parl can pass leg that reflects international's; agreements.
-HC has been called upon to decide in residual areas.

Provide a brief description of the Franklin Dam case, including the decision

Cwth passed 'World Heritage Properties Conservation Act' to prevent building of dam (UNESCO)
Cwth had power in residual area due to treaty
'External Affairs' gave them power s51(xxix)

What was the impact of the decision in the Franklin Dam case?

-External affairs extended to include law making necessary to uphold obligations under Int. treaty
-Allowed Cwth to legislate in previously residual area
-eg. Croone homosexuals

IMPACT OF TREATY
-HC adopted broader interpretation of 'EA' power (allows to uphold treaties)
-Cwth can leg in residual areas not given permission by Const. eg. environment

List some limitations on treaties/decs.

-Must conform to extent of treaty
-Genuine
-EA cannot override express rights
-HC decisions have related to treaties

express