What are 5 ways in which the Australian Constitution acts as a check on parliament in law-making?
1. The bicameral structure of the Commonwealth parliament. 2. The separation of powers (legislative, executive and judicial). 3. The express protection of rights.4. The role of the High Court in interpreting the Australian Constitution. 5. The requirement for a double majority in a referendum.
Double majority
A voting system that requires a national majority of all voters in Australia and a majority of electors in a majority of states (i.e. four states); a double majority is required for a change to be made to the Australian Constitution at a referendum.
The bicameral structure of the Commonwealth parliament.
The bicameral structure of parliament is the division of the legislature into an upper and lower chamber (house) both with approximately equal power.
How is the bicameral structure of the Commonwealth parliament designed to be a check on parliament in law-making?
The bicameral structure of the Australian Parliament is designed to be a check on parliament in its law-making role. The Senate in particular is designed to operate as a house of review. - the Senate reviews bills already passed by the House of Representatives. - When reviewing bills, senators should in theory review vote according to not only the wishes of their political party but also the interests of their state.- This means that any legislation which appears to support one state over the others would quickly be rejected.
3 strengths of the bicameral structure of the Commonwealth parliament.
1. Allows for review of legislation by the second house. This scrutiny allows for checks and balances against abuse of power as well as allowing for the identification of errors and omissions in bills. 2. If the government holds a slim majority or there is a hung parliament, the considerable debate can occur in the lower house than there might otherwise be. 3. The requirement for a bicameral parliament is specifically stated in the Australian Constitution. This means that the Commonwealth Parliament is not able to pass legislation which abolishes either house. The only way in which the bicameral nature of parliament could be changed is through a referendum process.
3 weaknesses of the bicameral structure of the Commonwealth parliament.
1. If the government holds a majority in the lower house, then debate and negotiation sin the lower house are unlikely to occur. 2. Where the government control the upper house, it tends to be a 'rubber stamp' confirming the decisions made in the lower house. This can dilute the checks that the upper house has in law-making. 3. The recent increase in the number of minor parties and independents in the Senate, while ensuring robust debate and views, can often mean that law-making is stalled or laws are not as effective as they could be.
What is the purpose of the separation of powers?
The purpose of this is to ensure that no one body has absolute power or control over the functions of the political and legal systems. It is one of the core principles of the rule of law. The aim is the complement, control and counterbalance each other in a system of checks and balances - so no one body has absolute control.
The separation of powers include;
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Executive power
The power to administer the laws and manage the business of government, which is vested in the Governor-General as the Queens representative. In practice, the executive power is carried out by the prime minister, senior ministers and government departments. In theory, the Queen's representative, the Governor-General, exercises the executive function. However, the Governor-General acts on the advice given by the government of the day.In practice, through its ministers and government departments, the government is largely responsible for the administration of the law and for carrying out the other business of government.
Legislative power
The power to make laws, which resides with the parliament.
Judicial power
The power given to courts and tribunals to enforce the law and settle disputes. The legislative power and the judicial power must be kept separate. The judicial function is the task of applying the law. This function is given to the courts. The courts have the power to interpret the laws and to decide how these laws apply to individual cases. The courts are independent of the legislative and executive functions of the government. Therefore, the courts are not subject to political interference.
Where is there some overlap in the separation of powers?
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Separation of powers: The government and the parliament must work together to pass laws, and the independence of the ..... must be preserved.
Judiciary.
Why must the judiciary be kept independent from the government and parliament.
Because, for example, a person who feels a parliament has passed a law that contravenes the Constitution or basic human rights can take the matter to court. Such challenges would be fruitless if courts were not independent of the government and parliament. The power to judge criminal guilt, and to punish those who have broken the law, resides with the judiciary. It would be a conflict of interest if parliament, which makes the laws, were also given the power to prosecute and adjudicate on issues relating to those same laws. Similarly, to maintain the independence of the judiciary, judges cannot take a seat in parliament where laws are made.
Three strengths of the separation of powers
1. the separation of powers allows for the executive to be scrutinised by the legislature. This provides checks and balances in that the legislature as the law-maker can refuse to pass legislation that is inappropriate. 2. The judiciary is independent of the parliament and government. This independence is vital, especially when the Commonwealth is a party in a case heard before court. 3. The principles of the separation of powers is entrenched in the Australian Constitution. To abolish the principle would require a referendum - a difficult outcome to achieve.
Three weaknesses of the separation of powers
1. In reality, the legislative power and the executive power are somewhat combined. This can decrease the ability of the separation of powers principle to act as a check on each of the powers, as in practice the power to administer the law is carried out by the cabinet. 2. Judges are appointed by the executive. This may result in the perception that the executive is influencing the composition of the benches of superior courts. 3. The Australian Constitution only provides for separation of powers at a federal level, not at a state level.
An express right is...
rights that are stated in the Australia Constitution. Express rights are entrenched, meaning they can only be changed at a referendum.
By comparison to express rights, rights that exist at common law and rights protected by legislation can be abolished....
By comparison to express rights, rights that exist at common law and rights protected by legislation can be abolished at any time by the Commonwealth Parliament legislating to override them.
The five express rights in the Australian Constitution are;
1. The right to the acquisition of property on just terms. 2. The right to a trial by jury for indictable Commonwealth offence. 3. The right to interstate trade and commerce. 4. The right to freedom of religion. 5. The right not to be discriminated against on the basis of the state where you reside.
The right to the acquisition of property on just terms
The Australian Constitution provides that the Commonwealth parliament may make laws to acquire property from individuals 'on just terms'. It recognises the right of individuals to own property, it also recognises that there may be reasons why parliament needs to acquire property from an individual.High Court interpretations state that:• the Commonwealth parliament may acquire property for a purpose for which it has the power to make laws (e.g. airports and national parks).• the Commonwealth must be able to show 'just terms' (fair and reasonable compensation).
Example of the right to the acquisition of property on just terms.
The High Court and the Malboro Man: the plain packaging decision. - They ruled that the packaging of cigarettes was not an acquisition of property on 'just terms.' The high court agreed with the government rather than Malboro.
The right to a trial by jury for indictable Commonwealth offence.
The Constitution guarantees the right to a trial by jury. This right applies to offences under Commonwealth law that are indictable. The constitutional right to a trial by jury does not extend, in theory, to offences against State law.• an accused person cannot elect to have a trial by a judge alone for a Commonwealth offence• majority verdicts cannot be used for Commonwealth offences - in all indictable Commonwealth offence trials, the jury verdict must be unanimous
Example of the right to a trial by jury for indictable Commonwealth offence.
Brown V R. - he elected to be trialed by a judge alone. - he was forced to have a jury at trial despite the fact that he didn't want to due to s80 of the Constitution.
The right to interstate trade and commerce.
- interstate trade and commerce must be free (whether it be by means of road or see).- it provides freedom of movement between states, without burden or hindrance. For example, it restricts taxes on goods moving form one state to another from being imposed.
Example of the right to interstate trade and commerce.
Cole v Whitfield. - that section 92 does not provide an absolute guarantee of freedom of movement. In Cole v Whitfield, the High Court stated that personal movement across a border cannot, generally speaking, be blocked.- Whitfield was a crayfish trader charged with the unlawful possession of undersized crayfish. He resided in Tasmania, but the fish were purchased in South Australia and shipped to Tasmania. Under South Australian state's law, the fish that he purchased were of a lawful size, but under Tasmanian laws, they were undersize
The right to freedom of religion.
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office.The Commonwealth cannot make a law imposing religious observance.
Example of the right to freedom of religion.
Black v Commonwealth. DOGS case. - the High Court determined that the Commonwealth cannot establish a particular religion, but could assist the practice of religions by providing financial assistance to religious schools.
The right not to be discriminated against on the basis of the state where you reside.
The Constitution provides that residents of any State 'shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state'.This section makes it unlawful to discriminate against a person based on the fact that they live in another State.This means, for example, that a resident of New South Wales living in Victoria cannot be subject to a Victorian law that would place them in a worse position than if they were born in Victoria. However, the High Court has said that states can favour their own residents in limited circumstances, such as the right for only residents of a state to vote in elections for that state.
Example of the right not to be discriminated against on the basis of the state where you reside.
R v Loubie. In the Loubie Case, a resident of New South Wales was charged with a criminal offence in Queensland. Under the Queensland Bail Act, Loubie would have been entitled to bail except for the fact that he was ordinarily a resident outside the State of Queensland.- Loubie was therefore denied bail.
Two strengths of the five express rights
1. the five express rights are entrenched in the Constitution. They can only be removed or amended by a referendum. 2. Express rights are fully enforceable by the High Court. If an Act of Parliament infringes an express right, the High Court can declare the legislation invalid and unconstitutional.
Three weaknesses of the five express rights.
1. There are only five express rights, which provides for only limited protection.2. It could be argued that a more entrenched 'Bill of Rights' would provide greater protection. 3. The protection of the express rights by the High Court is a complaint-based approach to the protection of rights. The people/groups who believe their rights have been infringed must bring a case before the High Court before it cane declare legislation unconstitutional. This can be expensive and time-consuming.
How is the right to the acquisition of property on just terms a limitation?
It does not apply to the acquisition of property on State governments
How is the right to a trial by jury for Commonwealth indictable offences a limitation?
Most offences are State offences (crime)
How is the right to free interstate trade a limitation?
Economic right not a human right, plus not an absolute guarantee of freedom of movement.
How is the right to freedom of religion a limitation?
Does not apply to State laws
How is the right to not be discriminated on the state you are form a limitation?
Does not provide protection against discrimination
Ultra vires
A Latin term meaning 'beyond the powers'; a law made beyond the powers of the parliament.
The High Court cannot change the words of the Constitution but it can...
The High Court cannot change the words of the Constitution but it can change the way the words in the Constitution are interpreted.
What are three roles of the High Court in interpreting the Australian Constitution?
1. It acts as a guardian of the Australian Constitution. 2. It acts as a check on any abuse of power.3. It gives meaning to the words.
The High Court acts as a guardian of the Australian Constitution
The High Court does this by explaining what the Constitution means, and deciding how it should be interpreted. Ads the High Court is the only court that can do this, it is often referred to as a 'protector' or 'guardian' of the Constitution. The High Court ensures that the Constitution remains relevant to the Australian people.
The High Court acts as a check on any abuse of power
Individuals, groups, states territories and commonwealth bodies may argue that a territory, state or commonwealth parliament has made a law that is beyond its power. These people can bring a matter to the high court for a ruling to be made on whether a law is constitutional. If the parliament has passed a law outside its own power, then the high court can declare that law as ultra virus. A party with standing can bring the case to the High Court - someone who is affected by the law challenged.
The High Court gives meaning to the words of the Constitution
When a case is brought before the High Court, the court needs to give meaning to the words in the constitution and apply the words to the case. The HC must consider the facts of the case and decide whether a statute that has been passed is unconstitutional. The HC interprets the division of powers interpreted and has made 'implied rights'
Two example cases of the High Court's statutory interpretation.
1. R v Brislan.- Had to determine what was meant by 'other like services' in the Wireless Telegraphy Act. 2. Commonwealth V State of Tasmania.- dam and electricity case.
Implied rights
This involves drawing implications from the words of the Constitution. An implication is something that is meant or intended but not actually said. An implied right is a right that was intended by the drafters of the Constitution but not expressly stated in the document.
Two cases decided in 1992 established a new implied right to freedom of communication on political matters.
1. Nationwide News Pty Ltd v Wills- concerned a Federal provision criminalising the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a newspaper article repeatedly describing such members as "corrupt" and "compliant".2. Australian Capital Television Pty Ltd v Commonwealth.- concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times.Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters.
Three strengths of the role of the High Court
1. Judges are independent of the executive and the legislature and therefore decisions made on cases are based on legal principles rather than political pressure.2. The judges of the High Court are experienced in making decisions, they have available to them a wide range of legal resources to ensure that decisions are properly made. 3. Where a parliament has made law outside its power, the High Court can act as an independent check to confirm whether there has been an abuse of power.
Three weaknesses of the role of the High Court
1. Judges can only rule on the facts of the case that is brought before them. They cannot create general principles of law outside the immediate case. 2. The role of the High Court in interpreting the constitution is limited by the fact that litigation is expensive. 3. The High Courts role is limited to interpreting the words of the Constitution rather than changing the words of the Constitution or ruling on whether it believes the parliament should have made the laws in question.
Referendum
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The referendum process acts as...
The referendum process acts as a restriction on the powers of parliament, because the Commonwealth Parliament cannot change the constitution outside of this process.
What are the three stages of a referendum?
1. the parliament.2. the people.3. the Governor-General. Any proposed change to the constitution must first be passed by the commonwealth parliament.
How many referendums have been successful so far in the history of Australia?
8 out of 44.
What is required in a referendum
double majority
What is meant by double majority
1. A majority of voters in the whole of Australia must vote 'yes.' AND2. A majority of voters in the majority of states must vote 'yes' to the proposed change. That is at least 4 out of 6 states. The territories are not counted under this provision.
The double majority requirements in section 128 operates to...
The double majority requirements in section 128 operates to restrict the power of the Commonwealth Parliament in that the wording of the Constitution can be changed only with agreement of voters according to the requirements. If the proposed change receives a 'yes' vote from a majority of voters in a majority of states as well as the majority of electors in Australia, it is then presented to the Governor-General for royal assent.
Three strengths of the requirement of a double majority in a referendum.
1. It allows the public to refuse to support the proposed change to the constitution if the proposal is deemed inappropriate. In the way, the commonwealth is not ale to exert power in an arbitrary manner. 2. The double majority verdict is strict, and has proven difficult to achieve. Provides power to the people.3. The double majority requirement protect smaller states, meaning that the larger states that may support the change do not determine the success of the referendum.
Three weaknesses of the requirement of a double majority in a referendum.
1. The public may not understand the complex details of the proposal, or may be reluctant to change, or wary to change and may vote 'no' through fear of change or mistrust of politicians. 2. It is a timely and costly check on Commonwealth Parliament. The 1999 referendum cost more than $66 million. 3. The double majority provision is difficult to achieve, which means that changes to the Constitution - even valid ones - have been limited to those where there is overwhelming public support, or which are non-conventional in nature.