AOS 3 The People and the Law Makers

• Representative democracy: political government carried out by elected representatives of the people
• House of Representatives

  • lower house
  • 151 members
  • members are voted in to represent the people and reflect the majority of views
  • determines government
  • initiates bills
• Senate

  • upper house
  • 76 senators
  • ensures all states are equally represented according to their electorates
  • acts as house of review
  • scrutinse and debate bills passed from lower house
• Legislative Assembly

  • lower house
  • determines government
  • initiates legislation
• Legislative Council

  • upper house
  • house of review
  • debate and scrutinise
  • represents regions of victoria
• Crown

  • Governer-General
  • Governer
  • dissolve parliament
  • appoint times for holding of parliament
  • grant/withhold royal assent
  • appoint executive council
• Division of Law-Making Powers

  Exclusive

  • specifically listed in the constitution
  • only apply to the commonwealth
  • customs/excise, naval military, coining money, aliens
• Division of Law-Making Powers

  Concurent

  • shared between the states and commonwealth
  • listed in Constitution
  • lighthouses, marriage, taxation, trade
• Division of Law-Making Powers

  Residual

  • not listed in constitution
  • left at states after federation
  • education, health, PT, environment
• Significance of Section 109

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

  • only applies to concurrent powers
• Strengths of Section 109

  • resolves inconsistencies of concurrent power between states and commonwealth
  • consistent approach to laws
  • restrictions on the state parliament
• Limitations of Section 109

  • law needs to be challenged to come into effect
  • does not actually impact the law-making powers for state or commonwealth parliaments to make laws
• High court has the power to interpret the constitution.

  • guardian of the constitution
  • binding on the states and commonwealth
• Tas Dam case

  • Tasmanian parliament wanted to build a dam in the Franklin river under their residual powers of environment
  • The Franklin river was put as part of the world heritage sites
  • Commonwealth power under obligation to fufill international treaties under s51 (xxix) external affiars
  • Commonwealth was allowed to act in areas outside their law-making powers as part of external affairs in regards to fufill an international treaty
• Parliament's ability in Law-Making: Bicameral Structure

  • two houses
  • s7 and s24
  • bills must pass through both houses being scrutinised and debated
• Hostile senate

  government does not hold a majority in the upper house.
• Rubber stamp

  majority of seats are held by the same party in the upper and lower house
• Strengths of Bicameral Structure

  • bicameral structure allows for scrutiny even if one house is rubber stamp
  • no majority can stop parliament with one party from quickly altering or introducing laws that are not properly scrutinised or debated
• Limitations of Bicameral Structure

  • rubber stamp can delay bills being passed by parliament
  • rubber stamp means bills are not properly debated and scrutinised, this can cause changes in laws too quickly
• Parliament's ability in Law-Making: International pressures

  demands or forces applied to parliaments to persuade them to make/not make law to address matters of international concern.
• Strengths of International Pressures

  • international organisations can spark interest that Australia fails to uphold. Puts pressure on parliament to create or amend laws to reflect international standards
• Limitations of International Pressures

  • no ratification of an international treaty means Commonwealth has no legal obligation to comply with international expectations and standards
• Parliament's ability in Law-Making: Representative Nature

  • AUS is a democracy
  • regular elections
  • reflects the community
  • s7 and s24
• Strengths of Representative Nature

  • lower house is expected to be representative as they are voted in by the people
• Limitations of Representative Nature

  • public elect parliament whose policies they agree with, no restriction in legislating in these areas
• Means by which the Aus Constitution acts as a check on parliament in Law-Making: Role of High Court in Protecting principle of Rep Gov

  • s76 high court has the power to hear disputes arising in regards to the constitution
  • s7 and s24 senate and hors voted in by the people
  • high court often has to interpret what these sections mean
• Roach v Electoral Commissioner

  • initially, legislation was made that banned any prisoner serving more than three years from voting.
  • this was changed to all prisoners
  • Roach challenged this legislation stating it had breached s7 and s24 (principle of representative government)
  • high court ruled that the legislation was in breach of this principle. The legislation was invalid and overturned
  • However, high court found it was a reasonable restriction to ban prisoners serving more than 3 years from voting
• Strengths of High Court protecting principle of rep gov

  • high court can declare a law or part of a law is invalid if it breaches the principle of representative government
• Limitations of High Court protecting principle of rep gov

  • high court can only interpret the constitution and declare a law invalid if a case is brought before it
• Means by which the Aus Constitution acts as a check on parliament in Law-Making: Separation of Powers

  • constitution separates law-making responsibilities
  • legislative = parliament to make laws
  • executive = cabinet to administer laws
  • judiciary = courts to interpret and apply laws
• Strengths of Separation of Powers

  • Legislative branch (parliament) elected by the people to represent their views and values
  • Executive branch (cabinet), parliament was ask questions and challenge decisions to keep executive accountable
  • Judiciary branch (courts) are separate, objective and impartial on interpreting and applying the laws
• Limitations of Separation of Powers

  • Executive powers essentially control both legislative and executive branches
  • executive members are apart of parliament from the political party that has the majority of seats
  • judiciary is not elected by the people so decisions may not reflect community values
• Means by which the Aus Constitution acts as a check on parliament in Law-Making: Express Rights

  • s92 = free interstate trade and commerce
  • s116 = right to freedom of religion
  • s117 = no discrimination based on state
  • s80 = right to trial for commonwealth indictable offense
  • s51 (xxxi) = acquisition of property on just terms
• Strengths of Express Rights

  • entrenched in the constitution, meaning they can only be changed via referendum
  • high court can rule parliament legislation invalid (ultra vires) if it breaches an express right
• Limitations of Express Rights

  • there are only 5 limited rights which are narrow in scope (s80 eg)
  • can only rule ultra vires if it is challenged by someone with standing
  • cannot prevent parliament from passing laws that impede these rights
• Statutory Interpretation is interpreting the meaning of words in an act of parliament.
• Reasons for Statutory interpretation

  • not taken into account future circumstances
  • inconsistent use of the same word in the act
  • not included new types of technology
  • legislation drafted in general terms
  • outdated
  • meaning of words may be ambiguous
  • meaning of words can change overtime
• Effects of Statutory Interpretation

  • words in the act are given meaning
  • precedents set for future cases to follow
  • consistency and predictability
  • parliament can abrogate and codify law made by courts
  • extending the law by a broad interpretation of a statute
• Precedents are new cases or decisions made by a court that then impacts other similar cases. (Ratio decidendi that other cases with similar or same material fact must follow)
• Binding Precendent

  • established by superior courts that is binding on inferior courts in the same court hierarchy with similar or the same material facts
  • ratio decidendi = reason for the decision
  • stare decisis = to stand by what has been said