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• The people and the law-makers
• Legal terminology


  Define and use
• Australian Constitution


  A set of rules and principles that establish the nature, functions and limits of government, and determine the powers and duties of the government
• The Australian Constitution is the most important legal and political document affecting the lives of all Australians
• Australia has a formal written constitution - it is contained in the Commonwealth of Australia Constitution Act
• The Australian Constitution came into effect on 1 January 1901 after the citizens in each separate colony voted in favour of federation
• Australian Constitution


  • Establishes the Commonwealth Parliament and outlines its structure
  • Establishes the High Court and gives it powers to interpret the Constitution
  • It sets out matters relating to the states
  • It establishes the law-making powers held by the Commonwealth Parliament
  • It provides a mechanism by which the Constitution can be changed
• The Australian Constitution does not contain a bill of rights
• The Australian Constitution provides protection for a limited number of rights, such as the right to trial by jury for indictable Commonwealth offences
• The Australian Constitution provides a series of protections (checks) to ensure that all areas of government operate in a manner that is consistent with key principles that underpin a democracy such as ours
• Bicameral parliament


  A law-making body with two houses or chambers that must approve of new bills or amendments to laws
• Role of the House of Representatives in law-making


  • Initiate and make laws
  • Determine the government
  • Act as a house of review
  • Control government expenditure
  • Represent the people
  • Scrutinise government administration
• House of Representatives


  • 76 members serve a 6 year term – half are elected every three years
  • Each state elects 12 representatives regardless of the population of the state and each mainland territory elects two
• Role of the Senate in law-making


  • Act as a house of review
  • Allow for equal representation of the states
  • Initiate (except money bills) and pass laws
  • Scrutinise bills and government administration
• The Senate


  • Upper house in federal parliament is also known as the 'state's house' as it provides for equal representation, regardless of population
• Role of the Legislative Assembly in law-making

  • Initiate and pass bills
  • Form government
  • Scrutinise government administration
  • Represent the people
  • Act as a house of review
  • Control government expenditure
• Role of the Legislative Council in law-making

  • Act as house of review
  • Initiate and pass bills
  • Scrutinise government administration
• Role of the Crown in law-making


  • Granting royal assent
  • Withholding royal assent (Commonwealth)
  • Act as Head of State (Victoria)
  • Appointing / chair the Executive Council
  • Officially commissions the Prime Minister and appoints other ministers after elections
  • Officially opens and closes parliament sessions
  • Ceremonial duties and others...
• The Governor-General is appointed by the reigning monarch on the advice of the Prime Minister
• The Governors of each state are appointed by the reigning monarch on the advice of the premier
• Law-making powers


  Powers or authority given to parliament to make laws in certain areas
• Exercisable by parliament


  The supreme law-making body as long as it is acting within its powers
• Constitution


  At federation, the Constitution specified the way law-making powers were to be shared
• Law-making powers shared


  • RESIDUAL
  • SPECIFIC
  • EXCLUSIVE
  • CONCURRENT
• Residual powers


  Those law-making powers LEFT with the states at the time of federation
• The Commonwealth Parliament has NO authority to make laws in residual power areas
• Exclusive powers


  Law-making powers that can ONLY be exercised by the Commonwealth Parliament
• Examples of exclusive powers

  • Defence
  • Currency
  • Customs & Border Protection
• Exclusive by other sections

  Made exclusive by another section prohibiting the states
• Exclusive by their nature

  It makes sense that these powers should be exclusive to the Commonwealth
• Commonwealth territories


  Sections 111 and 122 give exclusive power to the Commonwealth with respect to Commonwealth territories
• Concurrent powers


  Those law-making powers that are SHARED by the Commonwealth and the State Parliaments
• Examples of concurrent powers

  • Taxation
  • Trade
  • Marriage and Divorce
  • Postal & telegraphic services
• All the powers that are not exclusive are concurrent
• Comparison of law-making powers shows similarities and differences
• Section 109 of the Australian Constitution


  When inconsistences arise in areas of concurrent law-making power, the Commonwealth law shall prevail, to the extent of the inconsistency between the two pieces of legislation
• State law provisions which are inconsistent with the Commonwealth law will therefore be invalid and unenforceable
• McBain v Victoria (2000) 99 FCR 116

  Discrimination in infertility treatment services
• The significance of section 109

  • It can act as a restriction on state parliaments - how?
  • However, S109 does not automatically operate
  • Must be challenged by the Commonwealth
  • It must be in an area of concurrent law making (doesn't impact residual)
  • It must be inconsistent
  • The Commonwealth law may later be abrogated or changed
• High Court jurisdiction (S.75)


  To hear and determine cases involving disputes: in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; between states, or between residents of different states, or between a state and a resident of another state