representative gvmt Flashcards
(11 cards)
parliament and the constitution
although it is the supreme law-making power, the commonwealth parliament does not have absolute power
- the constitution prevents this by providing ‘checks’ on parliament
what is a check on parliament
a check on parliament is a process or structure designed to reduce the potential for the abuse of power, such as parliament making laws that exceed the powers given to them
means of acting as a check
- the role of the high court in protecting representative government
- the reparation of the legislative, executive and judicial powers
- the express protection of rights
high court
the constitution prevents misuse of law-making power through the existence of the high court
- established under section 71 of the constitution
- it provides it with jurisdiction to hear certain matters including those arising under treaties, matters in which the commonwealth is a party and disputes between states
section 76 gives the high court the power to dispute arising under the constitution or involving its interpretation
- the high court cannot change the words, but it can change what those words mean
principle of representative gvmt
parliament and government is voted in by the people
- this principle is enshrined in the constitution
- section 7 sets out matters relating to the senate
- section 24 sets out matters relating to the hor
both require members to be directly chosen by the people
high court - section 7 and 24
at times, the high court has been called on to determine the meaning of sections 7 and 24
thus, it has been seen as the guardian of the constitution by protecting the principle of representative government in the following ways:
1. restricting the ability of commonwealth parliament to make laws that infringe on the rights of people to vote in elections, so that they can choose the members of parliament
2. protecting the ability of people to freely communicate n political matters so that they can cast effective and informed votes when choosing their members of parliament
protecting voting in elections
- the high court has made it clear that pariament cannot unnecessarily interfere with peoples ability to engage in the political process
- the high court has found that laws that interfere unreasonably with the ability to vote at elections is likely to be declared invalid
that issue came up in roach v elecoral commissioner
the roach case
in 2006, the commonwealth passed the electoral and referendum amendment act. this banned all convicted and sentenced prinsoners from voting in elections
Vicki Lee Roach who was serving a 6 year sentence for 5 offences was enrolled to vote in the seat of Kooyong Victoria
- under previous legislation only prisoners serving sentences longer than 3 years were banned
at the time, there were 20,000 prisoners in aus who would be affected by the act
the high court held that the 2006 act was inconsistent with the system of representative government
- it found that the act was unconstitutioinal because section 7 and 24 of the constitution requires parliament to be chosen directly by the people
- it s found that the parliament should only be able to restrict a persons right to vote if it is neceesarry to preserve rep gvmt
(ended with statement that right to vote can only be removed for serious indictable misconduct)
protecting freedom of political communication
in 2 cases in 1992 the high court found that there was an implied freedom of political communication in the constitution
- this is an implied right
THESE CASES WERE:
- australian capital television pty ltd v commonwealth
- national news pty ltd v willis
limitations on protecting prov gov
the high court is limited in interpreting the words and phrases of the constitution
- cannot add new words of phrases or expressly provide for a right to vote
the high court can only intervene and protect the principle of rep govmt if a person challenges the law
- must have standing
the interpretation of the high court will depend on its composition
- some justices are more conservative than others
strengths on the ability to protect rep. gov
- the judges of the high court are experienced in making decisions and have available to them a wide range of legal resources, ensuring that decisions are appropriate
- the existence of the high court allows individuals who have an interest in the case to bring the matter to court. this reinforces that members of parliament are not above the law and the judges are able to overturn laws, including those that do not uphold the principle of representative government
