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Legal Studies Units 3 & 4 > Restriction On Law Making By Parliament > Flashcards

Flashcards in Restriction On Law Making By Parliament Deck (12):
1

Restrictions on the commonwealth parliament

The commonwealth parliament is the supreme law making power. They can change previous laws, make new laws and change laws made through the courts. The commonwealth Parliament may, however, be restricted in their law-making if there is a strong opposition (more scrutiny) and the government does not have a majority in the upper house (more scrutiny before bills passed by upper house), OPPOSITION or if the government requires the support of independents or minor parties to get the numbers for a proposed law to pass through parliament. INDEPENDENTS

2

Residual powers restriction

The Constitution protects the continuing power of the states. This division of powers places restrictions on the law-making powers of the Commonwealth. The Commonwealth Parliament has no right to make laws in areas of residual power. However some inroads have been made into these areas by the Commonwealth Parliament, through High Court interpretations, tied grants and changes to the Constitution.

3

Exclusive Restriction on state parliaments

Under the Constitution, the states are restricted from making law in areas of exclusive power held by the Commonwealth Parliament; for example, raising an army (S114) and coining money (S115).

4

Commonwealth constitution imposed restrictions

Certain sections of the Constitution impose restrictions on law-making by the Commonwealth Parliament. For example, S116 prevents the Commonwealth Parliament from legislating with respect to religion. Section 117 Prevents the residents of a state being discriminated against.

5

Section 128

Section 128 restricts the Commonwealth from changing the wording of the Constitution without first taking the proposed change to the people in the form of a referendum. Therefore the Commonwealth Parliament cannot the consent of the people through a referendum.

6

Separation of powers

One of the principles of the Australian parliamentary system, separation of powers acts as a restrictions on law making of the commonwealth parliament. The separation of powers which is established by the form and structure of the Constitution is a restriction on Commonwealth Parliament in that the Commonwealth cannot form a body that combines judicial powers, executive powers and legislative powers.

7

High court interpretation restriction

The High Court can place restrictions on the Commonwealth Parliament through its interpretation of the Constitution.The Commonwealth Parliament is unable to override an interpretation of the Constitution and make a law that is in conflict with an interpretation of the Constitution by the High Court.

8

Name the 6 main restrictions on law making of the commonwealth parliament

Opposition
Independents
Residual powers
Constituting imposing
Section 128
Separation of powers
High court interpretation

9

S109 restriction on state parliament

The power of the states is also restricted by S109, which states that in areas of concurrent power, federal legislation will prevail over state law in all cases where the two laws are inconsistent to the extent of the inconsistency.

10

Specific sections restriction on state parliaments

Some sections of the Constitution place restrictions on state parliaments such as s92 which states that Trade within the Commonwealth must be free.

11

Restrictions on state parliament 3

Specific sections
S109
Exclusive powers

12

High court restriction example

For example, the High Court placed a restriction on the Commonwealth Parliament in the case Australian Capital Television Pty Ltd v. The Commonwealth of Australia (No 2) (1992) 104 ALR 389. In this case it was decided that the Commonwealth is not able to make laws that restrict freedom of political communication.

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