SAC 3 Flashcards

Question

Constitution acts as a check on parliament in law-making: | 2. The separation of the legislative, executive and judicial powers

Answer 1

- Executive power- the power to administer the laws and manage the business of government. - Legislative power- the power to make laws. - Judicial power- the power to apply and enforce the law Reasons: - Helps to protect individual rights by providing checks and balances on the power of parliament - The separation of powers prevents power from being held by one body. No one body can make, administer or rule on law - The government and parliament must work together to pass law, and the independence of the judiciary must be preserved

Answer 2

The Australian Constitution contains five express rights, meaning they are entrenched in the Constitution, meaning they can only be removed via a successful referendum. These act as a check on parliament as any law make which infringes an express right can be declared invalid by the High Court - The right to freedom of religion - The right to free interstate trade and commerce - The right to receive ‘just terms’ when property is acquired by the Commonwealth - The right to trial by jury for indictable offences - The right to not be discriminated against on the basis of state residence

Answer 3

The high court hears cases in relation to the Constitution and interprets its words and can deem law unconstitutional if they believe a parliament has gone beyond its power. - Section 71 – establishes the High Court - Section 75- provides that the High Court can consider if Cth and state legislation is within the law-making powers of the Constitution - Section 76- provides the High Court with the jurisdiction to hear disputes arising regarding the Constitution and its interpreting The High Court has 3 main roles in interpreting the Constitution: - Acts as a guardian of the Australian Constitution - Acts as check on abuse of power - Gives meaning to the words of Constitution

Answer 4

The only way the words of the constitution can be changed is through a referendum. This is a compulsory and binding national vote to change the wording of the Constitution, therefore the constitution can only be amended with the approval of Australian electors. This process is set in section 128, and has 3 stages

Answer 5

This process is set in section 128, and has 3 stages: - Stage 1: The Parliament – after a proposal for change is made, a bill is drafted. The bill must be passed by both houses of Commonwealth Parliament, one house twice (if rejected in one house, the GG may submit a proposal to the people) - Stage 2: The People- 2-6 months later a compulsory referendum is presented to the Australian voters. A double majority is required for the referendum to be successful (majority of all voters need to vote yes AND majority of voters in a majority of states need to vote yes - Stage 3: The Governor-General- the bill is presented to the GG for royal assent

Answer 6

Allows public to refuse to support proposed change Double majority requirement is strict and has proven to be difficult to achieve Compulsory vote means eligible voters will have a say Voters are informed due to complex process so vote should reflect democratic will of people Protects smaller states

Answer 7

Public may not understand the complex details of the proposal so may vote ‘no’ through fear of the unknown/mistrust of politicians Double majority provision is difficult to achieve, valid changes to the Constitution may be unlikely Undemocratic outcome as majority of population may approve but due to state majority requirement may be unsuccessful Time consuming and costly process The only action the states can do is lobby strongly for their votes to vote ‘no’

Answer 8

Judges are independent and executive- decisions made are based on legal principles rather than political pressure Law can be overturned by individuals who bring the case to the High court – judges are able to scrutinize laws made Decisions are properly made as the judges have access to a range of legal resources and expertise High Court can act as an independent check to confirm if there has been an abuse of power Avoids challenged to laws being made too easily due to difficulty in bringing a case to the High Court

Answer 9

Judges can only rule on the facts of the case- cannot create general principle of law outside the immediate case Cannot intervene unless a case is brought before the court Cost of litigation can be expensive – so law may not be challenged Decision may depend on the composition of the High Court justices – some more conservative The High Court’s role is limited to interpreting the Constitution- they cannot change the words

Answer 10

They impose limits on parliament when making law in certain areas High court can provide judicial check and declare law invalid Cannot be removed by the Cth Parl – only by referendum High court can act quickly in declaring ultra vires Stability enables public to be aware of them

Answer 11

Can only be changed by referendum = limited chance for additional rights Cost of initiating a court case is high Limited in scop Cth not prevented from passing laws that potentially contravene express rights- have to be challenged Relatively few express rights compared to other countries

Answer 12

Allows for the executive (govt) to be scrutinized by the legislature (parl) Judiciary is independent Ministers are subject to scrutiny and debate When senate is controlled by opposition = greater scrutiny Separation is entrenched in Constitution (difficult to change)

Answer 13

Legislative and executive powers are combined in reality Judges are appointed by executive = executive could be seen as influencing judiciary Where govt controls the senate, there is far less scrutiny of bills If opposition controls senate = obstruct bills for political gain (hostile senate) Only provides for separation of powers at a federal level, no at state level

Answer 14

Section 7 – sets out matters related to the Senate Section 24 – sets out matter related to the House of Representatives - Both require the Commonwealth Houses of Parliament to be ‘directly chosen by the people’ - These two sections enshrine the system of representative government into the Constitution. In a series of cases, including Roach v Electoral Commissioner (2007), the High Court has interpreted the words in these sections in relation to voting in general elections

Answer 15

- Facts: In 2006, the Electoral and Referendum Amendment Act 2006 (Cth) banned all prisoners from voting in elections. Under a previous act made in 2004, only prisoners serving sentences longer than 3 years were banned from voting. Vicki Lee Roach was serving a 6 year sentence and challenged the constitutional validity of both acts in the High Court. - Outcome: the High Court found the 2004 Act to be valid but ruled the 2006 Act to be inconsistent with the principle of representative democracy established in sections 7 and 24 of the Constitution which require the parliament to be ‘directly chosen by the people’, which legally protects the right to vote. Chief Justice Gleeson ruled that the right to vote could be removed from prisoners for serious criminal misconduct but could not be removed for prisoners serving sentences less than 3 years. Ultimately ruling that the government should only restrict a person’s right to vote if it necessary to preserve a representative government. - Significance: the high court: - found the Cth parliament had acted unconstitutionally by denying prisoners the right to vote - affirmed that there is a constitutionally protected right to vote which uphold the principle of representative government - upheld constitutionally requirement that Commonwealth Parliament must be directly chosen by the people. - held that sections 7 and 24 do not allow for unreasonable restrictions to be placed on the ability of people to vote - performed an important check on executive and legislative power

Answer 16

1) To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of members of the Commonwealth Parliament Results = 58.87% voted against the proposed change; majority support was not gained in any states 2) To alter the Constitution to insert a preamble (an introductory part of a statute that outlines its aims and purpose Results = 60.66% voted against the proposed change; majority support was not gained in any states

Answer 17

- Australians are traditionally cautious of Constitutional change. The proposal to have a President was unfamiliar and caused concern among voters - Public opinion varied on whether to have a President as head of state. Traditional monarchists argued that a constitutional monarchy provides stable government. This was enough for those in doubt to be convinced to maintain the status quo - Even those who supported having a President though thought one should be elected by the people not the Commonwealth Parliament - Leading up to the election, PM John Howard urged a ‘no vote’ on the basis of maintaining its ties with Britain - The information sent out by the Australia Electoral Commission was extremely detailed, causing some voters to feel overwhelmed by the proposed change

Answer 18

- Demonstrated the ability of the people to protect the Constitution from being changed - Highlighted the importance of s.128 requiring the peoples support to alter the Constitution - Clear that the majority of voters nationally and in every state wanted to maintain the current model of political system as set out in the Constitution - Change would’ve substantially changed the way Australia is governed. Ultimately, the proposal, was supported by the Commonwealth Parliament, was not successful because it did not have the support of the Australian people - Therefore, the referendum provided a check on the power of Commonwealth parliament

Answer 19

Section 75 of the Constitution gives the High Court the jurisdictions to hear cases involving: - Disputes in which the Commonwealth parliament is a party, OR - Disputes between states, or between residents of different states, or between states and a resident of another state Consequently, the High Court has heard in relation to law-making powers and has made decisions in cases which have affected the division of powers between the Commonwealth and state parliaments. Since 1920 the High Court have had a tendency to grant additional powers to the Commonwealth, thus reducing the law-making powers of the states.

Answer 20

under section 51 (xxix) the Commonwealth Parliament has the power to create laws in relation to ‘external affairs’. The commonwealth has relied on this power to pass legislation that reflects international agreements Australia has entered into. This gives the Commonwealth Parliament the power to make laws in areas of law-making which are neither exclusive nor concurrent areas of law (thus, potentially can legislate in an area of residual power if the treaty topic covers that area)

Answer 21

A binding agreement between countries which is governed by international law. Can be bilateral (between 2 countries) or multilateral (between 3 or more countries) Step 1= sign the treaty- executive power (government) Step 2= ratify the treaty- role of parliament (binds Australia under international law) Step 3= pass domestic legislation- terms of treaty will not being law until parliament passes legislation that includes terms of treat E.g. Refugee Convention + Australian passed the Migration Act (step 3)

Answer 22

A non-binding agreement between countries which set out certain aspirations or intentions of the parties to the agreement. Can be influential in the development of government policy and can lead to a treaty being made E.g. the Declaration on the Rights of the Child 1959 became the Convention on the Rights of the Child 1989

Answer 23

- Extending beyond the Treaty: in the Tasmanian Dam case, the H/C also stated the CTH cannot legislate on matters which extend beyond the specific content of the treaty - Bona fide agreement: the international agreement must be genuine - Constitutional rights: CTH Parl is limited by express rights contained in the Constitution – can make legislation invalid if interfere with express rights - Declarations v Treaties: so far the H/C interpretation have focused on external affairs power in relation to treaties only, not declarations. Therefore declarations may be a limitation on the CTH Parl’s use of the external affairs power to pass legislation. However, the H/C’s interpretation has been broad so it is likely that CTH laws are giving effect of international declarations are also likely to fall within the CTH’S external affairs power.

SAC 3 Flashcards

(47 cards)