SAC 5

Question 1

role of the crown in law making

Answer 1

is represented though the governor general and six state governments. their main responsibility is to ensure that the democratic system operates effectively. its three main roles are to
grant royal assent
withhold royal assent
appointing executive council

Question 2

role of the senate in law making

Answer 2

act as a house of review
act as the states house
scrutinise bills through committee process
initiate and pass bills

Question 3

role of the house of representatives in law making

Answer 3

initiate and make laws
determine the government 
provide responsible government 
represent the people
control government expenditure

Question 4

role of legislative assembly in law making

Answer 4

initiate and pass bills
form government
act as house of review
control government expenditure

Question 5

role of legislative council in law making

Answer 5

act as house of review
examine bills through its committees
initiate and pass bills

Question 6

exclusive powers (division)

Answer 6

powers that can only be exercised by the Commonwealth Parliament meaning only they can make laws in that area. are expressed in constitution and protected by sec 51 e.g defence or currency

Question 7

concurrent powers (division)

Answer 7

are powers in the Australian constitution that may be exercised by both the commonwealth and one or more state parliaments. are expressed in the constitution and protected but cannot refereed to another parliament e.g trade or marriage

Question 8

residual powers (division)

Answer 8

powers that were not given to the commonwealth parliament under the constitution and which therefore remain with the states outline in sec 106, 107 and 108 but not protected and can be referred to another parliament

Question 9

the division of the constitutional law making powers

Answer 9

law making powers are powers or authority given to parliament to make laws in certain areas. the Australian constitution specifies that law making powers are to be shared, concurrent, exclusive and residual.

Question 10

section 109 is

Answer 10

is designed to help resolve conflicts and inconsistencies between state and commonwealth laws that arise when concurrent powers are exercised. under sec 109 if there is a conflict commonwealth law will prevail to the extent of the inconsistency and state law provisions will be invalid. e.g mcbian vs Victoria infertility treatment services where vic law discriminating didn’t follow Cth law against discrimination

Question 11

how the constitution acts as a check on parliament (list)

Answer 11

• through bicameral structure
• separation of legislative, executive and judicial powers
• express protection of rights
• role of high court in interpreting constitution
• requirement of double majority in referendum

Question 12

significance of one successful referendum

Answer 12

it proved the Australians ability to change the constitution to reflect their values and allowed for native title act 1993 and racial discrimination act 1957 to be possible as well as aboriginal inclusion in the census

Question 13

significance of one high court case which affected the division of constitutional law making power

Answer 13

Workchoices, high court rules legislation was valid, it was a landmark case as it gave commonwealth much greater control and 85% of employees will be covered by federal industrial relations law

Question 14

separation of powers is

Answer 14

legislative, judicial and executive. all are required to operate independently from each other, the purpose of this is to ensure no one body has absolute power or control over the functions of political and legal systems. the reason for it is to protect individual rights by providing checks and balances on power and to ensure the government and parliament must work together to pass laws

Question 15

the rule of law

Answer 15

the principle that everyone in society is bound by law and must obey the law. The rule of law also states that laws should be fair and clear so people are willing and able to obey them

Question 16

the commonwealth parliament consists of

Answer 16

the queen
the senate
the house of representatives

Question 17

the house of representatives is

Answer 17

the lower house of commonwealth parliament (the peoples house) reflects the currents opinions of the people and it determines which party forms government, there are 150 members

Question 18

the senate is

Answer 18

the upper house the commonwealth parliament made of 76 members 12 of each state and 2 from territories, they are elected by the people

Question 19

the legislative assembly is

Answer 19

the lower house of victorian parliament, 88 members and each member represents one electorate, majority of seats forms government

Question 20

the legislate council is

Answer 20

upper house of victorian parliament 40 members elected state divided into 8 regions with 5 members selected from each

Question 21

section 109 of the constitution is significant because

Answer 21

it can act as a restriction on state parliaments because commonwealth law prevails meaning states will recognise the restriction on their powers. however section 109 does not automatically operate, the law needs to be challenged to be declared invalid therefore a court will need to determine. and if the commonwealth law gets abrogated and the state law is still in existence then it will have effect.

Question 22

how the constitution acts as a check on parliament: bicameral structure

Answer 22

acts as a check in its law making role, the senate in particular acts as a house of review meaning that bills propose by lower houses cannot just go through they are scrutinised by the upper houses to ensure that all legislation passed is in the interest of the people

Question 23

how the constitution acts as a check on parliament: separation of powers

Answer 23

strengths: allows executive to be scrutinised by legislative, judiciary is independent, entrenched in the Aus Con
weaknesses: legislative and executive power are combined, only provides separation at state levels, not federal

Question 24

how the constitution acts as a check on parliament: express protection of rights

Answer 24

strengths: impose limits on what parliament can and can’t make laws on, cases can be taken to the High Court allowing judicial check, cannot be removed by parliament they are entrenched
weaknesses: only be changed by referendum limiting further rights being added, limited in scope and its costly to initiate a case

Question 25

how the constitution acts as a check on parliament: role of High Court in interpreting Aus Con

Answer 25

strengths: judges are independent and executive, law can be overturned, high court is independent check weaknesses: cannot create law outside a case, limited due to expenses, limited to interpreting not changing

Question 26

how the constitution acts as a check on parliament: requirement for double majority in referendum

Answer 26

strengths: sec 128 allows public to refuse a proposed change, the requirement is strict and protects smaller states and is compulsory weaknesses: public may not understand complex details, can be difficult to achieve and is timely and costly

Question 27

section 7

Answer 27

sets out matters related to the senate and requires senate to be composed on senators for each state which are directly chosen by the people for a term of 6 years

Question 28

section 24

Answer 28

sets out matters related to the house of representatives and requires house of representatives to be composed of members directly chosen by the people

Question 29

strengths of Australian constitution acting as a check on parliament

Answer 29

- allows for review of legislation - if there is a hostile senate the upper house is more likely to review bills carefully - having bicameral parliament is protected by the constitution

Question 30

weaknesses of Australian constitution acting as a check on parliament

Answer 30

- increase in minor parties often mean law making is stalled or not as effective - when government controls upper house it can act as rubber stamp and not scrutinise bills as much

Question 31

executive powers (separation of powers)

Answer 31

the power to administer the laws and manage the business of government, this power is vested with the governor general and is carried out by the prime minister, senior ministers and government departments

Question 32

legislative power (separation of powers)

Answer 32

the power to make laws, it resides with the federal parliament. is closely linked with executive power as laws passed by parliament must receive royal assent so they are combined at federal level

Question 33

judicial power (separation of powers)

Answer 33

is given to the courts and tribunals to enforce law and settle disputes, only a court or tribunal has the power to decide if a law has been contravened, the legislative power and judiciary must be kept separate.

Question 34

5 express rights are

Answer 34

- right to freedom of religion (116) - right to free interstate trade and commerce (92) - right to acquire property on 'just terms' (51 xxxi) - rights to trial by jury for indictable commonwealth offences (80) - right not to be discriminated on on the basis of state (117)

Question 35

High court as a check on Aus Con

Answer 35

- acts as a guardian of constitution - acts as a check on abuse of power - gives meaning to the words (sometimes shifts the division of power)

Question 36

double majority in a referendum means

Answer 36

a referendum is a compulsory vote on a proposed change in the wording of the constitution. majority of voters in Australia must vote yes and the majority of states must vote yes

Question 37

section 109

Answer 37

when there is a conflict between state and commonwealth laws, the commonwealth law will prevail, to the extent of the inconsistency between the two pieces of legislation and the state law will become invalid

Question 38

implied freedom of political communication

Answer 38

relates to section 7 and 24 as in the Lange vs. ABC company is significant as it reinforced the implied freedom of communication for the companies to inform the public of the potential candidates and it relates to sections 7 ad 24 because it revolves around telling the public about possible MPs allows the parliament to be chosen by the public

Question 39

function of section 128

Answer 39

to prevent the commonwealth from increasing its powers without first referring the proposal to the people in a referendum

Question 40

one successful referendum

Answer 40

in 1967 the people voted to remove barriers facing aboriginal people from the constitution by a majority of 90.77% nationally and all states. the referendum put down two proposals, the first to increase numbers in the house of reps, was unsuccessful. the second, to remove an discrimination against aboriginals in the constitution and give com parliament the ability to enact laws for them. resulted in section 127 being removed and an alteration to section 51

Question 41

one high court case in relation to the division of law making powers

Answer 41

workchoices, state and commonwealth disagreed about Industrial Relations laws. S-tates had the residual power of their own workplace relations laws. in 2005 Cth created Workplace Relations Amendment Act (work choices) which brought about major changes and in 2006 the states sans Tasmania challenged its validity. states said 'power grab' Cth said S51 gives power to make laws in regards to corporations. high court ruled legislation was valid

Question 42

external affairs refers to

Answer 42

ability of the Cth to pass legislation in areas where Australia has entered into an international treaty or declaration. its the relevance of the external affairs power that restricts states ability to make laws in an area where it had residual power, is not taking away this power.

Question 43

high court background (for Workchoices case)

Answer 43

high court has power under S75 to hear and determine disputes in which the Cth is a party, each time high curt rules in favour of Cth law making powers the balance moves further, weakening the states right to make laws in previously residual areas

Question 44

impact of international declarations and treaties on interpretation of external affairs

Answer 44

it enables the Cth to create legislation which gives effect to international law obligations, it means the Cth can make laws in residual areas or areas where it has no constitutional power and can decide how to give effect to a treaty under sec 51

Question 45

case relating to sections 7 and 24

Answer 45

Vicki Lee Roach, 2006 Electoral and referendum amendment meant all prisoners were not able to vote and she changed that as the constitution states that senate and house of reps must be 'directly chosen by the people' and if prisoners couldn't vote then it wasn't following the constitution as determined by the High Court

Question 46

external affairs: international treaty case

Answer 46

Tasmanian dam case. in 1982 was state government passed legislation to Dam the Franklin River to create source of hydroelectricity as this is a residual power. Cth intervened because in 1982 UNESCO included that area of Tas as world heritage and Cth passed legislation preventing the damming. Tas argued that Cth was legislating in an area not theres but high court said as Aus was a signatory to a treaty it was within there external affairs power