U4 AO2 1a lesson 11: constitution as check on cwth parli Flashcards
rep govt (20 cards)
checks + balance
This means ensuring that Cth parliament does not wield ultimate power without another way to balance/equal out its lawmaking authority.
Representative government
the idea the members of parli are democratically elected by Aust voters to make decision and laws that reflect the views and values of the people that voted them into power.
s7
- Section 7 - The Senate shall be composed of senators for each state, directly chosen by the people of the state
s24
- Section 24 - The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth
how HC can check cth lawmaking power: referendum
Should the Cth parliament disagree with a High Court ruling over the meaning of words within the Constitution, they can initiate a change to the wording of the Constitution through a referendum outlined in Section 128. As we know, this is rare and only 8/44 since the federation have passed.
how HC can check cth lawmaking power: interpret words
The Constitution, through Section 75 and 76 provides the High Court as the only court that can interpret (apply meaning) to words within the Constitution
how HC can check cth lawmaking power: cwth x abrogate
Should Cth parliament disagree with a High Court ruling, they cannot abrogate this common law decision - it is the only common law decision they cannot abrogate - override decision through passing conflicting legislation.
ultra vires
If the HC deems that parliament has acted outside of its jurisdictional boundaries, it will declare that parliament is ultra vires - a Latin term meaning ‘beyond the powers.
implied rights
rights that are not expressly stated in the Aus Constitution but are considered to exist through
interpretation by the High Court
who is Vickie roach
Vickie Lee Roach, Yuin women who was serving a six-year term of imprisonment
facts of roach case
In 2006 the Cwth Parli passed the Electoral and Referendum Amendment Act 2006 (Cth), which expanded the previous 2004 act by banning all convicted and sentenced prisoners from voting in elections.
roach challenged the constitutional validity of both 2004 and 2006 acts the act in HC
decision of roach case
The HC held that the 2006 Act was inconsistent with the system of representative democracy established by the Constitution thru s7 + s24
which legally protects the right of the people to choose the members of parliament.
right to vote removed for serious criminal misconduct but not removed for prisoners who had been sentenced for less serious crimes
significance of roach case
The decision in the Roach case upholds the fundamental requirement that members of the Commonwealth Parliament must be directly chosen by the people, and that the Commonwealth can only restrict the right of people to vote for a ‘substantial reason’.
the Commonwealth Parliament cannot place substantial and unnecessary burdens on the right of the people to choose the members of parliament.
strengths of HC ability to check cth law making powers: requirement of standing
The difficulty in bringing a case to the High Court and establishing standing to do so ensures that only relevant cases, often requiring High Court interpretations of the Constitution, are brought before it.
strengths of HC ability to check cth law making powers: abrogation
cwth parliament cannot disagree with a HC decision and overrule its decision through abrogation, ensuring that the HC can act as a true mechanism of providing checks and balances on the power of Cth parliament
strengths of HC ability to check cth law making powers: independent judiciary
The High Court is an independent judiciary, meaning it is not subject to the influence of other branches of government - e.g., political pressures or the need to please their political parties or voters. This independence enables the Court to impartially interpret the Constitution and declare a law, or part of a law, invalid if it breaches the principle of representative government.
weakness of HC ability to check cth law making powers : only protect relevant group in rep govt
- The High Court can only protect the principle of representative government relevant to the facts of the case before it. Therefore, the High Court cannot create laws to further protect rep govt outside the case.
weakness of HC ability to check cth law making powers : requires case to be brought foreword
The High Court can only interpret the Constitution and declare a law, or part of a law, invalid for breaching the principle of representative government if a case is brought before it. Therefore, the Court cannot declare a law invalid as soon as it has been passed by parliament, meaning an invalid law may operate for several years until a person challenges its validity in the High Court.
weakness of HC ability to check cth law making powers: cost + time
- As the cost and time associated with bringing a case to the High Court are significant, this decreases the number of cases initiated in the High Court. Thus, the Court’s ability to act as a check on parliament in law-making is limited.
mechanisms that operate to act as a check/balance on Cth lawmaking powers which include:
- Representative government
- Separation of powers
- Express rights
