Unit 4 AOS 1

Question 1

Describe what type of parliament Australia has?

What, who, how

Answer 1

• Westminster-style parliaments (two houses)
• Constitutional monarchy (monarch is head of state and constitution lays out parliamentary system)
• Representative democracy (people vote to elect reps to parliament)

Question 2

Rule of law

Answer 2

Means everyone is bound by and must adhere to laws and laws should be such that people are willing and able to abide by them

Question 3

What 4 things does the constitution outline?

Answer 3

• Outlines structure of commonwealth parliaments
• establishes high court and gives it its power
• Division of law-making powers
• Allows for a referendum

Question 4

Who makes up the commonwealth parliament

Answer 4

• Queen (rep by GG)
• Senate
• House of reps

Question 5

Outline roles of the house of reps

Answer 5

• Majority party forms government so reflects the majority opinion
• Initiates and makes law
• provides responsible gov. as opposition checks and questions
• Represents the people and laws reflect their views and values
• publicizes and scrutinises gov.
• Can act as a house of review
• controls gov. expenditure as only lower house introduces money bills

Question 6

Outline roles of the senate

Answer 6

• Makes laws by initiating or reviewing bills
• debates proposed laws by using committee system that lets senators inquire about bills
• acts as states house as equal rep from each state

Question 7

Who makes up the victorian parliament

Answer 7

• Queen (rep by GoV)
• Legislative council
• legislative assembly

Question 8

Outline roles of the legislative assembly

Answer 8

• initiates and passes bills
• forms government
• provides representative government
• can act as house of review
• controls gov. expenditure and money bills

Question 9

Outline roles of the legislative council

Answer 9

• acts as house of review by debating, amending or rejecting legislation so apply checks and balances to ensure parliament reflective of people’s will
• examines bills by committees who debate proposed laws and recommend to house

Question 10

The crown: who and 3 roles

Answer 10

= 1 GG and 6 Governers
1. Granting royal assent
They need to approve bills before they become law
2. Withholding royal assent
Crown’s rep has power to refuse bill but rare
3. Appointing executive council
The executive council is made up of PM, premiers and senior ministers
They give advice on gov. and approve secondary legislation (rules made by gov. bodies like authorities) but act on advice of PM/premier

Question 11

Division of law making powers

Example and sections where they are protected in constitution

Answer 11

Residual: criminal, road education laws and Sections 106, 107, 108

Concurrent: marriage/divorce, taxation (comm=GST, state=payroll) and Section 51

Exclusive: immigration, defence, currency = Section 51 iii, vi, xii. Made exclusive by section 90, 114, 115

Question 12

Section 109

Answer 12

• helps resolve conflict and inconsistencies between state and commonwealth laws.
• Inconsistencies arise when concurrent powers are used by comm. and state parliaments.
• Commonwealth law prevails and the state law to the extent of the inconsistency be invalid.

Question 13

Section 109 example and limitations

Answer 13

McBain v Victoria (2000)
inconsistency between Infertility Treatment Act (Vic) section 8 and Sex Discrimination Act (comm) section 22.
Federal court upheld inconsistent and Vic Law invalid.

Limitations =
law must be challenged for 109 to operate
If comm. law is changed in future, state law returns
Courts bound by 109

Question 14

5 checks on parliament

Answer 14

1. bicameral structure of comm parliament
2. separation of powers
3. express protection of rights
4. interpretation of constitution by high court
5. requirement for a double majority in a referendum

Question 15

Bicameral structure

Answer 15

Key words:

• Section 1 of Constitution
• two houses
• senate is rubber stamp and confirms decisions if gov holds majority in lower and upper house
• could affect checks and balances

Question 16

Separation of powers

Answer 16

Keywords:

• executive power in queen and GG = section 61
• legislative power with parliament = section 1
• judicial power in courts = section 71

Executive and legislative power combined as in practice, executive in PM, not monarch
Also laws passed by parliament must have royal assent

Question 17

Express protection of rights + strengths and weaknesses

Answer 17

right specifically written in the constitution

• freedom of religion 116
• discrimination on basis of state residence 117
• right to trial by jury 80
• Trade within commonwealth - acquisition of property on just terms (must pay fair compensation) 51

Imposes limits, stability of rights so people aware

only changed by referendum, high cost of the referendum, not many

Question 18

High court interpretation

Answer 18

The high court was made under section 71, the jurisdiction of constitution given by parliament in section 76

explains what constitution means, acts as a check on abuse of power as people can bring matter forward that they think is unconstitutional,

if law passed outside power court declares it ULTRA VIRES so parliament must amend law or amend constitution

Question 19

Double majority referendum

Answer 19

Referendum section 128

1. passed in both houses
2. majority yes votes in population
3. majority yes votes in states

good cos public’s opinion, protects small states, vote is compulsory
bad cos public may not understand, difficult to get yes and timeconsuming/costly

Question 20

Section 7 and 24

+ case

Answer 20

7= matters regarding senate
24=matter regarding house of reps

both sections require houses to be directly chosen by the people (cos Australia is a representative gov)

Roach vs Electoral commissioner (2007). found comm. acted beyond its power to deny certain people the right to vote

Question 21

1999 referendum

Answer 21

Required people to decide whether Australia would become a republic.

the proposal included two changes to the constitution: Australia to become a republic (having a president as head of state, etc.) and to change the preamble to the constitution (intro that outlines purpose and aims).
It passed both houses.
The first question was rejected and the second question was also rejected

reasons it failed were that

• Australians are cautious of constitutional change, a president is unfamiliar
• Voters want to have a say in who is elected, the model put forward was not did not have people choose.
• The current PM urged voters to say no

Question 22

What section does 1999 show

Answer 22

Highlights section 128 in requiring the people to support change.

Question 23

1967 aboriginal and Torres strait islander peoples referendum

Answer 23

Until 1967, the constitution specifically denied the commonwealth the power to legislate for indigenous people or to include them in censuses. In 1967, it was proposed under the Constitution Alteration (Aboriginals) Bill to remove any part of the constitution that discriminated as well as make it possible for parliament to enact special laws for IA.
- Majority of voters voted in favor of the referendum. Reflected general community view that it was time to make amends.

Question 24

What sections did 1967 change

Answer 24

Altered season 51 (xxvi) and deleted 127

Question 25

External affairs power

Answer 25

Under section 51 xxix the commonwealth has power to create laws in relation to external affairs. External affairs power includes the authority to legislate to uphold international agreements. Then, as a result of 109, the laws of state become invalid.

Question 26

International treaties and declarations

Answer 26

Treaty = A binding agreement between countries and governed by international law.
power to enter into treaties is an executive power

Question 27

Tasmanian Dam case

Commonwelath v Tasmania (1983)

Answer 27

Franklin dam hydroelectricity
- passed in tasmania cos residual power
- commonwealth gov. intervened as had a duty to stop work due to damage to Australia’s national heritage. (The area was part of UNESCO)
And act was passed by comm. to prohibit it
- In response, tasmania argued that it was a state responsibility and comm was unconstitutional
- comm said no it was an ‘external affair’ so it had authority.
- the high court decided that because dam came under international treaty, it was under external affairs power. Decision interpreted the words ‘external affairs’ to include areas covered by international treaty.
- as a result of inconsistency between laws now, tas law inoperable and comm act prevailed.
- Through high court interpretation of section 51 xxix, commonwealth able to make law in are previously left with states so increased power.

Question 28

However, external affairs not an unlimited power. What are the limitations that the high court has considered?

Answer 28

Extending beyond treaty, the external affairs is not an unlimited legislative power so it does not let commonwealth make law beyond what is in the treaty.

Bona fide agreement,
High court states that treaty must be bona fide (genuine)

Constitutional rights, the parliament is limited by express rights. If law is passed to uphold international treaty but it interferes with express right, likely invalid.