Unit 4 AOS1 = The People and the Law-makers Flashcards
(30 cards)
Federal Parliament
Responsible for making laws and representing the whole of Australia. It has a bicameral structure, comprising of:
- the governer general (crown’s representative)
- the house of representatives (the lower house)
- the senate (the upper house)
The House of Representatives - Composition + Roles
- Comprised of 151 members, each elected to represent a specific geographic area of Australia (electorate) and each serving a 3-year term
- The political party which wins the majority of seats in the HOR forms government, with the leader of that party becoming the Prime Minister, who appoints ministers to control specific portfolios. The second party becomes the opposing party, which appoints shadow ministers, to act as checks on the activity of the ministers.
Role in law-making
- Initiates bills - majority of bills are introduced here
- Acts as house of review for bills passed through the Senate
- Controls government expenditure - all bills related to government spending must be initiated here
- Represents the people - Members are elected by the people, and are given the authority to act on their behalf
- Scrutinises government administration - Ministers are held accountable for their actions, decisions and policies, by other members
The Senate - Overview, Roles
- Comprised of 76 members, with 12 representing each state, and 2 representing each territory - each serving a 6 year term
Role in law making:
- Initiates bills
- Acts as house of review primarily, as the majority of bills are introduced in the HOR
- Provides scrutiny over bills and government administration - Contains numerous comittees which review and debate government expenditure, legislation and activity
- Allows for equal protection of the states - Contains equal representation of each state
The Crown, and it’s role in law-making
- Grant Royal Assent: Approving bills, allowing it to enter legislation, usually on the advice of government.
- Witthold royal assent: Refusing to approve a bill, preventing it from entering legislation. Specifications over when this can occur at a federal level exist within the Constitution.
Victorian Parliament
- Contains the:
Governer of Victoria (Crown’s representative)
Legislative Assembly (Lower House)
Legislative Council (Upper House)
Legislative Assembly
- Comprised of 88 members, each elected to represent a specific geographic area of Australia - serving a 4 year term each
- The political party which wins the majority of seats in the lower house forms government - the leader of that party becomes the Premier, with a similar process involving ministers and shadow ministers
- They share the same responsibilities in law making as the HOR, just focusing on different law-making areas
Legislative Council
- Comprised of 40 members, with 5 members chosen to represent each of Victoria’s 8 major regions - serving a 4-year term
- A discreperancy exists between rural and city regions, with 5 city and 3 rural
- Shares same responsibilities in law making as the Senate, just fo
Exclusive Powers
Legislative powers restricted to the Commonwealth Parliament, contained within the Constitution. Specific stipulations state whether a power is exclusive, as seen in the section for coining money.
For example, legislating over defence is an exclusive power, to prevent the outbreak of civil war.
Concurrent law making powers
Legislative powers shared between State and Commonwealth Parliaments, that are contained within the Constitution. If a power is not specified as exclusive, and it is inside the constitution, it is presumed to be concurrent.
For example, legislating over marriage and taxation.
Residual law making powers
Legislative powers limited to the states, left with them at federation. They are not contained within the Constitution.
Before federation, each state was its’ own british colony, with its’ own government and unique law making powers for its’ jurusdiction.
For example, legislating over healthcare, as each state is different and has different needs for distribution of resources.
Compare - division of law making powers
Contained within constitution?
R: No, C: Yes, E: Yes
Whose?
R: States, C: Both, E: Commonwealth Parliament
Can it be referred?
R: Yes, C: No, E: No
Where?
R: 106, 107, 108, C: 51, E: 51, 52 + more
Significance of Section 109 in the Constitution
Section 109 states that if State and Commonwealth law conflict, the State law will be declared invalid and unenforcable. This exists due to concurrent law-making powers, where State and Commonwealth interests differ. It provides a mechanism for management of inconsistency, and acts as a limitation on state law making powers.
However, it must be challenged for the state law to be deemed invalid. This is completed through a person with standing (directly affected by the inconsistency) bringing it to the High Court.
Section 109 - Specific wording
When a law of the state conflicts with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
High Court Jurusdiction
Set under Section 75 of the Constitution, the High Court can resolve disputes:
- where the Commonwealth is a party
- between different states, between residents of different states, between a state and a resident of a different state
Case #1 - R V Brislan - The Case
- Set under section 51 of the Constitution, the Commonwealth Parliament has the ability to legislate on matters of “telephonic, telegraphic and other like services”
- In the 1950s, the Commonwealth passed the Wireless Telegraphy Act, prohibiting the ownership of wireless sets without proper liscencing. Dulcie Williams was charged with failing to adhere to this Act. In response, she challenged the legislation, bringing it to the High COurt for review.
- Williams claimed that the phrase “other like services” did not apply to wireless sets, and therefore, Commonwealth did not have the authority to legislate on this matter,
- The High Court disagreed with this, ruling that wireless sets did fit under the scope of section 51, and the act was therefore, valid.
Significance - R V Brislan
This case was consistent with the High Court’s tendency to extend the powers of Commonwealth. However, as what was initially a residual power shifted into concurrent, this was at the expense of the states.
Additionally, the Judge’s comments over the design of the legislation and the phrase “other like services” to accomodate for future developments in technology, could mean that the Commonwealth may be able to legislate over the internet, and other electric communication networks.
Case #2 - Tasmanian Dam - The Case
A treaty refers to an agreement between different countries over specific issues. These can become ‘ratified’ (binding under international law), however, they can only be enforced in Australia, if signed into Australian law.
The Commonwealth has signed a treaty to protect World Heritage Sites.
Section 51 gives the Commonwealth the power to legislate on matters of “external affairs.”
In 1983, protests from the Australian public resulted in the Commonwealth passing the ‘World Heritage Properties Conservation Act’ to protect the Heritage listed Franklin River from proposed construction of a dam, by the Tasmanian Government. Tasmania challenged this, claiming it related solely to residual powers.
The High Court agreed with the Commonwealth Parliament, ruling that despite environmental matters remaining a residual power, ‘external affairs’ applied to the treaty Australia had signed, and therefore, the Commonwealth had the power to legislate on all matters if it is to uphold an international obligation.
Tasmanian Dam Case - Significance
- Interpretation of the phrase “external affairs” has broadened, extended into upholding treaties among other International obligations
- Used to make law on a variety of different matters - i.e the Human Rights (Sexual Conduct) Act of 1994, upholding the International Covenant of Civil and Political Rights
- Shifts power balance away from states
- Resulted in concerns over whether this instills Parliament with too much power. Addressed by High Court Rulings which have established that:
- the treaty must be bona-fide, the legislation must clearly conform to the treaty, the legislation must not infringe upon an express right, and this does not completely strip the states of their power
Factors that affect the ability of Parliament to make law
- Bicameral Structure
- International Pressures
- Representative Nature of Parliament
Bicameral Structure - Significance
-The Bicameral Structure of Parliament exists to provide checks on the law-making process, ensuring that legislation is thoroughly scrutinised and debated upon before affecting the entirety of the Australian people.
-This can lead to a situation where the Government has won the majority of seats in the lower house, but not the upper house, resulting in a ‘Hung Parliament.’ This skews the balance of power in favour of the cross-benchers (containing independents and members of minor parties).
Other configurations can include a Hostile Senate and a Majority Parliament.
Bicameral Structure - Evaluate
Advantages:
- Bills are thoroughly examined and debated through having to pass through both houses - ensuring that they reflect the interests of both the states and the people
- The Senate can act as a check for corruption on the House of Representatives, and vice versa.
Disadvantages:
- The law-making process becomes highly time-consuming, as it must pass through multi-stage proceedings.
- It can lead to a situation where the government has the clear majority in both houses, reducing the Senate into a ‘rubber stamp’ where bills pass easily, facing little scrutiny
- Alternatively, a Hung Parliament may result in heightened difficulty in passing legislation through both houses, leading to bills being ‘watered down,’ and interfering with the effectiveness of Parliament’s ability to make law.
Types of internaitonal pressure
Demands applied to Parliament to persuade them to make specific law-making decisions related to issues of Global concern. For example, the ongoing tariff conflict with the United States.
Sources can include:
- international activists
- transnational corporations
- non-governmental organisations
- other countries, specifically those we have signed treaties with
- United Nations
Significance of International Pressures
International Pressures can compel Parliament to make specific decisions relating to law, depending on the level of pressure and who applied it. However, this may contradict the wishes of the Australian people, who can convey this through election time, resulting in conflicting pressures from both directions - i.e international students
Define the representative nature of Parliament
Australia is a representative democracy, where members of Parliament (mps) are elected to voice the views, preferences, and concerns of the constitutents belonging to their electorate. If these views are jeapordised, the MP’s position is threatened come election time.
