4.1.1 THE ROLES OF THE CROWN AND THE HOUSES OF PARLIAMENT (VIC. & COMM.) IN LAW-MAKING
Commonwealth – Governor-General (Crown), House of Reps and Senate. Vic Parliament – Governor (Crown), Legislative Assembly and Legislative Council.
- House of Reps – ‘the people’s house’ – reflects current societal opinions as elections determine government of the day – party or coalition with most votes, therefore ‘the house of government’. Party w/ next highest votes becomes opposition, appoints shadow ministers to oppose government’s ministers. Main function is to initiate new laws (also Senate), usually created by government ministers though bills introduced w/o approval of Cabinet is private member’s bill. House of Reps determine government; provide responsible/representative government; publicise and scrutinise government admin; act as house of review for bills initiated in Senate and control expenditure – only HoR can initiate money bills. 150 seats, one member for Australia’s 150 electorates, term of office mean three years.
- Senate – ‘the states’ house’ – main role to act as house of review for bills from HoR. Scrutinises bills through committee process, assesses effect bill would have on rights, freedoms and obligations and the rule of law. Also can initiate bills (other than money bills) and pass those from HoR, can make amendments or even reject. 76 seats, 12 senators chosen from each electorate (states) and two from NT & ACT. Term of office usually six years – half elected every three.
- Legislative Assembly – similar to CP, main role to make laws by initiating and passing bills; forms government (‘house of government’); provide representative government; act as house of review for bills initiated in Legislative Council and controls government expenditure. 88 seats, one member for each of Vic’s 88 districts, fixed term of four years.
- Legislative Council – primary role to act as house of review, similar to Senate – scrutinises, debates and occasionally amends or rejects legislation: ensures gov reflects societal values. Examines bills through its committees and initiates (less common) and passes bills – if gov is majority in LA & LC, legislation may pass more easily. 40 seats, five members elected from each of Vic’s eight regions, fixed term of four years.
- Crown’s reps are appointed by the Queen on the advice of the prime minister (Governor-General) and on advice of the premier (Governor). Main role is to grant royal assent to approve bills before they considered Acts of Parliament. Can also withhold royal assent, though rare and only applicable in certain circumstances. Also responsible for appointing Executive Council – comprises leader of gov (prime minister at fed and premier at state) and senior ministers. Its role is to advise on government matters and approve secondary legislation (local gov and statutory agency laws, also called delegated legislation).
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4.1.2 THE DIVISION OF CONSTITUTIONAL LAW-MAKING POWERS
- Residual powers were not given to the Comm Parl upon fed and establishment of Constitution, thus given to the state. Includes crim law, public transport and education. Protected by s106, 107 and 108.
- Exclusive powers are specified in the Constitution and such law-making powers are exercisable solely by the Com. Includes defence, currency, immigration and naturalisation (becoming Aussie citizen) – (s51-2+ of C).
- Concurrent powers are law-making powers exercisable by both the Comm and the state. Includes trade, taxation, marriage/divorce and communication. Protected by s51. Allows laws to conflict.
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4.1.3 THE SIGNIFICANCE OF SECTION 109 OF THE AUSTRALIAN CONSTITUTION
- S109 – “When a law of the state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” Designed to resolve conflicting laws which arise from concurrent powers.
- Significant due to its acting as a restriction on state parls. Means that state will recognise constraint of their powers (in concurrent) where Comm law already exists. Also imposes consistency of approach regarding laws as Comm always prevails and proves more potent. Conversely, does not automatically operate in which state cannot legislate in inconsistent manner w Comm law; Law needs to be challenged in court to be declared invalid. States are also free to legislate within areas of residual power, thus restricted to a limited extent.
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4.1.4 THE MEANS BY WHICH THE AUSTRALIAN CONSTITUTION ACTS AS A CHECK ON PARLIAMENT IN LAW-MAKING
The bicameral structure of the commonwealth parliament
S1 states that parliaments must have two houses. Designed to act as check on law-making particularly through Senate, which acts as house of review due to typical initiation of bills in HoR. Senators should vote in accordance w/ views of state’s people, thus broad range of views considered when passing bills. However, some Senators vote according to wishes of party, and house can be ‘rubber stamp’ if gov holds majority in both. Can affect checks designed to prevent abuse of power in parl if upper house is passing legislation w/o debate. Gov doesn’t currently hold majority, so debate and amendments to bills are occurring before passes, desirable.
- Strengths – bicameral allows upper to act as house of review, scrutiny of bills allows checks and restraints on abuse of power; if gov holds slim majority or hung parl exists, debate can occur in LH (HoR or LA); hostile senate can result in careful consideration of bills, inc amendments and discussion, increasing check on law-making; only way bicameral nature can be altered is through referendum (as stated in Constitution).
- Weaknesses – if gov holds majority, debate and amendments unlikely due to rubber stamping and simply a confirmation of decisions of the lower house; no Constitutional requirement for states to be bicameral; laws will typically be passed only if supported by Fed Gov due to LH’s gov control and members’ voting according to views of pol party – this can hinder checks on law making as bills supporting by the people may be dismissed if not aligning w/ Fed Gov’s policies.
ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING through the Senate’s role as a house of review. This is most effective when a hostile Senate exists, that is, the government does not hold majority in the upper house. This means that bills will be scrutinised and significant debate will occur, potentially resulting in amendments and bills being passed only if they are in the interest of the people. However, this check on law-making can potentially be compromised when the government also holds a majority in the Senate. This may result in the upper house acting as a rubber stamp on legislation and bills being passed if they align with government policy, instead of the public interest, thus potentially undermining the principle.
The separation of legislative, executive and judicial powers
- Sep of powers is a doctrine estab. by the Const that ensures three powers of law remain separate, provides a check and balance on law-making as no single body has the power to make, implement, apply and interpret the law.
- Executive power is vested in the Gov-Gen, though in practice carried out by Cabinet (prime, senior mins and gov departments). Power to administer the law and manage bus of gov.
- Legislative power is that to make laws. Exercised by parliament. At Fed level, exec and legis are combined; also linked as passed Bills must receive royal assent from Gov-Gen.
- Judicial power is exercised by courts and tribunals whom enforce the law and settle disputes. Vested in the HCA and other fed courts. Courts are entirely free from political influence, thus citizens are protected from corruption and abuse of power in disputes resolution.
- Strengths; allows executive scrutiny by legislature, provides C&B as legislature can disprove inappropriate bills; judiciary is entirely independent; hostile upper house provides greater scrutiny of government and its legis; abolition of SoP would require referendum as it’s entrenched in Const.
- Weaknesses; ability of SoP to act as C&B on law-making may be compromised due to combination of legis and exec; gov in control of Senate may allow rubber stamping and far less scrutiny; judges are appointed by exec which may portray parliamentary influence of superior courts’ benches; Const only ensures SoP at fed level, not state, though the principle is used.
- ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING as it ensures that the three branches of law (legislature, executive and judiciary) are kept separate and independent of one another, ensuring that not one singular body holds all power in a legal sense. This aims to guard against an abuse of power and ensure that decisions are made in the public interest instead of a political regard. Whilst in theory the separation of powers strives to ensure an effective and objective legal system, in practice, there is some overlap between the legislature and the executive. The executive consists of the governor-general, the prime minister and other MPs, whom also form part of parliament. This may lead to the same group of people exercising two different types of legal powers, which can ultimately compromise the principle of the separation of powers.
Q: Discuss the means by which the Constitution uses the principle of separation of powers to act as a check on parliament and its law-making power.
The principle of the separation of powers refers to the division of the three bodies with law-making power – the legislature, exercised by parliament in the creation of law; the executive, exercised in theory by the governor-general who administers the law, and the judiciary, exercised by the courts and tribunals at a federal level, in which the law is enforced and disputes settled. Whilst this principle can act as a check on law-making, there are some limitations on its effectiveness.
The separation of powers acts as a check on law-making by guarding from an abuse of power. By ensuring that the ability to make, administer and enforce the law is split between three independent bodies – parliament, the governor-general and the courts – instead of being vested in one single body, the integrity of the legal system is secured and the chance of corruption is significantly reduced.
However, there is some overlap between the legislature and the executive. This is due to the fact that executive powers are, in practice, exercised by the Cabinet, which comprises of the governor-general, the prime minister and some members of parliament, meaning that the legislative and executive powers are often exercised by the same group of people. This can mean that corruption may be more likely to occur in our parliamentary system, and the separation of powers may be compromised in acting as a check on law-making powers.
The express protection of rights
- Express rights are enumerated (stated in the Const) and entrenched, meaning they can only be removed or altered via referendum (s128). TIP: the three Es – express, enumerated and entrenched.
- S51 ensures acquisition of property on ‘just’ terms when desired by Commonwealth. Must pay fair and reasonable compensation, only able to acquire property in areas of its power (eg airports, national parks). DEMOCRATIC RIGHT
- S80 – trial by jury for indictable Comm offences. Limited right as most indictable offences are against the state, and gov can avoid right by declaring offence is summary in HCA. DEMOCRATIC RIGHT
- S92 – right to free interstate trade and commerce. ECONOMIC RIGHT
- S116 – right to freedom of religion. HUMAN RIGHT
- S117 – right to no discrimination based on state residence. DEMOCRATIC RIGHT
- Strengths; imposes limits on areas of law-making, eg s116 restricts parl from creating law regarding religion; allows judicial check on parliament as individuals can take case to HCA for infringements, where law can be declared invalid; only removable through a referendum as entrenched; stability of express rights allows public to garner awareness of rights and take action if the need arises.
- Weaknesses; requirement for referendum makes further rights difficult to be implemented and added to Const; breach of one’s rights is expensive due to costs of HCA action; rights are limited in scope as many apply only to Comm parl, not state, and parls can make laws that conflict but do not infringe; limited amount of rights in comparison to other countries.
- ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING as the express protection of rights in the Australian Constitution specifically prohibits parliament from exercising certain areas of law-making powers. The Commonwealth Parliament also cannot legislate away these rights, as they are entrenched in the Constitution. Their removal is only possible through the referendum process under s128. Thus, the five express rights both protect and are protected by the people. However, in Australia, we only have five express rights, meaning that the scope of protection is limited. For example, section 80 sets out the right to a trial by jury when charged with a Commonwealth indictable offence. This protection is meagre, as most indictable offences are against the state, not the Commonwealth, thus protecting only a very small population.
The role of the HCA in interpreting the constitution
- HCA established under s71, s76 gives CommP ability to provide HCA with jurisdiction to hear disputes arising under Const, or involved with its interpretation. HCA cannot change its wording, only the way words are interpreted, thus ascribing meaning to the Const. As it is the only court with power vested, acts as a ‘guardian’ of the Const. Binding precedent is developed upon interpretation. CRYPTIC TEXT ANALOGY, ESTABLISHING PRECEDENT FOR FUTURE CASES OF INTERPRETATION.
- ACTS AS A GUARDIAN OF THE CONSTITUTION THROUGH ITS ROLE IN CONSTITUTIONAL INTERPRETATION AS WELL AS BEING VESTED WITH THE POWER TO INVALIDATE LEGISLATION IN VIOLATION OF THE DOCUMENT.
- Acts as check on abuse of power. Law may be considered ultra vires if passed outside parliament’s power – if legis is invalid, parl must amend and remove unconstitutional element or amend Constitution in accordance w s128, requiring a referendum.
- Also gives meaning to words. HCA has in the past interpreted Const to determine whether law made within parl’s power, thus shifting division of law-making powers. Has also interpreted Const and has implied rights within (considered to exist due to interpretation).
- Strengths; Judges are entirely independent from exec, and case decisions are made on legal principle rather than political pressure; existence of HCA allows initiation of action and laws to be overturned, reinforces idea that MPs are not above law and judges can scrutinise; expertise of HCA justices and accessibility of resources ensures proper decisions implemented; HCA can act as independent check on abuse of power.
- Weaknesses; only able to rule on facts presented to them, not able to make general principles of law outside case; HCA has limited role due to incredible expense of litigation; HCA can only interpret Const rather than change its wording.
- ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING through its role as the guardian of the Constitution; that is, it’s vested with the ability to interpret constitutional matters as well as invalidate legislation deemed unconstitutional or made ultra vires. This ensures that the Commonwealth is not free to its own accord and cannot legislate in a manner that is inconsistent with the Constitution. ROACH CASE CAN BE USED AS AN EXAMPLE. However, the High Court can only interpret the Constitution and invalidate statutes when a novel case is brought before it by a party with standing. Not only is standing incredibly difficult to establish, but the significant costs, time and associated risk of HCA litigation often deters parties from initiating a claim. As such, this may limit the effectiveness of the High Court acting as a check on parliament.
The requirement for a double majority in a referendum
- The wording of the Const can only be changed through a referendum, as stated in s128; cannot be changed by the CommP. A proposed change must pass through the CommP, like a Bill, and only 8 out of 44 have been successful. Referendum must be put to the people more than two months after, but less than six months, from its approval in CommP. Before put to the people, the AEC releases info about the proposal, and its pros and cons.
- Referendum is always a yes or no question. To be successful, a double majority must be achieved. The majority of voters nationwide (including NT/ACT) must vote yes, along with the majority of voters in at least 4/6 states. Operates to restrict the ability of the CommP, in that the Const’s wording can only be changed with the approval of the people.
- Strengths; s128 enables voters to vote against an inappropriate referendum; double majority is strict and difficult to achieve, filters inappropriate; protects smaller states like SA and TAS by ensuring that larger states don’t determine the outcome; compulsory, removes CommP’s power to determine outcome, instead empowering the people.
- Weaknesses; laypeople mayn’t understand complex details, reluctance to vote or comprehend may result in lack of needed Constitutional reform; double majority difficult to achieve, may not be an effective means of change; timely and costly check on CommP, eg 1999 referendum cost $66mil; result may seem unjust if majority of national voters in support, but 3/6 or less states in agreeance.
- ACTS AS A CHECK ON PARLIAMENTARY LAW-MAKING as the requirement of the double majority for constitutional change via s128’s referendum process means that any alterations to the Constitution are in the interest of the majority of the Australian people. The Commonwealth has only a very limited role in a referendum, in that the proposal must pass both houses of Parliament as a bill before it is put to the people no less than two, but no longer than six months after. As such, parliament cannot change the Constitution without the approval of the people.
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4.1.5 THE SIGNIFICANCE OF ONE HCA CASE INTERPRETING SECTIONS 7 AND 24 OF THE CONSTITUTION
- S7 and 24 of the Constitution establish the composition of the Senate and the House of Representatives, stipulating that its members are to be ‘directly chosen by the people’ through regular elections. As such, this establishes a system of representative government.
- Vicki Lee Roach case (Roach v Electoral Commissioner (2007) HCA 43) is a notable example of a HCA case that has interpreted sections 7 and 24 of the Const.
- FACTS: In 2007, female prisoner Roach launched case in HCA to clarify the constitutional protection of the right to vote. The 2006 amendment of the Commonwealth Electoral Act 1918 (Cth) imposed a complete ban on prisoners voting come election. Prior, only prisoners serving more than 3 yrs were disqualified. She argued that ban was invalid as it interfered w/ system of rep gov and was in breach of s7&24, as well as being in violation of the implied right to political freedom. HCA justices held that the Electoral Act amendment was invalid and unconstitutional as it was inconsistent with the principle of rep gov. Old ban on prisoners of 3+ years was still valid after case.
- SIGNIFICANCE: HCA’s decision affirmed that adults have a constitutional right to vote in elections, protected through the notion of representative government established by s7&24. HCA justices did not, however, go as far as to say that it was an implied right. Thus, rep gov can act as a restriction on the law-making powers of the Commonwealth, which is unable to legislate away the right to vote w/o good reason (eg engagement in serious indictable offence which contradicts community values, thus results in incarceration and removal from society for a long period of time).
Q: Discuss the impact of one significant High Court case in the interpretation of sections 7 and 24 of the Australian Constitution.
Sections 7 and 24 of the Constitution state the composition of both the House of Representatives and the Senate, and thus enforce a system of representative government in which members of parliament are chosen by the people and represent and apply societal values in the law-making process.
The High Court case of Roach v Electoral Commissioner (2007) was initiated after an amendment to the Electoral Act which banned all prisoners from voting in national elections. Prior to this amendment, only prisoners serving a sentence of three years or more were prohibited from voting. Vicki Lee Roach – an Aboriginal woman serving a six-year sentence – challenged the validity of this law in the High Court, claiming that the amendment was unconstitutional and restricted the functioning of a representative system of government under sections 7 and 24. Roach also claimed that right to vote was an implied right.
In a majority decision, the High Court justices held that the amendment to the Electoral Act was indeed unconstitutional, and whilst it was a structural right to support the principle of representative government, it was not an implied right. The decision of Roach v Electoral Commissioner thus determined that the Act’s amendment was invalid. The original law, however, still stood, and the plaintiff was still unable to cast a vote due to the duration of her sentence.
This High Court decision was significant as it affirmed the structural right of all Australian adults – to the exclusion of some populations, including prisoners serving sentences of more than three years – to vote in elections. This right ultimately upholds the system of representative government as established by sections 7 and 24 and restricts the law-making powers of parliament to legislate away the right to vote without good reason.
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4.1.6 THE SIGNIFICANCE OF ONE REFERENDUM IN WHICH THE AUSTRALIAN PEOPLE HAVE PROTECTED OR CHANGED THE CONSTITUTION
- The referendum process allows the people to change the Const, as well as protect it by voting against a proposal. Compulsory for all on electoral roll. 8/44 have been approved in history.
- FACTS: 1967 Referendum proposed two amendments to Const in regards to Indigenous Australians – for aforementioned populations to be included in population statistics (more to do with gov funding per capita), as well as the ability of the CommP to make laws regarding Indigenous people. Successful, with support from majority of states and 90.77% nationwide.
- SIGNIFICANCE: The successful 1967 Referendum altered sections 51(xxvi) and removed 127. S127, which prohibited Indigenous Australians from being counted in population statistics, was eradicated entirely to ensure their inclusion. S51(xxvi) was amended, with the phrase ‘other than the Aboriginal race in any state’ removed from the subsection. The latter amendment meant that the CommP could now legislate with regard to Indigenous Australians. This referendum also resulted in a shift in the division of law-making powers, as the authority to legislate became an area of concurrent power, whereas it was previously a residual power.
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4.1.7 THE SIGNIFICANCE OF ONE HCA CASE WHICH HAS HAD AN IMPACT ON THE DIVISION OF CONSTITUTIONAL LAW-MAKING POWERS
- Under s76, the HCA is the only court w/ power vested to interpret Const. However, a challenge must be made by someone with standing (party must be directly affected and suffer harm in some form). This can occur when legis. is passed that is ultra vires (beyond parliament’s power). The Brislan case (R v Brislan (1935) HCA 78) is a case which has had an impact on the division of constitutional law-making powers.
- FACTS: s51(v) vests in Comm power to legislate with regard to postal, telegraphic, telephonic and other like services. Wireless Telegraphy Act (1905) requires those whom own wireless sets (radios) to hold license. Defendant was charged for not having license. Brislan challenged validity, claiming that Comm was not vested w/ power to legislate in area, and that ‘other like services’ did not include wireless sets. Case required HCA to interpret meaning of ‘other like services’ – decided that wireless set was a ‘like service’, thus the Act was valid.
- SIGNIFICANCE: Significant because resulted in a shift in division of powers. Extended the meaning of s51(v) and strengthened the powers of the Feds by giving the CommP more legislative ability. Made communication a concurrent power, and today both the CommP and states can make laws regarding television and internet, amongst others – s109 applies.
Q: Referring to one case, discuss how the High Court has impacted on the division of law-making powers. (5 marks)
The division of law-making powers refers to the way in which legislative powers are allocated between state parliaments and the Commonwealth, in accordance with the Australian Constitution. Exclusive powers are solely exercisable by the Commonwealth, residual powers by the states and concurrent powers are shared between the state and the Commonwealth. One case that resulted in a shift in the division of law-making powers was R v Brislan.
Section 51(v) vests in the Commonwealth the power to legislate with regard to communication and other ‘like services’. The Wireless Telegraphy Act (Cth) required those whom owned a wireless set to hold a license, to which the defendant was charged due to a failure to comply. Brislan challenged the validity of this law, claiming that the Commonwealth was acting ultra vires as this was an area of residual power. The High Court interpreted the meaning of ‘like services’. It decided that the phrase included wireless sets, and that the Act was indeed valid.
This case impacted the division of law-making powers as the High Court interpreted ‘like services’ to include wireless sets, thereby extending the meaning of section 51(v). It also resulted in a shift in the division of powers, affirming that telecommunication is an area of concurrent power, thus broadening the law-making ability of the Commonwealth Parliament.
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4.1.8 THE IMPACT OF INTERNATIONAL DECLARATIONS AND TREATIES ON THE INTERPRETATION OF THE EXTERNAL AFFAIRS POWER
- S51(29 or xxix) vests in the CommP the power to create laws in relation to external affairs, enables legislation that reflects international agreements in which Australia is a signatory.
- An international treaty or covenant is a binding agreement between countries, governed by international law. Can be bilateral or multilateral. Under s61, power to enter into treaties is an executive power, though the legislature plays a role before its ratification (approval). Treaties must be tabled in both Comm houses at least 15 days before agreeing to ratify, thus making it binding. Executive reserves right to remove itself from treaty obligations if no longer in interest of Australians.
- Contrarily, an international declaration is a non-binding agreement that sets out parties’ intentions, often influential in creation of gov policy and can lead to a treaty.
Tasmanian Dams or Franklin Dams case (Commonwealth v Tasmania (1983)
- FACTS: The Tasmanian Gov intended to dam the Franklin River to create a source of hydroelectricity, something that was within the state’s residual powers. National protests occurred, causing the Commonwealth to intervene in an area of residual power. Tasmania maintained that it had the right to make laws concerning the dam as it was a state issue. The CommP held that it had a duty to prevent damage to Australia’s national heritage, particularly one in which was on the UNESCO World Heritage List. Fed legislation was then passed to inhibit the construction. Tasmania argued that the Comm law was unconstitutional as it intruded into an area of residual power. The CommP responded that it had power to intervene because its external affairs power vested in it the ability to make laws relating to international treaties, in particular, the UNESCO World Heritage list. The HCA held that because the Franklin River was covered by an international treaty, it came under the CommP’s external affairs power. This decision extended the meaning of ‘external affairs’ to include the fulfilment of obligations under an international treaty.
- IMPACT: The meaning of the external affairs power was extended to include the fulfilment of obligations under an international treaty. This resulted in a shift of the division of the Commonwealth’s law-making powers to legislate on an area that was previously a residual power, thus increasing the law-making ability of the Commonwealth.
TIP: When discussing High Court cases in relation to concepts such as external affairs, use the following ‘template’.
- Define any terms (such as external affairs, including its section in the Constitution, or sections 7 and 24 and its relation to representative government)
- Explain the facts of the case (parties, basis of dispute – LINK TO LEGAL TERMS SUCH AS DIVISION OF POWERS)
- Write about the judge’s decision and its effect on society (did it confirm rights? Was legislation considered ultra vires and thus invalid?
- Discuss its significance (did it broaden the meaning of the external affairs power? Did it lead to a shift in the division of law-making power and thus restrict either the state or Commonwealth in their legislative ability?)
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