Unit 4 AOS 1 - unit 4 legal notes PDF

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Unit 4 AOS 1 Legal Studies The people and the Australian Constitution

Dot Point 1 from the VCAA study design (DP): The roles of the Crown and the Houses of Parliament (Victorian and Commonwealth) in lawmaking Key Skill from the VCAA study design (KS): Explain The roles of the Crown Royal assent  The signing of approval by the Crown for a proposed law  Is necessary before an Act of parliament can become law  Federal level Governor General  The GG has the power to withhold royal assent in certain circumstances  State level Governors  The governor does not have power to withhold royal assent  VCAA tip: In the past, VCAA has asked for one role of the Crown other than Royal Assent, so make sure you learn all roles of the Crown. Appointing Executive council  Responsible for making delegated legislation while acting in council with relevant ministers as the executive council  This includes working with ministers that are heads of government departments (e.g. Minister for Education), as well as the Prime Minister. Reserve powers  The Crown holds reserve powers that can be exercised without the advice of ministers  The Governor-General must ensure the country continues to be governed (for eg. If the government cannot get legislation passed, the GG can step in)  The Governor-General can also dismiss an incompetent Prime Minister (with reason), which has happened in the past to Gough Whitlam in 1975.

The roles of the lower house (VIC – Legislative Assembly; CTH – House of Representatives)  Initiate and make laws – Houses’ main role. Any member of the house may introduce a proposed law. Bills must be passed by both houses for a law to be made. New bills are usually introduced into the lower house and the lower house can initiate money bills (unlike the upper house).  Form government – After an election, the party that wins most seats in the house forms government. Alternatively, in the case of a hung parliament, such as in the 2010 federal election, the party that has secured enough votes to defeat a no-confidence motion and to pass important legislation wins. The leader of the winning political party becomes prime minister/premier.  Representative government – The ‘people’s house’ represents the interests of the majority of the people and proposed laws should reflect the views and values of the majority of the community.

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Responsible government – Ministers are responsible to parliament and therefore to the people. For example, they may present petitions from citizens in debate. Publicise and scrutinise government administration – Includes publicising government policies, making sure legislation is debated and question time is allowed. Control government spending – Bills must be passed by both houses before the government can collect taxes or spend money. Expenditure is examined by parliamentary committees.

The roles of the upper house (VIC – Legislative Council; CTH – Senate)  ‘House of Review’ – The upper house scrutinises, debates, amends, and rejects legislation passed by the lower house. It ensures bills which would be seen as too radical are not rushed through parliament.  ‘States House’ (only for the Senate) – The Senate has equal representation of states (12 ministers per state) regardless of their size or population. In this way, the Senate provides for representative government by representing the interests of the states – laws are made with the interests of all states, not just the populated or big ones.  Initiate and pass Bills – The Senate can initiate Bills (other than money Bills) or pass Bills that have gone through the lower house.  Scrutinise government – The Senate scrutinizes legislation by checking all Bills and delegated legislation are in the public interest. This ensures the government in the lower house is accountable for its actions.

Tip: Know at least 2 roles each of the Crown, lower house and upper house! In questions, you’re unlikely to be asked to explain more than 2 roles of each.

DP2: The division of constitutional law-making powers of the state and Commonwealth parliaments KS: Explain, and compare using examples Specific powers  Specific powers: Powers listed in the Constitution that are given to Commonwealth Parliament to ‘make laws for the peace, order and good government of the Commonwealth’  Most (not all) of these powers are set out in S51 and S52 of the Constitution  These powers are numbered and thus may be referred to as enumerated powers  Examples include marriage (concurrent), postal services (concurrent), and naturalisation (exclusive)  Specific powers are either exclusive or concurrent

Exclusive powers  Exclusive powers: Powers that can only be solely exercised by the Commonwealth Parliament, meaning that only the Commonwealth Parliament can make laws in these areas

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Some of the specific powers listed in S51 of the Constitution are exclusive to Commonwealth Parliament which means only they can make laws in these areas. For e.g. Defence, and customs and excise

Specific powers are made exclusive by:  Other sections of the constitution – E.g. S51 (xii) gives Commonwealth Parliament the power to make laws relating to coining money and S115 says that the states shall not coin money, therefore making this an exclusive power of the Commonwealth. OR  By Nature (i.e. common sense) – E.g. S51 (xix) gives power to the Commonwealth to make laws relating to naturalisation (becoming an Australian citizen).

Concurrent powers  Concurrent powers: Powers that Commonwealth and State parliaments share jurisdiction over, meaning that both the Commonwealth and State parliaments can make laws over these areas  All specific powers in the Constitution that are not made exclusive to Commonwealth Parliament are concurrent powers.  E.g. The power to make taxation laws is given to the Commonwealth, but state parliaments can also levy taxes because it’s a concurrent power.  Other areas of concurrent power are trade and marriage.

Residual powers  Residual powers: Powers that are not stated in the Constitution and rest solely with the state parliaments to exercise, meaning that only state parliaments can make laws on these areas.  Areas such as: criminal law, education and public transport are not mentioned in the Constitution and are therefore residual powers

Sample Q: Compare the constitutional law-making powers of exclusive powers and residual powers, using examples to demonstrate your answer. 3 marks A: A similarity between exclusive and residual powers is that they’re both law-making powers from the Constitution that enable parliaments to make laws on certain areas. Without these constitutional powers, the Commonwealth and state parliaments wouldn’t be able to create laws. A difference is that exclusive powers are only exercisable by the Commonwealth Parliament, meaning that only the Commonwealth can make laws on those areas (such as naturalisation and coining money). On the other hand, residual powers are only exercisable by state parliaments, meaning only states can make laws on those areas (such as education and transport). Another difference is that exclusive powers are listed in the Constitution, whereas residual powers aren’t contained in the Constitution.

Tip: Remember that “compare” includes both similarities AND differences!

DP3: The significance of section 109 of the Australian Constitution KS: Explain, and discuss S 109 of the Constitution  S109 of the Constitution provides a mechanism to resolve conflict and inconsistencies in Commonwealth and state legislation that arise in areas of concurrent power  If Commonwealth and state parliaments make a law in the same area, and the state law is conflicting and inconsistent with Commonwealth law, federal law will prevail to the extent of the inconsistency between the two laws.  The relevant section of state law thus becomes invalid and inoperable to the extent of the inconsistency. o VCAA warning: The whole state law does not become invalid. It is only the section that is inconsistent with the federal law that is invalid. This is something the VCAA chief examiner always points out.  Therefore, S109 acts as a restriction on the law-making power of States.  Tip: The phrases I have bolded and underlined are crucial in almost any S109 question. Feel free to use them word by word!

Case study – A case where s 109 was applied  This was demonstrated in the John McBain 2000 case.  Dr John McBain and his patient with standing, Leesa Meldrum, argued the inconsistency between the Infertility Treatment Act 1995 (Vic.) (which discriminated against marital status, stating that a woman had to be married or in a de facto relationship to assess IVF treatment) and the Sex Discrimination Act 1984 (Cth) (which stated a person cannot be discriminated against based on marital status) in the High Court.  On the basis of S109 of the Constitution, the federal law prevailed and therefore the discriminatory section of the Victorian law was deemed invalid and inoperable to the extent of the inconsistency.  Tip: This case is not compulsory to learn, but it’s good to know an example. You can use this example in an explanation or discuss question about s 109 (if relevant) if you’re trying to fill up marks. You don’t have to write it in this much detail; you can summarise it in 1 or 2 sentences.

Discuss the significance of section 109 of the Australian Constitution S 109 is significant

S 109 isn’t significant

In areas of concurrent power where the Commonwealth and a state parliament creates a conflicting law on the same topic, s 109 provides a mechanism to resolve this issue – the federal law prevails to the extent of the inconsistency between the two laws. S 109 acts as a restriction on state parliaments. S 109 can be used by the High Court to declare a section of state law that is inconsistent with federal law invalid and inoperable to the extent of the inconsistency. S 109 doesn’t prevent state parliaments from legislating in areas of concurrent power. State parliaments are still free to create laws in areas of concurrent powers as they would make laws normally. If a state law is invalidated on the basis of s 109, the state law will be invalidated for as long as the federal law is in effect.

S 109 doesn’t operate automatically; the Commonwealth must bring a case before the High Court against the state parliament, for the federal law to be deemed to prevail over the state law to the extent of the inconsistency.

S 109 only requires the inconsistent section of the state law to become invalidated by the High Court, not the whole of the state’s Act of Parliament. S 109 acts as a restriction on state parliaments because they may be hesitant to make laws in those areas of concurrent powers as they don’t want to risk it being invalidated by the High Court. If the federal law is amended or abrogated (removed), then the state law may be able to come back into effect. This means that s 109 is only operating until the federal law is changed or abrogated.

Tip: A s 109 question is very likely to be on your SAC and the exam, as it’s a tricker area of the constitution that some students don’t fully understand. VCAA warning: Do not use the 2013 ACT marriage case as an example for s 109. ACT is a territory of Australia, meaning that s 109 (a rule for state parliaments) doesn’t apply. Students have done this in a previous VCAA exam and were not rewarded with marks.

DP4: The means by which the Australian Constitution acts as a check on parliament in law-making KS: Explain, and evaluate The bicameral structure of Commonwealth Parliament  Bicameral: A parliament system where there are two houses – a lower house and an upper house.  SS 7, 24 and 28 of the Constitution establish the House of Representatives (lower house) and the Senate (upper house)  The bicameral structure of Commonwealth Parliament acts as a check on parliament in law-making as the upper house reviews, scrutinises and amends Bills that are

passed by the lower house. The Senate can also reject Bills if they believe that they will not become good law. Strengths The bicameral system allows for the second house to review, scrutinises, amend and even reject Bills passed by the first house to correct errors or prevent bad Bills from passing. This is a strength as the second house can act as a check on the first house in law-making. If there is a hostile Senate (a Senate controlled by the opposition party), the upper house will review and scrutinise Bills passed by the lower house more thoroughly. This is a strength as a hostile Senate can effectively check and debate over lower house Bills, which leads to better laws. If the House of Representatives has a slim majority or a hung parliament, then it’s likely that more debate will occur over Bills in the lower house. This is a strength as more debate and review of Bills means that laws are likely to be more effective and have less mistakes.

Weaknesses The number of minority parties and independents in the Senate have recently increased. This is a weakness as they may argue that changes must be made to water down the Bill before they agree to pass it, which leads to weak laws. If the government controls the Senate, the Senate is a rubber stamp, meaning that it simply passes most Bills that come from the House of Representatives. This is a weakness because in these cases, the Senate will not thoroughly scrutinise Bills, which leads to mistakes in laws and ineffective legislation. If the House of Representatives has a majority of members from government, debates on Bills are unlikely to occur as the government just wants legislation to be passed. This is a weakness as the lower house will ensure that Bills will make effective law.

The separation of legislative, executive and judicial powers (the separation of powers) 

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Separation of powers: Refers to the three arms of power which is the division of responsibilities between different bodies in the legal system: the legislative function, the executive function and the judicial function. Legislative power – Refers to the power to make laws and is exercised by parliament Executive power – Refers to the power to administer laws and is theoretically exercised by the Governor-General as the Queen’s representative, but in practice, is exercised by the prime minister and senior ministers Judicial power – Refers to the power to enforce the law and settle disputes and is exercised by the courts and tribunals. The separation of powers acts as a check on parliament in law-making as courts are independent of the legislative and executive powers and are therefore not subject to political interference. The courts can act as a check on the use of law-making powers and government actions.

Strengths The judiciary is independent from the legislature so can act as a check on it by ensuring that its laws are just and constitutional. This is a strength as courts

Weaknesses The judiciary can only act as a check on the legislature when a case comes before it involving the validity of legislation passed by parliament or the actions of a Minister.

(mainly the High Court) can rule out legislation that is unconstitutional or not consistent with other laws if a case comes before it. The judiciary is independent from the executive so can act as a check on it by ensuring that the actions of ministers are constitutional and lawful. This is a strength as courts (mainly the High Court) can deem an executive member’s actions as unlawful if a case comes before it. The legislative and executive powers can still act as a check on each other (even though they have some overlap). This is a strength as ministers of the executive can be questioned in parliament during question time, where they have to give answers for their actions.

This is a weakness as the judiciary can’t constantly keep a check and balance on the legislature and executive. Judges are appointed by the executive. This means that there’s some overlap between the judiciary and the executive. Although this is minor, this is a weakness because the judiciary may not be completely impartial in scrutinising the executive in their lawmaking actions. In reality, the legislative and executive powers are combined as they are both exercised by ministers in parliament. This is a weakness as the legislature and executive can’t truly act as a check on one another since they involve the same people, which may result in ineffective laws.

Past VCAA Q (multiple times): Explain the principle of the separation of powers. 3 marks A: The principle of the separation of powers refers to the three arms of power which is the division of responsibilities between different bodies in the legal system: the legislative function (those that make laws which is exercised by parliament), the executive function (those that administer laws which is theoretically exercised by the governor general but in practice, is exercised by the prime minister) and the judicial function (those that enforce laws which is exercised by the courts). [Important to include:] The powers of each arm are kept separate to each other and carried out by a separate body, to ensure that no one body or arm has complete authority and each are independent from the other. It provides a system of checks and balances against the possible abuse of power and ensures a system of democracy.

The express protection of rights  Express rights: Rights that are specifically stated in the Constitution and are entrenched in the Constitution which means they can only be removed or amended through a referendum as set out in s 128. They include the right to: o Freedom of religion s 116 o Interstate trade and commerce/freedom of movement s 92 o Not be discriminated against on the basis of the state you reside in s 117 o Receive ‘just terms’ when property is acquired by the Commonwealth s 51 o Trial by jury for indictable Commonwealth offences s 80  Express rights act as a check on parliament in law-making because the Commonwealth Parliament cannot pass legislation that infringes these rights. Strengths Express rights can’t be removed by

Weaknesses Express rights are very difficult to add to

Commonwealth Parliament from the Constitution because they’re entrenched. This is a strength as express rights will continue to act as a check on the Commonwealth by preventing it from making laws which breach them. If an express right is breached by a Commonwealth law, an affected person with standing can take a case against the Commonwealth to the High Court. This is a strength as the High Court can use express rights to invalidate laws that conflict with the express rights. Express rights impose limits on what Commonwealth Parliament can make laws on. E.g. The Commonwealth can’t make a law that discriminates against someone based on the state they reside in (s 117). This is a strength as express rights constrain the scope of what parliament can make laws on.

the Constitution due to the referendum process. This is a weakness as there’s limited opportunity for more express rights to be added to the Constitution and thus reduced ability of express rights to act as a check on parliament in law-making. Commonwealth Parliament can still create laws that infringe on people’s express rights as it requires a person with standing, time and money to challenge the law at the High Court. This is a weakness as express rights themselves don’t prevent the Commonwealth from physically making laws that infringe our rights. There are only 5 express rights in the Constitution, which is very few compared to other countries such as NZ which has a Bill of Rights. This is a weakness as the ability of our few express rights to act as a check on parliament is limited, especially since the express rights are limited in scope.

The roles of the High Court in interpreting the Australian Constitution  To keep the Constitution up to date throug...