UNIT 4 Legal - AOS 1 PDF

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UNIT 4 AOS 1- THE PEOPLE AND THE CONSTITUTION

Key Knowledge 

The roles of the Crown and the House of Parliament (Victorian and Commonwealth) in law-making

Introduction to the Constitution -

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A constitution is a set of rules that establishes the nature, functions and limits of government. It determines the power and duties of the government The Australian Constitution: A set of rules and principles that guide the way Australia is governed. It was passed by the British Parliament and its formal title is Commonwealth of Australia Constitution 1900 Some countries have a formal written constitution – others have a set of documents that in aggregate determines the powers and duties of government Australia has a formal written constitution, effective from 1 January 1901, after the colonies voted to join together and create a new country Chapter 1, 2 and 3 are the 3 main powers of the government and parliament – separation of powers, acting independently

Features of the Constitution -

Creates the Commonwealth Parliament and outlines how it will be structured Establishes the High Court and gives it to the power to interpret the Constitution States that state laws existing at January 1 1901 will continue to operate unless specifically altered or repealed (old laws before federation still exists) Facilitates division of law-making powers between the Commonwealth and the States (divides powers appropriately, and how power is divided) Provides mechanism for changing the Constitution – a referendum Lists a limited number of rights that will be protected

Role of Parliament in Law-making

1.

The Commonwealth Parliament

Structure of the Commonwealth parliament: -

The House of Representatives (the lower House) The senate (the Upper House) The Queen (represented by the governor General) (crown)

 these three things make up the commonwealth parliament The House of Representatives -

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The lower house of the Commonwealth Parliament Main role is to make laws, and can initiate proposed laws (bills) Is sometimes called “The People’s House’ Consists of 150 members representing individual electorates of approximately equal size. The term of office for members is three years Sometimes called the ‘House of Government’ as the political party who holds the majority of seats in the House of Representatives is invited by the Crown to form government. The leader of that political party is called the prime minister The party with the next-highest number of elected members becomes the opposition  shadow ministers

Roles: -

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initiating bills – most (but not all) new bills are initiated in the house of reps. these are normally introduced by a minister, though any member also can introduce a bill. A private members bill is one introduced by a member without the authority of the cabinet. determining the party to form government – the political party with the most members in the house of reps forms government. providing responsible government – ministers are responsible to the parliament and must face scrutiny from members of opposition parties during question time in the house of reps. representing the people – members are elected to represent the people of their electorate. members should vote in a way that is consistent with the views and values of their electorate. publicising and scrutinise government administration – the house of reps ensures government policies and bills are publicised, debated and discussed. acting as a house of review – the house of reps reviews any legislation that was initiated in and passed by the senate. controlling government expenditure – the Australian government cannot raise or spend money without the authorisation of parliament

The Senate -

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The upper house of the Commonwealth parliament Main role is to make laws, and can initiate proposed laws (bills) Sometimes called “The States House’ as it consists of 76 senators representing the states and territories around Australia. Each state elects 12 senators and each territory elect 2 senators. They represent the views of the state in law-making They are elected on 6 year terms, with half of the senators facing election every three years Sometimes called “The House of Review’ as it reviews bills presented by the government in the lower house Debates proposed laws and has a committee system which enables senators to scrutinise bills before they become laws

Roles: -

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Act as a house of review – most bills are initiated in the House of Reps and the Senate separately reviews and scrutinises these bills to ensure they are appropriate. Act as a states’ house – as each state has an equal number of Senators, regardless of its population. Senators should be mindful of the interests of the state they represent when voting on proposed new bills. Examine bills through its committees – the Senate has a number of committees who assess the impact of various legislative proposals.

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Initiate bills – the Senate can initiate bills (other than money bills) or pass bills previously passed through the lower house. It also cannot amend money bills passed by the House of Reps.

2.

The Victorian Parliament

Structure of the Victorian parliament: -

The Queen (represented by the Governor of Victoria) The Legislative Council (upper house) The legislative Assembly (lower house)

The Legislative Assembly -

88 members, as Victoria is divided in 88 districts One member of the Legislative Assembly is elected represent each of these districts, and will remain in power for four years The political party that wins the majority of seats in the Legislative Assembly forms government and the leader of the government is known as the premier

Roles: -

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Initiate and pass bills – initiate new laws by introducing them to the Legislative Assembly by the government, although any member may introduce the bill Form government – The political party with the most members in the Legislative Assembly forms government Provide representative government – Members of the Legislative Assembly are elected to represent the interests of the people, and their actions in law-making should reflect the views and values of the people. If not, they may be voted out at the next election Act as a house of review – acts as a house of review in the law-making process when a bill has been initiated in and passed by the Legislative Council Control government expenditure – for taxes to be collected or money to be spent, the government must introduce a bill in the Legislative Assembly. Therefore, the Legislative Assembly will control government expenditure as only it can initiate money bills

The Legislative Council -

Comprises 40 members of parliament Victoria is dived into 8 regions, each consisting of 11 districts. 5 members of the legislative Council are elected for each region making a total of 40 members to be elected for parliament Serve a four-year term Uses a proportional representation system The main role of the Legislative Council is to act as a house of review for bills passed by the Legislative Assembly, and can scrutinise, debate and reject their bills

Roles: -

Act as a house of review – similar role to the Senate, as the Legislative Council acts as a house of review for legislation that has been passed by the Legislative Assembly. It does this by scrutinising, debating on and amending/rejecting legislation that has been initiated by the government. This way, it can ensure the parliament is reflective of the will of the people

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Examine bills through its committees – has a number of committees that debate the proposed laws at length and recommend to the House whether bills should be supported as part of the legislative process Initiate and pass bills – less common to be initiated in the Legislative Council

Role of the Crown in law-making Structure: -

The Crown (i.e. the British monarch) is part of the system of government in Australia through its representatives: One Governor-General (at a federal level) and six Governors (one for each state) The Governor-General is appointed by the Queen, on the advice of the Prime Minister of Australia Each Governor is appointed by the Queen, on the advice of the Premier of each state

Roles: -

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Granting royal assent – The Governor and Governor-General approving bills before they can become law, which is known as royal assent Withholding royal assent - refusing to approve a bill- limited opportunities exercise this power Appointing Executive Council – the Governor-General has the responsibility of appointing the Executive Council. Their role is to give advice on government matters as well as approve secondary legislation (rules and regulations made by government bodies) Reserve powers – powers exercisable without the approval of government, such as appointing or dismissing government

Stages of a bill through parliament -

The bill passes the firs houses The bill passes the second house Royal assent is granted (approving of the bill)  becomes law

COMPARISON: PARLIAMENT OF VICTORIA AND PARLIAMENT OF AUSTRALIA

The Parliament of Australia (federal)

Lower house

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Title: The House of Representatives (lower house) 150 seats One member for each of the 150 electorates

The Parliament of Victoria (state)

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Title: The Legislative Assembly (lower house) 88 seats One member for each of the 88 districts across Australia

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Upper house

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across Australia Term of office is three years

Title: The Senate (upper house) Each state is an electorate 12 senators from each state and 2 from each territory 76 senators in total Term of office is 6 years usually

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Term of office is four years

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Title: The Legislative Council (upper house) State is divided into 8 regions Five members from each region 40 members in total Term of office is 4 years

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Glossary words: -

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Constitution: A set of rules that establishes the nature, functions and limits of government Government: The ruling authority with power to govern, formed by the political party that holds the majority in the lower house in each parliament Parliament: A formal assembly of representatives of the people that is elected by the people and gathers together to make laws Referendum: The method used for changing the wording of the Australian Constitution. It requires a proposal to be approved by the Australian people in a public vote by a double majority Governor-General: The Queen’s representative at a federal level Governor: The Queen’s representative at the state level Bicameral parliament: A parliament with two houses. In the Australian Parliament: The Senate and the House of Representatives and in the Victorian Parliament: he legislative Council and the Legislative Assembly Royal assent: the formal singing and approval of a bill by the Governor-General or Governor Democracy: a system of government in which members of parliament are voted into office by the people, and represent the wishes of the people Secondary legislation: rules and regulations made by secondary authorities such as local councils – delegated powers Rule of law: the principle that everyone in society is bound by law and must obey the law Executive power: the power to administer the laws and manage the business of the government, resides with the Governor-General Legislative power: the power to make laws, which resides with the parliament Judicial power: the power given to courts and tribunals to enforce the law and settle dispute. Separation of powers and division of powers are two different things. Separation of powers is separation between law-making powers between government and parliament. Ultra vires: invalid law, stated invalid by the High Court, actions done outside lawful powers Implied rights: rights not expressly states in the Constitution but are considered to exist through High Court interpretation

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The division of constitutional law-making powers of the state and Commonwealth Parliaments, including exclusive, concurrent and residual powers

Constitutional examples which relate to the division of powers Part V S51 (section 51) - The commonwealth can make laws in regard to (i) Trade (ii) Taxation (xii) Currency, coinage and legal tender (xix) naturalisation and alien (xxi) marriage (xxii) divorce (xxxvii) any power referred by a state S107 The states have law-making powers S108 Any laws made in the colonies before federation remain S109 When there is a conflict between state and commonwealth laws, the latter (Commonwealth) will prevail, to the extent of the inconsistency S115 States shall not coin money (make money) S116 Commonwealth may not enforce a religion and religious observance (or for prohibiting free religion)

OTHER: S127 Aborigines not to be counted in reckoning population – now disregarded S128 The Constitution can be altered through a Referendum S75 The High Court exists, and it has the jurisdiction to interpret and rule on constitutional matters S52 - Makes us aware that some powers are exclusive

The Division of Powers -

The “Division of Powers” refers to the separation of law-making abilities, between the Commonwealth and the States, which was established by the Commonwealth Constitution at Federation Examples: the state can make and pass laws on hospitals, police, road laws. The commonwealth can make laws on immigration Shared powers: taxation

Types of powers Enumerated (specific) powers: Any law-making power granted to the commonwealth via the constitution. An example is S.51 subsection (i): trade. Therefore, the Commonwealth can legislate on trade. Can be exclusive or concurrent. Residual powers: Any law-making powers not mentioned in the Commonwealth Constitution, that was left with the states at federation. For example, primary and secondary education is not mentioned in the Commonwealth Constitution but section 107 allows the states law-making powers. -

Criminal law Medical procedures such as IVF Road laws Education Public transport

Exclusive powers: Any law-making power which is granted solely to the Commonwealth by the Commonwealth Constitution – that is, the states cannot make laws in this area. These powers may be exclusive by their nature, for example S.51 (xix) naturalisation (as it is stated in the CC as a power by the Commonwealth, and is not stated anywhere else that the states can have law-making powers on this), or may be exclusive by another section such as S51 (xii) regarding the commonwealth power on coinage and S.115 restricts the states from coining money  can be exclusive by the restriction on the states by another section of the Constitution -

Defence Currency (printing and coining money) Customs and border protection (immigration, imports/exports, border security)

Concurrent powers: Any law-making powers shared between the Commonwealth and the states. As the Commonwealth Constitution grants this power to the Commonwealth and does not restrict the states from the area. For example, section 51 (ii) taxation. When a state and commonwealth concurrent law conflict, the commonwealth will prevail to the extent of the inconsistency and the state law, to the extent of the inconsistency shall be deemed invalid (until the section of law the disagreement is over, the part which is inconsistent is unconsidered) (S109) -

Trade Taxation (given to the Commonwealth Parliament but state parliaments can also make laws about taxes) Marriage and divorce Communication services

How can a residual power become a concurrent power? -

Through a referendum: changing words of the Constitution Through High Court interpretation

Restrictions by the Constitution on the law-making powers of state parliaments -

Section 109: areas of concurrent powers (sections of state law could be declared invalid if they are inconsistent with a federal law) Section 114: raising military forces (states are prohibited from this) Section 115: coining money (exclusive power by another section) Section 90: customs (exclusive by nature)

• The significance of section 109 of the Australian Constitution

Discussion questions: why it would not be relevant to an example and why would it be Section 109 - As the Commonwealth and the States can share law-making powers (i.e. concurrent powers), it is possible for them to both pass legislation on the same area. Both legislations will operate, however in practice this can lead to some State and Commonwealth laws overlapping. This overlap may cause some conflict due to the inconsistencies between them. - In event of a conflict, the Commonwealth law prevails. Section 109 of the Constitution states that in the event of a conflict, “The Commonwealth law shall prevail and the state law shall, to the extent of the inconsistency, be invalid” - Section 109 has sole purpose to help resolve conflicts and inconsistencies between state and Commonwealth laws - Section 109 can act also as a restriction on state government law-making. Any law passed in a concurrent area of law-making cannot be inconsistent with commonwealth legislation, otherwise it will be invalidated, which therefore discourages the government to propose laws and will shy away from concurrent law areas o -

o -

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Strengths: Can limit residual law-making powers Despite not being able to interfere with law making powers left to the States, Commonwealth has the ability to introduce federal legislation that contradicts with that of the States  can be in control As a result of section 109, the State parliaments will recognise that its powers are constrained where a Commonwealth law already exists Acts as a restriction on governments (state) to make appropriate legislation or else it will be deemed invalid

Weaknesses: Section 109 falters as it does not state that any inconsistent State law is automatically invalid – it must be challenged in the High Court first. This may be a weakness to the Constitution’s ability to check Parliamentary law-making as it does not explicitly restrict the states from making laws and therefore may not be the most effective measure in controlling the Parliament’s actions. State parliaments are not restricted to the full extent with conflicting legislation  only the inconsistent part is removed, and they still have their residual law-making powers

• The means by which the Australian Constitution acts as a check on parliament in lawmaking, including: – The bicameral structure of the Commonwealth parliament Parliament does not have absolute power despite being the supreme law-making body in Australia. There are various means by which the Constitution acts as a check on parliament in law-making, for example, by its bicameral structure.

The bicameral Commonwealth Parliament - It has a lower and upper house - The Constitution, under section 1 states that there must be two houses – “The senate and the House of Representatives” - Section 7 states that the Senate is composed of senators for each state chosen by the people - Section 24 requires the HOR to be composed of members chosen by the people - State parliaments, however, do not have to be bicameral, Queensland for example Checking process - The bicameral structure of the Commonwealth Parliament is designed to act as a check on parliament in its law-making role - The Senate in particular is designed to be a house of review and to ensure interes...