Unit 4 Legal Studies Summary Notes PDF

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Unit 4 Legal Studies Summary Notes

Unit 4 AOS 1 - Key Knowledge 1 The roles of the Crown and the houses of parliament (Victorian and Commonwealth) in law-making Bicameral system ■ A bicameral parliament is one which has two chambers, a lower house and an upper house ■ Generally, bills are introduced into the Parliament through the lower house, which is where the Prime Minister sits. ■ The bill is then passed into the Upper house for further scrutiny ■ Each house has an equally important role. ■ The two houses have different roles and as such, acts to protect residents from an abuse of power of the government.

Lower House    

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The LOWER house is often referred to as the following: ‘The people’s house’ – As it reflects the current opinion of the people at election (majority votes wins, and forms gov’t) ‘House of government’ – Because it determines which party or coalition of parties will form government. Government - The political party (or coalition of parties) that achieves the highest number of elected members to the House of Representatives becomes the government of the day. House of Reps = 151 members (3 year terms), Legislative Assembly = 88 members (4 year terms)

The role of the lower house in law making- House of Representatives ■ Determine the government – The party with the most votes at elections forms government and acts as leader of the house ■ Representative government – Respond to, and uphold the views of the community and the majority who have voted them in at election ■ Control government spending – Initiate bills related to taxes and national budget ■ Responsible government – Be accountable to their voters, and answerable to parliament. – Question time in Parliament is a good example of this in action ■ Initiate and make laws – Draft and introduce legislation into parliament. Debate bills and pass to upper house. – Pass bills which have been highlighted as a matter of interest by the majority voters

The Upper House ■ The States’ House – as it represents the views of the state as each state has equal reps regardless of population – ensures a representative gov’t ■ House of review – it reviews bills passed from the lower house – ensures a responsible gov’t – upper house reviews and scrutinises bills. ■ Senate = 76 members, Legislative Council = 40 members

The role of the upper house ■ Initiate and make laws (minor role) – seen as equal to lower house(can not initiate/make money bills) ■ Representative government - Acts as a ‘State’s House’ – represents the interest of the states/regions. Provides a check on more populated states/region. States have equal representation in the senate, regardless of population. ■ Responsible Government – acts as a house of review – Acts as ‘House of Review’ – Reviews bills passed through lower house- check bills are not too radical or rushed through lower house – can insist on changes

The crown: The queen’s representative in Parliament. Role of the Crown 1. Providing royal assent to bills (once passed through upper and lower house) – this makes a bill, a law 2. Acts as head of state as the head of executive power of the Commonwealth Government– acts on advice of Prime Minister. – Minor roles here includes appointing judges, designate sitting times for parliament and dissolve house for an election 3. The Governor General has the responsibility of appointing the federal executive council made up of the prime minister and senior ministers 4. Exercising reserve power – Powers that could be exercised without the advice of the ministers (not listed in the Constitution) e.g dissolving parliament – this happened in 1975 Sir John Kerr dismissed the Whitlam Government. – Double dissolution - A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks in the bicameral Parliament of Australia between the House of Representatives (lower house) and the Senate (upper house). A double dissolution is the only circumstance in which the entire Senate can be dissolved – http://www.smh.com.au/federal-politics/federal-election-2016/doubledissolution-election-what-is-it-and-why-did-malcolm-turnbull-call-one-20160421gobuah.html Note: at a state level, the Governor can not disapprove a bill for assent, the governor general at a Cth level can, however.

When were the two houses decided? ■ In drafting the Constitution, the bicameral system was enshrined in law through various sections. ■ S7 states that: Part II – The Senate The Senate The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. ■ Section 24 states that: Part III – The House of Representatives Constitution of House of Representatives

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. Commonwealth and state parliament (a brief intro…) Commonwealth parliament: – passes laws relating to the whole of Australia. ■ These include immigration, currency, defence and citizenship. – These powers are referred to as exclusive powers under the constitution – can’t be made by the states State parliament: – Passes laws related to the states ■ These include health, education, roads etc – These powers are referred to as residual powers under the constitution – cant be made by the commonwealth Shared powers: – State and Commonwealth parliament do have some shared lawmaking powers – Listed un s51 of the constitution and referred to as concurrent powers ■ These include marriage – S109 of the Constitution however, states that on matters where there is an inconsistency between state and commonwealth law, in areas of concurrent power, commonwealth law prevails to the extent of the inconsistency The main functions of parliament 1. To make laws on behalf of the people for the good government of our society 2. To provide for the formation of government 3. To provide a forum for popular representation and debate 4. To scrutinise the actions of government 5. To delegate some of its law making powers (subordinate authorities) 6. To balance the books – revenue and expenditure

Key Knowledge 2 - the division of constitutional law-making powers of the state and Commonwealth parliaments, including exclusive, concurrent and residual powers Key knowledge 3: the significance of section 109 of the Australian Constitution Key Knowledge 7: the significance of one High Court case which has had an impact on the division of constitutional law-making powers

The division of law-making

Most of the law-making powers of the Commonwealth Parliament are set out in Section 51 of the Australian Constitution, and are referred to as ‘heads of power’. These key powers of the Commonwealth are either exclusive powers or concurrent powers.

Exclusive powers An exclusive power is a power which can only be exercised (that is, exclusively or solely) by the Commonwealth Parliament. This means that only the Commonwealth Parliament can make laws in these areas. Examples of exclusive powers include: • defence (i.e. the Australian Defence Force including army, navy and air force) • currency (i.e. printing and coining money) • customs and border protection (i.e. immigration, controls on imports and exports, and border security). Some powers that are held by the Commonwealth are made exclusive by other sections of the Constitution. For example, Section 51(xii) gives power to the Commonwealth Parliament to make laws relating to coining money and Section 115 provides that a state shall not coin money, thereby making this an exclusive power of the Commonwealth.

Concurrent powers Concurrent powers are law-making powers that both the Commonwealth and the state parliaments share. Many of the powers given to the Commonwealth Parliament in the Australian Constitution are concurrent powers. In fact, all those powers that are not exclusive to the Commonwealth Parliament are concurrent powers. Examples of concurrent powers include: • trade – Both the Commonwealth and the states can make law with regard to trade. Under the Constitution, no unreasonable limitations can be made by any parliament, Commonwealth or state, on freedom of trade between states. • taxation – The power to make laws about taxation is given to the Commonwealth Parliament but state parliaments can also make laws about taxes. Commonwealth taxes include income tax and GST (goods and services tax). State taxes include stamp duty and payroll tax. • marriage and divorce – Both the Commonwealth Parliament and state parliaments have the power to make laws on marriage and divorce. • postal, telegraphic, telephonic and similar services – communication services may be legislated upon by both the Commonwealth and the state parliaments.

Residual Powers Residual powers are areas of law making that can be exercised/made by STATE parliaments ONLY. •

Areas of law making left to the states at time of Federation.

•

Law making powers NOT stated/written in the Constitution.

Examples: -

Law enforcement

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Education

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Public transport

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Health

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Criminal law

Section 109 of the Constitution – The Inconsistency Clause • It is possible for both state and commonwealth Parliaments to legislate in an area and for these two laws to be in conflict / contradict one another. • The constitution recognises this and gives ultimate power to Commonwealth Parliament. • This is known as s109 – the inconsistency clause:

“in areas of concurrent power, when a law of the state is inconsistent with the law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid” Under Section 109 of the Australian Constitution, if there is a conflict between state and Commonwealth laws, the Commonwealth law will prevail, to the extent of the inconsistency between the two pieces of legislation. •

S109 is significant because it: •

Gives Australians protection by having a body who has authority over parliament in law making – the High Court

•

Gives Australians a mechanism to resolve disputes, by allowing those with standing a body to hear such matters and make final decisions.

•

Ensures that there are checks on states.

Significant when

Why

Not significant when

Why

A matter is challenged/ taken to court by someone with standing., whose rights have been infringed.

The high court have the power to make the law invalid/unconstitutional by its interpretation – protects people against discriminatory or invalid state law

Ordinary people need to make challenges Difficult, time consuming and costly process

This challenge may not occur, due to time and cost factors involved with taking a matter to the high court. Further, people need to know the law/rights is invalid to take up the challenge.

States may avoid making contradictory laws which affect rights of the people

In passing laws, states area aware of the inconsistency clause and as such, will withhold from making discriminatory laws that will likely be challenged.

Does not restrict states from making/changing whole laws

In many instances, s109 will not come into affect and will not challenge whole laws (only sections will be deemed invalid). States still have power in residual and non contradictory current powers.

Poses a consistent approach to the way inconsistencies between state and cth laws will be dealt with

Wording of the Constitution states that Cth law will always prevail.

If the Cth law is abrogated/ changed at a later date, the state law will continue to be in existence.

Challenge only valid when both laws are in operation.

Case – McBain v The State of Victoria – highlights Section 109 The relevance of this case is to demonstrate how s109 is able to operate in a High Court case. S109- significant when concurrent powers (powers shared by state and Commonwealth) are inconsistent Issue

The courts needed to decide if there was an inconsistency between state IVF laws and Cth Sex discrimination laws for Leesa Meldrum

What was the problem that needed addressing?

Facts

Leesa was a single woman who wanted IVF. S8 of the IVF Act (Vic) stated that only a married woman (marital status) could access IVF services. In contrast, Section 22 of the Sex Discrimination Act (Cth) states that it is unlawful for a person to refuse services to a person based on their marital status. Relevant law - Section 109 state and cth law inconsistency in areas of concurrent powers.

Decision What did the court decide?

Justice Sundberg, in the High Court, found in favour of Dr McBain and stated that fertility treatments such as IVF are ‘services provided by medical practitioners’, within the meaning of section 22 of the Sex Discrimination Act. Section 8 of the IVF Act (Vic) was as such deemed invalid.

Impact On: The individual: The law:

Leesa was allowed IVF. The IVF Act was amended, no longer discrimination for single women accessing IVF services. S8 was struck out.

Significanc e of s109

In this case Section 109 ensured that Cth and State laws were not inconsistent. It also ensured that Cth law superseded State legislation.

Case - R v Brislan (1935) – highlights a change in the division of powers from residual to concurrent • The Cth Parliament passed the Wireless Telegraphic Act 1905 ( Cth) requiring owners of wireless sets (Radios) to hold a license. • Section 51(v) of the Constitution gives the Commonwealth parliament the power to make laws about ‘postal, telegraphic and other like services’. • The defendant (officer of the Postmaster Generals Department – ‘Brislan’) was charged under the CTH LAW for not holding a license. Issue: • High Court had to interpret whether the Cth were ‘ultra vires’ (beyond their constitutional powers) to make a law regarding telegraphic services which Brislan was charged under. • The defendant took the matter to the High Court on appeal – to challenge the validity of the cth Wireless Telegraphy Act (CTH) 1905. • The defendant argued that broadcasting to a wireless set (radio) does not fit within the definition under s51(v). Wireless set was not mentioned in the constitution under this section. • Hence, he argued that they were legislating in an area of residual power Decision: • The High Court interpreted the term ‘...other like services’ in section 51(v) to include broadcasting and wireless sets. • The High Court focused on the function... as each of the categories listed in s51(v) relate to communication services.

• It was also said that if any new forms of communication should be discovered they too might be subject to legislation as ‘... other like services’. Impact on division of powers The law making powers of the Commonwealth Parliament were therefore extended to make laws in matters regarding postal, telegraphic, telephonic and other like services to now include broadcasting to wireless sets. The Commonwealth had moved to an area that was previously a residual power – now concurrent.

Positive/ significant because… • Power was increased to the Cth into areas previously residual. • Cth gained significant power in areas of electronic technology (also under ‘other like services’) more recently. • For example the Interactive Gambling Act 2011 (Cth) which regulates ads for gabling on tv would not have been passed by the Cth, leaving this in the hands of each state. Negative/ insignificant because… • Problematic because it means that the Cth are continuing to centralise and gain power over the state. Many argue this is taking away autonomy from the states, the purpose of residual powers in the first place.

Key knowledge 4: the means by which the Australian Constitution acts as a check on parliament in law-making, including:  – the bicameral structure of the Commonwealth parliament  – the separation of the legislative, executive and judicial powers  – the express protection of rights  – the role of the High Court in interpreting the Australian Constitution  – the requirement for a double majority in a referendum Check on parliament in law making – Check that the laws are what they “are supposed to be” meaning:  representative of the people “for the people, by the people’ (re: checks bicameral system separation of powers)  Fair  Represent community values  Responsible laws – government are held accountable and answerable – can justify why they are necessary.  Within our rights (re: checks of the high court and express rights)  Not made from an abuse of power of government. (re: high court, separation of powers, express rights, double majority)  Free of problems and errors (re: bicameral system) These 5 checks, make sure they are what they are ‘supposed to be’. Bicameral structure of the Commonwealth Parliament as a check on Parliament in law making 1. Explain/define relevant check

Two houses of parliament (bicameral system) checks that laws are appropriate by having them be debated twice, by various parties, until they meet the needs and reflect community values – and that the government are not abusing their law making powers. Both houses have different lawing roles, which further check law making. Lower house (House of reps – cth; and Legislative assembly – State) – known as the ‘peoples house’ Upper house (Senate – Cth; legislative council – State) – known as the ‘house of review’ and the ‘states house’.

2. Explain the ‘checking’ process involved in this type of check on parliament

Upper house house of review Review and scrutinize bills passed from the lower house – actual checks to ensure they have no errors and are not only based on the governments agenda (minorities parties often hold the balance of power) – Hostile senate. states house Equal representation by each state. This ensures that every state – and its people – are accounted for in any proposed laws. Check on states views, interests and beliefs.

Lower house peoples house/government house More likely to pass through without review into the upper house due to majority. Scrutinization, review and accountability by different representatives in each house and acts as a main check on law making by Parliament. Second reading stage is of significance as this allows all members of Parliament to debate and question bills – in question time. Upper house usually has more power to act as a check, given that the government does not need a majority here and as such, minority parties who hold the balance of power (final say to pass bills) create an upper house controlled by the opposition and will ensure the bill is scrutinized to its fullest potential – Referred to as a Hostile Upper house. Main role as a ‘house of review; is generally upheld in a ‘hostile upper house’. Rubber stamp – where government does hold majority in the upper house – may mean however, that this ‘check’ does not exist. Bills will pass easily, and without scrutinization from smaller parties – government agenda is always accepted and rarely questioned. The people and the checking process: · Bicameral structure also acts as a check on law making of parliament as ‘the people’ must elect the representatives and therefore, Parliament must be responsible and representative of them. · This also acts as a check because political parties may be voted out if they are not acting in the best interest of the people (check on their policy and law making). · Lower house known as ‘the people house’ Equal states representative and the people: · Bicameral structure also acts as a ‘check’ on law making as each sta...