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UNIT 4: THE PEOPLE AND THE CONSTITUTION Definitions: The Australian Constitution: a set of rules and principles that guide the way Australia is governed. The Australian Constitution was passed by the British Parliament and its formal title is Commonwealth of Australia Constitution Act 1900 (UK). Bicameral parliament: a parliament with two houses. In the Australian Commonwealth Parliament, the two houses are called the Senate (the upper house) and the House of Representatives (the lower house). In Victorian Parliament the two houses are the Legislative Council (the upper house) and the Legislative Assembly (the lower house). Constitutional Monarchy: a system of government in which a monarch (i.e. Queen Elizabeth II) is the head of state and a parliament makes the laws under the terms of a constitution. Representative Democracy: a system of government in which all eligible citizens vote to elect people who will represent them in parliament, make laws and govern on their behalf. The Westminster System: a parliament system of government that developed in Britain and upon which Australia’s parliamentary system is modelled. Federation of Australia: the union of sovereign states that gave up some of their powers to a central authority to form Australia. Parliament: a formal assembly of representatives of the people that is elected by the people and gathers together to make laws. Government: the ruling authority with the power to govern, formed by the political party that holds the majority in the lower house in each parliament. The members of parliament who belong to this party form the government. Royal Assent: the formal signing and approval of a bill by the Governor-General (at Commonwealth level) or the Governor (at state level) after which the bill becomes an Act of Parliament. Rule of law: the principle that everyone in society is bound by law and must obey the law. The rule of law also states that laws should be fair and clear, so people are willing and able to obey them.

Background Information: The Commonwealth Parliament operates under the Westminster system, meaning that parliament is bicameral (composed of two houses; upper and lower), and the monarch is the head of state and part of the parliament. Australia is a constitutional monarchy, meaning it has a monarch as the head of state and a constitution that establishes the parliamentary system and provides the legal framework for making laws. Australia is also a representative democracy, which is a system in which the people vote to elect representatives to the parliaments and to make the laws and govern on their behalf.

UNIT 4: THE PEOPLE AND THE CONSTITUTION Introduction to the Constitution A constitution is a set of rules that establishes the nature, functions, and limits of government. The role of the constitution is to determine the powers and duties of the government. Does not contain a Bill of Rights that lists the most important rights given to the citizens of the country. Australia has a formal written constitution (Commonwealth of Australia Constitution Act 1900 (UK)). Came into force on the 1st of January 1901 (Federation). Features of the Constitution:     

Establishes Commonwealth Parliament and outlines its structure, including how the two houses are to be composed. Establishes the High Court of Australia and gives it powers to interpret the Constitution. Sets out matters relating to the states (expressly provides that state laws will continue in force in the state which made them unless they are altered or repealed). Facilitates the division of law-making powers (sets out what law-making powers are to be held by the c-wealth parliament). Provides a mechanism by which the constitution can be changed (referendum)

Stages of a bill through parliament INTRODUCTION & FIRST READING Bill introduced to the house and the title is read out. SECOND READING The Bill's purpose is explained, debated and voted on. COMMITTEE/CONSIDERATION IN DETAIL STAGE Bill is considered in detail, clause by clause, amendments most likely to occur during this stage. THIRD READING Bill voted on in it's final form. BILL PASSES FIRST HOUSE SAME PROCEDURE ROYAL ASSENT The Queen's representatives (GG at Federal, or G at state) signs and approves bill before becomes law. PROCLAMATION The Act comes into operation. BILL BECOMES AN ACT OF PARLIAMENT (LAW).

UNIT 4: THE PEOPLE AND THE CONSTITUTION The Role of the Parliament in law-making: The main role of the parliament is to make laws. A Bill is a proposed law which must go through specific stages to become statute (Act of Parliament). Majority vote required.

The Queen (The Head of State)

House of Representatives (lower house)

Senate (upper house)

Commonwealth Parliament

Commonwealth Parliament: The House of Representatives Lower house – ‘the peoples’ house’ or ‘house of government’       

150 members Each member represents an electoral division 3 year term The political party or coalition that achieves the majority of elected members to the House of Reps becomes government. Leader becomes PM - appoints gov ministers. Party with next highest number of elected members becomes opposition. Shadow minister usually appointed for every minister. Role is to check on minister’s activities and responsibilities. Reflects the current opinion of the people at election, because it determines which party or coalition of parties should form government.

Roles of House of Reps in law-making

Initiate & make laws (passing bills through parliament & gaining RA)

Determine the government (party with most members. Opp to generate large majority of law reform that enters parl.

Provide responsible government (ministers resp to parl & therefore to the people. Examined by opposition about law reform during q-time, deficiencies can be exposed)

Represent the people (forms rep gov as members are elected from each division & must act on behalf of people. Reflect V&V of community.

Act as house of review (review bills passed by upper in process)

Control Government Expenditures (money bill passed through both houses before gov able to collect taxes/spend money)

UNIT 4: THE PEOPLE AND THE CONSTITUTION

Commonwealth Parliament: The Senate The State’s house, ‘rubber stamp’, house of review.   

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76 members Each state elects 12 representatives regardless of the population of the state. Each territory elects two. Elected by proportional representation, where candidates are elected by obtaining a predetermined proportion or quota of the total votes. Once quota is met, any excess votes given to the next candidate in order of voter’s preference. 6 year term. Half-election every three years.

Role in law-making Main role is to make laws. Equal to the lower house, can initiate bills. However, cannot initiate money bills, nor can it amend money bills, can request that the House of Reps does. Debate proposed laws and has a large & active committee system that enables senators to inquire into policy issues in depth & to scrutinise bills become they become law.

Roles of the Senate in law-making

Act as house of review Review bills passed by the lower house. Ensures only appropriate bills are passed.

Victorian Parliament

Act as a states' house s7 of AC = senate should have equal rep regardless of state size/population. Represents interests of states in law-making.

Scruntise bills using committee process Role of committees is to access legislative proposals to determine the effect on individual rights, freedoms, obligations and the rule of law.

Initiate and pass bills Able to introduce bills (not money) or pass bills previously passed by the House of Reps. Can pass w/ or w/o amendment. Able to insist changes become becomes law.

UNIT 4: THE PEOPLE AND THE CONSTITUTION Parliament of Victoria – bicameral parliament.   

Queen 1 Upper House 40 Lower House 88

Governor of Victoria Initiate and pass bills

Legislative Council Legislative Assembly control gov expenditure.

The Legislative Assembly    

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State elections – Victoria divided into 88 districts. One member elected from each. 4 year term. Political party that holds the majority of seats becomes government. Leader = Premier. Leader of opposition will appoint shadow ministers – keep check on the activities and responsibilities corresponding gov. minister. Must represent interests of the people, uphold their v&v, if not, risk of outvoting.

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40 members Victoria divided into 8 regions each consisting of 11 districts. 5 members of the LC are elected for each region. 4 year term. Election uses proportional representation system like Senate Primary role – act as a house of review.

provide representative government

act as a house of review

Act as a house of review

The Legislative Council  

form government

Role of LA the in lawmaking

Role of the LC in law making Examine bills through committees

The Role of the Crown in Law-making  

One Governor General – Federal Six Governors – State

Governor General appointed by the Queen on advice of the PM. Governor appointed by Queen on advice of Premier of each state. Main responsibility – ensure that the democratic system operates effectively. Requires an effective electoral system, parliament, government and courts. Also, essential that majority of people are confident that their community functions as a democracy. Three main roles in law-making:   

Granting Royal Assent Withholding Royal Assent Appointing Executive Council

Granting RA: Crown’s Rep, in both state and federal parliaments, is required to approve bills before they become law.

Initiate and pass bills

UNIT 4: THE PEOPLE AND THE CONSTITUTION Royal Assent is usually given on the advice of the PM or ministers at Commonwealth level, and on the advice of the Premier or ministers at state level. Withholding Royal Assent: Crown’s rep has the power to withhold RA (refuse bill, preventing it from becoming an Act of Parliament). However, this rarely occurs and will usually approve bills. At Federal level, the AC specifies the circumstances in which the GG can withhold RA. Appointing the Executive Council: GG or G has the responsibility of appointing the Executive Council. Comprises the leader of the government (PM or P) as well as senior ministers. Role of the EC is to give advice on government matters and approve secondary legislation (delegated/subordinate). Secondary Legislation: rules & regulations made by government bodies, such as gov. departments or statutory authorities. For example, VicRoads makes laws relating to driving and roads.

The Division of Constitutional Law-making Powers Think REC, divide = split amongst groups. Law-making powers are powers or authority given to parliament to create legislation in certain areas. Those powers are exercisable by the parliament, which is the supreme law-making body. Background info:  

Creation of Commonwealth Parliament required the AC to specify the way law-making powers were to be shared amongst the states and the c-wealth after Federation. Agreed on areas exclusive to Commonwealth Parliament. Agreed on areas that also reside with the states.

Residual Powers: those law-making powers left with the states at the time of federation. The Commonwealth Parliament has no legislative authority over these areas.   

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Left with the states at time of federation. Not listed in the AC S106, 107 & 108 protect the continuing power of the states to create law in areas not given to c-wealth. Criminal law, road laws, education, public transport, healthcare etc are not mentioned in the AC, hence residual.

Exclusive Powers: law-making powers that are held only by the Commonwealth Parliament, and only that parliament has legislative authority over those areas. The states cannot create law regarding these areas. 

Law-making powers of the Commonwealth are set out under Section 51 of the AC

UNIT 4: THE PEOPLE AND THE CONSTITUTION 

Currency, customs, external affairs, naturalisation, migration, defence, railways etc.

Concurrent Powers: law-making powers that are shared by the Commonwealth and the state parliaments.  

Trade, taxation, marriage and divorce, postal, telephonic, telegraphic and other like services, ALL CONCURRENT. I.e. – power to make laws about taxation is given to the Commonwealth but the states can also make laws about taxes. C-wealth taxes include income tax and GST, State taxes include stamp duty & payroll tax.

When inconsistencies arise over laws made by states & the Commonwealth regarding concurrent powers. Section 109 of the Australian Constitution – designed to help resolve conflicts and inconsistencies between state and Commonwealth laws. 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, and the state law provisions inconsistent shall be deemed invalid.

UNIT 4: THE PEOPLE AND THE CONSTITUTION Example Case: McBain v Victoria (2000)  Infertility Treatment Act passed by Victorian Parliament to establish the Victorian Infertility Treatment Authority and the in-vitro fertilisation (IVF) program.  Assists infertile couples to have children via donor ova/sperm.  Section 8 of Infertility Treatment Act stated that a women, in order to receive treatment, must be: - Married and living with her husband on a genuine domestic basis, or - Living with a man in a de facto relationship.  Access to the program could be denied if requirements were not met.  However, s22 of the Sex Discrimination Act 1984 (Cth) – unlawful for a person to refuse to provide a service to a person on the grounds of the latter’s marital status.  Under this Act – unlawful to refuse IVF service on the grounds of marital status.  Offence to treat a woman who was unmarried or not in a de facto relationship.  On the basis of s109 of AC – the Commonwealth Law (Sex Discrimination Act) prevailed.  Discriminatory section of the Victorian law was deemed invalid.  Effect- no longer could deny IVF treatment based on marital status. Allowed singles & LGBT people to receive such treatment.

Significance of Section 109  

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Acts as a restriction on state parliaments (cannot be inconsistent with the law of the Commonwealth and constrains powers where c-wealth law exists). However, s109 does not automatically come into operation, rather the state passes a law inconsistent with the Commonwealth law and it must be challenged in court to be declared invalid. The court will need to determine whether the laws are inconsistent and to what extent. Second, if at some time in the future the Commonwealth law is abrogated or changed, and the state law continues to be in existence, then the state law will be in force and have effect. That is, the state law will have no practical effect only for so long as the Commonwealth law remains in force. Section 109 is also significant because it imposes a consistent approach to the way inconsistencies between state and Commonwealth laws will be dealt with. That is, there is no doubt that the Commonwealth law will prevail. CHECK ON STATES.

UNIT 4: THE PEOPLE AND THE CONSTITUTION Although parliament is the supreme law-making body in Australia, does NOT have absolute power. AC prevents this by acting as a check on parliament when it comes to law-making. Five key means by which the AC acts as a check on parliament in law-making:     

Bicameral structure of Commonwealth parliament Separation of powers J(E+L) The express protection of rights The role of the High Court in interpreting the AC. The requirement for a double majority in referendums.

The Bicameral Structure of the Commonwealth.

Commonwealth Parliament is bicameral- has upper and a lower house. Specified under s1 of AC. Other provisions of the AC establish how the House of Reps & Senate are to be composed;  

Section 7 - requires the Senate to be composed of senators for each state, which are to be directly chosen by the people for a term of six years. Section 24 - requires the House of Representatives to be composed of members directly chosen by the people.

Does not require state parliaments to be bicameral (QLD- upper house 1922). Checking Process 

Designed to act as a check on parliament’s law-making role. Senate acts as a ‘house of review’ & ‘states’ house’. - Most bills introduced in the lower house, Senate will review these proposed laws. -

Should vote based on values of political party AND interests in their state. Hence, broad range of views considered before Bill passes Senate. Also means that legislation that only benefits one state over others will be quickly rejected.

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However, if only vote on behalf of political party – ‘rubber stamp’ if gov. holds majority in upper & lower. Means that the house only confirms the decisions made by lower and not considering the broader effects of the bill.

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May affect checks and balances designed to protect against misuse of power if upper is simply ‘ticking the box’ when voting on legislation. Can lead to voter backlash.

Strengths of bicameral parliament:

UNIT 4: THE PEOPLE AND THE CONSTITUTION   

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Allows for a review of legislation by second house (errors & omissions identified, this scrutiny allows to check on abuse of power). If gov. holds slim majority, allows for considerable debate in lower house, ensuring that bills truly reflect the V&V of Australian communities. Hostile Senate – gov. doesn’t control Senate and/or large number of minorities/independents, more likely to review bills passed through lower house more carefully, increasing the effectiveness of the checks. Required – specifically stated in AC, cannot pass legislation to abolish either house. Only referendums can.

Weaknesses:   

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If gov. holds majority in lower, debate & negotiations unlikely to occur, decreases checks. Where gov controls upper house – ‘rubber stamp’. Confirming the decisions made in the lower house dilutes the checks the upper house has. Increase in minor parties/independents in Senate does ensure robust debate and views, but could stall law-making or lead to ineffective laws (laws with substantial amendments) to satisfy these parties. No constitutional requirement for the states. Laws will only generally be passed if the Federal Government supports it. (gov. holds majority, similar views). Can dilute the checks on law-making, means that laws are supported by the majority, but not in line with party policies/views, are unlikely to pass.

The Separation of Executive, Legislative and Judicial Powers. Separation of Powers: a doctrine established by the Australian Constitution that ensures the three powers of our parliamentary system (i.e. executive power, legislative power and judicial power) remain separate. This principle provides a set of checks and balances to ensure that no single body has the power to make, implement, apply and interpret the law.  

Established by the AC, required at Federal level for all three powers to be independent of each other. Purpose – ensures that no one body has absolute control over the functions of the political and legal systems. Core principle of the rule of law.

Executive Power – the power to administer the law and manage the business of government.    

Vested in GG under chapter 11 of AC. S61 states that the exe...