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Unit 4 - The Constitution (Roles of the houses and the crown (The Crown…
Unit 4 - The Constitution
Roles of the houses and the crown
House of Representatives
Lower house of the Federal Parliament, 150 members
Roles
- determine government, initiate bills, represent the people of their electorate
Senate
Upper house of Federal Parliament, 76 members
Roles
- act as a house of review, initiate bills, represent the people of their state/territory
Legislative Assembly
Lower house of Victorian Parliament, 88 members
Roles
- determine government, initiate bills, act as a house of review
Legislative Council
Upper house of Victorian Parliament, 40 members
Roles
- act as a house of review, initiate bills, represent the people of their district
The Crown
Represents the British monarch, Governor General (Federal), Governor (State)
Roles
- grant/withhold royal assent and appoint executive council
Reserve powers
- exercisable without the approval of the government, include appointing or dismissing a government
Division of powers
Residual powers
Law making powers only of the states e.g. education, public transport
Exclusive powers
Law making powers only of the Cth e.g. defence, immigration
Concurrent powers
Law making powers shared by the Cth and the states e.g. postal and taxation
Section 109
Deals with inconsistencies that arise due to conflicts between Cth and state law, limits state law but does not stop them from passing it
"When the law of a state is inconsistent with the law of the Cth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid"
Constitutional checks on Parliament
Bicameral system
The Senate is the only body the prevents one party controlling both houses, is a house of review, equal representation of states and territories
Strengths
Laws are scrutinised
more carefully
A house can
investigate government for misconduct
Laws represent a
cross section of parties
if Senate does not hold a majority
Weaknesses
Can be
hard to pass laws
Becomes a
rubber stamp
if Senate is a majority
Separation of powers
Legislature
- power to make laws, vested in the Parliament
Executive
- power to administer laws, vested in the PM and ministers
Judicial
- power to enforce laws/settle disputes, vested in the courts
Why
- each branch can ensure the other does not abuse their power, ensures independence of judges
Seperate?
- judicial is very seperate, executive and legislature overlap
Strengths
Ensures
power isn't abused
Courts are
clearly independent
Weaknesses
Senate may obstruct laws
Legislative and executive
aren't very seperate
, limiting checks and balances
Express rights
Rights that are enumerated in the Constitution and can only be removed by a successful referendum e.g. Trial by jury (80), No discrimination based on state of residence (117)
Prohibits the Parliament from exercising law making powers in particular areas
Strengths
Limit the ability of Parliament to infringe
on certain rights
Entrenched
, require a referendum to change
People
can take a case to court
if they believe their rights have been infringed
Weaknesses
Only 5
, dont cover major human rights
Difficult to add or remove rights
, requires a referendum
Need to be willing to take on
cost/time of going to court
High Court interpretations
Role
Guardian of the Constitution
- stops state and federal Parliament from exceeding their power, power to declare laws ultra vires
Interpreter of the Constitution
- final authority on the meaning of the Constitution, power to resolve contradictions by determining meaning of the words
R v Brislan (1935)
- expanded the meaning of the phrase, expanded Cth power to legislate in the area at the expense of the states, now a concurrent power where Cth law will prevail
Strengths
Independent
of government
Are
experts
in the law
Can
enforce the rights of people
against the Constitution if there is a contradiction
Weaknesses
Expensive and time consuming
to bring a case
Can only declare a law invalid
if a case is brought
Cannot change the words of the constitution
, only give them meaning
Double majority requirements
A vote must satisfy both a majority of votes and a majority of voters in a majority of states (4/6)
Protects smaller states and allows them to have an equal voice
Purpose
- Ensures that amendments to the Constitution are not just left to the Parliament so they cannot just change for their political interests
Strengths
Protects smaller states
and ensures they have an equal voice
A strict provision, amendments
require a strong support
Lengthy process
, allows for voters to become informed
Weaknesses
Timely and costly
especially if they fail
Difficult to achieve, only 8/44 have been successful
Outcome could be undemocratic
if technically a majority of voters wanted the change
High Court
Established under Section 71/72, original jurisdiction in Section 76
Jurisdiction
Original
- where the Cth is a party, between two states,
matters arising from the Constitution
, involving Cth laws
Appeallate
- matters heard by a single hough court justice, matters heard by Federal court of Supreme Court
Referendums
A proposal for a change to the wording of the constitution that is put to a compulsory public vote
Section 128 outlines the process of a referendum
Purpose
- allows for the constitution to keep up to date with changing views and values, acts as a limitation on the powers of Parliament as it can only be changed this way
1967 race power referendum
- increased Cth powers, residual powers became concurrent where Cth prevails
Implied rights
A right that is not clearly set out rather suggested by the words of the Constitution and have been found through High Court interpretations
Section 7 and 24
- both houses of Cth parliament shall be "directly chosen by the people"
Australian Capital Television case (1992)
- High Court found the Act invalid upholding S7 and 24, in order to achieve a representative government people must have the right to freedom of political communication therefore these sections have this implied right
External affairs power
Section 51 (29)
- Power to make laws... with respect to... external affairs
Impact of declarations and treaties
Treaties are binding while declarations are not
Only Cth can implement these into law
If a treaty is passed into law, Cth can legislate in that area even if it is a residual are of power making it concurrent if it is of international concern and a bona fide treaty
Treaties have significantly widened the external affairs power
The Cth v Tasmania (1983)
- High Court upheld Cth law, if it is an international treaty it must automatically be of international concern, as long as it is bona fide, Cth given power to legislate on in any residual area of power if it is bona fide, increases Cth power at the expense of the states