legal unit 4 aos 1

constitution

•a set of rules that establishes the nature, functions and limits of government. It determines the powers and duties of government.

Crown’s representative - commonwealth level

governor general

role of governor general

give royal assent

withhold royal assent

suggest amendments to legislation

role of the senate

76 senators, 6 year terms for state and 3 years for terrritory

initiating legislation

reviewing legislation

acting as a states house

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role of the house of representatives

151 members, 3 year terms

initiating most new legislation

initiating all legislation imposing taxation

representing the people in law making

role of the governor

give royal assent

suggest amendments to legislation

role of the legislative council

upper house, comprises of 40 elected members reelected every 4 years

initiating legislation

reviewing legislation

role of the legislative assembly

lower house, 88 members, 4 year terms

initiating most new legislation

initiating all legislation imposing taxation

representing the people in law making

division of law making powers

the splitting up of law-making responsibility between the Commonwealth and the states

residual powers

those law-making powers left with the states at the time of federation. The Commonwealth Parliament has no authority over to make laws in these areas

examples - police, prisons, criminal laws, education

exclusive powers

* law-making powers that are held only by the Commonwealth Parliament, and only that parliament can create laws in these areas (the states cannot create law in those areas)
* set out in section 51 of the Australian Constitution

example - currency, control of the armed forces and customs and excise duties

concurrent powers

those law-making powers that are shared by the Commonwealth and the state parliaments.

examples - taxation, banking, insurance, marriage

section 109

states that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

constitutional checks on parliament in law making

HERBS

high court interpretation

express rights

requirementt for double majority in referendums

bicameral structure

separation of powers

high court interpretation +-

the guardian of the constitution - interprets the meaning of the constitution

\+

•Judges are appointed, not elected, so can make decisions free from political pressure

•Judges are experienced and experts in Constitutional law so can bring these qualities to their decision-making

\-

•Judges are reactive and have to wait until a case is brought to them

•Judges are appointed by politicians and governments often appoint judges with leanings to wards their side of politics 

cannot change the actual words of the constitution

express rights protection +-

P property

J jury

T trade

R religion

S state

\+

•Impose effective limits on law-making powers of the Commonwealth

•Rights can be fully enforced by the High Court, the independent judicial arm

can only be removed by a referendum

\-

only changed by referendum

limited in scope

cost of igniting court case is high

requirement for a double majority +-

referendum - the process that must take place in order to amend the wording of the constitution as stated in section 128

\+

•The Constitution cannot be changed without the approval of a majority of voters

•The double majority requirement protects smaller states as each state counts equally in determining whether a majority of states (four out of six) has been achieved

\-

•The public may not fully understand the proposal

•Important changes often cannot take place due to the difficulty of achieving the double majority

bicameral structure +-

\+

allows for scrutiny of all bills by both houses

•A Senate with large numbers of cross-benchers or opposition senators will review bills very carefully 

\-

•If the Government holds a majority in both houses, the upper house is unlikely to fully scrutinise bills

•Law-making can be stalled or significant compromises may need to be made in order to pass bills. This may not reflect the will of the majority of voters

separation of powers +-

•A principle established by the Constitution to ensure there is no abuse of power by these bodies. 

\+

•Allows executive to be scrutinised by the legislature – legislature can refuse to pass legislation sought by the executive.

•Judiciary is independent of the other two arms. This is especially important in cases where the Commonwealth is a party. 

\-

there is significant overlap between the legislature and executive – ministers are in both arms. This reduces the level of scrutiny provided.

•Judges are appointed by the executive so the executive can influence the composition of the bench

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high court interpretations of the australian constitution

gives meaning to the words in the Constitution

section 7 - senate

section 24 - house of representatives

section 128

the process of changing the words in the Australian Constitution (referendum)

protecting the constitution example

1999 referendum on whether aus should become a republic

Tasmanian dam case

the tasmanian government wanted to dam the Franklin river and claimed that the Commonwealth did not have power over environmental matters. however the Commonwealth argued that it can make laws on national concerns due to external affairs power. The high court determined that the external affairs power gave the commonwealth parliament the power to fulfil aus legal obligation under the UNESCO international treaty. shifted the residual power into exclusive