Legal Studies Revision Notes: Australian Constitution, Parliament & Government PDF

Legal Studies Revision Notes Governance - System or method of governing - How a government body is managed or controlled - Constitution Act 1901 -- Establishing legal and governance frameworks + outlines separation of powers doctrine. - Australia is a representative government -- me...

Legal Studies Revision Notes Governance - System or method of governing - How a government body is managed or controlled - Constitution Act 1901 -- Establishing legal and governance frameworks + outlines separation of powers doctrine. - Australia is a representative government -- members are voted by the public to represent them in parliament. The Constitution - Powers, responsibilities, and roles of the governing body - Local, state and federal levels - Includes high court - Constitution of Queensland 2001 - Set of basic rules by which a country or state is governed, - 8 chapters and 128 sections (Structure and powers) - Establishing a bicameral parliament and defining responsibilities of federal government - Bicameral Parliament -- legislature, assembly or parliament (House of representatives and Senate) - Legislature: Parliament with the power to change, make and amend laws - Executive: Prime minister and ministers lead and manage government departments, and responsible for putting policies and laws into action. - Judiciary: High court and other federal courts making judgements about laws. - First 3 chapters of the Constitution define the powers and responsibilities of each arm of government. - Chapter 1 -- Parliament (s1-60) - Chapter 2 -- Executive (s61-70) - Chapter 3 -- Judicature (s71-80) - All 3 arms be separated ensuring no individual body has complete control. - Australia does not have a complete separation of powers (Some roles overlap, e.g Prime minister and Cabinet ministers) Key Sections of the Constitution - Section 44 -- Disqualification - Prohibits people with dual citizenship from serving in parliament - Section 51 -- Legislative powers of parliament - Sets out the powers to make laws for the peace, order and good government of the Commonwealth - Section 109 -- Inconsistency of laws - Inconsistencies that arise between the laws of the Commonwealth and those of the states. - States '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' - Section 128 -- Mode of altering the Constitution - The Constitution can only be altered by a referendum, which has majority support among electors in a majority of states. Section 128: Mode of altering the Constitution - Constitution can only be altered by a referendum. - Prior to the referendum, the alteration must receive absolute majority support from Parliament. - To be successful: - Majority of voters in a majority of states and a majority of voters across the whole country as a whole vote 'yes', the proposal to alter has been agreed to. - Since 1901, there have been 19 referendums, proposing 44 changes (Only 8 have been successful) Referenda - Involves several hurdles and legal challenges which must be overcome before the change can be made. - Challenges: 1. Change must be approved by both houses of federal parliament with an absolute majority (Best chance is it has bipartisan support, e.g both parties agreeing and cooperating on the policy) 2. Must pass with double majority (Most have failed previously) 3. How the referenda has been presented to voters 4. Additionally -- how the voting public perceives the motivation behind the referendum. Single Majority - Refers to more than half of the members present and voting in either the H.O.R or the Senate. - E.g if a bill is being voted on in the H.O.R It needs more than half of the voters from the members present to pass. - Whereas double majority requires both a national majority and a majority in a majority of states. Double Majority - Specifically used for constitutional change - Requires both a national majority and a majority in a majority of states. - To be approved: 1. National majority of voters from all states and territories. 2. A majority of voters in a majority of states (at least four out of the six states) - Ensures any constitutional change has widespread support across the country, not just in the more populous states. - Context of Use: - Single majority is used for regular legislative processes in parliament, whilst double majority is used for constitutional changes. Bicameral System - Australia has a bicameral system - Legislative branch is split into two chambers or houses - House of representatives and Senate - House of representatives -- Lower house, where a proposed bill must first pass through. - Senate -- Upper house, has same lawmaking powers as the H.O.R (Can reject bills from the H.O.R) - If the senate rejects a bill from the HOR, the GG may dissolve both houses - Senate used proportional voting, where its difficult to obtain majority of a certain party in the senate - Senate = House of Review Advantages and Disadvantages of Bicameral System +-----------------------------------+-----------------------------------+ | Advantages | Disadvantages | +===================================+===================================+ | - Provides checks and balances | - Senate and HOR are ruled by | | on usage of government | one party | | lawmaking powers | | | | - Laws that represent the | | - Keeps government responsible | interest of the party may | | and accountable | pass through easily. | | | | | | - System of checks and balances | | | is not effective in this | | | case. | +-----------------------------------+-----------------------------------+ | - Goes through debate and | - Hostile or hung governments | | discussion, thus, laws that | can make it difficult for | | are passed are likely to be | laws to pass. | | representative of the | | | people's opinions | | +-----------------------------------+-----------------------------------+ | - Second chamber may fix up any | - Time consuming, particularly | | errors missed by the first | passing law in times of | | chamber | emergency | +-----------------------------------+-----------------------------------+ Unicameral system - Queensland is the only state with a unicameral parliament (Upper house was abolished in 1922) - Laws are passed more easily. - Can lead to passing laws that are not representative of the state - Laws are not effective and only benefit the interests of one group Unicameral Vs Bicameral Unicameral Bicameral -------------------------------------------------------------------------- --------------------------------------------------------------- Queensland State Parliament Federal Parliament One house of Parliament Two houses of parliament Quick decision making Setbacks in decision making Less representation of people in society High probability of dreadlocks Could be a one-sided law benefiting the dominant parties' self-interests More members; therefore, better representation More debate and discussion allowing for a well-considered Act Specialist Courts - Federal specialist courts - Federal Court of Australia -- civil matters under federal law e.g bankruptcy - Family Court of Australia -- matters regarding family disputes - Federal Circuit Courts of Australia -- federal magistrate's court - Administrative Appeals Tribunal -- conducts independent review of administrative decisions - Queensland specialist courts - Children's Court -- criminal cases of matters involving children due to sensitive nature of cases of child protection some adoption cases - Murri Court -- Aboriginal and TSIP, to prevent reoffending by addressing underlying issues - Queensland Civil and Administrative Tribunal -- hears and mediates civil disputes Role of the High Court of Australia - Highest court in the Judicial system - Established in 1901 under section 71 - To interpret the Constitution - Main role: - Hear trials of special federal significance including - Challenges to constitutional validity of law - Cases involving international law - Hearing appeals form the other courts where there is a significant public interest - Minor role: - Creation of law in Australia **Main Role of the High Court** - **Interprets the Constitution** to ensure laws follow it. - **Clarifies meaning** of the Constitution, especially when it\'s unclear. - **Judicial review**: Can strike down laws exceeding Parliament's power. - **Settles disputes** between states and government. - **Handles appeals** as the highest court, ensuring uniform law application. **Parliament** - **Makes laws** for the country. - **Elected by people**, ensuring democracy. - **Has strengths** (representative, structured) and **weaknesses** (slow process, political conflicts). - **Can struggle** with delays and outdated laws. **Passing a Law** 1. **House of Representatives** - Bill is introduced, debated, voted. 2. **Senate** - Bill is reviewed, amended, and voted again. 3. **Governor-General** - Gives **Royal Assent**, making it official law. **1️⃣ Parliament as a Law-Making Body** **Strengths:** ✔ **Supremacy of Parliament** -- Parliament is the highest law-making body and can override common law.\ ✔ **Representative of the People** -- Laws reflect the views of voters since members are elected.\ ✔ **Thorough Debate** -- Laws are well-discussed and evaluated for effectiveness.\ ✔ **Quick Response in Emergencies** -- Parliament can act rapidly during crises (e.g., pandemics, natural disasters). **Weaknesses:** ❌ **Limited Power** -- Parliament is restricted by its constitutional jurisdiction.\ ❌ **May Not Represent Everyone** -- Some groups in society may feel underrepresented.\ ❌ **Slow Process** -- Law-making is often time-consuming and inefficient.\ ❌ **Political Conflict** -- A hostile or hung government can make law-making ineffective. **2️⃣ Representative Government** ✔ **Definition:** A system where people elect representatives to make laws on their behalf.\ ✔ **Key Features:** - Ensures government reflects the will of the people. - Requires elected officials to be **accountable** to voters.\ ✔ **Levels of Government:** - **Federal:** MPs and senators. - **State:** Members of the Legislative Assembly. - **Local:** Councillors.\ ✔ **Bicameral System:** - Federal Parliament has **two houses** (House of Representatives & Senate). - Some states, like QLD, have **unicameral legislatures** (one house).\ ✔ **Committee System:** - Scrutinizes government activities and ensures proper legislation review. **3️⃣ Responsible Government** ✔ **Definition:** A government that is **accountable** to the people and must maintain the confidence of parliament.\ ✔ **Key Features:** - Ministers must **justify decisions** to parliament. - Government can be dismissed if it **loses majority support**.\ ✔ **Minority Government:** - When no party has a majority, a coalition or agreement is needed to govern - S61 of the Constitution states 'the executive power of the Commonwealth is vested in the King and is exercisable by the Governor General as the Kings representative - Ceremonial head of state - Specific constitutional and statutory powers - Acts on the advice of Ministers - Key constitutional duties include: - Presiding over the Federal Executive Council - Facilitating the work of the government - Dissolving Parliament and issuing writs for a federal election - Commissioning the Prime Minister, appointing ministers, and assistant ministers - Holding and possibly exercising the Reserve Powers - Issuing writs, royal assent, issuing a royal commission of inquiry, double dissolution, issuing joint sittings and dismissal.