4.1.

1 - Roles of the Crown and the Houses of Parliament in Law-Making:

The Crown:
1. Granting Royal Assent ​- the crown’s representative in the Commonwealth parliament
and the victorian parliament is required to approve bills before they can become law.
2. Withholding Royal Assent​ - the crown’s representatives has the power to withhold giving
royal assent if they feel that the law should be reanalysed.
3. Appointing the Executive Council​ - the Governor General has the responsibility of
appointing the Executive Council. This comprises of the leader of the government (prime
minister) ministers (federal and state) as well as senior ministers. The role of the council
is to give advice on government matters as well as approve secondary legislation.
Roles of the Lower Houses:
House of Representatives and Legislative Assembly:
1. Forms Government - the political party that achieves a majority of elected members for
the lower house forms government.
FEDERAL: STATE:

● At least 76 members needed ● At least 45 members needed

● Leader - Prime Minister ● Leader - Premier
2. Initiate and Make New Laws - proposals for new laws are usually initiated in the lower
houses. Most bills are ‘government bills’ but any member can propose a bill and any
money bill MUST be introduced in the lower house.
3. Represent the People - each elected member represents an electorate of approx
100,000 voters. Members who we elect are given authority to act on behalf of the people
in that electorate.
Roles of the Upper Houses:
Senate and Legislative Council:
1. Initiate and Pass Bills - they can initiate and pass bills
(other than money bills) or pass bills that have previously
been passed by the lower houses. They can either:
● Pass a bill without change
● Pass a bill with change (amendment)
● Reject bill
2. Act as House of Review - the upper houses reviews bills past in the lower houses. It
ensures that bills that are too radical or inappropriate don’t pass through parliament.
3. Act as ‘States House’ - section 7 of the constitution states that the Senate should have
equal representation from each state regardless of their size or population.
STATE: FEDERAL:

Council - 5 members for each region Senate - 12 states & 2 territory

= 40 members = 76 members

4.1.2 - The Division of Law-Making Powers:

Exclusive Powers​ - law making powers of the commonwealth parliament (eg. defence,
currency, customs)
Concurrent Powers​ - shared law making powers between commonwealth and the states (eg.
taxation, marriage)
Residual Powers​ - law making powers of the states (eg. transport, police, criminal law)

4.1.3 - Significance of Section 109 of the Constitution:

The ‘Inconsistency Rule’:
Conflict and inconsistencies can arise in CONCURRENT POWERS. Therefore, a section of the
Constitution provides a mechanism to resolve this conflict.

When someone contests or challenges a conflicting law that affects a state and a
commonwealth law, the commonwealth law will always win and the part of the state law that
conflicts the federal law will become invalid and removed.
Points to Note:
● Only relates to concurrent laws (law making powers shared by both the commonwealth
as well as the states
● Only applied if the state law is challenged by someone who is directly affected by the law
● Only applies to the contradictory sections of the law.

4.1.4 - The means by which the Australian Constitution acts as a check on Parliament:
The Bicameral Structure:
Section 7 - ​Senate is composed of Senators, chosen by the people
Section 24 - ​House of Representatives composed of members chosen by the people
For a law to pass it must pass through both houses before it can be given Royal Assent. The
Senate acts as a review/check on power of the House of Representatives by:
● Scrutinising and debating bills
● Ensures laws are checked
● Allows for amendments to be proposed for laws
● Lets opposition/minority voices to be considered in law making process
STRENGTHS: WEAKNESSES:

● Allows for review of legislation by the ● If government holds a majority in the

second house, this scrutiny allows
check to be made and balances
against abuse of power
● If the government holds a slim
majority, then considerable debate
can occur in the lower house
● If there is a hostile Senate, then the
upper house is more likely to review
bills passed through the lower house
more carefully
● Bicameral parliament is specifically
stated in the constitution so
commonwealth parliament cannot
abolish it.
lower house then debate and
negotiations are less likely to occur
● Rubber stamp can dilute checks
upper house has in law-making
● Increased number of parties often
means that law-making is stalled or
laws aren’t as effective
● There is no constitutional requirement
for Victorian Parliament to have two
houses
● Laws will generally only be passed i
they’re laws that Fed’s support as the
lower house is generally controlled by
the government
● Many members will vote with their
party and not with their conscience.

Separation of Powers:
Executive Power - ​power to give and administer laws. Exercised by Governor General but in
practise is Prime Minister.
Legislative Power - ​power to make laws. Exercised by parliament.
Judicial Power - ​power to apply the laws and to resolve disputes. Exercised by courts.
Reasons Powers are kept Separate:
STRENGTHS/REASONS: WEAKNESSES:

● Prevents powers from being ● Executive and legislative are

concentrated in one set of hands
● Provides a check on the powers of the
commonwealth
● No one body can perform all powers
● Avoids abuse of power
● All three operate independently of
each other
combined. It decreases the ability to
act as a check on each other
● When the government has power in
the Senate (rubber stamp) there’s far
less scrutiny on bills.

Express Protection of Rights:

Express rights are rights that are written in the constitution
(enumerated) and can only be removed by the process of a
referendum (entrenched). It acts as a check on parliament in
law-making by specifically prohibiting the commonwealth
parliament from exercising particular law-making powers.

The Five Express Rights:

1. Acquisition of property by Commonwealth on ‘just terms’ - ​if the Federal

Government wishes to acquire property from the public, it must pay a reasonable and
fair compensation to the individual that owns it.
2. Trial by Jury for Commonwealth Indictable Offences - ​if a person is charged with an
indictable offence that comes under the Commonwealth law (eg. terrorism) a jury must
be present.
3. Trade and Commerce between States shall be free - ​applied primarily to trade,
commerce and communication but it can also relate to the movement of people between
states.
4. Freedom of Religion - ​is protected in four ways in this section:
● The commonwealth can’t make a law to create a national religion
● The commonwealth can’t impose any religious observance
● The commonwealth can’t prohibit a religion
● No religious tests can be conducted for a commonwealth position.
5. Freedom of Interstate Discrimination - ​the constitution provides protection to
Australian citizens from discrimination or disability on the basis of the state in which you
live.
The Role of the High Court as a means of checking on the Parliament:
The High Court is the only court with the power to interpret the wording of the Constitution. It
often occurs when the state or Commonwealth parliament is challenged as being ultra vires.
When interpreted, it creates a precedent, binding to all Australian courts.
How it acts as a check:
● Ensures law is applied in accordance with the society upon which is binding
● High court justice may comment obiter dicta their approval/disapproval of a particular law
● Ensures gap between legislative and judicial branches are kept to a minimum.
Role of the High Court:
1. Guardian of the Constitution - ​explains what it means, they are the only court who can
hear Constitutional cases. It influences day-to-day application of the law.
2. Check on Abuse of Power - ​determine if a law is ultra vires or invalid.
3. Gives Meaning to the Words - ​interprets the meaning of the words so that specificities
can be seen and determined.