The People and the Australian Constitution - Unit 4 AOS 1B

Express rights: Freedom of religion

Constitution prevents the Commonwealth from making laws that establish or forbid any form of religion, or that require any religious qualifications for taking public office.

Advantages and disadvantages of the double majority

- Advantages: it prevents the Commonwealth from altering the document which the Australia legal system is founded upon, without the consent of the majority of Australians and the majority of people in the majority of the states. Eg. it prevents the Commonwealth giving itself more law-making power or removing one of the express rights. If there is a referendum proposed that will affect one state above all others, that state may also have a majority of yes votes in order for the referendum to pass. - Disadvantages: in practise, this vary rarely happens as there may not be many potential changes that could adversely affect one state over others. The requirement is also really difficult to achieve and even if a change to the Constitution is necessary, it may not happen due to the strenuous requirements of the provision. -

Advantages and disadvantages of the bicameral structure of parliament acting as a check

- Advantages: results in the laws passed by parliament being thoroughly scrutinised, as well as the activities of each house are being scrutinised by one another. -Disadvantages: The fact that bills have to go through both houses of parliament makes the law making process very time-consuming. If one party has the majority in both houses the upper house acts as a rubber stamp and bills are passed with little scrutiny and debate. Alternatively, a hung parliament or a hostile senate can result in the government having difficulty passing bills through both houses.

The requirement for a double majority in a referendum

- The process of changing the Constitution (vic referendum) s128. This includes a yes/vote from the public, which must achieve a double majority. - Double majority is a vote of yes from a majority of voters in Australia (including territories) and a majority of voters in the majority of states (ie. the majority of voters in 4/6 states) must support the change. - This ensures that any change has broad public support across the nation, can't just be supported by the two larger states. - Only 8/44 referendums have been successful since federation (1901).

Express rights: Right to trial by jury for Commonwealth indictable offences

Constitution guarantees that any Australian citizen accused of a Commonwealth indictable offence has the right to a jury trial.

High Court interpretation - Alter the division of law making powers

High Court interpretation of the Constitution when adjudicatory disputes between Commonwealth and State parliaments can alter the division of law making powers.

Determine implied rights

Implied rights have been 'read into' or found by the High Court when determining disputes as having been intended by those who wrote the Constitution. One such implied right is the right to freedom of political communication. It is not explicitly stated or written in the Constitution. There is only 1 (stated above).

The checks and balances principle

Is fundamental to democracy in Australia. Sufficient checks and balances are required to make the executive and the parliament accountable to the people, who need their governments to be both responsible and representative. Woven into the Australian Constitution are a number of checks and balances that safeguard citizens' rights. They guard against an abuse of power by either the government or the parliament. They ensure transparency and prevent the government dominating any one branch. Without these safeguards, citizens' rights could be reduced or removed without any restraint.

The bicameral structure of parliament as a check

It is a distinctive feature of Australian democracy as houses are directly elected representatives. It is crucial to the checks and balance system, and enables government bills to be debated and scrutinised.

Constitutional restrictions on parliament's law making

The Commonwealth Constitution established Australia's Federal Parliament; however, there are limits or checks placed on parliament's sovereignty in the Constitution in regard to its ability to make laws. * The checks and balances principle.

Express rights: Acquisition of property on just terms

The Commonwealth parliament is prevented from acquiring property without paying just compensation. The Commonwealth parliament has the power to acquire land (eg. naval bases), property and items from citizens but the Constitution demands this can only be done on just terms.

Express rights: Freedom from interstate discrimination

The Constitution prevents states from making laws that discriminate against citizens who do not live in that state.

Express rights: Trade and commerce between the states shall be free

The Constitution prevents the Commonwealth or states from making laws that regulate or restrict interstate trade - such as introducing tariffs or restricting interstate travel.

The role of the High Court in interpreting the Australian Constitution

What: High Court acts as a guardian of the Constitution. It is independent of parliament and government and has the power to rule on all matters involving the interpretation of the Constitution. How: High Court can declare any legislation invalid and ultra vires (beyond the parliament's law making power) if it breaches the Constitution (provided a case is brought before it or challenged by either Commonwealth or state parliaments or an individual). - The High Court has the power to find new rights in the Constitution that it believes are implied by the text.

Express protection of rights

What: Rights that are explicitly written into the Constitution. There are only 5 express rights. They are entrenched into the Constitution because they can't be changed or removed without following the referendum process s128. How: Parliament is restricted from making any law that breaches one of the five express rights. Any legislation that breaches the express rights will be declared invalid by the High Court (provided it is challenged by someone with standing). - 5 so only limited protection - Explicitly written in the Constitution - Entrenched > referendum - Cannot be overridden by the Commonwealth or parliament - Fully enforceable by the High Court (Guardian of the Constitution)

The separation of powers

What: The splitting of legislative, executive and judicial powers into seperate bodies. - Legislative power > parliament to make laws - Executive power > power to administer the laws and manage the business of the government - the governor general but in practise is carried out by the PM and senior ministers. - Judicial power > exercised by courts (power to enforce laws and settle disputes). How: To prevent power from being concentrated in one body and helps protect individual rights by providing check and balances on the law making powers of the Commonwealth parliament ie. prevent abuse of misuse of power.