Table of Contents
Check your understanding.
Q1. Which two ‘arms’ of the separation of powers are linked in Australia? How and why are they linked?
The doctrine of separation of powers essentially divides the government per se into three distinct arms comprised of the legislature, executive and the judiciary. Considering the application of the doctrine within Australia based on the Westminster system, the executive and the legislature are the two arms that are linked. Simply speaking, the fact that the ministers are required to sit in the Parliament forms the basis of the linkage between the two arms. As stated in s64 of the Australian Constitution, ministers are required to be members of the Parliament (The Australian Constitution, 2020). While the physical linkage is evident, the aspect of delegation of powers is a key prerogative as to why the linkage exists. It acts as a check on the exercise of powers by both the arms, both in terms of the judicial review and executive scrutiny.
Q2. Australia’s constitution has 5 express rights. What is an express right? Why can’t these be changed easily?
Express right is a right that is explicitly mentioned within the Constitution that is guaranteed against the Commonwealth. Four of the five express rights within the Australian Constitution are aimed at protecting the rights of the states and address concerns related to the state. Express rights cannot be changed easily owing to their significance to the very basis of the Constitution. They are considered as apparent and concrete by essence, having proven their relevance to the test of time and manifest as founding principles that have led to the development of the Constitution over time.
Q3. Why are express rights typically seen as a restriction on the law making powers of the Commonwealth Parliament?
Express rights are typically viewed as restrictions to the law making powers of the Parliament due to the emphasis on the protection of the interests of the States. While their relevance was extremely significant during the founding years of the Constitution, modern developments have witnesses several incidents where the inadequacy of the provisions and the poor area of coverage have been viewed as restrictions (Stone, 2005). There have also been several instances that are aligned with the aspect of interpretive disagreement in terms of the express rights, thus further hindering the process of law making within the Common wealth Parliament.
Q4. Which express rights only apply to the Commonwealth Parliament and not the states?
While all the express rights as enforced within Australia apply to the states and the Commonwealth, s51 (xxxi) that states how the Parliament must make laws for property acquisition based on just terms and in respect of the power conferred on to the Parliament to make the laws. It is essentially aligned with the aspect of compensation the aggrieved party when any land or property is forcibly acquired by the Commonwealth (ALRC, 2020).
Q5. If the Commonwealth Parliament passes legislation that is thought to be outside its powers, what must happen for the High Court to declare the legislation invalid?
While it is not very common for the High Court to declare enacted legislations as invalid, there have been certain incidents where the Parliament was found as engaging in passing legislation beyond the scope of its power. In order for a legislation to be declared invalid, several criteria must be met including the breach of Federal judicial power as provided within Chapter III of the Commonwealth Constitution, directing particular results in particular proceedings, breaching implied or express rights as guaranteed and breaching Constitutional provisions. An example is that of Davis v Commonwealth (1988) where the Australian Bicentenary celebrations was the key issue specific words and numbers and their usage was regulated (Robinson, 2014).
Q6. Justify the existence of s128 of the Australian Constitution.
The key fundamental within s128 of the Australian Constitution essentially refers to how Constitutional amendments may only be made through procedural referendums. The existence is significant in terms of how no suffrage laws existed at federal levels after the Federation. Since the establishment of the Federation, 44 proposals have been witnessed with regard to changing the Constitution out of which only 8 have been approved till date (Australian Electoral Commission, 2020). The double majority principle is also a relevant aspect that justifies the existence of the s128 in order to bring in a higher degree of unanimity within the amendment procedures.
Q7. A visitor to Australia, who is studying our parliamentary system, comments that the system is easy to understand except for the separation of power. Explain to the visitor the principle of the separation of power in the Australian parliamentary system.
The principle of separation of power as implemented within Australia divides the institutions of the government into three branches. It includes the legislative, the executive and the judicial. The legislative is responsible for making the laws, the executive is responsible for making the laws operational and the judicial is responsible for accurately interpreting and enforcing the laws. While the separation is both physical as well as provisional, there are certain areas where the authority and the exercise of power overlap, such as the judicial review and the delegation of powers among the three branches.
Q8. Discuss the extent to which the High Court can change the Commonwealth Constitution.
The extent to which the High Court can change the constitution of the Commonwealth is fundamentally limited to the interpretation of the Constitution and how the meaning manifests in practice. Section 128 of the Australian Constitution contains provisions relating to amending provisions, which establishes how the Referendum must first be initiated by the Parliament of Australia. However, several cases have been witnessed where the interpretations of the Constitution have been changed and ratified by the High Court despite there being no agreement in the referendums. An example is s51 (xxix) that allowed the Australian Government to implement international treaties in areas that were previously controlled solely by the states such as environmental protection (Parliamentary Education Office, 2020).
Q9. ‘High Court decisions can change the wording of the Commonwealth Constitution.’ Explain why this statement is incorrect.
High Court decisions cannot by themselves change the wording of the Commonwealth Constitution in an isolated manner. Any constitutional amendment must go through the process of a referendum as covered in s128, where the bill must first be approved by the Australian Parliament (Parliamentary Education Office, 2020). Furthermore, the aspect of double majority is also important, where both the majority of the people across the nation and the majority of people in a majority of states must accept the amendment.
Q10. Express rights act as check on the law-making powers of the Commonwealth Parliament. Evaluate their effectiveness in this process.
The effectiveness of express rights as a check on the law making powers of the Commonwealth Parliament is largely relevant to the protection of the states from any unfair provisions engaged I by the Parliament. Express rights are difficult to change owing to their significance towards summoning the nation of Australia into existence. Naturally, any process of law making would have to adhere to the express rights as stated within the Constitution. Any law that is beyond the scope of the express rights would require a referendum, thus invoking the double majority rule. It therefore could be inferred that the express rights are fairly effective towards checking the law making authority of the Commonwealth Parliament.
Q11. Evaluate two weaknesses associated with the reliance on express rights to provide a check on the Commonwealth Parliament’s legislative powers.
One of the most prominent weaknesses associated with the reliance on express rights as a means to check the law making power of the Parliament is that the areas they cover are very limited. The conception of the rights was largely aimed at protecting civil and political rights, thereby overlooking a number of other important areas that have gained more prominence over the years. Another major weakness that could be identified in this regard is the entrenched nature of the express rights. Any attempt at adding or enhancing the scope of express rights would require referendums that are rarely successful and involve numerous complications.
Q12. Evaluate the use of referendums as a check on the Commonwealth’s legislative powers under the Commonwealth Constitution.
While the procedural aspects of referendums go on to ensure a streamlined process through which constitutional reform can be facilitated, the reality of referendums is far from effective. It is largely attributed to the failure of political persuasion and being unable to educate the Australian consensus about the constitution. Merits of particular proposals have often been overlooked as anti referendum campaigns based on politically motivated interests have managed to gain prominence (Parliament of Australia, 2020). The referendum system has also been hinted to undermine the principle of responsible government that works in conjuncture to the doctrine of separation of powers along with undermining the role of the Parliament.
ALRC. (2020). Protections from statutory encroachment. Retrieved 16 July 2020, from https://www.alrc.gov.au/publication/protections-from-statutory-encroachment-12/#:~:text=Section%2051(xxxi)%20of%20the,has%20power%20to%20make%20laws.
Australian Electoral Commission. (2020). Referendums Overview. Retrieved 16 July 2020, from https://www.aec.gov.au/elections/referendums/Referendums_Overview.htm#:~:text=Section%20128%20of%20the%20Constitution,has%20been%20passed%20by%20Parliament.
Parliament of Australia. (2020). Making Sense of the Referendum. Retrieved 16 July 2020, from https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/~/link.aspx?_id=96091033C7CC4B31B896512CEE31B5CA&_z=z
Parliamentary Education Office. (2020). The Australian Constitution in focus. Retrieved 16 July 2020, from https://peo.gov.au/understand-our-parliament/how-parliament-works/the-australian-constitution/the-australian-constitution-in-focus/#:~:text=The%20Australian%20Constitution%20can%20be,the%20Australian%20people%20to%20decide
Robinson, M. (2014). Making Valid Legislation – How Parliament Sometimes gets it Wrong. Retrieved 16 July 2020, from https://learnedfriends.com.au/getmedia/83caefc8-2f46-4de8-9895-56dcd6941f91/MAR-Paper-on-Making-Valid-Legislation-for-Learned-Friends-seminar-at-Lord-Howe-Island-in-April-2014-final.aspx#:~:text=On%20occasion%2C%20the%20High%20Court,Commonwealth%20legislation%20to%20be%20invalid.&text=Sections%2C%20whole%20parts%2C%20or%20a,power%20to%20make%20that%20law.
Stone, A. (2005). Australia's Constitutional Rights and the Problem of Interpretive Disagreement. Sydney L. Rev., 27, 29.
The Australian Constitution. (2020). Chapter II: The Executive Government. Retrieved 16 July 2020, from https://ausconstitution.peo.gov.au/chapter-ii_the-executive-government.html#chapter-02_64
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