Transcript Unit 3 Legal Studies

Unit 3 Legal Studies
AREA OF STUDY 1 (DP 7) AND AOS 2 (DP 1)
DP 7: STRENGTHS AND WEAKNESSES OF
PARLIAMENT AS A LAW-MAKER
 Explain some of the restrictions on the ability of
parliament to make laws
Answer
 It may be difficult to make a law that suits everyone
needs. In this way, conflicting views within the
community may prevent parliament from making laws.
 Changes in the law may be delayed so that public debate
can take place. This can often take a long time and
therefore a change in the law may be delayed indefinitely.
 A hostile upper house – when the party with the majority
of seats in the upper house is different from the party
with the majority of seats in the lower house – may mean
that government are reluctant to introduce new bills that
may be contentious and this limits the ability of
parliament to make laws.
Hostile Senate
 What are some of the advantages of a hostile Senate?
 Times and values change rapidly and it is difficult for the
government of the day to keep up with the need for
changes in the law but a hostile Senate ensures that
outdated legislation is reviewed and debated.
 Note: some restrictions on law-making can also be seen
as part of the process that creates and effective
parliament. For example, it is the role of opposition
parties to ensure that the parliament does not make
laws that would not be in the interests of members of the
community. It is therefore important that the
Opposition can expose potential flaws in the legislation
and prevent legislation from being passed.
 Contrast three strengths of law making through
parliament with three weaknesses of law making
through parliament.
Answer
Strengths of parliament as a law
making body
Weaknesses of parliament as a
law making body
Members of parliament are elected into
office by the community and therefore
represent them in law making.
Parliament is therefore ANSWERABLE
AND ACCOUNTABLE to the people. If
the people are dissatisfied with the
representation given by a MP, they can
vote them out at the next election.
Because members of political parties
are concerned about being voted out of
office, they may be subject to political
influence and be at the whim of the
electorate. This could result in
parliament passing popular laws rather
than necessary laws.
Parliament is able to MAKE OR
CHANGE LAWS AT ANY TIME
(providing that it is sitting) and can act
quickly as the need arises. It can
respond to CHANGES IN
COMMUNITY ATTITUDES, CHANGES
IN TECHNOLOGY. For example…..
Because there are conflicting values in
society on some issues, it is not always
possible for parliament to determine
the majority view to represent in
legislation. This may result in
parliament having difficulty passing
controversial laws such as legalisation
of gay marriage.
Answer
Strengths of parliament as a lawmaker
Weaknesses of parliament as a
law maker
Parliament is able to undertake
investigations into issues and gather
information from a number of expert sources
before drafting legislation (such as VLRC).
This means that parliament is able to
consider the views, values and needs of the
community and make informed decisions
when drafting legislation. For example….
Parliamentary investigations can be time
consuming and costly and could delay
legislative change.
Parliament provides an arena for debate. All
bills go through debate and discussion
process in both houses, which ensures that
political parties and individual members
have a chance to voice their views and
concerns on behalf of their constituents. The
many stages that a bill goes through also
decreases the chance of an unjust or unclear
law being passed as flaws are likely to be
recognised and rectified.
The government does hold the majority of
seats in the lower house. If it also holds the
majority of seats in the upper house there is
a danger that the upper house could become
a rubber stamp. This means that bills pass
automatically if members vote on party lines
without allowing for debate and scrutiny. By
contrast, if the government does not enjoy
the majority in the Upper House and there is
strong opposition to a bill, then in order to
secure the support of the opposition, the bill
may be ‘watered down’ no longer totally
reflective of government policy.
Answer
Strengths of parliament as a law
maker
Weaknesses of parliament as a
law maker
Parliament is able to create and use
subordinate bodies (such as VicRoads)
to assist with law making. Subordinate
authorities are given specific powers by
parliament to create laws in particular
areas. These bodies are often experts in
the field and can make necessary
specialised laws in their jurisdiction,
use the benefit of local knowledge and
are more accessible to the public. In
creating rules subordinate authorities
save parliament time so that parliament
can focus on bigger issues in law
making.
By delegating power to subordinate
authorities, parliament is giving up law
making power to unelected,
undemocratic bodies (except for Local
Councils, which are elected). This
means that there may be a lack of
debate in its law making processes and
that the views, values and needs of the
community may not be taken into
account when making laws as the
subordinate authority is not bound by
ideas of representative government and
cannot be voted out of office should
they not reflect the views of the people.
Definitions
 Define the following terms:
 Delegated legislation
 Rubber stamp
 Subordinate authorities
Answer
 Delegated legislation is also called subordinate
legislation. It refers to the laws made by subordinate
authorities (either regulations, rules or local laws).
 Rubber stamp is when the government holds the
majority of seats in both the Lower and Upper
Houses of parliament, then bills passed through the
Lower House may easily pass through the Upper
House without any meaningful debate. The Upper
House is said to be a rubber stamp, or automatically
approve, the bill.
Answer
 Subordinate authorities are specialist law making
bodies that are set up and given specific law making
powers by parliament which are able to make laws in
their specified areas. There are four main types of
subordinate authorities: local councils, statutory
authorities, government departments and Executive
Council.
10 mark question
 ‘Parliament is the perfect law-making body; it always
works effectively and efficiently.’ Critically evaluate
this statement.
Can you…
 Evaluate the strengths and weaknesses of
parliament as a law maker – what does parliament
do well when making laws? What does parliament
not do so well when making laws?
 Make an overall judgment about how well
parliament fulfills its role as a law maker and be
able to put forward an evaluation of the strengths
and weaknesses?
AOS 2: DP 1: THE DIVISION OF LAW MAKING POWER BETWEEN
THE STATE AND COMMONWEALTH PARLIAMENTS
 Define what is meant by the term ‘division of powers’
Answer
 The division of powers refers to the way law-making
powers are divided between the Commonwealth
Parliament and the State Parliaments. There are four
types of law-making powers: specific powers,
exclusive powers, concurrent powers, residual
powers.
 Explain the following and give an example of each:
 Specific powers
 Exclusive powers
 Concurrent powers
 Residual powers
Answer
 Specific powers are those powers that are listed in
section 51 of the Commonwealth Constitution and
were given to the Commonwealth Parliament to
make laws. Examples include: s. 51 (i) trade and s.51
(xxix) external affairs.
 SPECIFIC POWERS ARE EITHER EXCLUSIVE OR
CONCURRENT….WHY?
Answer
 Exclusive powers are areas of law making power that
only the Commonwealth Parliament can exercise.
For example, s 51. (xii) gives the Commonwealth
Parliament power to make laws regarding currency,
coinage and legal tender or coining money s.115).
Answer
 Concurrent powers are areas of law making power where both
the Commonwealth and state Parliaments have the authority
to pass laws, as they are shared powers that have been give to
the Commonwealth Parliament to make laws but have not
been made exclusive. In other words, the powers have never
been taken away from the states. Hence, these law making
powers can be exercised by both the Commonwealth and the
State Parliaments. For example: s51 (xxi) marriage is a
concurrent power.
 However, if there is an inconsistency in the laws made by the
Commonwealth Parliament and a state parliament in an area
of share/concurrent power, then s.109 states that the
Commonwealth law shall prevail and the inconsistent part of
the state law shall be invalid. For example: s.51 xxi –
marriage.
Answer
 NOTE: Whenever explaining the concept of
concurrent powers, a discussion of s.109 – the
inconsistency provision – should also be included.
You must KNOW THE SECTION NUMBER.
 Residual powers are areas of law making power that
are not listed in the Constitution, hence they remain
with the states (as they have not been given to the
Commonwealth parliament). For example:
education, health and public transport.
IMPACT OF S.109 OF COMMONWEALTH CONSTITUTION
 Explain the impact of s.109 on the division of law
making powers.
Answer
 S.109 0f the Commonwealth Constitution states that
should there be a conflict between state and
Commonwealth laws in an area of concurrent law
making power (that is, law making powers that are
shared between the Commonwealth Parliament and
state parliaments – eg: marriage) then the
Commonwealth law will prevail to the extent to the
inconsistency between the two pieces of legislation.
Role of the Commonwealth Constitution
 Explain the role of the Commonwealth Constitution
Answer
 The role of the Commonwealth of Australia Act 1900 (UK)
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(The Constitution) is to:
Facilitate the division of law making powers by setting out
what the Commonwealth Parliament can do with respect to
law making (that is, the types of laws that can be passed by
the Commonwealth Parliament).
Provide a legal framework for the creation of the
Commonwealth Parliament and outline the structure of the
Commonwealth Parliament.
Give the High Court power to interpret the Commonwealth
Constitution
Provide for direct election of the members of the House of
Representatives and the Senate by the people of Australia.
Can you…
 Explain the role of the Commonwealth Constitution?
 Explain and give examples of exclusive power?
 Explain and give examples of concurrent powers?
 Explain and give examples of residual powers?
 Explain and give examples of specific powers?
 Explain the impact of s.109?