Legal Studies Unit 3

1. Legal Studies Unit 3 Revision – AREA OF STUDY 1 PARLIAMENT AND THE CITIZEN

2. DP 1: PRINCIPLES OF AUSTRALIAN PARLIAMENTARY SYSTEM Can you define these KEY TERMS? • Constitution • Bicameral • Government • Cabinet • Constitution • Governor • Governor General • Federal • Westminster system? • Monarchy

3. The bicameral system The Commonwealth and state parliaments operate on a bicameral system, which means two houses: an upper house and a lower house. Name the two houses at a federal level. Name the two houses in Victoria. Draw a flow chat that explains the bicameral system at a federal level and in Victoria.

4. Answer • The two houses at a federal level are: The House of Representatives (the lower house) and the Senate (the upper house). • The two houses in Victoria are: The Legislative Assembly (the lower house) and the Legislative Council (the upper house).

5. PRINCIPLES OF THE AUSTRALIAN PARLIAMENTARY SYSTEM Name the three principles that underpin the Australian parliamentary system. Explain what is meant by the term ‘representative government’ (include appropriate sections of the Commonwealth Constitution). Explain how the bicameral system contributes to a more representative government.

6. Answers • The three principles that underpin the Australian parliamentary system are: • Representative government • Responsible government • Separation of powers • Representative government refers to a government that represents the views, values and needs of the majority of the population. Section 7 and 24 of the Commonwealth Constitution states that members of the Senate and the House of Representatives are to be chosen directly by the people. This ensures that the government represents the will of the majority of the people. • A bicameral system contributes towards a more representative government because the lower house reflects the will of the people. The upper house represents equal representation for each state or region. This allows for the election of more representatives acting on behalf of minority groups. One house can also act as a review of the operations of the other house.

7. Responsible government Explain what is meant by the term ‘responsible government’.

8. Answer Responsible government refers to a government that is answerable and accountable to parliament and therefore the people. This happens though ministers being responsible to parliament for the actions/policies formulated by their department, the members of government are responsible to the parliament and therefore the people that elect them (if citizens are not happy with the performance of the government they may not vote for them at the next election).

9. Separation of Powers Explain the principle of the separation of powers.

10. Answer This principle refers to the separate types of powers in our parliamentary system, and that these powers should be held by separate bodies to so that no one body has total control over the functions of the legal system. The three powers are: The executive power – the power to administer the laws and manage the business of government (this power rests with the Governor General as the Queen’s representative, although is carried out by the Prime Minister and Cabinet. The legislative power – the power to make laws (which rests with the parliament). The judicial power – the power given to the courts and tribunals to enforce the law and settle disputes (rested with the High Court and other federal courts).

11. Are they truly separate? The judicial power is separate from the legislative and judicial powers. Why?

12. Answer The legislative power and the judicial power must be kept separate. Only a court has the power to decide if a law (made by parliament) has been breached. This prevents one body abusing their power to make, enforce or administer the law. The legislative power and the executive power are closely linked in that the laws passed by parliament must receive royal assent from the Governor-General in order to become law. These roles, although in some ways linked, are seen as separate or independent and protect against the possible abuse of power in that no one body or group has absolute power or control over the functions of the legal system.

13. Separation of Powers and Responsible Government How does the separation of powers reflect the principle of responsible government?

14. Answer The Governor-General, as the Queen’s representative is part of the executive power as well as being part of the structure of parliament. Likewise the prime minister is part of the governing body (who hold the executive power) and are also part of parliament (the legislative power). This reflects the principle of responsible government under which government ministers must be members of parliament and must be accountable and answerable to parliament and therefore, the people who have the power to directly elect their representatives in parliament.

15. Reasons for separation of powers Why do we have the separation of powers?

16. Answer The separation of powers is based on the idea of checks and balances. Each power is separate and independent and acts as a check on the power of the other body or group. In this way, the separation of power provides independence between the bodies that make the law – the legislature (parliament) and the bodies that enforce the law – the judiciary (the courts). It also provides a check on the power of parliament to ensure that it does not go outside it’s area of power.

17. Difference between parliament and government Distinguish between the terms ‘parliament’ and ‘government’.

18. Answer Parliament consists of all elected members in both the upper and lower house. It is made up of members of different political parties and independent politicians. The party or parties (Coalition) with the majority of seats in the lower house (The House of Representatives at a federal level and the Legislative Assembly in Victoria) form government. Therefore, government is part of parliament. NB: Is a question mentions a specific parliament then specific terminology must be used eg: Commonwealth Parliament comprises the Queen’s representative or Governor-General, the upper house (Senate) and the lower house (House of Representatives).

19. KEY POINTS Define key terms accurately, using appropriate legal terminology. Know the meaning of the ‘task work’ (eg: the difference between distinguish and explain). You should spend approximately 1 ½ minutes per mark and you will be given approximately 3 lines per mark.

20. DP 2: THE STRUCTURE OF THE COMMONWEALTH PARLIAMENT Explain the structure of the Commonwealth Parliament. How many members sit in the House of Representatives? How many members sit in the Senate?

21. Answer The Commonwealth Parliament consists of the Queen (represented by the governor-general), the Senate (the upper house) and the House of Representatives (the lower house). There are 150 seats in the lower house and there are 76 seats in the upper house.

22. House of Representatives Explain the role of the House of Representatives.

23. Answers The House of Representatives’ major role is to initiate and make laws. New laws are introduced to the House by the government, bills must be passed by the House of Representatives and the Senate for a law to be made. The House of Representative’s also determine the government. After an election, the political party with the most members in the House of Representatives forms government. The House of Representative’s also provides for responsible government. Ministers are responsible to parliament and therefore the people who have the power to appoint or dismiss government based on the majority of seats in the lower house. The House of Representatives also represent the people. Members of the House are given the authority to act on behalf of the people and so the proposed laws introduced in the House of Representatives should reflect the views, values and needs of the majority of the community.

24. The effectiveness of the House of Representatives The House of Representatives is not very effective. Discuss.

25. One possible answer • Currently, the Australian Labor Party holds a very slim majority of seats in the House of Representatives. The independent candidates hold the balance of power in the House. As such, whilst parliament has successfully initiated and made laws there has been considerable debate of proposed laws in the House, which has meant that the principle of responsible government (in which the government and Ministers must ensure that proposed laws reflect the views, values and needs of the community that have the power not appoint or dismiss government based on the majority of seats in the lower house) has renewed importance. • However, the hung parliament has also meant that there has been some ambiguity about the government’s mandate to govern, which has meant that the Labor parties reform agenda has been difficult to push through parliament.

26. The Senate 76 Senators, 12 from each state and two from each territory. Serve a period of 6 years. Explain the role of the Senate.

27. The role of the Senate The Senate’s role is to act as a state’s house – Section 7 of the Commonwealth Constitution provides that the Senate should have equal representation from each state, which ensures that the needs, views and values of each state are given equal representation in parliament. This upholds the principle of representative government. The Senate also acts as a house of review. The Senate has the task of reviewing the bills passed in the lower house. The Senate therefore scrutinises the House of Representative and ensures that the government is accountable for its actions. This upholds the principle of responsible government. The Senate also initiates and makes laws – the Senate can initiate bills (other than monetary bills) or pass laws that have been passed through the House of Representatives.

28. Effectiveness of the Senate The Senate is very effective. Discuss.

29. Answer In practice, Senators tend to vote according to their party. This means that the upper house does not fulfil its role as a house of review. If the government of the day also has the majority of seats in the upper house then the Senate tends to be a ‘rubber stamp’ that just confirms the decisions made in the lower house without adequate debate and scrutiny. However, if the Senate is controlled by the opposition party, the upper house is likely to review the bills passed through the lower house more carefully and thus, the Senate are able to fulfil their role as the house of review.

30. The Structure of the Victorian Parliament Explain the structure of the Victorian Parliament.

31. The Victorian parliament consists of the Queen (represented by the governor), the Legislative Council (the upper house) and the Legislative Assembly (the lower house).

32. The Legislative Assembly There are 88 members in the Legislative Assembly. They serve 4 year terms. Explain the role of the Legislative Assembly.

33. Answer The Legislative Assembly has two main roles. The first is to make laws. Most bills are introduced in the Legislative Assembly. The second role is to form government – the party with the majority of seats in the lower house forms government. Members of the Legislative Assembly are elected to represent the views, values and interests of the people (representative government).

34. Legislative Council 40 members. 4 year term. Explain the role of the Legislative Council.

35. Answer The main role of the Legislative Council is to act as a house of review for legislation that has been passed in the Legislative Assembly. It does this by scrutinising, debating and amending or rejecting legislation that has been initiated in the lower house. It act as a check and balance on the lower house and this upholds the principle of responsible government.

36. The role of the Crown Explain the main role of the Crown.

37. Role of the Crown The role of the governor-general of Australia includes: Acting as as head of state; Performing duties of the executive council, including giving royal assent to bills before they become law; Appointing judges to the courts Exercising reserve powers – the power to appoint a prime minister if an election has resulted in a ‘hung parliament’ and the power to dismiss a prime minister who has lost the confidence of the parliament.

38. The functions of parliament Explain the main functions of parliament.

39. Answer • The main functions of parliament are to: • Make laws on behalf of the people; • Provide for the formation of government; • Provide a forum for popular representation and debate; • Scrutinise the actions of government; • Delegate some of its law making powers to subordinate authorities and check any delegated legislation.

40. People in parliament Define the following terms: Government Opposition Prime Minister, Ministers and Premiers Cabinet

41. Answers The government consists of all members of parliament who are members of the political party that hold the majority of seats in the lower house. The opposition is the political party holding the second largest number of seats in the lower house, its role is to examine policies of the government, check decisions made by the government and scrutinise all bills that are presented to parliament. The Prime Minister is the leader of the government at a federal level. The Premier is the leader of the government at a state level. The Prime Minister and Premiers appoint ministers to be responsible for various departments, such as the Education Department. Cabinet consists of the prime minister and the senior ministers. The cabinet’s main role is to decide on general government policy and to formulate proposed laws to be introduced to parliament.

42. Can you… Explain the principles and structures of the Australian parliamentary system? Define key words such as government, parliament, Cabinet, Constitution… Draw flow charts to explain the structure of the Commonwealth Parliament and the Victorian Parliament.