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government of the day to keep up with the need for changes in the law but a hostile Senate ensures that outdated legislation is reviewed and debated.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?