Roles of the Crown and the Houses of Parliament
The Australian and Victorian Parliaments consist of two houses and the Crown’s representative. Each plays a distinct role in the law-making process. This section provides an interactive comparison of the Lower and Upper Houses. Click the buttons to compare their key functions.
Lower House
House of Representatives (Cth) & Legislative Assembly (Vic)
The “people’s house” where government is formed.
- Primary Role: To initiate and make laws. Most bills originate here.
- Forming Government: The party with a majority of members forms the executive government.
- Representation: Represents the interests of the people in their electorates.
Upper House
Senate (Cth) & Legislative Council (Vic)
The “house of review” that scrutinises legislation.
- Primary Role: To act as a house of review, checking bills from the Lower House.
- Checking Government: Scrutinises government actions and can block legislation (a “hostile” upper house).
- Representation: Represents the interests of states (Senate) or regions (Legislative Council).
Division of Law-Making Powers
The Commonwealth Constitution divides law-making powers between the Commonwealth and state parliaments. Understanding this division is fundamental to Australian federalism. Click on each card to explore the different types of powers.
Exclusive Powers
Held only by the Commonwealth Parliament. States cannot legislate in these areas.
Concurrent Powers
Shared between the Commonwealth and state parliaments. Both can legislate.
Residual Powers
All powers left over for the states. Not listed in the Constitution.
Select a power to learn more.
Significance of Section 109
Section 109 of the Constitution is a crucial mechanism for resolving conflicts when both the Commonwealth and a state legislate on the same concurrent matter. Click the button below to see how a conflict is resolved.
1. Both parliaments pass laws on a concurrent matter.
2. An inconsistency between the laws is found.
3. Via s109, the Cth law prevails and the state law becomes inoperative to the extent of the inconsistency.
Key Case: McBain v Victoria (2000)
A Victorian law restricting IVF access to married women was found to be inconsistent with the federal Sex Discrimination Act 1984. The Federal Court ruled the Victorian provision was inoperative under s.109, allowing unmarried women to access IVF. This shows s.109 reinforcing Commonwealth law and restricting state power.
High Court Case: The Tasmanian Dam Case
The High Court’s interpretation of the Constitution can significantly shift the balance of law-making power. The Tasmanian Dam Case (1983) is a landmark example of this, expanding Commonwealth power into a traditional state domain. Toggle the switch to see the impact of the decision.
State Power Dominant
Tasmania plans to build a dam on the Franklin River, considering environmental regulation a residual (state) power.
Commonwealth Power Expands
The High Court rules the Cth can legislate to fulfill an international treaty (World Heritage Convention) using the ‘external affairs’ power (s51xxix), even on a state matter. The federal law blocking the dam is valid.
Impact Before the Case
Before this case, environmental matters like dam construction were largely seen as residual powers, belonging to the states.
Factors Affecting Parliament’s Ability to Make Law
Several practical and political factors can enhance or limit how effectively parliaments create laws. Click on each factor to see how it can both help and hinder the law-making process.
Bicameral Structure
Having two houses
Representative Nature
Reflecting the people’s will
International Pressures
Global treaties and relations
Constitutional Checks on Parliament
The Constitution restricts Parliamentβs power, ensuring it doesn’t overstep its authority. Explore the key constitutional checks below.
High Court & Rep. Govt
The High Court can invalidate laws that undermine representative government (ss 7 & 24).
Separation of Powers
Dividing power between legislature, executive, and judiciary to prevent abuse.
Express Rights
Five explicit rights that act as direct limits on Commonwealth Parliament.
Double Majority
The Constitution can only be changed with a double majority vote in a referendum (s 128).
Select a check to learn more.
The Courts as Law-Makers
While Parliament is the supreme law-maker, courts also shape the law by interpreting statutes and establishing common law precedents. This section explores these two key judicial functions.
Statutory Interpretation
Courts clarify the meaning of words in an Act of Parliament to apply it to a specific case. This clarification can set a new precedent.
In Deing v Tarola (1993), the court had to interpret the word “weapon” in an Act.
Decision: The court decided a studded belt was NOT a weapon unless intended for use as one. This narrowed the law’s scope.
The Doctrine of Precedent
Higher courts create common law by setting precedents that lower courts in the same hierarchy must follow.
Factors Affecting Courts’ Ability to Make Law
While powerful, the courts’ ability to make law is constrained by several key factors. This interactive model explores some of the most significant limitations.
Select a factor to see how it limits the courts.
Example:
Relationship Between Parliament and Courts
Parliament and the courts have a dynamic, symbiotic relationship. While Parliament is supreme, each can influence and check the other. Explore the key interactions below.
