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Legislature & Chapter I Notes

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4. Legislature & Chapter I Legislature of Chapter 1

The federal Parliament was created by the Commonwealth.

* Statue legislature, pre-existed from colonial times and referred to in s 107. The institution: Structure / Composition s 1 provides that the legislative power of the Commonwealth shall be vested in a federal Parliament consisting of the Queen, a Senate (the upper House) and a House of Representative (the lower House). s 2 Governor-General acts as representative of the Queen. Representative Government: Parliament and the People Senate

* s 122 stipulates that the Parliament may make laws for the government of any territory

* Territorian senators derived from s 122.

* s 7 provides

* The Senate shall be composed of senators of each State, directly chosen by the people of the Senate

* There shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State

* "Original States" shall mean such States as are parts of the Commonwealth at its establishment.

* Currently the number is twelve.

* Equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.

* Structure of Senate reflects federal nature of the Commonwealth.

* The senators shall be chosen for a term of six years. House of Representatives

* s 24 provides

* The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth

* The number of such members shall be, as nearly as practicable, twice the number of the senators.

* Five members at least shall be chosen in each Original State. The "nexus" between the two House means that any increase in the size of one House must entail an increase in the other.

* The formula set out in s 24 for computing the ratio between the two House is applicable only "until the Parliament otherwise provides".

* Reflects combination of national and federal concerns.

* s 25 provides if any race by law is disqualified from voting at elections for the House of Representatives, then Persons of that race resident in that State shall not be counted.
In A-G (NSW); Ex rel McKellar v Commonwealth (1977) a statutory variation on the formula was held to be invalid because the formula used before the change gave a closer approximation of a 2:1 ratio than the new formula could do. Powers Of Queen

* Assign powers to Governor-General: s 2.

* Disallow federal legislation: s 59.

* Assent to law: s 60. Of Governor-General as Queen's representative

* To prorogue and dissolve Parliament: s 5 (House of Representatives), s 57 (Senate & House of Representatives).

* Issue writs for election: s 32

* Assenting / withholding assent to legislation, proposing amendments, or reserving for Queen's pleasure: s 58. Of Parliament as a whole

* Legislative power: s 51, 52 main sources

* Specific legislative power cf general legislative power of States 1

4. Legislature & Chapter I

* Some concurrent legislative powers, some exclusive to Commonwealth

* s 49 gives the federal Parliament the power to declare its own "powers, privileges, and immunities".

* The general rule-of -thumb has been that Parliament is entitled to control its own affairs and that the Courts should not interfere: Parliamentary sovereignty.

* Parliamentary Privileges Act 1987 (Cth)

* Section 3 defines "an offence against a House" to mean "a breach of the privileges or immunities, or a contempt, of a House or of the members or committees".

* Section 9 ensures that any such allegation against the Parliament is subject to judicial review. Of the individual House of Parliament

* Senate restricted re originating, amending, proposing, some types of legislation (laws related to moneys), otherwise the Houses are equal: s 53

* Disagreements between them: Double-dissolution: s57 Members Qualifications

* Same for senators and members of House of Representatives: s 8.

* Interim: s 34, then determined by Parliament.

* Full age of twenty-one year,

* Must be an elector entitled to vote at the election of members of the House of Representatives..

* Must be a resident of Australia....

* Disqualifications: s 44

* Cannot sit in both Houses of Parliament: s 43. Right to Vote

1. S240 Commonwealth Electorate Act says a person must vote for House of Representative placing "1,2,3,4..." until an exhaustive order of preference is stated.

2. By s 270, a paper numbered "1,2.3,3..." was to be counted as indicating a preference for candidates "1" and "2".

3. Under s 329A it was an offence, attracting up to six months' imprisonment, to "print, publish or distribute ... any matter or thing with the intention of encouraging persons ... to fill in a ballot paper otherwise than in accordance with" s 240.

4. At the 1993 federal election, Langer urged electors to vote "1,2,3,3...", with the major parties being placed equal last.

5. Langer sued in the HC for an injunction against the Commission.

6. His written submission maintained that s 329A infringed the implied constitutional freedom of political communication. He also argued that s 240 was invalid since its stipulations were inconsistent with the command in s 24 of the Constitution that representatives be "directly chosen by the people", and the people, if choosing freely, must be free not to choose by not numbering every square. All six judges held that s 240 was valid. By 5:1, Dawson J dissenting, it was then held that s 329A was valid, as a legitimate means of protecting the voting method validly prescribed by s 240.

1 Voting Rights in the Constitution

* s7 and s 24 of the constitution - state members of the senate and the House of Representative must be "directly chosen by the people", from this the Court inferred that Australia possesses a constitutionally protected freedom of political communication.
It was decided in R v Person (1983) that s41 of the constitution does not confer an express right to vote however due to s7 and s24 there is an implied right to vote. Voting rights in the Commonwealth Electorate Act 1918 (commonwealth)

* Voting has been compulsory since 1924 under s245 (1) of the commonwealth Electoral Act (1918) - "shall be duty of elector to vote at each election"They can omit voting if a valid and sufficient reason is provided.
"Valid and sufficient reason" - a socialist refusing to vote because all the parties are supporters of capitalism is an example of a valid and sufficient reason: Judd v McKeon (1926)
s 245 does not force a person to make a choice but it requires attendance at polling booth and depositing a voting paper even if ballot is unmarked.

* s 93 - outlines class of people that are entitled to vote

* s 93(1) 18 years or older and a citizen

* s 93(7) not if here on a temporary visa or an unlawful non-citizen o

* s 93(8) not if not of sound mind, or serving three years or more in prison, or has committed treason or treachery and not been pardoned.

* S94, 94A exclude citizens living overseas who, when they left, did not intend to resume residing in Australia within six year.

Is compulsory voting permitted under the Constitution?
Langer v Commonwealth (1996) 186 CLR 302
Test - if yes then law is valid 1 Australian

Constitutional Law and Theory, 367.

2 4. Legislature & Chapter I

a. Is the law reasonably capable of being regarded as appropriate to achieving a legislative purpose?
b. Is impairment of freedom merely incidental to legislative purpose?
If the impairment of freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within power.

S24 of constitution does not limit parliament's selection of method of voting as long as it allows free choice.
Legislative power over elections for the House of Representative if conferred by s 31 and s 51(xxxvi) of constitution.: that parliament can prescribe the method of voting as long as it permits free choice among candidates for election.
*> S240 of CEA permits voters to make a discriminating choice among candidates so it would be directly chosen by people. Method of voting needs not be the best for each voter to express their political views.
*> S329 validity

* Prohibition in s329 is designed to stop the intentional encouragement of filling in the ballot paper in a way that makes it invalid and detracts from the expression of the elector's preference. It is not imposed with a view to repressing freedom of political discussion, it is imposed as an incident to the protection of the s240 method of voting.
since s240 is valid, a law which is appropriate and adapted to prevent subversion of that method is within the power of the parliament and so s329A is valid.
if s240 was not followed voters' risk their votes not counting so s240 protects voting method. Express Right to Vote

41 Right of electors of States No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Possible interpretations- transitional period designed to maintain right to vote in their state prior to enactment of the Commonwealth Franchise Act 1902 (Cth), or continuing operation protecting right to vote at federal elections for voters who acquire the right to vote in their state after 1902

* Arguments suggest that s41 (may be viewed as an express right to vote at state guarantees vote in federal elections) of constitution implies a transitional provision designed to protect voting rights in South Australia until women's suffrage. Conforming to this view seems, it seems to indicate that when the Commonwealth Franchise Act 1902 (cth) was passed, s41 had no continuing operation for the people who were entitled to vote in the state elections after 1902.

1. HC was asked to apply s41 to decide whether it was valid to lower voting age to 18 years.

2. King argued she was an adult person by virtue and social and legal acceptance &
an adult person was entitled by s41 to vote in federal elections equivalent to her ability to vote in state elections.

3. At the time of voting, though the State legislation had been changed by lowering the voting age to 18 years, the McMahon federal government was still resisting any change.

4. HC needed to decide if the word adult in s41 was open to definition changes. The Court held that s 41 was not a transitional provision and thus the 18 years was not adopted in federal level.

1. Excluded from voting by s45 of Cth Electoral Commission Act- can only enrol to vote up to six o'clock in the afternoon of issue of writ for election.

2. Brought by four people eligible to vote in NSW but excluded from the federal election under s45. The majority held that s 41 had not been infringed.
S41 ceased to grant voting rights, it is done by the Commonwealth Electorate Act.

King v Jones (1972) 128 CLR 221 Stephen J - the phrase adult person is not any definition of legislative power or concept of freedom and so there is no reason why it should involve any obscurity in language.

* Section 41 's function suggests it will be constant operation and not a transitional provision. --> override by R v Pearson, Sipka, Barwick J - adult person in s41 is fixed to is definition in 1901 or else states could confer right to vote in federal election to a lot of people under21 by changing the legal voting age in State

* This could not be intention of constitution framers. A meaning of adult which would enable a particular state, by appropriate legislation, to enfranchise large numbers of persons under the age of twenty one and by the operation of s41 confer upon them the federal franchise.. is one not lightly to be attributed to the framers of the constitution. R v Pearson; Ex parte Sipka (1983) 152 CLR 254 Brennan, Deane, Dawson JJ - majority 3

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