2.5 Sources of Contemporary Australia Flashcards
What is a constitution?
- A constitution provides a framework for institutions through a set of rules, including social clubs, large-scale organizations, and nations. In the case of an Australan Constitution is a legal framework on a set of guidelines that must be followed by its citizens including Lawmakers and memebers of the parliament.
How was the final constitution document was shaped?
- The final constitution document was shaped by the differing viewpoints and fears of being ‘consumed’ by New South Wales and Victoria.
- After several referendums in 1898, 1899, and 1900, a compromise was reached, but approval from the British Parliament was required.
- The Commonwealth of Australia Constitution Act 1900 (UK) was passed, establishing Australia as a nation on 1 January 1901.
What are the 5 key features of the British Act ?
- Key features of the British Act include:
- Australia as a federated nation with six states.
- The Northern Territory gained self-government in 1978 and the Australian Capital Territory in 1988.
- A bicameral federal parliament.
- The establishment of a High Court of Australia.
- The division of power and separation of powers.
- The Constitution can only be altered by a referendum.
What is mentioned in section 73 Australian Constitution? mentioned in Section 51?
mentioned in Section 128?
mentioned in section 9?
mentioned in Section 44?
Mentioned in 75 to 76?
1/
The role of the “High Court of Australia Established”
* Oversees other courts.
* Provides ‘final and conclusive’ judgments.
2/
Australia’s Division of Power
* Section 51: Separation of powers.
* Application in Australia.
*51. Legislative powers of the Parliament
3/
“Australian Constitution Alteration via Referendum”
* Enables constitutional amendment.
* Supports s 128 amendment.
4/
Commonwealth of Australia Constitution Act 1900(UK)
* Act established Commonwealth of Australia as a nation.
* Constitution changes via Australian voter referendum.’
5/ Australian Parliament’s Founding Fathers’ Warning of Foreign Interference
* Warned of foreign interference.
* Inserted lasting, surprising sections.
* Dual citizens not excluded from parliament.
* Section 44 states: 44. Disqualification
“Any person who:
Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
6/ The High Court has both original and appellate jurisdiction. The original jurisdiction of the High Court is outlined in sections 75 and 76.
Which section mentions Disqualification? what does it say?
- “(i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
Which is Section mentions the process the Senate, also known as the ‘states’ house, provides a ‘check’ on the House of Representatives’ power? What does this change make it difficult to do what?
- The Senate, also known as the ‘states’ house, provides a ‘check’ on the House of Representatives’ power.
- Section 128, a process for constitutional alteration, mandates a majority vote of ‘yes’ from four out of six states and an absolute majority of voters across Australia.
(* This strict requirement has made constitutional change difficult, with no successful referendum since 1977.)
Which section mentions division of power?
- Section 51’s ‘division of power’ ensures states control over ‘residual powers’.
What is the purpose of the Australia’s Commonwealth Constitution? when was it enacted?
- Australia’s Commonwealth Constitution, enacted on 1 January 1901, outlines the legal framework and rules for governance.
Define division of powers
The Australian Constitution’s division of powers, also known as the three levels of government, ensures that no single government can control all laws and activities within the nation.
What are the 3 types of legislative powers mentioned in the Constitution?
- Concurrent powers.
- Exclusive powers.
- Residual powers.
What are the legislative powers?(enumerated powers)
It is the legal power and capacity to make laws.
What are the concurrent powers?
Powers existing in the same time; powers held by both state and federal.
What are the residual powers?
residual powers
those matters on which the states can legislate, as they are not referred to in the Australian Constitution
What is exclusive powers? in which section is this outlines? What does it include?
exclusive powers
powers that can be exercised only by the federal parliament
- Section 52.
* Includes trade, commerce, foreign relations, and national defense.
Name 3 sections that outline the federal governments? what does it mention on?
- Section 90 clearly states federal government’s exclusive power over customs.
- Section 114 prohibits states from raising or maintaining military force.
- Section 109 mandates conflict resolution when state and Commonwealth laws contradict each other.‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
(* High Court interprets Constitution in contemporary context due to evolving society, technology, and values.)
Name who has residual powers? What are 5 key residual powers?
- Each state has its own constitution, allowing it to make laws in various areas.
2/ * Key residual powers include de facto relationships,
- crime, hospitals, and public transport.
- Environmental protection, not considered at the time of Constitution drafting, is also considered a residual power.
What does the Section 109 is states ?
Conflict Resolution Mechanism in Commonwealth Laws
* Section 109 mandates conflict resolution when state and Commonwealth laws contradict each other.
* Inconsistencies between laws lead to Commonwealth law precedence, invalidating the former.
What happened prior to australias constituiton?
- Prior to the constitution, Australia was composed of six independent colonies, each governed by the British Government.
Name some arguments for federation?
Colonial Economic and Defense Goals
* Economics:- Removal of trade barriers for efficient economy.
* Transport: National rail network to overcome colonial rail gauge issues.
* Defense: Uniformed military force to reduce vulnerability due to distance from Britain.
* Nationalism: Fostering unique Australian identity and culture.
* Racial ‘purity’: Implementing national policies to maintain racial purity (White Australia Policy).
Define separation of powers
The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial
How was the Separation of powers Doctrine developed? who? when?
- Developed by French political philosopher Charles de Secondat Montesquieu in 1887.
Name some arguments against federation?
Trade, Fear, and Apathy in Colonial Federation
Trade:- * Tariffs used to protect industries in colonies from competition.
Fear:- * Smaller states fearing richer states overriding their interests.
Apathy: * Apathy due to Federation’s irrelevantness to daily life.
Expense: * Federation and national government costs.
Cheap labour: * Queensland’s sugar industry protected by allowing Pacific Islander ‘kanakas’ for labour.
When an how was Austrailia came into as a nation?
- On 1st January 1901.When this was passed
The Commonwealth of Australia Constitution Act 1900 (UK)
What are the key features of the Constitution Act?
- Australia was a federated nation consisting of six states (WA joined shortly after the other states). The NT(Northern Territory) in 1978 and ACT in 1988.
- There was a bicameral federal parliament .
(House of Representatives & Senate) - A High Court of Australia was established to oversee any other courts and provide ‘final and conclusive’ judgements upon any appeals it hears.
(s73 Constitution) - It outlined the division of power and the separation of powers as they would apply in Australia.
- It enabled the Constitution to be altered by a referendum.
(s128 Constitution)
How do constitutional checks and balances operate in Australia, and what role do the Senate, referendums, and the division of powers play in maintaining them?
Senate’s Role and Powers
* Provides a ‘check’ on House of Representatives’ power.
* Also known as’states house’ due to equal number of senators across states.
* Strict guidelines in s128 and s51 make referendums difficult, with no successful one since 1977.
* ‘Division of power’ in s51 allows states control over’residual powers’.
Explains the difference between division and separation of powers.
The division of powers in Australia divides law-making responsibilities between federal and state governments, with powers divided into exclusive, concurrent, and residual powers. The separation of powers prevents one branch from becoming too powerful, ensuring checks and balances within the legal system.
What is the legislative power?
Legislative power is the legal power or capacity to make laws.
How is legislative power divided between the federal and state governments in Australia, and what role does Section 51 play in this division?
Legislative power is the legal power or capacity to make laws.
s51 specifies the legislative powers of the federal parliament, providing them the power to make laws with respect to all matters listed here.
States can also make laws on anything in s51, especially where concurrent powers are held. That is, powers existing at the same time; held by both state and federal parliaments
What Section 52 outline?
s52 outlines the exclusive powers (those powers that can only be exercised by the federal parliament) of the federal government
What do you mean by exclusive powers?
Exclusive powers (those powers that can only be exercised by the federal parliament
How do confict resolution mechanism operate in place if a state and the commonwealth make contradictory laws? Where is it mentioned?
s109 states, ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
What are residual powers?
Residual powers are those remaining matters on which the states can legislate, which are not referred to in the Constitution.
When was the separation of powers developed?
The ‘separation of powers’ doctrine was developed by the 18th Century French political philosopher Charles de Secondat Montesquieu. His belief was that the civil liberties of the public were at risk if the key organs of government were controlled by one person or group.
What are the 3 Chapters of the Constitution?
Chapter I – The Parliament (ss 1–60)
Chapter II – The Executive (ss 61–70)
Chapter III – The Judicature (ss 71–80).
What are the advantages and disadvantages of delegated legislation?
Advantages
- The people making the legislation are usually
experts in that field.
- Delegation of minor legislation frees up
parliamentary time for very serious issues.
- It is easier to amend delegated legislation and,
thus, it is more flexible.
Disadvantages
- Elected members of parliament do not have the time or expertise to fully check the delegated legislation.
- With many different bodies involved in making delegated legislation, there can be inconsistencies.
- Little publicity surrounds delegated legislation; thus, the public usually cannot voice their views
What are the 3 key organs of government?
- Legislature: law-makers (i.e. parliament)
- Executive: ministers and government departments who administer the laws made by parliament (i.e. GG, PM, Cabinet)
- Judiciary: courts which interpret and apply the law
Why did Montesquieu advocate for the separation of powers, and how does this principle help prevent dictatorship and protect civil liberties?
Montesquieu said that if the three organs were controlled by one person or group then they run the risk of a dictatorship.
* If one person controls all three, they have unfettered power, risking dictatorship.
* Independently controlled organs ensure no branch has absolute power and protect civil liberties.
What is civil liberties?
Civil liberties: basic individual rights, such as freedom of speech and religion, which are protected by law.
How does Australia implement the doctrine of the separation of powers, and why is it not applied in its purest form?
Australia adopted the doctrine of the separation of powers and the first three chapters of the Constitution allow for this, but in Australia some members of the executive are members of the legislature, hence the doctrine does not exist in its purest form in Australia.
Under which Chapter was the High Court of Australia created? What are the 3 things mentioned?
1/
- Chapter III of the Australian Constitution, ‘The Judicature’.
2/ * The court has one Chief Justice and at least two other judges.
When did the the number of judges increase? which section is this mentioned?
1/
* The court has one Chief Justice and at least two other judges.
* The first sitting of the High Court was on 6 October 1903, with three judges.
* The number of judges increased to five in 1906 and seven in 1912.
2/ - Section 71
What does Section 71 allow the Commonwealth Parliament to do?
- The court also allows the Commonwealth Parliament to create other courts, including the Federal Court and the Federal Circuit and Family Court of Australia.
What is the regulation on judges mentioned on Section 72?
- Judges are appointed by Section 72 and retire at the age of 70.
as a result of a successful referendum in 1977
Where do most judges come from?
What are the two jurisdiction in the High Court?
- Most judges come from the state Supreme Courts or the Federal Court, chosen by the ‘Governor-General in Council’.
- The High Court has both original and appellate jurisdiction.
Where is the original jurisdiction of the high court outlined in which section?(2)
- Section 75 ( original jurisdiction of High Court)
- Section 76. ( Additional original jurisdiction)
What do you mean by mandamus? prohibition? injunction?
1/
mandamus:
a court order compelling a government official or organisation to perform a particular task
2/
prohibition:
a court order that forbids a lower-level court from hearing or taking further action in a case or matter.
3/
injunction a court order requiring an individual or organisation to perform, or (more commonly) not to perform, a particular action
Where do the cases under original jurisdiction begin? Name the act in which section that influences power division between states and Commonwealth.
- In the High Court.
- Section 76(i) of the Constitution Interpretation Act significantly influences power division between states and Commonwealth.
How many judges hear and decide a case when presented to high court?
- Community conditions, standards, and attitudes should be reflected in the judiciary’s views and decisions.
- All seven judges hear and decide Constitution interpretation cases, ensuring final decisions, even without unanimous votes.
Since when was the High Court the Highest Court in the Australian judical system? During that what Act was put in place?
1/
* Since 1986, the High Court is the highest court in the Australian judicial system, with no other appeal avenues available.
2/
* The Australia Act 1986 (Cth) severed the judicial link with England.
What does section 109 mention?
‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
What does section 114?
Constitutional Application: Section 114
* States prohibited from raising or maintaining military force.
* Real-life application unclear.
What is the High Court’s role? What does the constitution outline?
High Court’s Influence on Constitution Interpretation
1/
* The High Court’s role includes determining judicial power jurisdiction and final interpretation of the Constitution.
2/
* It outlines areas the Commonwealth can legislate on and areas belong to states.
* The court also outlines limits on the powers of each government level.
How does the Tasmanian Dam Case illustrate how the High Court’s interpert original jurisdiction?
3/
* For instance, in the Tasmanian Dam case, the Commonwealth can only use external affairs power when entering legitimate international treaties or conventions.
* Initially, High Court decisions favored states, but over time, a broader approach has shifted the legislative balance.
* In Court cases illustrate the High Court’s original jurisdiction to interpret the Constitution.
What is mentioned in Section 73?
Section 73 of the High Court’s appellate jurisdiction allows it to hear and determine all judgments from cases from the High Court, any Federal Court, or the Supreme Court of any state.
Give a feature of High Court’s judgements?
- The High Court’s judgments in these cases are final and conclusive.
What do High Court require for appeal cases?
- Currently, all appeal cases require special leave before hearing by the High Court.
(* Appeals can be made to the High Court by special leave.)
What does Chapter 4 details on? when was it effective? written?
- Chapter 4 of the High Court Rules 2004, effective from 1 January 2005, details the High Court’s practice and procedure in its appellate jurisdiction.
- Appeals generally relate to legal questions or disputes between various courts requiring final adjudication.
What is special leave? question of law?
1/
special leave
where the High Court grants approval for the case to come before it in its appellate jurisdiction
2/
question of law
a disputed legal contention that is left for the judge to decide; for example, whether certain evidence is admissible
What do you mean from bipartisan?
bipartisan
having the support of the two major political parties
What does Judicial review mean? What is the purpose of the Judicial review?
Judicial Review Overview
1/
* Involves reviewing actions of government officials or departments by a court of law.
2/
* High Court exercises judicial review to determine constitutional validity of laws.
Who conducts most of the judicial reviews? which Act is used? what is the purpose of a Judicial review?
1-2/
* Federal Court conducts most judicial reviews using the Administrative Decisions (Judicial Review) Act 1977.
3/
* Judicial review investigates whether a government official has acted ultra vires or followed natural justice rules.
What is an efficient way to appeal government decisions?
- Non-judicial review of administrative action is an efficient way to appeal government decisions.
What do you the alteration process called in the Australian Constitution? Where is it mention (section, chapter)?
- The Australian Constitution has a unique alteration process, known as a referendum, which is found in section 128 under Chapter VII, ‘Alteration of the Constitution’.
Name the amendment success rate? In which section are the successful alteration set out? Name the alteration?
1/
* Only eight of the 45 proposed amendments to the Constitution have been successful.
2/
* with the specifics of successful alteration set out in section 128, including :
- passing both houses with an absolute majority being put to the electors within two to six months, obtaining an absolute majority of voters Australia-wide who approve the change, and having a majority of states that approve the change.
When was the most successful referendum in Australian history? what did it do?
- The most successful referendum in Australian history was in 1967, which altered section 51(xxvi) and deleted section 127, enabling the Commonwealth Government to pass laws in relation to First Nations peoples.
When was the last successful referendum?
- The last successful referendum was in 1977, when section 72 was amended so that judges in the High Court and other federal courts had to retire at age 70.
- The next nine referendum proposals were all defeated, with the most recent being a referendum to change Australia to a republic with a president appointed by a two-thirds majority of both Houses of Parliament in 1999 and a referendum to provide First Nations peoples with a ‘Voice’ to parliament in October 2023.
Which one was the most recent referendum which was defeated?
The most recent being a referendum to change Australia to a republic with a president appointed by a two-thirds majority of both Houses of Parliament in 1999 and a referendum to provide First Nations peoples with a ‘Voice’ to parliament in October 2023.
How long has First nation people lived (Aborginal and Torres Strait Islanders)?
- Aboriginal and Torres Strait Islander peoples have the oldest living cultures globally, having lived on Australia for at least 60,000 years.
Some Facts on First Nation people:(3)
- Over 200 distinct languages and dialects were in use during European colonisation.
- First Nations peoples retain a connection to their traditional lands regardless of their location.
- During British colonisation, First Nations had sophisticated systems of agriculture, domesticated plants, irrigation, and harvesting and storing processes.
describe the nature of First Nation laws?(2) How are they known as in Australia’s current Western System?
- There is no single system of First Nations law, with each community developing their own laws.
*First Nations laws are based on tradition, ritual, and socially acceptable conduct, known as ‘customary law’ in Australia’s current Western system
What a key difference between First nations customary law and British legal tradition?
- Land ownership is a key difference between First Nations customary law and British legal tradition.
- The British justified their colonisation and imposition of British property law on Australia by falsely declaring the land terra nullius, meaning ‘land belonging to no-one’.
- Despite federal and state legislation and common law, many First Nations peoples follow customary law.
- Customary law varies among First Nations groups due to Australia’s large land mass.
What is Customary law?
- Law established through long standing practice/tradition and based on accepted norms, customs and standards of behaviour.
In ATSI community how do they resolve disputes? How are non customary offences punished? name a few non-customary offeces?
- Dispute resolution involves negotiation, mediation, and conciliation, involving all community members.
- Non-customary offences, like insulting Elders and public singing of sacred songs, are punishable under customary law.
What is The Dreaming? What is encompass?
- The Dreaming, a creation and teaching story, forms the basis of Aboriginal law.
- The Dreaming encompasses the past, present, and future, with a strong spiritual element.
Why are some traditional Laws kept a secret?
How do laws evolve from the Dreaming?
- Traditional laws are often secrecy due to oral history and cultural role.
- Laws evolve from The Dreaming, focusing on land treatment and its inhabitants.
Since when have First Nations people lived under common law and customary law?
- Since 1788, First Nations peoples have lived under common law and customary law.
- Customary law is more common in remote communities, but varies across communities.
Who is involved in disputes within the First nation community? how do they resolve disputes? Who are reallly respected in the First nation Community? What is the importance of relationships in First Nation Community? What do they usually use when there is a dispute?
First Nations Dispute Resolution
- Family and community involvement in disputes.
- Discussions held during ceremonial times, not formal judicial processes.
- Elders and influential community members may meet with conflicting parties.
- Importance of relationships in passing on traditional laws.
- Mediation plays a crucial role in dispute resolution.
How do First Nation societies traditionally view land and water that differs from British settlers? What do First Nation people have links to and how is varied?
First Nations Societies’ Importance of Land and Water
1/ * First Nations societies traditionally viewed land and water as belonging to the group, not individual ownership, The loss of these resources is a loss to the group’s culture and history.
2/ * First Nations peoples have links with sea, lakes, rivers, and bodies of water, which are cared for under customary law.
* Each group has distinct responsibilities for their land and water, tied into traditional laws and stories.
(* Failure to follow these laws can be seen as disrespect for the land and traditional values.)
To what is it First nations law integral to? how are customary laws passed down?
First Nations Law and Ritual Traditions
1/ * First Nations law is integral to their values, customs, and ethics.
* Most laws pertain to marriage, child-rearing, spirituality, family, and kinship.
2/
* Customary laws are passed down through word of mouth and ritual.
* Different groups have different knowledge of laws.
* Laws are passed during ceremonial meetings at communal gatherings.
* These ceremonies are sacred and often involve dance and storytelling.
* The stories explain concepts like creation, tribal boundaries, family relationships, cultural practices, and forbidden acts.
What do traditional societies expect from their communities? How is order maintained? Who guide decisions related to law enforcements( First Nations) ? What are the 3 traditional law offences?
What varies in the First Nation community? What do punishments for serious offences depend on?
First Nations Law Enforcement and Sanctions
- Traditional societies expect community members to follow and reinforce laws.
- Order is maintained through self-regulation and consensus among family heads.
- Elders guide decisions related to law enforcement.
- Offences under traditional law can be breaches of sacred law or offenses against property or persons.
- Sanctions vary from place to place, with relatives of the wronged party or ceremonial leaders involved.
- For serious offences, Elders may need to ensure appropriate punishment and restraint.
- Traditional punishments and responses to disputes vary based on location, sex, status, victim’s behavior, and community’s view.
- Justifications for physical punishments include ridicule, shaming, exile, spearing, and beating.
Customary Law’s Relevance in Australian Law
- Legal recognition of First Nations rights has increased in the past 20 years.
- Customary law influences practices like sustainable development and fire management.
- Conciliation and mediation are increasingly used in criminal, consumer, and employment law disputes.
- Customary laws are sometimes considered when a First Nations person is charged with a crime.
- Evidence of a criminal offence provoked by the victim’s breaking customary law can be used as a mitigating factor.
- Elders are often consulted in maintaining and enforcing the law in traditional lifestyle areas.
- Debate surrounds the role of customary law in prosecuting, defending, and punishing offenders.
- Legislators are hesitant to formally incorporate customary laws into Australian law.
What is the meaning of Terra Nullius?
- terra nullius
(Latin) ‘land belonging to no-one’; the idea and legal concept
that when the first British people came
to the continent now known as Australia, the land was owned by no-one and thus was open to settlement; this concept has been judged to be legally invalid
When was happened in Mabo v. Queensland? When was the Native Title Act put in?
1992
1993
What is Mediation?
mediation: a form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement
What is sanctions?
Sanctions are penalties or punishments imposed for the breaking the law.
( Punishments range from ridicule and shaming to exile, spearing or death. )
What is the Dreaming?
The Dreaming
the source of Aboriginal peoples’ customary law
What is kinship? domestic law?
1/ kinship : family relationships, including all extended family relationships; an important part of First Nations cultures and values, which dictate how all people in the group behave towards each other
2/ domestic law : the law of a state
What is mitigation?
mitigation : making the severity
of an offence or a sentence milder or less severe
What is opinio juris sive necessitatis?
opinio juris sive necessitatis
(Latin) ‘opinion that an act is necessary by rule of law’; the principle that for the practice of a state to be customary international law, the state must believe
that international law requires it.
What is declaration?
declaration
a formal statement
of a party’s position on a particular issue; a declaration is not legally binding under international law.
What is treaty?
treaty
defined by Vienna Convention on the
Law of Treaties (1969) as ‘an international agreement concluded between states
in written form and governed by international law’; treaties may also be referred to as conventions or covenants.
