Constitutional Law Flashcards
Define ‘Social Cohesion’
A term used to describe the willingness of members of society to cooperate with each other in order to survive and prosper
How is Social Cohesion achieved?
- Regulations + guidelines
- Est. Individual rights
- Est. mechanisms for peaceful conflict resolution
- Providing consequences for those who break the law
What is the ‘Rule of Law’
Everyone is subject to the law
Who makes rules?
Private individuals or groups in society
Who makes laws?
Legal institutions (parliament)
Who do rules apply to?
A specific group of people
Who do laws apply to?
All of society
What are the consequences for breaking a rule?
Non-Legal
What are the consequences for breaking a law?
Legal. E.g. fines, imprisonment
Who enforces the breach of a rule?
Varies - mostly those who create it
Who enforces the breach of a law?
Police and the courts
What are the characteristics of an effective law?
- Reflects Societal Values
- Clear and Understood
- Enforceable
- Known
- Stable
What were the aims of federation?
- Make trade easier within Aus
- Control immigration
- Improve defence arrangements
What is the constitution?
A document that contains the principles and guidelines that outline how the country is run.
It is the highest law in Australia.
What does the constitution entail?
- The laws Federal Parliament may pass
- How Parliament puts laws into action
- The way High Court works
- Division of powers between Federal, State and Territory parliaments
Define the ‘Act of Parliament’ or ‘Statute Law’
A term used to describe laws that have been passed into parliament
What is the idea of ‘two houses’ known as?
Bicameral Parliament
What is the purpose of the Governor-General?
To represent the king’s views in parliament
What is the role of the Governor-General
Giving royal assent to laws
What is the purpose of the House of Representatives?
To represent the majority of voters from each electorate
What is the role of the House of Representatives?
- Introduces bills
- Review bills passed by the upper house
- Hold government
What is a bill?
A proposed law
How many members per electorate are there in the House of Reps and how many seats are there currently?
1 and 151
What is government?
The political party that wins the majority of seats in the lower house (76+)
How many senators are there?
12 for each state and 2 for each territory. 76 total.
What is the purpose of the Senate?
To represent the interests of each state and territory, regardless.
What is the role of Senate?
- Review bills passed by the lower house
- Introduce bills
Define ‘Representative Government’
A political system in which people elect members of Parliament to represent them in government
(s.7 and s.24 state that houses are composed of members ‘directly elected by the people’)
What are the roles of the High Court?
- Interpret the Constitution
- Enforce the law and settle disputes
(s. 71)
Define ‘Exclusive Powers’ and give two examples.
Law making powers that only the Commonwealth can exercise.
- Defence
- Currency
Define ‘Concurrent Powers’ and give two examples
Law making powers that are shared by the Commonwealth and States.
- Marriage
- Taxation
Define ‘Residual Powers’ and give two examples.
Law making powers that are not addressed in the Constitution and are therefore retained by the states.
- Public transport
- Urban planning
Outline the steps involved in making a new law.
- Bill is introduced to parliament
- First Reading (Title of Bill is read out)
- Second Reading (Detailed explanation)
- Debate
- Passed by both houses (after repeat of
readings and debate) - Becomes an Act
- Royal Assent
- Commencement
What is a referendum?
A national vote to add or remove words from the Constitution. (Section 128 of Constitution)
Describe a double majority.
- ‘Yes’ vote from over 50% of the Aus pop.
- Voter majority from at least 4/6 states
What is a political party
A political party is an organisation that represents a group of people with shared values and ideas, and which aims to have its members elected to Parliament.
What is the Rubber Stamp Effect?
When the govt. holds a majority in the Senate, the Senate only confirms the decision made by the LH because Senators tend to vote on party lines
What is a hostile upper house?
If the govt. does not hold the majority of seats in the UH then referred to as hostile U.H. as it will face difficulties implementing its legislative policy agenda. (Because Opposition and Crossbench can vote together and force govt. to make significant changes)
What is a hung parliament?
A situation where neither major political party wins a majority of seats in the L.H. at an election. Major parties must then seek the support of minor political parties to form a minority government.
What is the Balance of Power?
Held by a small group of independents or minor parties with the power to reject proposed bills.
What is common law?
Decisions made by the courts/judges to broaden or narrow the meaning of statute law that set a precedent for other cases.
What is abrogation?
When the courts interpret the law in a way that Parliament had not intended, it can overrule the interpretation of the law
What is codification?
When the Parliament might not have considered an issue, a court may make precedent on a particular issue and Parliament may decide to confirm the common law to create a statute.
What is secondary legislation/by-laws?
rules or regulations enacted by subordinate authorities, who have been delegated power by Parliament to do so on their behalf.
Outline the Separation of Powers and why it exists.
Legislative - to make and amend laws (Commonwealth Parliament) - s.1
Executive - to administer the law
(Governor General, Govt. Ministers and Govt. Departments) - s.61
Judicial - to interpret the law
(High Court and other federal courts) - s.71
- To act as a check and balance to ensure that power is not concentrated in one body.
How does the Separation of Powers act as a check and balance system?
In accordance with the Separation of Powers, Parliament must ensure that it allows the courts to remain independent and retain the power to determine if the parliament has passed laws beyond its law-making authority.
What are the three levels of law making?
Federal Parliament
State Parliament
Local Councils
Why do changing community values make it so that the laws need to change?
- Changing Community Values when society becomes more educated and aware to ensure that the law is relevant and people are more inclined to follow the law.
E.g. Medical Cannabis
What does technological developments make it so that the laws need to change?
Technology is constantly changing and opening up new possibilities so laws need to be updated to ensure that individual rights remain.
E.g. Cyberbullying, Cyberstalking, Genetic Patenting
What does the need for community protection make it so that the laws need to change?
Law reform must occur to make sure different individuals and groups feel safe and protected from harm.
E.g. Crimes Amendment (Carjacking and Home Invasion) Act 2016 (Vic).
What is a petition?
A formal, written request to the government to take some action or implement law reform. Paper or online.
Outline the strengths of petitions
- simple, easy and inexpensive way to show a desire for change
- more likely to be considered if it has strong community support
- has to be presented in parliament
Outline the weaknesses of petitions
- influence depends on who tables it
- P receives 100s of petitions a year
- don’t gain media attention once tabled
What is a demonstration?
(also referred to as protests or rallies) is a gathering of people to protest or express their common concern or dissatisfaction with an existing law as a means of influencing law reform.
Define pressure groups.
A group of people that have a common interest in trying to change the law.
Outline the strengths of demonstrations
- attract large number of participants and free media coverage
- can gain support of members who want to ‘adopt a cause’
- raise social awareness on an issue
Outline the weaknesses of demonstrations
- can cause public inconvenience and lead to violence + breaches of the law
- difficult and time consuming to organise
- if about something that cannot be changed in Aus law > less effective
Outline the purpose of the Legislative Assembly
88 members - to represent the interests of the majority of voters (electorates divided based on pop.)
Outline the purpose of the Legislative Council
40 members - to represent the interests of each region
How can an individual influence law reform through the courts?
Challenge legislation to:
- Clarify the meaning of the law
- Hope that it will be declared ‘ultra vires’ - beyond the powers of Parliament
- State leg. on the basis that it conflicts with federal law
Outline the effectiveness in the courts in making law reform
- Challenging existing laws in High Courts can enable a vague law to be clarified
- Gain significant media coverage
- Judges’ decisions can encourage Parliament to change the law
What are some weaknesses in using the courts to implement law reform?
- Limited bc. they can only change the law when a case comes before them and only in relation to the issues in that case
- Expensive and time consuming
- Judge made law can be abrogated
