Legal Flashcards
Identify the purpose of a referendum and describe the process (100 words)
According to s.128 of the Constitution, a referendum provides the legal mechanism to amend the Constitution, enabling it to maintain its relevance to contemporary Australian society. It requires that any change be approved by an absolute majority of both the House of Representatives and the Senate. Then, to vote in favour of any change requires the approval of a majority of voters nationwide and also a majority of voters in at least four states. This is called a Double Majority.
define the doctrine of Terra Nullius
The doctrine of Terra Nullius is a legal concept that classifies land as “nobody’s land,” meaning it is unowned and available for occupation. This doctrine was used historically by colonial powers to justify the seizure of lands inhabited by Indigenous peoples, asserting that the land was “empty” if it lacked European-style government or cultivation. This doctrine was challenged in Australia and ultimately overturned in the landmark Mabo v Queensland (No 2) (1992) case, where the High Court recognised native title.
Describe the Australian Constitution
The Australian Constitution is the founding legal document that outlines the structure, powers, and functions of Australia’s government. It establishes the federal system, dividing powers between the Commonwealth (federal) and state governments, and defines the roles of the three branches: the legislature (Parliament), the executive (Prime Minister and government ministers), and the judiciary (courts).
Describe the key features of the Australian Constitution?
The Australian Constitution, effective since 1901, establishes a federal system that divides power between the Commonwealth and the states. It outlines the separation of powers into three branches: the legislature, which makes laws through Parliament; the executive, which administers these laws through the Governor-General, Prime Minister, and ministers; and the judiciary, headed by the High Court, which interprets the laws. The Constitution also details key elements like the establishment of Parliament, the roles of the states, the mechanism for changing the Constitution through referenda, and protections of certain rights, such as the right to a trial by jury in federal offenses.
Define Bicameral
A government structure involving two houses, or two legislative bodies, that are separate in deliberation from one another.
Define legislature
The legislature is the branch of government responsible for making, amending, and repealing laws. It typically comprises elected representatives, such as a parliament, who debate and vote on proposed laws and policies. It is a key mechanism for ensuring government accountability and transparency, as it can hold inquiries and oversee government actions.
Define executive government
The executive government is the branch of government responsible for implementing and enforcing laws, as well as managing the day-to-day operations of the state. It is headed by elected leaders, such as a president or prime minister, along with appointed ministers and public servants. The executive oversees government agencies, sets policies, and administers programs to deliver public services. It plays a key role in decision-making on national defence and foreign policy issues.
Define judiciary
The judiciary is the branch of government responsible for interpreting and applying laws to ensure justice is served. It consists of a system of courts that resolve legal disputes, uphold laws, and protect individual rights. Judges, who operate independently from the legislative and executive branches, ensure that legal decisions are made fairly and according to the law. The judiciary plays a crucial role in maintaining the rule of law by checking government power and ensuring laws are consistntly applied.
Describe section 51 of the Australian Constitution
Section 51 of the Australian Constitution sets out the legislative powers of the Commonwealth Parliament. The Commonwealth legislative power is limited to that granted in the Constitution. Powers not included in section 5 are considered residual powers and remain the domain of the states.
Describe section 109 of the Australian Constitution
Section 109 deals with any inconsistency that could possibly arise between the laws of the Commonwealth and those of states. For example, in health, both Commonwealth and State legislate. If a state were to pass a law different from a law passed by the Commonwealth Parliament, this inconsistency would be resolved by section 109. The Commonwealth law would prevail.
Describe the doctrine of the separation of powers. Explain two reasons why theses powers are separated
The separation of powers doctrine requires that all three arms be separated to ensure that no individual body or person has absolute power. These parts are found in Chapters 1,11,111 of the Australian Constitution. These are the legislative (people who make the laws), the executive (puts the laws into place) and the judiciary (interprets the law). The powers are separated to avoid injustice, protection of rights, and uphold the rule of law.
Describe the role of section 51 of the Australian Constitution and the residual powers
Section 51 of the Australian Constitution grants the Commonwealth exclusive legislative power over certain areas, including the seat of government and Commonwealth public service matters. This exclusivity means states cannot legislate in these domains. In contrast, residual powers—those not enumerated in the Constitution—remain with the states. However, there are concurrent powers that the federal and state can make laws about; however, federal law overrules state.
describe bi cameral parliament
System of government of the legislative arm of the state into a deliberative body having two chambers, which generally deliberate and vote upon proposed legislation separately.
Explain the doctrine of precedent
The rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts.
What is included in a Nature and scope paragraph?
- who does it impact
- legal issue
- evidence from stimuls
