legal as4 Flashcards

Question

what is section 109

Answer 1

-written to resolve inconsistencies between areas of lawmaking between commonwealth and state -when a law of a state is inconsistent with a law of the commonwealth, the commonwealth will be prevail, and the formal shall to the extent of the inconsistency, be invalid

Answer 2

-when cth and state attempt to legislate in concurrent areas= shared area of law making, both parliament can legislate and introduce valid law -when cth and state attempt to legislate in their own areas of lawmaking, and a conflict still arises

Answer 3

-the timing of each law's creation is irrelevant= if they conflict with one another, cth will prevail to the extent of the inconsistency -to the extent of the consistency=sections of state law that clash with cth law will be deemed invalid however the remaining section of the law will continue to operate -states still can make laws on the topic= does not change areas of law making for states or cth= very limited

Answer 4

-Infertility Treatment Act 1995 (VIC)=infertile couples are allowed to have children using their own sperm or ova HOWEVER to receive treatment; must be a married woman and living with her husband or living with a man in a defacto realtioship however access to the program could be denied if the martial status requirement was not met= Sex Discrimination Act passed by cth parliament= unlawful to deny a person service if the grounds of the denial is based on a persons martial status -Dr McBrain= showed a specific patient, either a lesbian or single parent, that he could not let her utilise his service due to her martial status--> Federal Court ruled in McBain and that the cth law shall prevail and vic law was invalid to the extent of the inconsistency

Answer 5

-only comes into effect when an inconsistency is challenged in the appropriate court so unless a party with standing brings the issue to light, cth and state legislation can technically co exist with inconsistencies -can act as a restriction on states law making powers= bc if cth law has already passed laws in the concurrent area states can't override this and if states have passed a law in area of residual power that conflicts= inconsistent element will be deemed invalid -part of state law was previously deemed invalid with cth law but then cth law has changed or removed the inconsistency so that it technically doesn't exist, the inconsistent part of the states law can come back into effect

Answer 6

-establishes the division of law making powers between cth and state hw there are instances where the power of the cth and state parliaments to legislate over a certain area is contested (residual and exclusive) -matters of the constitution can be brought to HC= outcome can influence the division of powers between cth and state -jurisdiction oh HC can be found in S75 and S76 -decision of HC sets a precedent ONLY CHANGED THROUGH A REFERENDUM OR IF THE SAME LEGAL ISSUE IS PRESENTED AT THE HC AGAIN AND THERE IS A DIFFERENT OUTCOME -HC may declare a law= ultra vires= used in law to describe that it is beyond parliaments jurisdiction and therefore deemed invalid and cannot be enforced

Answer 7

-s51 of the constitution states that= parliament has ability to make laws on "postal, telegraphic, telephonic, and other like services"= problem is that constitution doesn't state what "other like services are"--> 1905 Cth passed legislation prohibiting the owning of radio without a license--> dispute which challenged the validity of the cth to legislate over radio broadcasting and if it was outside the scope of cth powers outlined in constitution= would make it a residual power -broad interpretation of "like other services"= meant that HC ruled in favour of Cth parliament that they have legislation to rule over radio

Answer 8

-comfirmed the power of cth parliament to legislate on matters that x written in constitution -could also mean that cth could create legislation in relation to new communication tech -HC clarified that this area of law making power is a concurrent power rather than reisdual -established precedent -limited or placed boundaries on residual laws to make legislation regarding this area bc cth now can also

Answer 9

-HC did set precedent on devices that can be considered "like services"= another case can be brought to challenge the scope if new tech is invented -cth cannot overrule the HC decision= if HC judge determines that cth has too much power in this area= can narrow the scope of the interpretation of "like services"

Answer 10

-composition of Upper House -rubber stamp effect -hostile senate -sitting days

Answer 11

-govt may not always hold the majority of seats in upper house, remainder of seats are held by opposition and minor parties and independents called cross-benchers -balance of power= a situation where a party has majority of seats in either houses meaning that power to approve or pass bills is held by a small number of ppl= cross-benchers -this leads to govt facing difficulties in implementing legislation bc the cross-bench can force govt to make amendments to their bills or reject them entirely

Answer 12

-refers to a situation where govt doesn't hold majority in upper house= cross benchers or opposition may deliberately block or reject initiatives which can lead to delays or lack of law reforms

Answer 13

-govt holds majority of seats both in lower and upper house=legislation can pass through where bills are not adequately debated and scrutinised= MP from both the LH and UH belong to the same political party and are lilkely to vote in party lines to show unity rather than make changes or challenge the bill -can allow legislation to pass effectively and efficiently without delays and only barrier is that an ineffective law may risk them being not re elected -may be detrimental to bills are they are not adequately debated and limits role of the UH use workchoices as an example= work choices act 2005 (vic)= made it easier for businesses to hire and dismiss workers= no claim for unfair dismissals if have less than 100 employees

Answer 14

=days in which MP's sit in parliament to consider and debate bills/policies=participate in question and answer time to hold govt accountable -2022= HoR sat for 64 days and senate sat for 51 days -limited no of days=influence their ability to make laws in that it can cause delays to pass legislation hw parliament can also delegate law making powers to local councils etc

Answer 15

-we want to be seen as progressive in recognising human rights and protecting the environment -don't feel guilty/ shame/ embarrassment/ on the global scale if we were to breach the established protocols on treatment of people, refugees, the environment and animals -want to show our partners countries that we share common views and perspectives on certain issues that affect both countries

Answer 16

-treaties (agreements) that we've signed with other countries -international declarations -the UN -other organisations

Answer 17

-referred to as conventions as well= agreement between two or more countries or organisations from which human rights obligations are creates -aust can become a party by signing it which acknowledges that the country will be bound by terms of the treaty -next is ratification= process whereby the idea of the treaty is intro to CTH parliament and should parliament agree, a bill will be drafted and go through the process to receive royal assent, if parliament does not ratify, no legal effect in aust

Answer 18

-aust has faced criticism from countries and UN for treatment of asylum seekers= contd use of offshore processing and detention bc seeking asylum means they don't have valid visas and are sent in offshore facilities lites indefinitely as there is no limit on how long they are detained= aust has been found breaching various international treaties due to harsh conditions and in response SCOTT MORRISON DECIDED TO END AUST OFFSHORE PROCESSING FACILITIES WITH PNG IN 2021

Answer 19

-non binding agreements between two or more countries that establish aspirational rights and obligations that parties to the agreement to seek to enforce

Answer 20

-un aims to promote international peace+ strengthen hr and achieve international cooperations for problems and affecting the global community -UN charter is considered an international treaty= aust bound to it since 1945 -vic increased the age of criminal responsibility after criticism from 10 to 12 and 14 by 2027

Answer 21

-G20=compromising of 19 countries and EU that meet annually to strengthen international economic cooperation and also climate change and corruption

Answer 22

-international declarations are not legally binding, parliament may face criticism for failing to uphold principles set out in declarations -international treaties can be legally implemented in aust through passing bills and successfully receiving royal assent -international organisations may be influential in sparking public interest in relation to issues such as those relating to issues such as HR and CC that Aust don't uphold--> place pressure on parliament to introduce laws or amend laws

Answer 23

-unless aust is part of an international organisation or ratified treaty=cth is under no legal obligation to comply w international expectation and standards -pressures from international organisations may limit the ability of parliament to make laws that are not tailored to unique needs of a popn -international society may have conflicting views and opinions on certain issues= transnational mining cooperations may encourage aust to trade coal and iron as doing so boosts their profits= therefore conflict with pressures from other organisations such asn environmental policies that may compel aust to reduce coal emissions to combat climate change

Answer 24

acting or speaking on behalf of individuals or groups of people

Answer 25

-2022= vic parliament indicate that the average MP was MALE, UNIVERSITY EDUCATED, AUSTRALIAN BORN, TURNING 45-64 during the election this year -within in cabinet=100% australian however general population= 24% is not australian -women and migrant aust are disproportionately represented in parliament--> parliament may not be able to create legislation that will fully represent the community

Answer 26

-international pressures -bicameral structure representative nature of govt: -reflecting the community and having diverse representation -regular elections -the willingness to act in accordance with the views of the majority

Answer 27

-members of parliament are democratically elected by public however there is a lack of diversity within the composition of parliament which can lead to them making legislation that doesn't reflect the voices and needs of the community -a MP with the best intentions of representing may lack the lived experiences of certain demographics and will not likely be able to fully represent the community -however may be argued that diversity should not matter that much bc members of the public can communicate to their member on reforms or legislations through petitions

Answer 28

-representative govt is achieved through regular elections= ensure that MPs are mindful to act in the best interest of the public as failing to do so can get a risk in not getting re elected -compulsory voting can also be seen as an enhancement in participation and democracy -short terms of 3 years places pressure on govt to implement legislation that is in favour of the public to get elected

Answer 29

-regular elections place pressure on MPs to represent the views of their constituents as if they don't may not be re elected and also holds them accountable to ensure they reflect the views of their voters rather than political interests -increasing number of women have been elected to parliament closing the gender divide and improving the ability of parliament to reflect the composition of society in its law making -compulsory voting ensures a large proportion of individuals participate in elections and that parliaments are compromised of MPs elected by many people

Answer 30

-minority cultural and women groups= exhibited long standing disparities in representation, affecting the parliament full ability to account for these demographics in law making -members of parliament may not vote for law reform where minority groups are against it out of fear of not being re elected even if the reform is needed for society -MPs may feel compelled to vote for a reform within in their political party even if isn't in line with the electorates desires -parliament may pass legislation to appeal most of society and gain support even if it doesn't to the entire community -3 year term may not be long enough to implement long term policies and MPs may make promises they aren't able to keep and therefore there is no law reform

Answer 31

-reforms on bail bc of increase in court backlogs and those denied bail are held in remand= catalyst was the FNP woman dying whilst in bail

Answer 32

-dv victims can get protection orders from police in 14 days however after, expires and then have to go to court to get it renewed so victim can have long lasting protection

Answer 33

ensures CTH parliament does not wield its ultimate powers without another way to balance/equal out its law making authority

Answer 34

-express rights -representative govt -separation of powers

Answer 35

-the idea the members of parliament are democratically elected by australian voters to make decisions and laws that reflect the views and values of the people that voted them into power

Answer 36

-section 7= the senate shall be composed of senators for each state, directly chosen by the people of the state -the house of reps shall be composed of members directly chosen by the people of the commonwealth

Answer 37

also a mechanism to check on cth lawmaking powers through: -constitution section 75 and 76 state that the HC is the only court that can interpret the words within the constitution -should cth parliament disagree with a HC ruling, they CANNOT abrogate this common law decision -should cth parliament disagree with a HC ruling over the meaning of the words within the constitution , they can initiate a change to the wording of the constitution through a referendum outlined in section 128 -should a party disagree with a hc ruling over the meaning of the words within the constitution, they must have standing and leave to bring the matter to HC -if HC deems that parliament has acted outside of its jurisdictional boundaries, it will declare that the parliament is ultra vires

Answer 38

roach was a FNP woman who was sentenced to prison for 6 years and the Electoral Act (2006) had banned all prisoners from voting in federal elections and the argument was that by banning all prisoners from voting, it violated S7 AND S24 of the constitution --> HC agreed with Roach and declared that the Electoral Amendment Act was unconstitutional as it DID LIMIT S7 and S24= amendment wad reversed as change declared it "ultra vires"=only prisoners serving 3 or more years will be banned from voting -significant bc affirms the presence of S7 and S24 in upholding rep govt -role of the HC in acting as a check on govt and law making powers

Answer 39

-distributing political power so that ultimate power and decision making does not rest in the hands on only one person or institution

Answer 40

-to prevent abuses of power by ensuring that power is not concentrated in one body -to protect individuals by ensuring checks and balances on the power of the government -to uphold the independence of the judiciary to apply the law and resolve disputes without political influence -to ensure govt and parliament work together to pass laws

Answer 41

-this refers to the ability to make laws or make amendments to the law -members of senate, HoR, GG

Answer 42

-this refers to the ability to administer or ensure that the law is enacted into the community -govt departments, govt agencies, members of public services

Answer 43

this refers to the ability to apply the law to enforce the law -power to adjudicate via the application of laws-courts including magistrates judges and justices -tribunals

Answer 44

-ensures that there is a check and balance on the powers of parliament and minimises abuses of power -independence of judges from political power pressure and worry of being re elected means that they can make decisions that is legally independent -the legislative branch can act as a check on the power of the executive such as cabinet MPs may still be scrutinised and not passes if parliament does not agree with its purposes -the judiciary can delcare laws created by parliament ultra vires if it has determined that it has breached itd lawmaking powers in accordance with the constitution= limits the scope of cth lawmaking powers -the separation of powers is constitutionally guaranteed, meaning that it is upheld and cannot be removed without a successful referendum

Answer 45

-there is a clear overlap between the legislative and executive power which can limit the ability of the separation of powers principle to completely act as a check on parliament -to challenge a law in the HC, a person must have a legal standing -composition of MPs from each party within the parliament can influence the effectiveness of the legislative in acting as a check on executive and laws in general= where govt holds the majority in both houses= bills introduced by members of the executive may not be challenged sufficiently by members of the legislative --> less scrutiny and debating

Answer 46

-right to freedom of religion -right to the acquisition of property on just terms -right to trial by jury commonwealth indictable offences -right to not be discriminated against based on your state of residence -right to interstate trade and commerce

Answer 47

-clearly embedded and written within the constitution and cannot be changed unless it is through a referendum -cannot be deleted or amended by judges or parliament -high court is the only body that can interpret the meaning of the wording within the constitution -express rights are also legally enforceable and if cth legislation clashes with the constitution then this can be challenged by the HC

Answer 48

-s51=cth has ability to take property from any state or person for the purpose that falls within their jurisdiction also the power to make laws regarding land acquired for public purposes for building or airport however they must provide fair and reasonable compensation

Answer 49

-s117 of the constitution saids that states cannot create or apply laws in a discriminatory manner based upon an individuals state of residence

Answer 50

-s80= should an accused pleads not guilty, the must be tried before a jury -only applicable to cth indictable offences -most criminal offences are created by state law -s80 does not prevent state from passing laws to have cases heard by judge alone

Answer 51

-s92= cth parliament and states cannot restrict the flow of trade and movement of goods between states

Answer 52

-s116= cth shall not make laws for that restrict religious practice, impose religion on an individual, promote discrimination against an individual on the basis of their religion

Answer 53

-enshrined in the constitution and can only be changed through a successful referendum= safeguards the presence of rights bc difficult to pass referendum -fully enforceable by the HC meaning if legislation is created and it breaches express rights, an indiv with standing can challenge at HC and can declare invalid ultra vires -HC is independent of executive and legislature which means it has political indep to safeguard the rights of aust ppl w/o fear of political backlash

Answer 54

-express rights are limited= only 5 so doesn't really limit the jurisdiction on cth powers -no mechanism for preventing parliament from passing a law that is constitutionally invalid or breaches the express rights and so only will be deemed invalid if HC is informed -referendum is unlikely to add additional rights as hard to pass