Legal studies constitution

Question 1

constitution (commonwealth)

Answer 1

a constitution is a set of rules and principles that nature of the government

Question 2

features of the constitution

Answer 2

1. establishes the high court
   2.establishes the law making powers
2. provides the mechanism to change the law

Question 3

the common wealth parliament

Answer 3

house of representatives:is the lower house in the parliament with 151 members with 3 year term
role of law making:
- represent the people
- initiate the bills and laws
- scrutinise the government administration
Senate: the upper house with 76 members and 6 years of term, next seats with majority votes becomes opposition
role of law making:
- allow of equal representation
- act as house of review
- scrutinise government administration

Question 4

Victorian parliament

Answer 4

Legislative assembly:
there is 88 members
the role of law making:
- represent the people
- initiate the bills
- form government
Legislative council: 40 members
the role in law making:
- scrutinise the bills
- initiate the bills
- act as a house of review

Question 5

the crown

Answer 5

1) one government
2) six governors
the role of crown in law making:
- grant royal assent
- withholding royal assent
- appointing executive council

Question 6

the division of law making powers

Answer 6

Residual powers- the law making powers left with the states. the commonwealth parliament has no authority to make laws. not in constitution. (criminal law, education, health, public transport)

Exclusive powers- law making powers that are held by the commonwealth parliament section 51&52.(currency, customs and border protections)

Concurrent- powers of the constitution can be exercised by both commonwealth and parliament. (telephonic and telegraphic, similar services)

Question 7

Section 109

Answer 7

Under section 109 of the constitution, if there is a conflict between state and commonwealth laws, the commonwealth law will prevail to the extent of the inconsistency between the two pieces of legislation and state law provisions that are inconsistent with the Commonwealth law will therefore be invalid.
.It can then be challenged in court.

Question 8

the bicameral structure

Answer 8

The two houses: the upper and lower house
the crown: the governor

the composition of the upper house
.hostile upper house- a situation where there are no majority seats in the upper house and relies on the opposition and cross bench
. rubber stamp- a situation where the upper house automatically approves decisions made in the lower house.

Question 9

international pressures

Answer 9

demands made on parliaments from within Australia or beyond, to make laws that address matters of international concern
can include
- local activists (eddi mabo case with the terra nallius)
- non-government organisations

Question 10

The representative nature of parliament

Answer 10

if these members fail to make laws that reflect the views and values of the people, they will jeopardise their chance of being re-elected
.the diversity of parliament
.willingness to act on accordance with the views of the majority.
. regular elections

Question 11

The high court and the representative government

Answer 11

section 7 sets out matters related to the senate and section 24 sets our matter relating to the house of representatives.

Question 12

The separation of powers

Answer 12

Executive power: is to administer laws and manage the business of government

Legislative power: is the power to make laws

Judicial power: is the power given to courts and tribunals to enforce the law and settle disputes
reason for the separation of powers:
- prevents power from being concentrated in one set of hands and helps to protect individuals right by providing checks and balances on the power of parliament.
- no one body can make law, administer law and also rule on its legality

Question 13

The express protection of rights

Answer 13

A right that is specifically stated in the Australian constitution.
five express rights:
- right to freedom of religion section 116
- the right to free interstate and commerce section 92
- the right to receive just terms
- the right to trail by jury for commonwealth indictable offences.
- the right to not be discriminated
entrenched: express rights are entrenched

Question 14

Introduction to courts

Answer 14

. law made by parliament is statue law
. law made by judges or the courts is common law
role of courts
- by interpreting the meaning of the words
- by establishing a new principle of law when resolving a dispute

Question 15

statutory interpretation

Answer 15

by interpreting the meaning of the words and phrases in an existing statue so its meaning clarified and the state can be applied to resolve the dispute before the court.
reasons for statutory interpretation:
- resolving problems that occur during the drafting process
- resolving problems that occur during the application of statues
- the effects of statutory interpretation
-

Question 16

features of doctrine precedent

Answer 16

Persuasive precedent
Ratio decendi
Obiter dictum
Binding precedent
Stare decis

Reversing
Overruling
Distinguishing
Dissaproving

Question 17

the way precedent affects law making

Answer 17

factors that affect the ability of court to make laws
- doctrine of precedent
- judicial conservatism and activism
- cost and time in bringing a case to court
- the requirement for standing
.consistency and predictability
.flexibility

Question 18

judicial conservatism & judicial activism

Answer 18

judicial conservatism:is an expression used when judges adopt an narrow interpretation of the law when interpreting acts of parliament and deciding cases. Will not go far and beyond to establish law
Judicial activism: is a expression used when judges consider a range of social and political factors when interpreting acts of parliament and deciding cases.
. the extent to which judges are progressive

Question 19

requirement for standing

Answer 19

Standing- the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine it.
. this prevents waste of court resources

Question 20

the relationship between the parliament and the courts

Answer 20

the parliament and courts can work together to create laws.
connections that exists between the parliament and the courts is:
- the influence of the courts on parliament
- the courts and parliament is through codification
- parliament the power to pass legislation that abrogates

Question 21

cost and time in bringing a case to court

Answer 21

1) cost of legal representation
2) court fees