Legal Studies U4 AOS1 Flashcards
1
Q
Who is Government?
A
The members of the political party with the most seats in the lower house (leader becoming PM)
2
Q
What is a bicameral?
A
A law-making body with two houses or chambers.
3
Q
What is Parliament?
A
All elected members making laws on behalf of the people who voted on behalf of them (not just those in favour).
4
Q
Which houses make up Commonwealth Parliament?
A
the House of Representatives and the Senate.
5
Q
Which houses make up Victorian Parliament?
A
the Legislative Council and Legislative Assembly.
6
Q
What is the lower house in Commonwealth?
A
The house of representatives
7
Q
How many members are thre in the House of Reps?
A
151 (each electorate)
8
Q
How long is a term in the House of Reps?
A
Three years max
9
Q
What are the roles of the House of Reps?
A
Initiate new legislation (usually by ministers)
Initiate money bills (MUST be initiated in lower house)
Represent the people in law-making (directly chosen by the people)
Review legislation and propose amendments
Scrutinise legislation (less common)
10
Q
What is the upper house in the Commonwealth Parliament?
A
The senate
11
Q
How many seats are there in the senate?
A
76 (12 per state, 2 per territory)
12
Q
How long is a Senate term?
A
6 years max
13
Q
What is the role of the senate?
A
Scrutinise legislation proposed by lower house
Act as a states’ house (ensure legislation is not passed that favours the larger states at the expense of the smaller states.)
Initiate legislation
14
Q
What is an electorate?
A
A geographical area comprised of approximately 110,000 voters represented by a member of the Commonwealth Parliament.
15
Q
What is a Governor-General?
A
The representative of the monarch in the Commonwealth Parliament.
16
Q
What is royal assent?
A
The formal and final approval granted by the monarchy, or a representative of the monarchy, for a proposed piece of legislation.
17
Q
What are the roles of the crown (gov. general) in Commonwealth
A
Grant royal assent
Withold royal assent (allowed under s58… never happened in practice)
Suggest amendments to legislation after it has passed both houses of parliament (s58… used scarcely)
Summon the Executive Council
18
Q
What is the exective council?
A
A group of senior government ministers with the role of advising the Crown’s representative on government matters.
19
Q
What is the lower house of Victorian Parliament?
A
Legislative assembly
20
Q
How many members are there in Legislative Assembly?
A
88 (from each electoratal district)
21
Q
What is an electoral district?
A
A geographical area comprised of approximately 50,000 voters represented by a member of the Victorian Parliament.
22
Q
What is the role of the Legislative Assembly?
A
Initiate new legislation
Initiate financial spending legislation
Represent the people in law-making
Review legislation and propose amendments to laws
Scrutinise legislation (rarely)
23
Q
What is the upper house of Victorian Parliament?
A
Legislative council
24
Q
How many members are there in Legislative Council?
A
40 members (represent eight regions across Victoria.)
25
What is the role of the Legislative Council?
Scrutinise legislation
Initiate legislation
26
What are the roles of the crown (governor) in Victoria?
Grant royal assent
Act as a Head of State
Chair the Executive Council
27
What is a governor?
The representative of the monarch in each of the six Australian states.
28
What are exclusive powers?
Law-making powers granted only to the Commonwealth Parliament by s 51 and s 52 of the Australian Constitution.
29
Examples of exclusive powers?
Customs and border protection
The control of the armed forces
Currency
Foreign affairs
Medicare
Overseas trade.
30
What are concurrent powers?
Law-making powers granted to both the Commonwealth and state parliaments.
31
Examples of concurrent powers
Marriage and divorce
Taxation
Banking
Railway construction
Trade and commerce between the states of Australia.
32
What are residual powers?
Law-making powers that are not granted to the Commonwealth Parliament in the Australian Constitution and therefore belong to the state parliaments.
33
Examples of residual powers?
Education
Agriculture
Police
Prisons
Criminal law.
34
What is s109 of the Constitution?
‘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.’
35
What is the significance of s109?
Resolves inconsistencies
Restricts the law-making powers of the states
Requires a case to be brought forward in the courts for an inconsistent state law to be considered invalid
Allows state laws previously deemed invalid to come into force if the Commonwealth law is changed or removed
36
Which section of the Constitution requires a Bicameral Parliament?
s1
37
What are the steps of the law-making process?
1. Introduction and first reading
2. Second reading
3. Third reading
4. The bill is approved by the first house
5. The bill goes through the same procedure in the second house
6. The bill is approved by the second house
7. The bill receives royal assent
8. Commencement
38
What happens in the introduction and first reading?
If approval is given, the minister formally introduces the bill, meaning they read its title and distribute copies to other members.
39
What happens in the second reading?
The bill is debated and scrutinised, after which the house votes on whether it should progress.
40
What happens in the third reading?
Any final amendments are proposed and considered. The bill is then officially voted on by the house. If successful, the bill is passed to the second house for consideration.
41
What happens regarding Commencement?
A bill will rarely become an enforceable law on the same day of receiving formal approval via royal assent. A new law will take effect on the date stated within the Act itself; if no date is included, it takes effect 28 days after receiving royal assent.
42
What is a hostile upper house?
A situation in which the government of the day does not hold a majority in the upper house.
43
Effects of a hostile upper house
Increases the level of scrutiny on bills and ensures adequate levels of debate and consideration are undertaken before a law passes through the house.
44
What is a ‘rubber stamp’ upper house.
Majority of seats are held by the same party in the upper and lower house, meaning bills may not be scrutinised properly.
45
What are international pressures?
The influence that other countries and international organisations exert on parliaments to ensure the laws created comply with international standards.
46
What is an international declaration
A non-binding agreement between two or more countries that establishes the aspirational rights and obligations that parties to the agreement seek to enforce.
e.g Universal Declaration of Human Rights (UDHR)
47
What is a democratic society?
An organised system of people living in a community, in which the laws and processes that govern people’s lives are created by elected representatives.
48
What is outlined in sections 7 and 24 of the Australian Consitution?
That both Houses of Parliament must be directly elected by the people.
49
What is stated by the Constitution Act 1975 (Vic)?
That the members of the Legislative Assembly and Legislative Council must be elected by the people from their respective districts.
50
How is the Commonwealth Parliament limited in reflecting the community?
If an MP lacks the lived experience of certain demographics (i.e minority groups), they will likely not be able to fully represent their community in law-making.
51
s7 and s24... which is which????
Section seven senate
Section 24, knockin’ on the house’s door, where representatives introduce the law
52
What is the requirement of standing?
The requirement that, in order to bring a case to court, an individual or group must be affected by, or have a special interest in, the issues involved in the case.
53
How does the high court act as a check on parliament?
Interpreting the consitution and deciding what is and isnt ultra vires.
54
What does s28 mean
Members of House of Rep will be chosen for 3 years.
55
What are the seperation of powers?
Legislative power, executive power, judicial power
56
What is legislative power?
The power vested in parliament that enables it to make laws.
57
What is executive power?
the power, vested in the King and exercised by the Governor-General, to maintain and administer the law and the business of government.
58
What is Judicial power?
The power vested in courts and tribunals that enables them to enforce laws and resolve legal matters.
59
Strenghts of seperation of powers what are?
Minimises the possibility of an abuse of powers
Judiciary = legal matters can be determined without political pressures (judges can't have a political party)
Judiciary = ultra vires to parliament if appropriate
Constutionally guaranteed... can't be removed without a referendum
60
Limits of seperation of powers what are?
Requirement of standing grrrr
61
How many express rights are there?
5
62
What are the 5 express rights?
Acquisition of property on ‘just terms’ (think THe Castle movie)
Trial by jury for Commonwealth indictable offences
Interstate trade and commerce
Freedom of religion
No discrimination based on your state of residence
63
What is meant by Acquisition of property on ‘just terms’
The Commonwealth Parliament may acquire land for public purposes, such as building an airport or erecting a public office... just terms = appropriate compensation
64
What are express rights?
Rights explicitly stated in the Consitution, cannot be removed without a refurnedum (s128)
65
What is meant by freedom of religion (section 116)?
Commonwealth Parliament cannot pass laws that restrict religious practice, impose a religion on an individual, or promote discrimination against an individual on the basis of religion.
66
What is statutory interpretation?
A process whereby the courts give meaning to the words in legislation when applying the legislation to a case, forming precedent.
67
Reasons for statutory interpretation
The specific meaning of words
The changing nature of words
Unforeseen circumstances.
68
What is meant by "the specific meaning of words"
Identify the scope of the statute and determine whether it extends to certain areas.
69
What is meant by "the changing nature of words"
As society progresses, the meaning of words and how they are used reflects these changes. Judges may interpret the meaning of words to align with society’s values.
70
What is meant by "unforeseen circumstances"
Laws are drafted with the intention to cover future legal issues. There are many instances where legislative drafters have not taken into account all possible circumstances where the statute could apply.
71
What are the effects of statutory interpretation?
The creation of precedent
Broadening the operation of a statute
Narrowing the operation of a statute
Prompting legislative change.
72
What is the doctrine of precedent?
A rule in which judges must follow the reasons for decisions given by superior courts in the same court hierarchy when deciding a case before them with similar facts.
73
What is stare decisis?
The legal principle to stand by what has been decided and follow the decisions of previous cases.
74
What is ratio decidendi?
A judge’s reason for a decision in a case, which establishes a new legal precedent.
75
What is obiter dictum?
A Latin term meaning ‘it was said by the way’; refers to a judge’s comments made in passing to provide context to a legal decision.
76
What is binding precedent?
Legal reasoning of a higher court that must be followed by all lower courts in the same court hierarchy where the material facts are similar.
77
What is persuasive precedent?
Legal reasoning that can act as a guide for judges even though they are not bound to follow it.
e.g. comments that are obiter dictum, decisions made by the same court or courts at a lower level in the hierarchy, decisions made by a court in a different hierarchy, such as NSW or England.
78
What is reversing a precedent?
When a case is appealed and the superior court changes the precedent set by a lower court
79
What is overruling a precedent?
When a superior court invalidates a previous decision made by a lower court by setting a new precedent in a new case with similar facts.
80
What is distinguishing a precedent?
When a lower court avoids applying a precedent by demonstrating that the case before it has different material facts to the case in which the precedent was established
81
What is disapproving a precednet?
When a lower court acknowledges its disagreement or lack of approval towards a binding precedent, whilst still being obliged to follow it.
82
What is judicial conservatism?
Where a judge is reluctant to develop new law as they feel it is the role of parliament, as the elected representative body, to do so.
83
Strengths of judicial conservatism?
Ensure stability
Prevents the creation of controversial laws
Reduces the likelihood of appeals being made on a question of law, whereby the precedent may be reversed.
84
Limits of judicial conservatism?
Restricts courts from making substantial changes to the law.
May result in judges in superior courts applying outdated precedents rather than creating new ones... no longer reflect community values.
85
What is judicial activism?
When judges act progressively to consider a range of social and political factors when interpreting the law and making decisions.
86
Strengths of judicial activism?
Undertake a secondary role in developing common law where necessary
Able to make controversial laws without fear of being re-elected
Able to develop laws that put pressure on parliament to make legislative changes.
87
Limits of judicial activism?
Courts must still wait for a relevant case before actively changing the law.
May not actually reflect the views and values of the majority.
Parliament is the supreme law-making body and can, therefore, abrogate any radical common law created by the courts as legislation will prevail over such law.
88
What is codification?
The process of parliament confirming common law precedent by enacting legislation to give effect to the legal principles.
89
What is abrogation?
The process of parliament overruling common law by creating a statute contrary to a decision of the courts.
