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Legal Studies 3/4 2024 > People and law-makers > Flashcards

People and law-makers Flashcards

1
Q

What is the structure of the parliament

A

parliament is composed pf the king, governor general, lower house and the upper house. Parliament has a bicameral structure meaning that two houses participate in the law making though advising and reviewing bills/ proposed laws

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2
Q

What is the crown and identify the current governor general

A

The crown is the representation of the monarchy- King Charles III.
The governor general is a representative of the crown- the current governor general is David Hurley

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3
Q

What is the composition of the upper house/ senate

A

76 democratically elected members that represent the states and territories not the voters. 12 members per state and 2members per territory.
Re-elected every 6 years, and the government is not usually in control in the senate

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4
Q

What is the composition of the lower house/ house of representation

A

151 democratically elected members that are voted on by voters on the electoral role. They represent Australia via voter distribution. Eg. there are many more electoral seats in Victoria compared to the 2 in WA. 1 member per ~110,000 voters

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5
Q

Define parliament

A

Commonwealth parliament refers to a body that consists of democratically elected members, chosen by the people to federal laws and the governor general and the king

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6
Q

Define government

A

Government refers to the political party that has wn an election. Their members will gain the most seats in the LH and the leader will become prime minister

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7
Q

Define hung parliament

A

A situation in which neither party wins the majority seat in the LH

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8
Q

Define bill

A

A introduction of a preposed law that needs to pass through the bicameral system to be made into legislation bye getting royal assent from the governor general

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9
Q

Define cross bench

A

members of parliament who do not belong to major political parties. they are either independent or members from minor parties

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10
Q

Outline 3 roles of the HoR

A

Introduce bills/making laws:
-introducing bills
-reflect society values or to uphold electral promises
-Introduce money bills - S53 requires bills in relation to government spending must be initiated in the lower house eg. laws on tax
Representative government:
-debating or suggesting amendment by the opposition leader to challenge the ideas of the government
Forming government:
-Most number of seats in HoR= form governement and a party can seek support from the independent members so they can form a government

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11
Q

Online 3 roles of the senate

A

Act as the house of review:
-debating and reviewing the preposed law from the HoR to ensure that any bills passed don’t disadvantage individual states and the members can make adjustments to the bill
Ensure equal representation of the states:
-each state has an equal number of representatives to ensure that all states have equal debate power to represent there state, preposed law can uphold equal interests of all states and territories
Initiate bill:
-can imitate bills, when minister of appropriate area of law is a senate member the can introduce a billet the relevant law

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12
Q

Outline 2 roles of the governor general

A

Grant royal assent
-sign a bill on behalf of the crown, if the bill has been approved by both houses in parliament to make the bill law
Suggest amendments
-minister will advice the governor general with the suggested change. Granted to the gg through section 58 of the constitution- very rarely used

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13
Q

Describe the structure of the victorian parliament

A

It is bicameral meaning that it is comprised of 2 houses-assembly and council. The head of state for victorian parliament is the crown- represented by the governor

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14
Q

Identify the governor of Victoria

A

Professor Margaret Gardner

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15
Q

Describe the composition of the legislative council

A

40 Legislative council regions where one electoral member from each. Voters select 5 members, 8 regions that consist of 5 members per region

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16
Q

Describe the composition of the legislative assembly

A

88 members for the assembly. Majority seats forms the government. Each district has 46,000 to 56,000 voters. The leaders of the political party with the most seats becomes the premier. Currently Jacinta Allen

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17
Q

What is the purpose of the constitution, what are the features

A

considered a rule book for the way in which Aus is governed
-the structure of parliament
-how the constitution can be changed
-The rights of the people
-The role of the high court

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18
Q

Briefly explain specific powers

A

are areas of law that are not exclusive to the Cth so they can be shared with the states

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19
Q

what are exclusive powers, 3egs

A

specifically stated in the constitution so that only the Cth can create legislation on those areas. EG. currency, defence, immigration

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20
Q

what are concurrent powers, 3egs

A

States and Cth can make legislation on the same areas of law but the Cth will prevail in areas where inconsistency arises. EG. taxation, railways and marriage

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21
Q

what are residual powers, 3egs

A

not appear in the constitution as they are not areas solely for the Cth. Only states can make laws in these areas
EG. prisons, education and public transport

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22
Q

Outline what is stated in S109

A

When a law of a state is inconsistent with a law of the Cth, the later shall prevail, and the former shall, to the extent of the inconsistency, be invalid

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23
Q

What is the purpose of S109

A

to resolve inconsistencies between areas of lawmaking between Cth and states

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24
Q

Identify 2 ways that consistencies can occur

A

-When that area of la is concurrent so both state and Cth can make laws in that area
-When they legislate in there own area and conflict still occurs

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25
Q

How would S109 impact Cth law prevailing

A

The commonwealth will always prevail due to “the Cth law will prevail”
No sections of the Cth inconsistencies are invalid
No areas of concurrent law are changed, both states and Cth can still make laws on both

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26
Q

How would S109 impact extent of inconsistency

A

The feature in the state law that has been deemed inconsistent to the Cth law is ruled invalid however the rest of the law is still applied

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27
Q

How would S109 impact validity of state legislation

A

the feature that is inconsistent with Cth law is ruled invalid

28
Q

Describe the impact of the McBain’s case

A

His case is derived from when the Cth and state of Victoria were creating legislation in there own areas of law and they still created an inconsistency
-In this case the state law, Infertility Treatment Act 1995 (vic), the section that discriminates based on marital status wa deemed invalid due to it being an inconsistency with the Cth legislation, Sex Discrimination act 1984 (Cth)

29
Q

Outline 3 impacts of S109

A

-The inconsistency in the legislation must be taken to court by a party with legal standing, meaning that if the law is not corrected they can be sued or liable. Courts cannot initiate a court case, meaning that the two laws will run in parallel
-Restriction of state making laws powers , this is because the Cth has already passed legislation in that area of law
-The section of the law that is inconsistent with the Cth law is ruled invalid

30
Q

Identify what is stated in section 51 (v)

A

‘postal, telegraphic, telephonic and other like services’

31
Q

What was being contested by Ms Williams

A

Ms Williams was taken to court over the possession of a radio without a permit. She contested that it was not within the constituions jurisdiction to make legislation on radios under S51(v)

32
Q

Outline the case inset 3 dots points

A

-radio area of law not specifically outlined in the constitution- so was it in the Cth law making jurisdiction
-Radio didn’t fit into any of the categories
-HC ruled in favour that the Cth could legislate on radio as it was considered in the ‘other like services’ section of S51

33
Q

Outline the decision that the high court came to (3 dot points)

A

-Ruled in favour that the Cth had jurisdiction to make legislation about radios under s51 of the constitution
-5/6 judges ruled in this favour
-Radio was considered a telegraphic or telephonic device by the majority of the judges

34
Q

Outline two significant outcomes on the division of law-making powers

A

-The broad ruling lead to future precedent on the HC to interpret wording of the constitution broadly to increase the lawmaking power of the Cth
-Radios became an exclusive power of the Cth

35
Q

Outline two limitations that the high court decision would have on division of powers

A

-They can only make decisions on the wording of the constitution if a case is brought to the court by a person with legal standing
-The HC can only act under S75 and S76 of the constitution and can not overrule any decision made in parliament or stated in the constitution

36
Q

The impact of the composition of the senate

A

The number of seats held by senators from particular political parties
-Upper house doesn’t;t usually have the government as the majority of seats.
-minor parties and independent called the cross bench
-When government not hold the majority= makes them face difficulties in implementing legislation

37
Q

Impact of a hostile senate

A

The opposition or independent parties may try to deliberately block or reject initiatives introduced by the governemnt in the LH
-This occurs when the gov. not in majority in the senate

38
Q

Impact of the rubber stamp effect

A

When gov. has the majority in both houses.
-Members will vote along party lines, meaning that legislation is past faster and more time effectively however bills are not reviewed or debated to the usual standard
-May result in an ineffective law that doesn’t represent the population/voters

39
Q

Impact of sitting days

A

HoR- 64 days. Legi. council-40 days
Senate- 51 days
This can cause lengthy delays however this usually results in an effective bill being passed

40
Q

3 strengths of a bicameral structure

A

-All bills are reviewed and debated to ensure the gov. of the day doesn’t drastically change the laws
-Not have majority in both houses= higher level of review on legislation, assisting equality
-if only 1 house than passed legislation aligns solely with political agenda not views and values of community

41
Q

3 weaknesses of a bicameral structure

A

-Hostile senate can cause delays
-Rubber stamp=less effective laws with less review of each
-Short sitting time so there can be weeks where no law-making is carried out in parliament

42
Q

How do international treaties operate

A

Conventions that are agreed to by multiple countries from which human right obligations are created
-Australia will sign the treaty meaning that they are acknowledging and promising that there legislations will be bound by the treaty

43
Q

How do international treaties make legal legislation for Australia

A

-Ratification then getting royal assent from the governor general of the day

44
Q

How do international declarations operate

A

They are non-legally binding agreements between 2 or more countries that establish s aspirational rights and obligations that parties to the agreement seek to enforce
-Despite not being legally binding the parliament may face international criticism for failing to uphold the principles set out in an international declaration that it has signed

45
Q

How does the UN influence laws in Australia/ Victoria and include examples

A

-They promote international peace, strengthen human rights and achieve international cooperation for problems affecting globally
-Founded the charter of the UN grants powers on broad issues
-UN charter- a convention that Australia is bound by the UN charter since it was ratified in 1945
-EG raising the age of criminal liability from 10 to 12 by the end of 2024

46
Q

One other international organisation that pressures Australian legislation

A

Greenpeace
-Independent organising that operates from 55 countries.
-Puts pressure on parliaments around the world including Australia, by influencing international treaties on environmental protection
-They are an aggressive and assertive organisation that is prorating environmental change

47
Q

3 Strengths of international pressures

A

-Whilst international declaration are not legally binding, parliament may face criticism for failing to uphold the principles set out in declarations such as the Universal Declaration of human rights
-International treaties can be legally implemented in Australia through passing bills and successfully receiving royal assent
-The UN and world trade organisations have the power to impose sanctions on countries for breaching their treaties eg. travel bans

48
Q

3 weaknesses of international pressures

A

-If Australia is not a member of the International organisation or has ratified and International; treaty, the commonwealth parliament is under no legal obligation to comply with international standards or expectations
-The UN has limited mechanisms by which they can enforce compliance with the international law
-The pressures may limit ability of parliaments to make laws that are tailored to the unique needs and circumstances of the population

49
Q

Explain representation and describe parliament’s composition

A

Parliament is currently mainly composed of white, older men that poorly represent the diversity in there electorates

50
Q

Diverse representation and law-making

A

-Lacked lived experiences such as rental issues or environmental concerns through a lack of younger people and people from poorer backgrounds
-They can use methods such as petitions and demonstrations to put forward their views
-Victorian law reform commission or Australian law reform commission
-MP are a disproportionate representation of white older males

51
Q

Regular elections and law-making

A

-Compulsory voting meaning that ensures a certain level of participation with the legal system and there political views and values can be taken into account during the law making process
-3 years in Cth and 4 years for states
-The level of commitment to election promises can also determine a government’s chance of re-election

52
Q

3 strengths of parliament’s representative nature

A

-Diversity in parliament successfully represents the composition of the society in its law-making
-Compulsory voting ensures a large proportion of individuals participate to represent so their MP constituents views, law-making can be reflective of the majority’s views and values
-Whilst at times may limit the speed at which legislation is introduces, the community values are considered in the law-making process. This improves the quality of the law-making process which then improves society

53
Q

3 weaknesses of parliament’s representative nature

A

-The minority cultural groups and woman have exhibited long-standing disparities that mean there representation in parliament are disproportionate to the population
-MP’s may feel compelled to vote with their political party , rather than in line with the desires of their electorate
-To retain voters, parliament may pass legislation to appeal to most society and gain voter support as opposed to legislating for the entire community

54
Q

Briefly describe 2 recent/proposed laws that can be used as examples

A

-NSW DV bail law changes to extent the family violence notices so they can last the duration of the court trial. Needed so the police can provide a long lasting and immediate resolution
-The bail reform laws to reduce court delays (83,000 cases in court backlog in magistrates). The magistrate can grant or deny bail applications- introduced to reduce deaths in custody and reduce incarceration rates of First Nations people

55
Q

Explain what the term ‘checks’ mean

A

-Ensuring that Cth parliament does not wield ultimate power with our another way to balance/ equal out its lawmaking authority

56
Q

Outline how the constitution reinforces the principles pf representative government through S7 and S24

A

S7= that all senators should be directly chosen by the people of the state
S24=All members of the HoR should be chosen by people of the Cth

57
Q

Explain 3 ways in which the HC can act as a check on the Cth lawmaking powers

A

-Through S75 and S76 it gives the HC power, authority and the jurisdiction to interpret the words of the constitution/ apply meaning
-Cth parliament cannot disagree with the common law decision, the common law decision they cannot abrogate, override the decision by passing conflicting legislation

58
Q

Define the term ultra vires

A

Beyond the powers/ jurisdiction of the parliament

59
Q

Outline the facts, decision and significance of the Roach case

A

Facts= Roach was a FN prisoner sentenced to 6 years in prison. During this time the Howard government introduced the Electoral Act 2006 which banned all prisoners from voting in federal elections
Decision=It was unconstitutional this meant that the new law backwinded meaning that prisoners serving less than 3 years could still vote
Significance=Due to S7 and S24 a representative government must be upheld and the role of the HC in acting as a check on the government an the Cth law-making powers

60
Q

Outline 3 strengths of the HC to do checks

A

-The HC can declare a law or part of a law ultra vires, invalid if it breaches the principle of representative government and has been made beyond the law-making powers of the parliament
-Establishing standing to do so ensures that inly relevant cases, often needing the HC interpretation of the constitution
-The Cth parliament cannot disagree with the HC and overrule its decision through abrogation ensuring the HC can act as true mechanism of providing checks and balances on the power of the Cth

61
Q

Outline 3 weaknesses of the HC to do checks

A

-The HC can only interpret the constitution and declare a law or part of a law invalid if breaching a principle, the court cannot declare a law invalid as soon as it has been passed by parliament
-For a person to bring a case to the Hc they must have standing
-The high cost and delays associated with bringing a case to the high court, thus the courts ability to check the Cth is limited

62
Q

Outline 2 purposes of the separation of powers

A

-To prevent abuse of power by not allowing inly 1 person to hold all the power to the system
-To protect individuals rights by ensuring checks and balances on the power of government

63
Q

Describe the legislative branch including examples and it composition

A

This refers to the ability to make and amend laws
-SECTION1
-The Cth parliament can exercise legislative powers
-Such as legislation
-Includes the members of the senate and the HoR

64
Q

Describe the executive branch including examples and it composition

A

This refers to the ability to administer or ensure that the law is enacted into the community
-Power is awarded to the government departments and government agencies to ensure that new legislation is publicly aware and followed/ implemented
-Such as updating policy documents and local information
SECTION 61

65
Q

Describe the judicial branch including examples and it composition

A

This refers to the ability to apply the law and to enforce the law
-power awarded to the courts and tribunals including the judges and magistrates
-Such as the magistrates and county court
SECTION 71

66
Q

Outline 3 strengths of the SOP

A

-Ensure that there is a check and balance on the powers of parliament and minimises an abuse of power
-The independence of judges from political pressure and the worry of being re-elected means that they make decisions that are legally independent
-SOP is constitutionally guaranteed, meaning that it must be upheld and cannot be removed without a successful referendum

67
Q

Outline 3 weaknesses of the SOP

A

-Clear overlap between the legislative and executive power which can limit the ability pf the SOP principle to completely act as a check on parliament
-To challenge the HC, a person must have standing
-The Aus. constitution ensures that SOP at the Cth level but does;t guarantee this at state level

Legal Studies 3/4 2024 (9 decks)

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