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Legal Studies 3/4 > The Constitution > Flashcards

The Constitution Flashcards

1
Q

Australian Constitution

A

-Commonwealth of Australia Constitution Act 1900 (UK)
Set of rules and principles that establish how Australia is governed
-Cth Parl and structure
-est HC and its powers
-law making powers
-way to change constitution (referendum)

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2
Q

Australia’s Parliamentary System

A

based upon British Westminster style system

  • bicameral (2 houses)
  • Aus= constitutional monarchy (crown as head of state)
  • representative democracy
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3
Q

Role of crown in law making

A

-British monarch
Representatives: Governor General (Fed)/Governor (state)
-ensure effective operation of democratic system
-granting royal assent
-withholding royal assent
-appointing executive council

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4
Q

Role of Commonwealth Parliament in law making

A

Consists: crown/House of Reps/Senate
4 roles: form government/make laws/forum for debate/check on government
(supreme law making body)

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5
Q

House of Representatives

A

Lower house
151 members w each member representing equal population based electorate
-political party w majority of seats after election forms government
-peoples house: majority views of ppl represented

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6
Q

Senate

A

Upper House
76 members (12 each state/2 each territory)
-equal representation of states in law making regardless of population
-House of review: checks proposed laws to ensure represents whole of community
-make law/scrutinise law/review law/States house

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7
Q

Role of Victorian Parliament in law making

A

based on structure of commonwealth parliament

  • bicameral (2 houses) Legislative Assembly/Council
  • crown as head of state (Governor)
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8
Q

Legislative Assembly

A

Lower house

  • 88 districts (88 members represent each district)
  • party with most seats after election forms gov (Premier)
  • represents people
  • most bills initiated here
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9
Q

Role of Legislative assembly

A
  • initiate and pass bills
  • form government
  • provide representative government
  • act as a house of review
  • control gov expenditure
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10
Q

Legislative Council

A

Upper house

  • 8 regions, 5 members from each= 40 members
  • proportional representation for each region
  • represent regional interests so ppl in less populated areas have a say
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11
Q

Role of Legislative Council

A
  • act as a house of review
  • examine bills through its committees
  • initiate and pass bills
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12
Q

Division of Law making powers

A

Constitution divides law making powers between Cth and state parliaments to make laws in certain areas

  • State= residual
  • both= concurrent
  • Cth= exclusive
  • Concurrent and exclusive= specific powers
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13
Q

Residual powers

A

law making powers not given to Cth parliament and not outlined in the constitution that remain with the states

  • criminal law/road laws/education/health
  • can create inconsistencies with other states
    s. 106: recognises states constitutions
    s. 107: recognises states law making power
    s. 108: preserves existing laws of states to continue (after Federation)
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14
Q

Specific powers

A

law making powers given to Cth parliament which are specifically listed in the Australian Constitution

  • Sections 51 and 52
  • concurrent and exclusive
  • is power is not listed in constitution it is residual and is they pass law in this area they are acting ultra vires
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15
Q

Exclusive Powers

A

law making powers specifically outlined in the constitution which lie with the Commonwealth alone

  • areas that require a national approach
  • defence/currency/customs
    s. 51= ‘heads of power’
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16
Q

How are exclusive powers distinguished

A

Nature: e.g s.51 (xxxii)- control of railways for defence purposes
Prohibitions on other states: e.g s.51 (xii) Cth make laws on currency; s.115 states cannot coin money
Stated as being exclusive: s.111/112 exclusive power of Commonwealth parliament with respect to Commonwealth territories (NT/ACT)

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17
Q

Concurrent powers

A

law making powers that are outlined in the constitution that are shared between Cth and state parliaments

  • many in s.51 are exclusive but some are concurrent
  • trade/taxation/marriage and divorce/postal
  • s.109 regulates this area
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18
Q

Section 109

A

deals with the area of concurrent law making powers

  • when a state made law is inconsistent with a Commonwealth law, the commonwealth law shall prevail to the extent of the inconsistency and the state law will be invalid (to the extent of the inconsistency)
  • solution/mechanism in the event that this occurs
  • law remains functional until challenged and declared invalid by court
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19
Q

Example of clash in law (s.109)

A

McBain Case
-Infertility Treatment Act 1995 (Vic) single women banned from IVF and must be in relationship to access
-Sex Discrimination Act 1984 (Cth) unlawful to refuse any service based on marital status
McBain wanting to provide IVF to Lisa Meldrum but she is single
-either way breaking the law
-challenge and state law is deemed invalid as inconsistent w Cth law

20
Q

Significance of s.109

A
  • est consistent approach to deal with inconsistencies between Cth and state law
  • act as a restriction on states independence: may mean states do not attempt to pass laws in concurrent areas out of fear of it being deemed invalid
21
Q

Limitations on significance of s.109

A
  • states not denied power to pass inconsistent laws
  • law not automatically invalid and need to be challenged in court
  • if Cth law is changed in future, state law can be revived
  • HC determine if invalid, only parts of act declared invalid (parts that cause inconsistency)
22
Q

5 checks on the parliaments power

A
  • Senate as a check
  • Separation of powers
  • Express rights
  • High Court
  • Double majority referendum requirement
23
Q

Bicameral System

A

Cth parliament must have 2 houses (upper and lower)

  • Section 1
    s. 7- Senate chosen by people
    s. 24- HoR chosen by people
24
Q

Senate as a house of review

A

bicameral structure is designed to act as a check on parliaments law making role. The Senate operates as a house of review
-must pass house of representatives and senate before it becomes a bill

25
Q

Senate as a rubber stamp

A

when government holds majority of seats in both upper and lower houses, the senate can act as a rubber stamp simply confirming the decision that has been made in the House of Representatives
-therefore the check of scrutiny and review is not present

26
Q

Hostile Senate

A

when the senate is controlled by the opposition party and minors, passes few or no bills instead of engaging in the proper law making and scrutiny process
-political point scoring

27
Q

Strengths of senate as a check

A
  • 2 houses- review of legislation and provides checks and balances against the misuse of power and identifies errors
  • if slim majority in HoR then there is considerably more debate
  • opposition hold more seats in Senate then there is likely to be more scrutiny
28
Q

Weaknesses of senate as a check

A
  • gov controls senate, rubber stamp and bills pass without proper review, diluting its function
  • if gov holds clear majority meaning significant debate is unlikely therefore minimal check
  • if hostile senate, law making is stalled and process is not effective
29
Q

Separation of powers

A

Constitution establishes three separate powers
-executive
-legislative
-judicial
All three must operate independently of one another and it is so that no one body holds absolute power

30
Q

Executive power

A

power to administer the laws and manage the business of government
-s.61, executive powers of Cth is vested in Queen, exercisable by GG/G and carried out by PM/P, senior ministers (Cabinet) and gov departments

31
Q

Legislative power

A

power to make laws

-s.1, legislative power resides with parliament and at Cth vested in Fed parliament

32
Q

Relationship between the executive and legislative

A

Overlap between the two powers

  • power to administer the law and carry out bus of gov. is held by cabinet who also hold legislative power
  • laws passed by parliament (leg) must receive royal assent from Queens rep (exec)
33
Q

Judicial power

A

power to apply and enforce the law

-s.71 power is given to the courts vested in HC and other fed courts

34
Q

Judicial relationship with other powers

A
  • judicial and legislative kept separate, court can only decide if law has been contravened
  • judges are appointed by gov but independent of political influence. Acts as a safeguard for citizens against misuse of political power or corruption
35
Q

Reasons for separation of powers

A

helps protect individuals rights by providing checks and balances on power of parliament

  • prevents power from being held by one body, no one body can make, administer and rule laws
  • gov and parl work together to pass laws but judiciary independence must be preserved
  • is breach in constitution by parl, useless to bring to court if they were not independent
  • maintain independence, judges not part of parl
36
Q

Strengths of separation of powers as check

A
  • allows exec to be scrutinised by leg providing checks and balances bc leg can refuse to pass gov law that is inappropriate
  • jud is independent of parl and gov which is vital esp when Cth is party in case
  • despite overlap between leg and exec, ministers are subject to scrutiny and debate by other ministers in parliament
  • hostile senate= greater scrutiny in exercise of leg
  • hard to abolish as entrenched in constitution
37
Q

Weaknesses of separation of powers as check

A
  • reality= leg and exec are combined
  • judges are appointed by exec and can be seen to be influencing judiciary
  • gov controls senate, decreased scrutiny of bills and rubber stamp
  • hostile senate= obstruct bills for political gain
  • in constitution and is therefore at federal level not state
38
Q

Express protection of rights

A

rights specifically listed in a document or constitution

  • 5 express rights entrenched in the constitution and only removed via referendum
  • limitation on parliament in law making and act as a check as if a law infringes rights of people then it will be declared invalid by HC
39
Q

5 express rights

A
  • right to freedom of religion (s.116)
  • right to free interstate trade and commerce (s.92)
  • right to receive ‘just terms’ when property is acquired by the Commonwealth (s.51 (xxxi))
  • right to trial by jury for indictable commonwealth offences (s.80)
  • right not to be discriminated against on the basis of the state where you reside (s.117)
40
Q

The Right to Freedom of Religion

A

Section 116
the commonwealth cannot declare any religion to be the official national religion and they cannot prevent people from practising their religion and it will not be a requirement of any federal job

41
Q

The right to free interstate trade and commerce

A

Section 92
interstate travel and commerce must be free whether it be by road or sea
mainly refers to trade but can mean freedom of movement of people between states

42
Q

Acquisition of property on just terms

A

Section 51 (xxxi)

  • Cth must pay fair and reasonable compensation for property compulsorily acquired (just terms)
  • only able to acquire property when it has the law making power in the relevant area to do so
43
Q

The right to trial by jury for indictable commonwealth offences

A

Section 80

  • any person on trial for a commonwealth indictable offence will be conducted in front of a jury and held in the state where the offence was committed
  • terrorism/drug trafficking/treason
  • HC verdict= unanimous
44
Q

The right to not be discriminated against on the basis of state residence

A

Section 117

  • it is unlawful for governments to discriminate against someone on the basis of the state in which they reside
  • state cannot legislate to exclude interstate residents from accessing universities/schools/hospitals
45
Q

Strengths of express rights as a check

A
  • impose limits on parliament when making laws in certain areas
  • if breach, HC provides judicial check on parliament and can declare law invalid
  • cannot be removed by Cth parliament
  • HC can act quickly and declare ultra vires
  • clearly in constitution and not changed since fed- stability= people are aware of them and opportunity to take action if breach
46
Q

Weaknesses of express rights as a check

A
  • only changed by referendum limited chance to add rights
  • cost of initiating case in court is high therefore limited chance to challenge
  • rights limited in scope and most rights only apply to Cth and not state
  • Cth not prevented from passing laws that contravene rights and is need to be challenged
  • very few express rights compared to other countries that have a bill of rights

Legal Studies 3/4 (4 decks)

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