Topic 1 Flashcards

1
Q

What was the significance of Mabo v Queensland (N0.2) (1992)?

A

Mabo v Queensland (N0.2) (1992) was a landmark case

Acknowledged that the native title existed at the time of European settlement and as a result the doctrine of terra nullius was flawed

It can be argued that an indigenous legal and governance system was in place when the British arrived.

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2
Q

Explain the doctrine of terra nullius

A

A Latin expression meaning ‘land belonging to no-one’ that is used in international law to describe a territory that has never been subject to the sovereignty of any state

Historians agree that terra nullius should only occur if the land was uninhabited or not cultivated/ governed

This became an issue in European colonisation because Cook did not believe or understand the Indigenous cultivation of the land and thus imposed the international law inaccurately

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3
Q

Explain received law

A

The laws of England were ‘received’ laws for the colony

This processes of acquiring a legal system of justice is referred to as received law

Common law, equity law and statute law were transported from Britain to Australia during colonisation

Issue with received law was that it is not the same situation and thus cannot be applied effectively

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4
Q

What are the key features of the Australian Constitution ?

A

The Australian constitution is made up of eight chapters and 128 sections

Sets the basic principles and aspects of government in Australia i.e., the structure and powers of federal, state and local governments

Constitution contains a number of key features like the establishment of a bicameral parliament, defining the responsibilities of the federal government and who is eligible to stand for election to federal parliament

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5
Q

Explain Section 51 of the Constitution

A

Section 51: Legislative Powers of the Parliament
Sets out the legislative powers of the Commonwealth parliament and gives the power to make laws for the peace, order and good government of the Commonwealth

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6
Q

Explain Section 109 of the Constitution

A

Section 109: Inconsistency of Laws

Deals with any inconsistency that might arise between the laws of the Commonwealth and those of the states

This arises with the regard to the residual powers of the Commonwealth

This means in areas where both the states and Commonwealth legislate, the latter will prevail and the former to the extent of the consistency be invalid

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7
Q

Explain Section 128 of the Constitution

A

Section 128: Changing the Constitution by Referenda

Requires the approval of majority voters nationwide and also a majority of voters in at least four states to vote in favour of any change (double majority)

This is voting system is referred to as a referendum

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8
Q

Explain the difficulties in changing the constitution

A

Changing the constitution involves several hurdles and legal challenges, the reason which little referendum have ever succeeded

The first challenge relates to any proposed change must be approved by both houses of federal parliament with an absolute majority

The second challenge lies in the requirement that a successful referendum must pass with a double majority

The third challenge lies in the way some referenda have been put to voters

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9
Q

Define Westminster democracy

A

Westminster democracy: is that system of government also known as responsible government and parliamentary government in which people do not directly elect their government but leave it to the elected legislature to install, supervise, and remove the government.

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10
Q

Define Democratic Parliament

A

Democratic Parliament: A system in which people vote for candidates to represent them in a parliament. The process by which eligible citizens vote for people to represent them in a parliament.

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11
Q

Define double dissolution

A

Double dissolution: the simultaneous termination of the House of Representatives and the Senate by the Governor-General and the calling of new elections for both houses

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12
Q

Describe the separations of power doctrine

A

First three chapters of the Australian Constitution defines the duties and responsibilities of three separate arms of government

The constitution divides the power to make and manage federal law between the three arms of government

The idea that the powers of the three arms of government should be separate was to avoid one or a group of government having all the power or too much power which would be counterproductive in a vibrant democracy such as Australia

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13
Q

Explain Section 61 of the constitution

A

The section states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor- General as the Queen’s representative’.

This means that the Governor-General has been given certain powers to act on behalf of the Queen in the Constitution.

The role and responsibilities of the Governor-General are also derived from customs and tradition

This means that while executive power is exercised by the Governor-General under the Constitution, this is done on advice from the Prime Minister and Cabinet ministers of the day, who are responsible for governing Australia.

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14
Q

What are the roles or responsibilities of the governor-general?

A

The Governor General is his majesty the Kings representative

Has constitutional duties with specific constitutional and statutory powers

Acts upon advice of ministers who are responsible to Parliament

He is also the commander in chief of the Australian Defence Force

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15
Q

Explain the Governor-general’s capacity to exercise reserve powers

A

Has the power to dissolve the house of representatives and in certain situations both houses of parliament

The convention is however that the governor general follows the advice of the prime minister

The powers of the governor general to act without of advice are referred to prerogative or reserve powers

The Governor-General has some powers that may be exercised without ministerial advice, or even in contradiction to ministerial advice.

Because of the reliance of the Australian Constitution on convention, not all of the reserve powers are explicitly stated in the Constitution.

This means that the exact nature and scope of the reserve powers is open to interpretation, and there is some dispute about their use.

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16
Q

Explain how the Australian constitution’s provision to double dissolve houses of parliament if a bill is not agreed on

A

The drafters of the Constitution included a provision that in the event that both houses could not agree on a Bill, the deadlock between the houses could be broken by dissolving both houses and calling a double dissolution election.

Section 57 of the Constitution outlines the conditions that must be met for a double dissolution

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17
Q

When has a double dissolution of parliament occurred in Australian history, and how was this detrimental to society?

A

The dismissal of the Whitlam government and the calling of a double dissolution election of both houses of federal parliament is commonly referred to as the 1975 Constitutional Crisis

It is one of the most significant domestic constitutional and political events in Australian legal history.

This occurred because a number of events resulted in the refusal by the Senate to pass the government’s Budget Bill in October 1975.

As a result, the Whitlam government was unable to fund the day-to-day operation of the Commonwealth

18
Q

Define a representative government

A

Representative government is a basis for government where the citizens elect representatives to serve in the parliament and make decisions on their behalf.

19
Q

Explain the purpose of a representative government

A

The representative government occurs in democratic countries, as people vote members into parliament

These are members of parliament, senators, electorates which represent the ideals or opinions of voters in a state

These representatives are expected to act in the best interests of the people and make laws of good governance

20
Q

What are the responsibilities of representatives of the community in parliament?

A

These representatives of people conduct parliament, performing a number of functions like:

  • including deciding who will form the government
  • making, amending and repealing laws
  • debating political and legal issues and proposed laws
  • representing and acting for their constituents to government and the public service
  • monitoring the expenditure of public money and the actions of the government.
21
Q

What are the three levels of government ?

A

Local, state and Federal

22
Q

Explain the powers and authority given to the local governments

A

Local government is the level concerned with everyday community matters i.e., garbage collection and fixing potholes

The decision-making body responsible for these matters is the local shire or council; these are made up of several electorates called divisions or wards

Local laws can differ between local governments, and these laws have to be approved by the state parliament because shires and councils are created by state parliaments.

Powers and responsibilities are laid out in Local Government Acts. Currently, local governments in Queensland are governed by the Local Government Act 2009.

23
Q

Explain the powers and authority given to the state governments

A

Each state and territory has its own government and its own constitution and parliament

This is the decision making authority, often located in the capital city of a state

Each state derives its powers from the residual and concurrent powers under the Australian Constitution and is responsible for all of the areas not listed as Commonwealth responsibilities.

24
Q

What are some specific local council responsibilities?

A

Councils pay for their services with state and federal funding and revenue they raise from rates, licences and permit fees, parking tickets, fines, building approvals etc.

Councils are responsible for some aspects of public health and safety i.e., checking the health standards in shops, clubs, pubs and restaurants, dog registrations

25
Q

Explain concurrent powers

A

State parliament can pass laws on a wider range of areas than the Commonwealth because they existed before (with their own separate constitution)

In some instances both federal and state governments have the right to pass legislation pertaining to certain areas, like the environment, health and education. These are referred to as concurrent powers

26
Q

Define the rule of a responsible government

A

A coalition of parties must maintain the support of the majority of members of the house of governments in order to remain in government

27
Q

How many members consist the house of representatives?

A

The house of representatives consists of 150 members of parliament elected by citizens who are on electoral roles

28
Q

How is the Australian government formed in parliament

A

The party or coalition of parties with the majority of members in the house of representatives forms in Australian government

29
Q

What are the three key roles of members in the house of representatives

A
  1. They represent the views of Australians and discuss matters of national and international importance
  2. They make and change federal law by debating and voting on bills
  3. They scrutinise the work of the government especially in question time and through parliamentary committees
30
Q

Define how senators are elected

A

Senators are elected based on parties or individuals to account for an entire state or territory

There are 12 senators per state and 2 for each territory

31
Q

What is the main role and responsibility of the senate?

A

Scrutinise everything made by the house of representatives and makes amendments of bills before royal assent

32
Q

How is the separation of powers divided

A

The separation of powers is divided into parliamentary (creating the legislation) branch, executive (enforcing the legislation) branch and judicial (interpreting the legislation) branch

33
Q

How is the division of powers separated

A

The division of powers is separated into federal, state and local governments, which all have different powers

34
Q

What is the history of the magna carta

A

Originally drafted in 1215 as a peace treaty between King John and a group of barons who rebelled against his feudal and cruel governance system

When King John was defeated the list of demands from the barons were incorporated into the first magna carta

Means ‘great charter’ is a document guaranteeing English political liberties

It was drafted at Runnymede, a meadow by the River Thames

Provided the foundation for individual rights in Anglo-American jurisprudence

35
Q

What is the importance of the Magna Carta

A

The enduring influence of the magna carta comes from its more general clauses in which each generation can see its own protection

The right to petition and habeas corpus and the concept of due process are derived from language in the Magna Carta

The clauses remain today as they provided basis for important principles of English law

36
Q

List the concepts associated with the rule of law

A

All individuals including government officials and members of the monarch are subject to and accountable to the law

The law is known and accessible

The court system is independent and resolves disputes in an open and impartial manner

All persons are presumed innocent until proven otherwise by a Court

All persons have the right to a fair and prompt trial

No person should be arbitrarily arrested, imprisoned, or deprived of their property

Punishment is determined by a Court and people can only be punished in accordance with the law

37
Q

Discuss a time in which the rule of law was not abided by in legislation

A

2013 saw the introduction of one of the first “anti bikie” legislation.

QLD had the toughest laws surrounding criminal organisations associated with motorcycles.

This did not abide before the concept of presumption of innocence, as bikies were considered criminals without proper evidence

38
Q

Where do bills originate from?

A

Bills can originate from party policy, election campaigns, suggestions by members, senates or interests groups in the community

39
Q

Explain the meaning of fair and just outcomes in the setting of Australian Courts.

A

The Australian legal system must consistently achieve just and equitable outcomes through the application of what is fair, reasonable and equitable

40
Q

What are the main principles of the Australian legal system

A

The main three principles of that legal system are fairness, equality before the law and justice

41
Q

When is a law considered effective?

A

The legal concept of fair and reasonable is important

The aim of the law is to achieve equal and equitable outcomes and have all equal before the law

42
Q

How do Australian courts apply the principle of ‘fairness’ to its systems and citizens?

A

The principle of fairness is applied in court by taking individual circumstances into consideration

Courts will make provisions for people with different cultures and languages, or with physical and mental disabilities

The court will take any other circumstances or personal history into consideration to help bring down a fair judgement.