Topic 1 Flashcards
What was the significance of Mabo v Queensland (N0.2) (1992)?
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.
Explain the doctrine of terra nullius
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
Explain received law
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
What are the key features of the Australian Constitution ?
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
Explain Section 51 of the Constitution
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
Explain Section 109 of the Constitution
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
Explain Section 128 of the Constitution
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
Explain the difficulties in changing the constitution
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
Define Westminster democracy
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.
Define Democratic Parliament
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.
Define double dissolution
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
Describe the separations of power doctrine
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
Explain Section 61 of the constitution
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.
What are the roles or responsibilities of the governor-general?
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
Explain the Governor-general’s capacity to exercise reserve powers
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.
Explain how the Australian constitution’s provision to double dissolve houses of parliament if a bill is not agreed on
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