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Legal Studies - Unit 4 + statutes/sections > U4 AOS1 KK1-6 > Flashcards

U4 AOS1 KK1-6 Flashcards

Parliament and the Australian Constitution

1
Q

House of Representatives (facts and structure)

A
  • 151 members -> each rep an electorate
  • Fed elections -> approx every 3 years
  • House of gov -> party/coalition w/ majority of members elected to HoR (party leader = PM, appoints gov mins to look after certain portfolios/areas)
  • Opposition -> party/coalition w/ next most members elected (opp. leader appoints shadow mins to scrutinise and keep a check on Min actions/decision)
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2
Q

House of Representatives (role in law-making)

A
  • Initiate and make laws -> most bills init here, lengthy proc of debating and passing, many new laws/changes to ensure func. society, bills can be scrut by parl committee
  • Determine gov -> party/coalition w/ most elected members forms gov, gov policy reflected in leg introd due to this
  • Act as a house of review -> bill init and passed thru Senate = acts as second house to consider
  • Control gov. expenditure -> both houses pass b4 gov can collect taxes/spend $, money bills only intro in HoR
  • Rep people -> upholds rep. gov, rep people and given auth to act on their behalf, leg. intro should reflect values of rep’d electorates
  • Scrutinise gov admin -> mins = MPs and must be answerable/acc for dec/policies/actions, resp. gov upheld thru q time and inv/scrut by committees
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3
Q

Senate (facts and structure)

A
  • 76 members -> 12 per state and 2 per territory
  • Often referred to as “state’s house”
  • Elected for 6-year term, half elec every 3 years, changeover on 1 Jul year after gen elec
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4
Q

Senate (role in law-making)

A
  • Act as a house of review -> most init in HoR so can review bills already passed here, can either pass w/o amend, pass w/ amend (or req amend for money bills b4 passing) or reject, can also insist on changes to proposed law before passed
  • Allow for equal rep of states -> Sec 7 of Const = Senate must have equal rep from states no matter size/pop to protect their interests
  • Initiate bills -> some init here (if Min in charge of bill is a senator)
  • Scrutinise bills + gov admin -> Senate has no. of committees to scrut leg. or gov activities/leg/policy/expenditure (such as Senate Standing Committee for the Scrutiny of Bills), q time also used to ask about gov admin
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5
Q

Senate (one committee more in depth)

A

The Senate Standing Committee for the Scrutiny of Bills assesses legislative proposals and effect they would have on indiv rights/freedoms/obligations and rule of law

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6
Q

Legislative Assembly (facts and structure)

A
  • 88 members -> rep 88 electoral districts in Vic
  • 4-yr term -> elections on last Sat of Nov
  • Leader of maj party = Premier of Vic
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7
Q

Legislative Assembly (role in law-making)

A
  • Init + pass bills -> usually intro to LA by gov Min, but can be any member, consid/debate of bill can take a long time
  • Form gov -> party/coalition w/ most elected members forms gov, most intro bills reflecting Prem’s/sen Mins’ policies laid down
  • Scrutinise gov admin -> mins = MPs and must be answerable/acc for dec/policies/actions, resp. gov upheld thru q time and inv/scrut by committees
  • Rep people -> law-making actions should reflect common values/views
  • Act as a house of review -> review bills init and passed thru LC
  • Control gov expenditure -> for taxes to be collected/money spent, bills intro in LA only
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8
Q

Legislative Council (facts and structure)

A
  • 40 members -> 5 rep each of 8 regions (consisting of 11 electoral districts)
  • 4-yr term
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9
Q

Legislative Council (role in law-making)

A
  • Act as a house of review -> applies checks and balances on bills approved by LA, scrut/debates and sometimes amends/rejects leg. init by gov
  • Init + pass bills -> some init in LC, most (and all money bills) init in LA
  • Scrutinise gov admin -> mins can be q’d by opp members about policies/prop. leg and gov decisions can be scrut thru committee process
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10
Q

The Crown (facts and main responsibility)

A
  • Rep’d by Gov-Gen (fed level) and 6 Govs (state level)
  • Appointed by the Crown on the advice of the PM/Premier, respectively
  • Main responsibility -> ensure the democratic sys operates effectively (requiring effective electoral sys, parl, gov and courts, as well as the confidence of the majority that their comm. functions as a democracy)
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11
Q

The Crown (role in law-making)

A
  • Granting royal assent -> req. to approve bills before they become law, RA normally given on the adv of PM/Cth Mins or Prem/stat Mins
  • Withholding royal assent -> rare but has the power to refuse to approve bill (usually approved on advice of PM/Prem and Mins), fed lvl = Const specifies circum where G-G can withhold, no such spec at Vic level but accepted that Gov acts on advice of Prem+Mins
  • Appointing the Executive Council -> G-G/Gov appoints Council containing leader of gov, senior + assistant Mins, gives adv to Crown’s rep on matters such as whether to approve regulations, in reality Crown’s rep acts on advice of PM/Prem
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12
Q

The division of law-making powers (intro)

A
  • To allow for Fed, Aus colonies had to give up some powers to new Cth parl.
  • Other powers were shared and some were retained, usually in sig areas they traditionally controlled
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13
Q

Residual powers (definition)

A

Law-making powers that were left w/ states at the time of Fed, Cth cannot make laws here

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14
Q

Residual powers (facts)

A
  • Not listed in the Const, so some could differ between states
  • Secs 106-108 protect the continuing law-making powers of the states
  • i.e. criminal law, medical proc (IVF), road laws, edu and pub transport
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15
Q

Residual powers (Section 107)

A

“Every power of the Parl of a colony which has become or becomes a State, shall, unless it is by this Const exclusively vested in the Parl of the Cth, or withdrawn from the Parl of the State, continue as at the est of the Cth, or as at the admission or est of the State, as the case may be.”

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16
Q

Exclusive powers (definition)

A

Law-making powers that were granted solely to the Cth Parl at the time of Fed, states cannot make laws here

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17
Q

Exclusive powers (facts)

A
  • Most of these listed in Sec 51, powers to as “heads of power”
  • They include
    • Customs and border prot (51iii, excl by 90)
    • Defence (51vi, 114 implicitly states “S shall not raise
      naval/military forces”)
    • Currency (51xii, 115 implicitly states “S shall not coin
      money”)
    • Naturalisation (51xix, becoming Aus citizen)
    • Control of railways for def purposes (51xxxii)
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18
Q

Exclusive powers (facts pt 2)

A
  • Sec 52 contains small list of exclusive Cth pwrs
    • “[Cth Parl] shall have exclusive power to make
      laws for the peace, order and good gov of the
      Cth       w/ respect to:
      i -> the seat of gov of the Cth and all places
      acquired by the Cth for pub purposes
      ii -> matters relating to any dpmt of the pub
      service, the control of which is by this
      Const tfrd to the Exec Gov of the Cth
      iii -> other matters declared by this Const to
      be within the excl pwr of the Parl”
  • Secs 111 and 122 give excl pwr to Cth w/ respect to Cth territories
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19
Q

Concurrent powers (facts)

A
  • Many (all except exclusive) powers given to Cth are concurrent
    • i.e. Trade (both can leg to reg trade, Const
      says no unrsnbl lims can be made by any parl
      on freedom of trade between states)
    • i.e. Taxation (Cth -> income tax and GST,
      states -> stamp duty and payroll tax)
    • i.e. Marriage/divorce + postal, telegraphic,
      telephonic or similar services
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20
Q

Concurrent powers (definition)

A

Law-making powers that are shared by and may be exercised by both the Cth and the state parls

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21
Q

Section 109 (purpose)

A

Helps to resolve conflicts and inconsistencies between state and Cth laws, where conc powers are exec by the Cth and one or more state parls

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22
Q

Section 109 (quote)

A

“When a law of a State is inconsistent w/ a law of the Cth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”

(AKA -> if Cth law states you must do X, but state law prohibits X, that section of the state law will become inoperable if challenged before a court)

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23
Q

Section 109 (significance)

A
  • Acts as a restriction on the states when implementing leg programs/mandates
  • Does not automatically operate (must be challenged in a court which decides incon)
  • If Cth law is changed or abrogated, state law will be in force and have effect
  • HC held that state law will be incon if Cth law is intended to “cover the field” (complete statement of law on a matter/area)
    • Very cplx to decide incon/if it covers field,
      often requires HC to decide on matter
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24
Q

Section 109 (example - overview)

A
  • Marital status is an area of concurrent law-making
  • ‘McBain v State of Victoria [2000] 99 FCR 116’ found that certain provisions of former ‘Infertility Treatment Act 1995 (Vic)’ were invalid due to an incon w/ the ‘Sex Discrim Act 1984 (Cth)’
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25
Q

Section 109 (example - happenings)

A
  • Sec 8 of Vic Act stated, to receive treatment, a woman must be “married and living with her husband on a genuine, dom basis or living with a man in a de facto relationship”
  • Sec 22 of Cth Act made it unlawful to deny a service to a person on the grounds of marital status
  • Therefore, this denial of IVF services was unlawful
  • Dr John McBain tested this in the FCA, as he was abiding by Vic law but contrav Cth law
  • FCA found that the Vic law was incon and was made invalid to the extent of this incon
  • Vic Act was later repealed and replaced w/ ‘Assisted Reproductive Treatment Act 2008 (Vic)’
26
Q

Section 75 (introduction)

A

States that the High Court has jurisdiction to hear and determine disputes in which the Cth (or one suing or being sued on Cth’s behalf) is a party or between states/residents of diff states/state and resident of another

27
Q

High Court (hearing cases relating to law-making powers of Cth and states)

A
  • HC has heard many of these cases, with the court’s decisions having affected the division of law-making powers between states and the Cth.
  • Judgements since 1920 have been more inclined to grant Cth additional powers, while reducing states’
28
Q

Brislan/Tasmanian Dam cases (what happened)

A

Constitution was read broadly in order to expand the range of issues on which the Cth can legislate

29
Q

Brislan (case name)

A

R v Brislan; Ex parte Williams [1935] 54 CLR 262

30
Q

Brislan (summary)

A
  • Sec 51v gives the Cth power to legislate on “postal, telegraphic, telephonic and other like services”
  • Wireless Telegraphy Act 1905 (Cth) required all owners of wireless sets (radios) to be licensed
  • The def. Dulcie Williams was convicted and fined
  • Arguing the Const. gave the Cth no power to make laws in relation to radio broadcasting, validity was challenged (believed this was not a service outlined in 51v)
  • Maj. of HC judges held that it was a form of telephonic service, therefore falling within scope of 51v and broadening the Cth’s power
31
Q

Brislan (summary - relevant sections/legislation)

A
  • Section 51v (postal, telegraphic/phonic and like services)
  • Section 75 (HC has jurisdiction since Cth is a party)
  • Wireless Telegraphy Act 1905 [Cth] (leg. in question)
32
Q

Brislan (summary - judge remarks)

A
  • ChJ Latham stated “if a new form of comm. should be discovered, it too might be made the subject of leg. as a ‘like service’”
  • J Rich and Evatt also explored 51v’s anticipated reach, noting the Cth should have “a wide operation” in regulating this area, as its wording “carries w/ it a ref to electronic means of transmission of signals and speech”
33
Q

Brislan (significance)

A
  • This interp of 51v gave the Cth power to make laws w/ respect to broadcasting to wireless sets, rendering it concurrent
  • Another case, Jones v Cth (No 2) [1965] 112 CLR 206, resulted in the HC holding that they had power to make laws in relation to TV brdcsts, noting Brislan
  • While limited, Brislan could have sig. for future tech/comm advances, with the internet and its activities potentially within the scope of 51v
  • Rapid evo of tech means this could be a sig Cth power
34
Q

Tasmanian Dam (case name)

A

Cth v Tasmania [1983] 158 CLR 1

35
Q

Tasmanian Dam (intro to international treaties)

A
  • Int treaty = legally binding agreement between two countries/intergov orgs in which they undertake to follow the obl set out in the agreement and include them in their local laws
  • HC has held that Cth has power to fulfil obl or rights under int. treaties
36
Q

Tasmanian Dam (summary)

A
  • Using domestic, residual powers, Tas intended to build a dam on the Gordon River for hydroelec
  • Passed the Gordon River Hydro-Electric Power Dev Act 1982 (Tas)
  • As a result, country-wide protests occurred since the area made the UNESCO World Heritage List in 1982, however Tas maintained it had power
  • Cth passed the World Heritage Properties Conservation Act 1983 (Cth) to prohibit its const. (acting on core principles of World Heritage Convention that places an obligation on countries to protect national heritage)
  • Tas argued Cth passed law in area of state resp, Cth claimed they had power to intervene under 51xxix, from their “external affairs” power and how it could be extended to allow imp of obl under treaty
  • HC held [4:3] that Cth had this power, as “external affairs” was interp to include any area covered by an int treaty
  • Due to this, an inconsistency arose, so the Cth Act prevailed while the state’s was inoperable as far as building the dam was concerned
37
Q

Tasmanian Dam (summary - relevant sections/legislation)

A
  • Section 51xxix [Cth has power to make laws relating to “external affairs”]
  • Section 109 [Cth law will prevail over state where there is an inconsistency]
  • Gordon River Hydro-Electric Power Dev Act 1982 (Tas) [Act to allow the construction of the dam]
  • World Heritage Properties Conservation Act 1983 (Cth) [Act to prevent the construction of the dam]
  • World Heritage Convention [places an obligation on countries to protect national heritage]
38
Q

Tasmanian Dam (summary - judge remarks)

A

n/a

39
Q

Tasmanian Dam (significance)

A
  • Allowed the Cth to int in areas of residual power where they were req. to implement obl under int treaties
  • Upheld and reinforced thru cases such as Richardson v Forestry Commission of Tas (1988) 164 CLR 261 [known as Lemonthyme Forest Case]
  • Ext affairs used by Cth to legislate in numerous areas [i.e. passed Human Rights (Sexual Conduct) Act 1994 (Cth) holding that sex between two cons adults shall not be subject to interference -> conflicted w/ Tas law criminalising sex between homo adults. Here, Cth leg. w/ respect to what const crim conduct, usually a state power)
  • Concerns raised regarding scope of this power, many worried Cth has unlimited pwr to leg in any area so long as it gives effect to int treaties
  • However, HC held that Cth cannot leg beyond contents of treaty, cannot infringe on express rights, must be genuine treaty and Cth’s power here doesn’t take away state power, only limits it
40
Q

Factors that affect the ability of parliament to make law

A

Bicameral structure of parliament, international pressures and the representative nature of parliament

41
Q

Bicameral structure of parliament (introduction)

A
  • Requirement for Cth parliament to be bicameral outlined in Sec 1
  • This for Vic parliament outlined in Constitution Act 1975 (Vic)
  • Bicameral structure ensures bill passed in ident form by both, can enable or limit
42
Q

Bicameral structure of parliament (upper house composition and its effects)

A
  • If gov has maj in upper house, it becomes a “rubber stamp”, essentially confirming the decisions made by lower
    • Less ability to be a house of review/reject private member bills
    • Speedier, effective law making method
  • If gov does not, it becomes a hostile upper house, where bal of power lies w/ crossbenchers
    • Could be forced to amend bills or have them rejected due to increased scrutiny and review
    • Disproportionate power could lie w/ x-benchers
    • Arguable that this enables better house of review (wide range of views and comm interests)
43
Q

Balance of power

A

(between political parties) a situation where no single party has maj of seats in one/both houses, meaning their power to approve/reject is held by small no (i.e. ind/x-benchers)

44
Q

Bicameral structure of parliament (law-making process)

A
  • Bill must be passed by both houses in identical form
  • Process involves 1st reading -> 2nd reading -> house/senate committee -> consideration in detail/committee of the whole -> 3rd reading -> bill passed/returned with amendments
45
Q

Bicameral structure of parliament (law-making process - limitations)

A
  • Often criticised for being slow to pass laws, long/cplx process
  • Depends on controversy surrounding bill or comp of parl, important/non-contro bills can be passed quickly
  • Where necessary, parl can pass laws quickly -> COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic)
46
Q

Bicameral structure of parliament (sitting days)

A
  • On a sitting day, bills can be discussed however some time is spent on other parl business such as debates and q time
  • HoR -> 64 in 2022 (67 avg since Fed)
  • Senate -> 51 in 2022
  • LegAssembly -> 40
46
Q

Bicameral structure of parliament (sitting days - limitations/remedies)

A
  • Reduces time to pass essential leg
    but
  • Committees allow for detailed debate/consideration of leg
  • Secondary legislation
46
Q

Bicameral structure of parliament (sitting days - secondary legislation)

A

Rules and reg made by secondary auth (councils, gov dep’s and statutory auths) that are given power to do so thru parl

46
Q

International pressures (introduction)

A
  • Aus -> active member of global comm, signatory to (has ratified) many int treaties
  • Can be on many matters, particularly terrorist attacks, climate change, rights of vul/min groups, age of crim resp
47
Q

International pressures (climate change - overview)

A
  • CC becoming a more pressing, hotly debated topic with many countries taking action to address
  • 2015 Paris Agreement requires sig. to commit to emiss reduction targets
48
Q

International pressures (climate change - sources)

A
  • UN (describes as state of emergency, crit Aus for lack of action)
  • Orgs/groups (Greenpeace - media campaigns/petitions to protect people from effects of clim crises, 1 Million Women - helps women get involved in action, Climate 200 - crowdfunding init supporting clim-positive independents)
  • Other countries (US criticises Aus, UK bans petrol car sale from 2030, Pac Is in danger of rising seas)
  • Individuals (Thunberg, Vanessa Nakate, Mike Cannon-Brookes (Aus bill.) forced AGL to quickly convert to renewables
49
Q

International pressures (climate change - sources on not to act)

A
  • Industry orgs - coal/mining corps w/ resp to jobs and revenue
  • Parties/MPs - Nationals (rep farmers and reg comm) want enviro to coexist w/ resources and agricultural industries, and PH’s One Nation disputes science behind CC, disagrees w/ any leg
  • Coal comm.s - QLD/WA affected by shift to renewables, demand strat to train workers with renewables
50
Q

International pressures (climate change - current responses)

A
  • Climate Change Act 2022 (Cth) enshrines an emissions red target of 43% from 2005 by 2030, net-0 by 2050
  • Act consulted on w/ Greenpeace, requires annual updates to parl by CC minister
  • Vic has aggressive targets (75-80% by 2030, net-0 by 2045)
51
Q

International pressures (age of crim resp - introduction)

A
  • Since 2023, area under close review by Cth, state and terr parls
  • UN nominates 14 as abs minimum age
  • Argued that low Aus age causes overrep of FN children in prison system, “lives of crime” and can be dealt w/ better outside prison
52
Q

International pressures (age of crim resp - sources)

A
  • UN - asks why Aus is “out of step” w/ world, UN Committee on the Rights of the Child (2019) shared concern, 31 countries called to be raised)
  • Orgs/groups - Law Council of Aus (called for 14, services for 10-13), FN-led orgs (Nat Ab&TSI Legal Services argues that cplx needs are better dealt w/ outside CJS), #raisetheage campaign (lobbies politicians, runs social media camp.)
  • NGOs - Amnesty Int and Human Rights Watch concerned about effect of criminalisation on youth
53
Q

International pressures (age of crim resp - sources on not to act)

A
  • Draft 2022 report showed WAOPP submitted age should stay at 10, 10-14 only charged if regularly committing
  • SAPol not supportive, could send wrong message to youth
54
Q

International pressures (age of crim resp - current responses)

A
  • Nov 2021 -> state AGs supported prop to raise to 12
  • Nov 2022 -> NT - 12 yrs
  • Dec 2022 -> Draft report 2020 recommended 14, no exceptions
  • ACT gradually increase to 14 by 2027
  • VIC 12 by end of 2024, 14 by 2027
55
Q

Rep nature of parliament (introduction)

A

-

56
Q

Rep nature of parliament (elements - diversity of parl)

A
  • Aus diverse but parl not
  • Female rep is up but FN way below pop.
  • Lack of diversity -> not all groups rep
  • Others say alts for expressing needs/interests include petitions, MP communication, VLRC, has not stopped from passing leg in the past
57
Q

Rep nature of parliament (elements - willingness to act in accordance w/ majority)

A
  • Maj views on law reform expressed thru media (Hakenkreuz)
  • Also thru petition, demonstration, MP contact
  • Passing maj popular laws not always good (ALP 2022 election campaigned for indep commission to investigate gov corruption, more pressing issues may have been present)
  • In essence, gov may sacrifice practicality for popular laws

Legal Studies - Unit 4 + statutes/sections (3 decks)

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