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Legal Studies 3/4 > U4AO1 - Law-Makers - Parliament and Constitution > Flashcards

U4AO1 - Law-Makers - Parliament and Constitution Flashcards

1
Q

Define House of Representatives

A

The lower house of the Commonwealth Parliament, which is comprised of 151 MPs representing electorates across Australia

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2
Q

Role of House of Representatives x5

A
  1. Initate new legislation
  2. Initate money bills
  3. Represent the people in law-making
  4. Review legislation and propose amendments
  5. Scrutinise legislation
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3
Q

Define the Senate

A

The upper house of the Commonwealth Parliament, which is comprised of 76 senators who represent the six states and two territories across Australia.

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4
Q

Role of the Senate x3

A
  1. Scrutinise bills
  2. Act as a states’ house
  3. Initiate bills
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5
Q

Role of the Crown in Commonwealth Law-making x3

A
  1. Grant royal assent
  2. Suggest ammendments to legislation after passing both houses (doesn’t happen)
  3. Summon the Executive Council
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6
Q

Define Legislative Assembly

A

The lower house of the Victorian Parliament, which is comprised of 88 members of parliament representing the electoral districts across Victoria.

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7
Q

Role of Legislative Assembly x5

A
  1. Initate new legislation
  2. Initate money bills
  3. Represent the people in law-making
  4. Review legislation and propose amendments
  5. Scrutinise legislation
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8
Q

Define Legislative Council

A

The upper house of the Victorian Parliament which is comprised of 40 members of Parliament who represent eight regions across Victoria.

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9
Q

Role of Legislative Council x2

A
  1. Scrutinise legislation
  2. Initiate legislation
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10
Q

Role of Crown in Victorian Law-making x3

A
  1. Grant royal assent
  2. Act as a Head of State
  3. Summon the Executive Council
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11
Q

Define Exclusive Powers

A

Law-making powers granted only to the Commonwealth Parliament by s 51 and s 52 of the Australian Constitution.

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12
Q

Exclusive Power examples x3

A
  • Customs/border protection
  • Armed forces
  • Currency
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13
Q

Define Concurrent powers

A

Law-making powers granted to both the Commonwealth and state parliaments, found in s 51

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14
Q

Concurrent powers examples x3

A
  • Marriage and divorce
  • Taxation
  • Banking
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15
Q

Define Residual power

A

Law-making powers that are not granted to the Commonwealth Parliament in the Australian Constitution and therefore belong to the state parliaments

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16
Q

Residual power example x3

A
  • Education
  • Criminal law
  • Police
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17
Q

Quote Section 109 of the Constitution

A

‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’

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18
Q

Significance of s109 x4

A
  1. Resolves inconsistencies
  2. Restricts law-making power of the states
  3. Requires case to be brought to High Court to be considered invalid (not automatic)
  4. Allows previously invalid state laws to come into force if Commonwealth law is changed
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19
Q

Facts of Tassie Dams Case

A

Tasmania (TAS) wanted to dam the Franklin River, but the Commonwealth opposed this, and as they were a signatory of the World Hertiage Protection treaty, they were able to pass legislation under s 51 (xxix) the External Affairs power to declare the Franklin River heritage protected. After TAS brought this case to the High Court, the Tas Dams case was ruled in favour of the Commonwealth.

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20
Q

Significance of Tas dams case (Cwth & state)

A

Cwth:
- Broadened power due to ability to make residual areas of law (such as environmental protection) concurrent, and overrule state legislation due to s 109
- Must enter legitmate treaties
- Subject to Constitutional limitations (express powers)

State:
- Narrowed as residual areas of power can become concurrent, and subject to s 109

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21
Q

How does the bicameral structure of parliament affect their ability to make laws (both houses)

A
  • Limited by amount of sitting days in parliament (laws can only be passed during sitting days)
  • Limited by both houses + GG having to debate/vote/give amendments for a bill
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22
Q

In the Senate, the cross bench usually holds what?

A

The balance of power

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23
Q

Strenghts of bicameral structure on ability of parliament to make laws x4

A
  • Stops parliament from passing laws solely for political gain
  • All bills are reviewed and debated
  • Govt. majority in senate leads to quick bills being passed, overcoming sitting day challenge
  • Govt. minority in senate leads to more review, improving the quality of law-making
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24
Q

Limitations of bicameral structure on ability of parliament to make laws x5

A
  • Hostile senate delays speed of bills
  • Stubbon MPs holding balance of power may force bill alterations that don’t represent the full community
  • Govt. majority in senate may lead to lack of scrutiny
  • Law-making process is lengthy
  • Sitting days reduce ability of parliament to make laws
25
Q

Define international pressures

A

The influence that other countries and international organisations can exert on parliaments to ensure laws created comply with international standards

26
Q

Types of international pressures x4

A
  • International treaties
  • International declarations
  • The United Nations (UN)
  • Other international organisations
27
Q

Define international treaty

A

An agreement between two or more countries or international organisations, that creates international rights and obligations

28
Q

Steps of an international treaty x3

A
  1. Signing - indication of legislating with treaty
  2. Ratification - formal agreement of being bound by treaty
  3. Now binding under international law, meaning Australia must fulfill obligations
29
Q

Define international declarations

A

A non-binding agreement between two or more countries that establishes the aspriational rights and obligations the parties seek to enforce

30
Q

Strengths of international treaties and declarations in impacting parliament in law-making x3

A
  • Breaching obligations will lead to Australia facing criticism from other countries, leading parliament to change the law to avoid further criticism
  • International organisations can inform the Australian people treaties and declarations signed by parliament but not legislated on, placing pressure due to rep. nature of parliament
  • While not legally binding, parliament may face criticism for not upholding principles set out in declarations, such as the Universal Declaration of Human Rights
31
Q

Limitations of international treaties and declarations in impacting parliament in law-making x3

A
  • Limited ability for organisations to enforce treaties and declarations
  • Unless ratified, parliament has no legal obligations to comply with international standards
  • Declarations aren’t legally binding, meaning no consequences can be faced if not upheld
32
Q

Explain what the UN and international organisations do x3

A
  • Place pressure on parliament to make/change law
  • May enforce treaties Members have entered
  • Spread awareness for issues to Australian public
33
Q

Strengths of UN and international organisations in impacting parliament in law-making x2

A
  • International organisations can inform the Australian people treaties and declarations signed by parliament but not legislated on, placing pressure due to rep. nature of parliament
  • Some international organisations (such as UN) have power to impose sanctions, creating an economic insentive to change law
34
Q

Limitations of UN and international organisations in impacting parliament in law-making x2

A
  • Unless a member of an int. org., parliament has no legal obligations to comply with international standards
  • Pressure from int. orgs. can limit parliaments ability to legislated based off tailored needs of a population
  • International society can have conflicting views on a topic (transnational mining corps encourage trade of coal, Greenpeace disagrees), meaning parliament has to decide which pressures to accept and ignore
35
Q

Define representative nature of parliament

A

Members of Parliament are elected by the people of a community or nation to best reflect the needs and views of those people

36
Q

Influences of representative nature of parliament x3

A

Regular elections
Reflecting the community
The way MPs vote

37
Q

How does an MPs abiliy to reflect the community affect the representative nature of parliament x2, x8

A
  • Must be listening to calls for law reform (protests/petitions) to ensure rep. nature of parliament is achieved)
  • More women/FN people have been elected to parliament, decreasing divisions
  • Average MP is white, male, uni educated, 45-64
  • People not of these demographics are underrepresented in parliament
  • Lacking lived experience of these can lead to less representation in parliament
  • MPs may not vote for legislation for minority out of fear of not being relected, even if law is necessary for society betterment
  • Parliament make-up isn’t representative
  • People can only vote based on people who run, limiting diversity
38
Q

How do regular elections affect the representative nature of parliament x4, x2

A
  • Govt is mindful of peoples views, due to fear of not being relected
  • Compulsory voting ensures all people have a say
  • Political parties are compelled to improve poliices to appeal to entire population
    -Short terms may lead to quicker bill passing
  • May be seen as forcing those who aren’t politically engaged or informed to vote, leading to less representation
  • Short terms may not be long enough to make real change
39
Q

How does an MPs voing patterns reflect the community affect the representative nature of parliament x1, x2

A
  • May feel compelled to vote along party lines, reducing representation of constituents
  • Disconnect between party view and constituents view may lead to crossing the party floor (very rare, big consequences)
  • Consious vote, allowed to cross the floor
40
Q

Strenghts of representative government (general) x2

A
  • Influences MPs to enact laws that represent views and values of the people
  • May limit speed of legislation, but ensures large number of community values are considered, improving quality of laws
41
Q

Which sections of the Constution establish representative government

A

s 7 and 24, which state MPs must be ‘directly chosen by the people’

42
Q

Explain Roach v Electoral Commissioner

A

Cwth. amended the Commonwealth Electoral Act to ban all prisoners from voting in federal elections (was previously over 3 year sentence)

Roach challenged this, saying it was unconstitutional under s 7 & 24

High Court decided new law was excessive, but old law wasn’t

Significant as the interpretation of s 7 and 24 restricted the Commonwealth’s ability to pass laws regarding voting ability

43
Q

Role of High Court in protecting representative government x4

A
  • Hear matters arrising from Constitutional interpretation (including s 7 and 24)
  • Acting as a check on parliament by preventing legislative branch from creating laws infringing on representative government
  • Can recognise implied right of political communication freedom, allowing parties to vote in a way accurately reflecting, enabling government that best representeds majority views of population
  • Defining when ability to vote can and can’t be removed, ensuring large parts of aren’t excluded from voting
44
Q

Explain Australian Capital Television Pty Ltd and NSW v Commonwealth

A

Cwth. passed legislation resticting political TV ads during election

Plaintiff challenged validity of this Act, due to implied right of political freedom

Act declared invalid, as freedom of communication is a necessary element of representative government

Courts decision restricted powers of Cwth, as they are unable to pass laws that prevent free discussion of political issues, preserving representative government as people remain informed of MPs who they are voting for

45
Q

Strengths of High Court upholding representative government x3

A
  • Can declare a law or part of a law invalid if breaches rep. govt.
  • Can recognise implied right of free political comms, necessary in upholding principle of representative government
  • Independant, allowing for unbiased decisions in if rep. govt, has been breached
46
Q

Limitations of High Court upholding representative government x5

A
  • Must have case before them, can’t declare a law invalid as soon as passed by parliament
  • Party must have standing
  • Can only protect rep. govt. to the extent of the case before them
  • Judges appointed by govt., may be biased
  • Cost + time of court decreases cases before them, limiting HC ability to act as a check on law-making
47
Q

Define Separation of powers

A

A principle established in the Constitution that ensures the legislative, executive, and judicial powers remain separate

48
Q

Define legislative power

A

Power vested in parliament by s1 enabiling it to make laws

49
Q

Define executive power

A

Power vested in the King and exercised by the G.G by s 61, to maintain and administer law and business of government (actually held by cabinet, government and public servants)

50
Q

Define judicial power

A

Power vested in courts and tribunals by s 71 that enables them to enforce laws and resolve legal matters

51
Q

Key reasons for separation of powers x2

A
  • Preventing abuse of power (can’t create laws and administer justice)
  • Upholding the rule of law (can’t make, administer and apply law)
52
Q

Strengths of separation of powers as a check on parliament law making x5

A
  • Ensures a consitutional check that minimises possibility of power abuse
  • Independant judiciary ensures court outcomes aren’t based on politics
  • Legislative acts as check on executive as bills introduced by Cabinet MPs can be scrutinised by parliament
  • Judiciary can declare laws ultra viries
  • Constitutionally guaranteed, can’t be legislated away
53
Q

Limitations of separation of powers as a check on parliament law making x4

A
  • Legislative and executive not separated, limited ability to act as internal check
  • Judges are appointed by executive, may be biased
  • Rubber stamp senate can reduce check of legislative on executive as Cabinet MP’s bills may not be scrutinised properly
  • Must have standing to bring an issue to the judiciary
54
Q

Define the express rights

A

The five human rights that are explicitly stated in the Constitution

55
Q

What are the 5 express rights and sections of Constitution

A
  • Acquisition of property on ‘just terms’, s51 (xxxi)
  • Trial by jury for Commonwealth indicatale offences, s80
  • Interstate trade and commerce, s92
  • Freedom of religion, s116
  • No discrimination based on state of residence, s117
56
Q

Strengths of express rights as a check on parliament law making x3

A
  • Enshrined in Constitution, can’t be legislated away
  • Fully enforcable by the High Court, can declare legislation ‘ultra vires’
  • Independant, can rule against breaching legislation even if parliament disagrees
57
Q

Limitations of express rights as a check on parliament law making x5

A
  • Can interpret express rights narrowly
  • High Court can’t stop Parliament from passing invalid laws
  • Case must be brought by someone with standing
  • Few rights actually protected
  • Unlikely that future express rights will be made
58
Q

How does the bicameral structure of parliament affect their ability to make laws (Upper house)

A

Rubber stamp - quick, can’t be a house of review
Hostile - govt. doesn’t hold balance of power, slow, may lead to not being voted out of spite rather than good of people
Normal - balance of power not held by govt., but not petty

59
Q

How does the bicameral structure of parliament affect their ability to make laws (Lower house)

A

Majority Govt - Quick bill passing, bills passed without major debate
Minority Govt - Can’t govern in own right (minor parties/independants hold balance of power), longer debate

Legal Studies 3/4 (10 decks)

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