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Legal 3/4 > Unit 3 & 4 > Flashcards

Unit 3 & 4 Flashcards

1
Q

What are the three principles of Government?

A

Separation of Powers, Responsible and Representative Government

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2
Q

What is Separation of Powers?

A

The idea of the Separation of Powers stems from the idea that “power corrupts…and absolute power corrupts absolutely”. The Constitution, therefore, prevents any one area of our system of governance from having complete power.

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3
Q

What is a Responsible Government?

A

A government that is answerable to the parliament, and therefore, by extension, to the people who it makes decisions for.

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4
Q

What is a Representative Government?

A

A government that represents the majority of the people.

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5
Q

List 6 reasons why laws need to change

A

Changing expectations of the legal system

Changing community awareness

Changing needs of government departments

Changing nature of business

Changing technology

Changing international relationships

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6
Q

What is the role of the Victorian Law Reform Commission (VLRC)

A
  • Reviews and considers proposals to simplify the law, or bring the law into line with current needs
  • Put forward proposals to repeal unnecessary laws
  • Examine, report and make recommendations to the attorney-general on the matters that he asks for
  • Provides educational programs in relation to law reform
  • Supplies information to parliament
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7
Q

What is the process at the VLRC?

A

1 . A ‘reference’ is sent to the VLRC by the Attorney General in an area of law that s/he believes needs to be examined

  1. A review of the current law is undertaken
  2. There is consultation with people who may be affected by reforms, or have expertise in the area
  3. Information is publicized on the VLRC website, and a final report is given to the Attorney General
  4. This report is then given to Parliament, which decided whether or not to draft legislation based around the recommendations
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8
Q

What are the two ways that people can influence legislative change?

A

Formal and Informal

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9
Q

What is a formal way that Laws can be influenced to change by the public?

A

The main way that groups can formally influence change is through the Victorian Law Reform Commission

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10
Q

What are the informal ways that Laws can be influenced to change by the public?

A

Individuals and groups that are not involved in the work of Parliament can still exact pressure on Parliament to change laws – such as the current pressure that the Parliament is experiencing in relation to same-sex marriage.

  • Protests
  • Letter-writing
  • Social media
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11
Q

How many steps are involved in passing a bill through parliament?

A

10 Steps

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12
Q

List the 10 steps to push a bill through parliament

A
  1. Initiation of a Bill
  2. Drafting of the Bill
  3. First House – Introduction of the Bill
  4. First Reading
  5. Second Reading
  6. Consideration in Detail / Committee Stage
  7. Third Reading
  8. Repeat steps 4-7 for the other house of Parliament
  9. Royal Assent
  10. Proclamation
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13
Q

Where are all new laws proclaimed?

A

The Gazette

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14
Q

How many years does an MP serve in the House of Representatives?

A

3 years in between elections

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15
Q

How many years does an MP serve in the Senate?

A

6 years in between elections

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16
Q

How many people sit in the House of Representatives

A

150 Members sit in the House of Representatives

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17
Q

How many people sit in the Senate?

A

76 Members in the Senate

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18
Q

How does the Senate divide the seats up?

A

12 Seats per State and 2 per Territory

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19
Q

What are the Strengths of Parliament as a lawmaker?

A

Because of the many stages that are involved in the process, a Bill must pass through significant debate and scrutiny, meaning the best possible legislative outcome.

Parliament has a huge amount of resources and knowledge dedicated to drafting and passing the best legislation

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20
Q

What are the weaknesses of Parliament as a lawmaker?

A

This long legislative process means that parliament can take a long time to repeal legislation that is obsolete.

The ability of a Bill to pass through the legislative process is dictated by the times that parliament is ‘sitting’, which only occurs 40-70 days a year.

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21
Q

How many days a year does Parliament sit?

A

40-70 days

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22
Q

In the Commonwealth Parliament, Which house is the upper?

A

The Senate

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23
Q

In the Commonwealth Parliament, Which house is the Lower?

A

The House of Representatives

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24
Q

In the Parliament of Victoria, which is the lower house?

A

The Legislative Assembly

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25
Q

In the Parliament of Victoria, which is the upper house?

A

The Legislative Council

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26
Q

How many years does the Legislative Council and Assembly sit for in the Victorian Parliament?

A

4 years in each house between an election, however, an election can be called at least 3 years after the last but no more than 4 years

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27
Q

What is the role of the Lower Houses of Parliament?

A

The role of the Lower House is to:

  • Determine Government
  • Make a majority of the Laws including all Government Expenditure Bills
  • Control Government Expenditure
  • Run the Country
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28
Q

What is the role of the Upper Houses of Parliament?

A

The Role of the Upper House is to:

  • Review bills passed by the Lower Houses
  • Introduce bills
  • Cannot Amend or Introduce any financial bills
  • Scrutinize Government
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29
Q

Whom makes up the Executive Arm of the Government?

A

Prime Minister, Cabinet (All Senior Ministers (Front Benchers)), The Governor General (The Monarchy’s Representative)

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30
Q

Why do we need Laws?

A

To protect people and society as a whole and individuals within in society

Resolve disputes between parties through courts and mediation (VCAT)

To provide boundaries for socially acceptable behaviour

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31
Q

What should all Laws Reflect?

A

Reflect Societies Values and Morals at the time

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32
Q

What is Statute Law also known as?

A

an Act of Parliament
or
Legislation

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33
Q

How is Statute Law created?

A

Statute Law is created by the Parliament and its lawmakers. Laws must be passed by both houses of parliament unaffected and then receive Royal Assent before becoming Law

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34
Q

Who is able to give Bills Royal Assent?

A

The Governor General at a Federal Level and Governor at a State Level

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35
Q

What is Common Law mostly known as?

A

Precedent

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36
Q

Who creates Common Law?

A

The Courts create Common Law via the Judge’s decision on Cases that have no law that is fitted to the exact or similar situation.

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37
Q

What does Abrogate refer to?

A

Abolish; Law made through the courts can be cancelled by an act of parliament, if the act specifically states that it abolishes the common law

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38
Q

What is a Bill?

A

Proposed Law

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39
Q

Whom makes up Cabinet?

A

Senior Ministers and the leader of the government (Ie Prime Minister)

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40
Q

What is the Role of Cabinet?

A

The policy making body of government

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41
Q

What is Delegated Legislation?

A

Rules and Regulations made by subordinate authorities

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42
Q

What is Lobbying?

A

Making requests to politicians or groups for their assistance in trying to influence a change in the law

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43
Q

What is a pressure group?

A

A group of people who have a common interest in trying to influence changes in the law

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44
Q

What are the three main reasons laws change in the 21st century?

A

Change in Social Values
Change in Technology
Protection of the Community

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45
Q

What are two examples of Laws changing because of Changes in Social Values?

A

Marriage Amendment Bill (Marriage Equality) 2015 - Defeated in the House of Representatives

Corrections Amendment (Further Parole Reform) Act 2014 (VIC)

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46
Q

What is an example of Laws changing due to a change in Technology?

A

Telecommunications (Intercept and Access) Amendment (Data Retention) Act 2014 (CTH)

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47
Q

What is an example of Laws changing due to a higher need for protection of the community?

A

Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (CTH)

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48
Q

How can groups informally change laws?

A 
Demonstrations
Direct approaches to MP's
Petitions
Preparing Submission
Civil Disobedience
Political Actions
Court Orders and Actions
Use of the Media
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49
Q

What does VLRC stand for?

A

Victorian Law Reform Commission

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50
Q

Is the VLRC independent of Government?

A

Yes, the VLRC reports to the Attorney- General whom refers laws to them and then tables reports to parliament that the VLRC has made under referral from the VLRC

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51
Q

What are formal law reform bodies?

A

Organisations that are employed by the government (state and federal) to inform them of any changes in society that may require a change in the law

52
Q

When did the VLRC come into operation?

A

6th of April 2001, under the Victorian Law Commission Act 2000

53
Q

Why was the VLRC established?

A

Why was the VLRC established?

54
Q

Main role of the VLRC?

A

To undertake research and make recommendations for changes in the law on issues that are referred to the VLRC by the State Attorney General

55
Q

Whom recommends laws to the VLRC in order for the VLRC to investigate?

A

The State Attorney General

56
Q

Can the VLRC act on its own accord in regards to investigating law reform?

A

Yes but only in issues that are minor. They can then recommend that Parliament changes the laws.

57
Q

How can social media help in changing laws?

A

The media allows the Law Makers to gauge public opinion and informs the Law Makers of changes in values and attitudes

58
Q

What does the use of Social Media include?

A

Writing letters to the editor, newspapers & participation in television as well radio discussions & interviewers

59
Q

Why may laws need to change?

A 
Community Values shift
Legal System Expectations change
Nature of Business 
Technology changes 
International Relationships change
60
Q

How effective are petitions?

A

Parliament imposes certain rules and regulations on the form and content of petitions

61
Q

What does S106 relate to?

A

The constitution of each state of the commonwealth shall continue until altered

62
Q

What does S107 refer to?

A

Every power of the state shall continue unless exclusively given to the commonwealth or removed from the states

63
Q

What does S108 refer to?

A

Every law in force in the states shall remain in force until altered

64
Q

What does S121 refer to?

A

The establishment of new states

65
Q

What does S51 refer to in the constitution?

A

The Legislative Powers of the Parliaments of the nation

66
Q

What does S71 refer to?

A

The High Courts Power and their jurisdiction

67
Q

What does S109 provide for?

A

Provides a mechanism for resolving of conflict in regards to inconsistencies between state and commonwealth legislation

68
Q

What does S114 refer to?

A

Raising military forces by the states and that only the commonwealth may raise military forces

69
Q

What does S115 refer to?

A

Coining Money and that it is a power that only the commonwealth holds

70
Q

What does S90 refer to?

A

Customs and Border Protection is a power only held by the commonwealth

71
Q

What does S92 refer to?

A

Trade within the commonwealth must be free

72
Q

What do sections 106,107 and 108 guarantee?

A

The states power, that lies with only them

73
Q

What is key about S116?

A

S116 holds the right to freedom of religion and faith

74
Q

What right is held within S117?

A

Rights of Residents in states

75
Q

What injustice is outlawed in S99?

A

Preference of one state over others by the federal government

76
Q

What is outlined in S128 of the constitution?

A

Changing the Constitution via the referendum mechanism

77
Q

What are some factors that would slow a referendum’s path to success?

A
  • Double majority provision; A diverse range of people must be satisfied by the changes propsed
  • Timing; due to the timing of referendums with elections, this can cause some people to “turn off” and vote “no” because it is the easier option
  • Bi-Partisan Support or lack there of; people are more likely to vote on the lines of their party’s support therefore if the two parties disagree on an issue, the votes will be split and most likely will not pass the double majority
78
Q

Under S76, what does the HCA have the power to do?

A

Interpret the words of the constitution in a case that does not follow past decisions handed down by courts or that is outlined in the constitution

79
Q

Does the HCA change the words?

A

No, they change the meaning of the words based off current topics in society that are presented before the court

80
Q

What does the Bill of Rights do?

A

The Bill of Rights sets out individual democratic and human rights

81
Q

What are Concurrent Powers?

A

Concurrent powers are powers that are listed in the constitution and are held by both the state and commonwealth parliaments

82
Q

What is the division of powers?

A

The division of powers is how parliaments are given their jurisdiction(s) via the constitution

83
Q

What is the constitution?

A

The Commonwealth of Australia Constitution Act 1900 (UK) which came into force Jan 1, 1901

A set of rules and principles that guide the way that the nation is governed

84
Q

What are exclusive powers?

A

Exclusive powers are powers given to the commonwealth and only the commonwealth in the constitution

85
Q

When was federation?

A

1901 Jan 1

86
Q

What are heads of power?

A

The areas and leaders of law making power in S51

87
Q

What is the referral of power?

A

The giving or receiving of a law maker power from a state to the commonwealth parliament

88
Q

What are residual powers?

A

Powers not listed in the constitution that are left to the responsibility of the state governments

89
Q

When did the Australia Act (UK) come into action?

A

Jan 1 1901

90
Q

What is the purpose of the constitution?

A

It sets out the structure and operation of the Senate and House of Representatives
It establishes the Federal Government and the Commonwealth Parliament
Under S71, it sets out the High Court of Australia as the final court of appeal in Australia

91
Q

Under what section(s) of the constitution are the division of law making powers laid out?

A

S 51 & 52

92
Q

What are the two powers that are listed in the constitution separated into?

A

Concurrent and Exclusive Power

93
Q

What is an Exclusive Power?

A

A power that only the commonwealth holds. This can be prohibited by the states (Military Forces) or exclusive by nature (Border Protection)

94
Q

What are Concurrent Powers?

A

Powers that are held by both state and federal governments

95
Q

What if there is an inconsistency between State and Federal Concurrent Laws?

A

Under S109, to the extent of the inconsistency, the commonwealth law shall prevail as per the Tasmanian dams case

96
Q

What are residual powers?

A

Residual powers are any powers that are not listed in the constitution in any section

97
Q

What is the bill of rights?

A

A document that sets out individual democratic and human rights

98
Q

What is federation?

A

The unionisation of separate colonies into one nation

99
Q

What are some factors that are likely to affect the outcome of a referendum?

A

Timing; As referendums are generally held at the same time as elections, people are more focussed on the now of selecting a leader than changing the constitution and are more likely to vote no.

Bi-Partisan Support; If both major parties support a change in the constitution, the public are more likely to vote yes

The amount of information provided to voters;

  • Too much = Overwhelmed
  • Too little = Disinterest
100
Q

What does the high court have to do with the constitution?

A

The High Court has the ability under S76 to interpret the words of the constitution and change their meaning. However, they cannot change the words, merely the meaning of them

The High Court is the protector of the constitution

101
Q

What is the first step in a civil procedure in the Supreme Court?

A

Pleadings; exchange of documents between Plaintiff, Accused and the Court

102
Q

What are the documents within pleadings?

A

Writ, Statement of Claim, a Defence, a Counterclaim (if filed), a Reply to Defence and Further and Better Particulars

103
Q

What is a Writ?

A

A document which: explains to the defendant that an action is being taken against them.
Informs the defendant where the trial will be occurring and the mode of trial

104
Q

What is a statement of claim?

A

Attached to the Writ or Originating Motion

Explains the nature of the claim, the cause and the remedy or relief sought

105
Q

What is a defence?

A

After the defendant has served their notice of appearance noting that they will be fighting the claim, a defence either admits or denies the allegations

106
Q

What is a counter claim?

A

A claim by the original defendant to the original plaintiff arising from the allegations taken out by the original plaintiff

107
Q

What are further and better particulars?

A

A party may request a further and better particular of the other’s claim or defence

108
Q

What is the purpose of directions hearings?

A

a brief hearing before the judge and is a chance for the parties to meet with the judge to discuss the progress of the case and give directions to the parties < No less than 35 days after the defendant has filed a notice of defence.

109
Q

What is discovery?

A

Enables the parties to gain further information on matter that remain unclear. Involves the disclosure of documents and exchanging of documents that are relevant to the issues in dispute

110
Q

What elements make up discovery?

A

Discovery of Documents, Interrogatories, Discovery by Oral Examination and Medical Examination

111
Q

What is discovery of documents?

A

Preparation of documents which are first outlined in an affidavit of documents, which contains: All relevant documents that are or were in possession of the parties, All documents that the party refuses to disclosed due to their privileged nature

112
Q

What are interrogatories?

A

searching questions relating to the known facts of the case. Usually requested to be completed within 60 days .

113
Q

What is discovery by oral examination?

A

As a result of the interrogatories, a party may request that the other party answer some questions. If contested, the questions will be asked as if they were being examined in chief

114
Q

What is the FAT reason for “a greater capacity for single judges to determine appeal applications”?

A

Timely Resolution of disputes; to ensure that the dispute and possible appeal are heard in as soon a time as possible

115
Q

What is the FAT reason for “extending the time for an appeal to be made from 14 to 28 days”?

A

Fair Hearing; to ensure that the appeal has the best chance for success in the appeals court

116
Q

Why does “more avenues for filing appeals electronically” ensure a timely resolution of dispute?

A

The application of appeals electronically speeds up the trial process as it is a vastly more efficient process which reduces the time for appeals to be filed in days

117
Q

What are implied rights?

A

Implied rights are those that are implied by the words of the constitution and are “found” through high court interpretations of the said constitution

118
Q

What is Australia’s Implied Right?

A

The right to freedom of political communication

119
Q

What are entrenched rights?

A

Entrenched rights are those rights that are set out in the constitution and are only able to be changed through the mechanisms within the constitution itself

120
Q

What are Australia’s entrenched rights?

A 
Freedom of interstate trade and commerce
Freedom of religion
Freedom from interstate discrimination 
Acquisition of property on just terms
Right to trial by Jury for commonwealth indictable offences
121
Q

What are Australia’s Structural Protection of rights?

A 
Bi-Cameral Parliament 
Separation of power
Responsible government 
Representative Government 
The HCA
122
Q

What are Structural Protection of rights?

A

Structures incorporated into the constitution to prevent governmental power being controlled in the hands of a few

123
Q

How do judges make law?

A

By deciding on a new issue that is brought before them where there is no previous law or binding precedent that applies to the current situation. OR when a previous precedent requires expansion to apply the new situation and there is no legislation to cover the situation. OR when they must interpret the words of the statue or legislation

124
Q

What is precedent?

A

The reasoning of a judge from a superior court of record from a case where they have had to make law. This i known as ratio decidendi. The ratio decidendi is then kept and passed down to lower courts in the same hierarchy should a similar issue come before that court. This is known as stare decisis- to stand by what has been decided

125
Q

What is Obiter Dictum? (Obiter Dicta)

A

Things said “by the way” when a judge is passing down a judgement that contains ratio decidendi.

126
Q

What is a persuasive precedent?

A

Decisions of Courts in another Hierarchy
Decisions of Courts on the same level of the Hierarchy
Decisions of Courts lower in the Hierarchy
Obiter Dictum contained in a judgement in a court higher in the same hierarchy or in another hierarchy

127
Q

What Aids does a judge have at their disposal regarding statutory interpretation?

A 
Literal Meaning of words
Past Descions 
Purpose of the Act and Section
Interpretation Acts
Extrinsic Materials; Hansard, Minutes of Executive Council, Reports, Dictionaries
Intrinsic Materials; In the act itself

Legal 3/4 (8 decks)

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