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Legal notes > Unit 4 AOS 1 > Flashcards

Unit 4 AOS 1 Flashcards

1
Q

What system of governemnt does Australia use?

A

The Westminster system

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2
Q

What are the key features of the Westminster system?

A

The key features are the crown is the head of state, it is bicameral in structure, parliament is the ultimate law making authority, parliaments actions should be representative of the the people and parliament should be held accountable for their actions

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3
Q

What is federation?

A

Federation refers to the unification of states to form an independently recognised country

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4
Q

What are the details of Australians federation?

A

It occurred on 1st January 1901 but the process began prior to this, a central authority was created to legislate, each colony retained some independence and authority to govern its own people and a federal political system was created to balance the national interests and the interests of the state

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5
Q

What is the constitution?

A

The constitution is an Act that outlines our political and legal structure along with identifying the lawmaking powers between Commonwealth and State parliaments

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6
Q

What is the legislation regarding Australias constitution?

A

The Australian Constitution Act 1900 (UK)

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7
Q

What are the key features of the constitution?

A

It describes the composition and how Commonwealth parliament will function, identifies and describes the lawmaking powers of Commonwealth parliament, outlines the roles and powers of executive government, outlines the roles and powers of the High Court, outlines the 5 express rights of the Australian people and defines the relationship between State and Commonwealth parliament in lawmaking

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8
Q

What is the legislative function of the constitution?

A

It outlines the structure of Commonwealth parliament and its lawmaking powers

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9
Q

What is the executive function of the constitution?

A

It outlines the function of government and the roles of Ministers

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10
Q

What is the judicial function of the constitution?

A

It establishes and outlines the power of the High Court as the most superior court in Australia

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11
Q

What is the crown?

A

The crown refers to the monarchy, King Charles 2 and he is our formal head of state

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12
Q

What is the role of the Governor General?

A

The Governor General, currently David Hurley, represents the King within Australia as he cannot be present all the time and the Governor General acts on advice from the Executive Council

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13
Q

What are the roles of the Governor General?

A

The role of the GG is to grant royal assent to bills, dissolve the HoRs and the Senate, perform ceremonial roles and to apoint the times of the holding of parliament sessions

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14
Q

What causes the Governor General to dissolve the HoRs and the Senate?

A

There must be 2 rejections from the Senate or the Lower house when trying to pass a bill, it must be requested and it cannot happen within the last 6 months of a prime ministers term

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15
Q

What is the House of Representatives?

A

The HoRs/Lower house is where government is formed after a federal election wehreby voters nominate who they would like to represent them in each seat/electorate

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16
Q

What are the key features of the House of Representatives?

A

There are 151 seats, each member represents an electorate which contains aproximately the same number of votes, voters directly elect one member for their electorate every 3 years, the HpRs is designed to represent the interests of the people in Aus and the party that wins the majority of seats in the HoRs forms the government of Aus and the leader becomes the Prime Minister

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17
Q

What are the roles of the House of Representatives?

A

These include making laws and passing them to the Senate for review, determining government, providing representative government, providing responsible government, scrutinising government and controlling government spending

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18
Q

What is the Senate?

A

The Senate/Upper house consists of 12 members from each state and 2 members from each territory, totalling 76, and this allows for each state and territory to have equal say in the law making process regardless of population size

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19
Q

What are the key features of the Senate?

A

The Senate is elected by voters on the electoral role, with the exception of financial bills, the Senate has equal powers to the HoRs when making laws, senators are elected for a term of 6 years and half the senate retires every 3 years at the same time as the Federal election and the equal number of senators per state/territory allows laws to be reviewed and equally represented by each state/territory

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20
Q

What are the roles of the Senate?

A

These include upholding the views of their state/territory when making laws, reviewing legislation, providing for representative government, providing for responsible government and scrutinising government

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21
Q

What is the structure of the Victorian Parliament?

A

The Governor represents the Crown, the Legislative Assembly is comprised of 88 members each representing an electorate of roughly 50000 voters and the Legislative Council is comprised of 40 members, 8 regions with 5 representatives each

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22
Q

What is the Governor?

A

The governor, Linda Dessau, is the representative of the Crown at state level

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23
Q

What are the roles of the governor?

A

Their roles are to appoint ministers, grant royal assent to legislation, dissolve parliament to bring about an election and appoint parliament sitting times

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24
Q

What is the Legislative Assembly?

A

The Legislative Assembly is the Lower house of the Victorian Parliament and it consists of 88 members who are elected every 4 years

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25
Q

What are the roles of the Legislative Assembly?

A

They are to represent the interests of the people who elected them into power, form government whereby the leader of the political party becomes the Premier, consider and debate bills in the lawmaking process, uphold representative governmnent and uphold respoonsible government

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26
Q

What is the Legislative Council?

A

The Legislative Council is the Upper house of the Victorian Parliament, it consists of 40 members representing the 8 regions of Vic made up of 11 electoral districts containing about 470000 electorates and members are elected for 8 years with half elected every 4 years

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27
Q

What are the roles of the Legislative Council?

A

They are scrutinising bills from the Legislative Assembly, representing their regions differing interests and debating laws and amendments

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28
Q

What are the further roles of the Legislative Council?

A

They are determining government, ensuring representative governemnt, ensuring responsible government, scrutinising government, controlling government spending and reviewing laws

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29
Q

What is representative government?

A

Representative government is the notion that members of parliament must act in a way that reflects the views and values of the people that voted them into power and that the community believes are a priority and if they do not uphold this they risk not being re-elected

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30
Q

What are examples of a representative government?

A

These include passing or amending laws in response to pressure within the community, introducing policies or reforms in response to needs within the community, upholding the interests of their region/state when bills are being debated, responding to petitions and letters from voters in response to an issue and bringing it to parliament and supporting areas with government subsidies and funding

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31
Q

What is responsible government?

A

Responsible government is the notion that the government must act in a way that makes them accountable and answerable to their actions

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32
Q

What are examples of a responsible government?

A

These include ministers providing leadership and being accountable for the actions of their department, participate in answering questions during Question time in parliament, participating in Royal Commissions in an honest and transparent manner, disclosing any conflicts of interest in their personal lives that may affect their professional decision making and resigning if there is a vote of no confidence in them

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33
Q

What is the Australian Constitution?

A

It is a document that sets out the fundamental principles or rules by which a country is it to be governed and it establishes the structures of parliament, lawmaking powers as well as limitations, checks and balances and rights of the people

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34
Q

What is the legislation regarding the Australian Constitution?

A

The Commonwealth of Australia Constitution Act 1900 (UK)

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35
Q

Features of the Australian Constitution?

A

How MPs are chosen, areas of lawmaking powers, how the constitution can be changed and the role of the High Court

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36
Q

What is the division of powers?

A

Areas of lawmaking that are divided or allocated to Commonwealth and States to legislate within their jurisdiction

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37
Q

What are specific lawmaking powers?

A

They are listed in Section 51 and have been specifically enumerated within the Constitution to belong to the Commonwealth and they can also be legislated on by states providing that they are not exclusive

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38
Q

What are exclusive powers?

A

They are areas of lawmaking that only Commonwealth parliament can legislate on and they found within Section 52

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39
Q

How are exclusive powers made?

A

Stated in Section 52, exclusive by nature or because States are prohibited from legislating on them

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40
Q

What are examples of exclusive powers?

A

Borrowing money on public credit of the Commonwealth, control of railway for defence purposes, acquisition of property on just terms, currency, coinage and legal tender and naval and military defence

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41
Q

What are concurrent powers?

A

They are specific powers that have been given to Commonwealth under Section 51 but have not been made exlcusive and were given to Commonwealth before the States

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42
Q

What are examples of concurrent powers?

A

Marriage, divorce, taxation and bankruptcy

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43
Q

What are residual powers?

A

They are powers that are not listed within the Constitution, but are related to Section 106 and 107, and therefore belong to the States and Territories and Commonwealth does not have jurisdiction to make laws on them unless the States hand the power over

44
Q

What is Section 96?

A

It allows the Commonwealth to make grants of money to the states and they can impose conditions on the way in which States spend the money

45
Q

What is Section 109?

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

46
Q

What are the features of Section 109?

A

The conflicting laws must be challenged, it does not matter which law came first, the Commonwealth law takes precedence and it doesnt mean that the whole State Act is invalid, only the part that was challenged

47
Q

What is the impact of Section 109?

A

It provides a method to resolve disputes and it acts as a restriction to the States as it can limit their ability to make laws

48
Q

What is the McBain case?

A

John McBain v The State of Victoria and others [2000] involves McBain challenging an inconsistency between the Infertility Act 1995 (Vic) and the Sex Discrimination Act 1984 (Cth) and Section 109 was applied and found that Section 8 of the Victorian Act was invalid

49
Q

What is a ‘check’ on parliament?

A

It limits or restrains parliament and ensures that when acting within it’s jurisdiction it does not abuse its lawmaking powers, there is no absolute power and it also ensures power is not concentrated in the hands of a small number of people

50
Q

What are examples of these checks?

A

The bicameral structure, the seperation of powers, express protection of rights, the role of the High Courtnand the double majority provision for referendums

51
Q

What is the bicameral system?

A

It means that parliament consists of two houses that participate within the decision making process when making laws and it involves the HoRs and the Senate under Section 1 and 2

52
Q

How does the bicameral structure act as a check on parliament within the HoRs?

A

Members of the HoRs must participate in and be held accountable for their actions to ensure transparency, elections are held every 3 years to provide the Australian people with the opportunity to elect a new government, ministers appointed must maintain confidence of their party and the people, if not they can be forced to resign and governments must be answerable to decisions made when questioned by the opposition, the media and the community

53
Q

Further ways in which the bicameral structure acts as a check on parliament within the HoRs?

A

There are 151 seats in the HoRs that actively participate in the debate and scrutiny of any bills that are introduced or amendments considered, the HoRs is where government is formed and bills introduced should reflect the majority of the people and if a government has not secured the majority of seats in the HoRs it is known as a ‘hung parliament’ and therefore will need to gather enough votes from other parties or independents to pass bills

54
Q

How does the bicameral structure act as a check on parliament within the Senate?

A

Once a bill has successfully passed through the HoRs it must recieve support from the Senate to proceed to royal assent, the Senate is comprised of equal members from each State and Territory to ensure the voices of States are heard equally, if the Opposition has the majority in the Senate it can provide a more balanced approach to lawmaking, members must ensure that their actions represent the views and values of the people that voted for them or face not being re-elected, members must be answerable and accountable for their actions and members must participate in question and answer time to maintain transparency

55
Q

What is the seperation of powers?

A

It is the notion that lawmaking should not be concentrated to one body as this will lead to abuse, lack of transparency and limited accountability so powers are seperated into 3 branches

56
Q

What are the 3 branches of the seperation of powers?

A

The Legislative fuction, the Executive function and the Judicial function

57
Q

How does the seperation of powers act as a check on parliament?

A

The three seperate branches within our legal system allows power to not be concentrated which minimises corruption and abuse of power, the courts/judges are independent of the legislative and executive function and therefore not politically pressured in decision making, judges are not democratically elected and can therefore make impartial decisions as they are not concerned with being re-elected or pleasing voters

58
Q

Further ways in which the seperation of powers act as a check on parliament?

A

Judges have certain powers to overrule and amend decisions made by parliament and all laws or amendments passed by parliament are scrutinised, debated and challenged by the Opposition or the media

59
Q

What are express rights?

A

They are rights that are clearly stated/entrenched within the Aus constitution and they cannot be changed or removed unless there is a referendum and they are fully enforceable by the High Court

60
Q

What are the five express rights?

A

Acquistion of property on just terms, Right to trial by jury for Cth indictable offences, Trade and commerce between the states shall be free, Freedom of religion and Freedom from interstate discrimination

61
Q

What does acquisition of property on just terms involve?

A

It incudes the right of the Cth to acquire property from Australian individuals on just terms, it recognises the right of indivuals to own property and it also recognises that there may be circumstances where Cth may need to acquire property but it can only do so within areas in which it can make laws and the Cth must be able to show ‘just terms’ and be able to provide individuals with fair and reasonable compensation, found in Section 51 of the constitution

62
Q

What does the right to trial by jury for Cth indictable offences involve?

A

It mandates that an accused person cannot elect to have a trial by judge alone for Cth offences and that the jury must return a unanimous verdict for Cth offences, found in Section 80 of the constitution

63
Q

What does the right to free trade and commerce between states involve?

A

It ensures that trade between states and territories will be free (no customs, taxes or import duties), it does not guarantee freedom of movement and does not relate to the movement of people, found in Section 92 of the constitution

64
Q

What does the right to freedom of religion involve?

A

It ensures that Cth cannot make a law to create a national religion, impose any religious observance, prohibit the free excercise of any religion and cannot apply a religious test as a qualification for public office and the High Court has clarified that the Cth can assist in the practice of religion through providing funding and that few States constitutions recognise this right, found in Section 116 of the constitution

65
Q

What does the right to freedom from discrimination based upon state of residence involve?

A

It states that it is unlawful to discriminate against a person based on the fact that they live in another state and it does provide general protection against discrimination, found in Section 117 of the constitution

66
Q

How do express rights act as a check on parliament?

A

They are entrenched in the constitution and this means Cth cannot make laws to infringe them, they are safeguarded by the High Court which can determine legislation invalid/ultra vires if it is found to infringe upon the express rights and express rights can only be changed or amended by a successful referendum

67
Q

Strengths of express rights in acting as a check on parliament

A

Exress rights impose a limit on parliamentary lawmaking and the High Court can declare laws ultra vires if they are found to be infringing upon the five rights

68
Q

Weaknesses of express rights in acting as a check on parliament

A

There are only five express rights and express rights do no prevent parliament from passing laws and any infringement must be challenged

69
Q

How does the High Court act as a check on parliament?

A

It acts as a guardian of the constitution, it acts as a check on abuse of power and it provides meaning to words within the constitution

70
Q

How does the High Court act as a guardian of the constitution?

A

It is the only court that can determine disputes on wording, interpretation and matters within the constitution

71
Q

How does the High Court act as a check on abuse of power?

A

If a party with standing (directly affected) makes a challenge that parliament has acted outside of its jurisdiction the High Court can declare the law ultra vires

72
Q

How does the High Court provide meaning to words within the constitution?

A

When interpreting the constitution High Court judges must apply meaning to the wording and this has led to a shift in the lawmaking powers of the Cth and it has led to the interpretation of implied rights within the wording of the constitution

73
Q

What are the impacts of High Court decisions?

A

They are altering the division of law making powers, determining that parliament has acted outside of its jurisdiction and that a law is ultra vires, provide finality over a constitutional matter - Cth cannot abrogate a High Court decision, reinforce jurisdictional boundaries between Cth and States, reinfore boundaries of express rights and imply further rights for the people

74
Q

Strenghts of the High Court as a check o parliament

A

Judges are politically independent, jurisdiction of the High Court, High Court judges are experienced and are specialists and the complexity of bringing the matter to the High Court

75
Q

What is a referendum?

A

It is a national vote to change the wording of the constitution

76
Q

What is a double majority?

A

Refers to a referndum recieving a ‘yes’ vote from more than 50% of the Australian voting population and a voter majority in atleast 4 out of 6 states, found in Section 128 of the constitution

77
Q

Weaknesses of a double majority as a check on parliament

A

Complexity of proposal and preamble, time consuming and costly, difficult to achieve double majority and can increase the power to Cth

78
Q

Strengths of a double majority as a check on parliament

A

Allow for greater representation of voters within Aus

79
Q

What does Section 7 and 24 of the constitution involve?

A

Section 7 relates to the Senate and Section 24 relates to the HoRs and both sections state that the members of both must be directly chosen by the people and they both enshrine the system of representative government

80
Q

What does the case Roach v Electoral Commissioner involve?

A

It involves Roach challenging two Acts passed by Cth, that she believed violated her right to vote, in 2004 and 2006 that prohibited prisoners who have been sentened to more than 3 years imprisonment not being able to vote (2004) and was revised in 2006 to prohibit all prisoners who have been sentenced to imprisonment being prohibited from voting

81
Q

What was Roach’s argument?

A

She argued that these two acts breached sections 7 and 24 of the constitution as they interfered with the system of representative government and that they violated the implied right to political freedom of communication

82
Q

What was the decision of Roach?

A

The decision was that the 2006 Act was unreasonable but that the 2004 Act was valid as it preserved the right to vote whilst still keeping those that engaged in conduct that took them outside of community expectations unable to vote

83
Q

What was the significance of Roach?

A

It resulted in the High Court affirming the constitutional right to vote was protected by the structural right of representative government established in sections 7 and 24 and that parliament cannot legislate away the right to vote without good reason

84
Q

What is Section 128 of the constitution?

A

It sets out the process for changing or amending words of the constitution and it its purpose is to protect the words of the constitution from being abitrarily changed and to ensure that overwhelming public support is present if a change is to be made

85
Q

Under Section 128 what is the process of a referendum?

A

The initiation of the referndum proposal must come from Cth parliament, the bill must be passed through parliament, it must be put to the people and must meet the double majority requirement, it is passed to the Governor General to provide royal assent and then after this the change to the constitution will be made

86
Q

What is Section 51(xxvi)?

A

It outlines the fact that the Cth parliament could not pass special laws or legislation regarding Aboriginal people

87
Q

What is Section 127?

A

It outlines that Aboriginal people were not counted in the census and therefore were considered flora and fauna

88
Q

What were the facts of the 1967 referendum?

A

Indigenous people’s treatment varied based on their state of residence as a result of this being a residual power that parliament could not legislate on, that they were not allowed to be counted in the census and that PM Harold Holt proposed a referndum to change this

89
Q

What were the proposed changes of the 1967 referendum?

A

That Indigenous people should be included within the national census, removal of any provisions to discriminate against Indigenous people by allowing the Cth to legislate for FNP and this referendum would provide Cth with the authority to pass this legislation, making it a concurrent power

90
Q

What were the results of the 1967 referendum?

A

The largest double majority in Australia’s history was achieved with 90.77% of people voting yes and 6/6 states agreed with the proposed changes and this meant that section 51(xxvi) was amended and section 127was removed

91
Q

What is the jurisdiction of the High Court under Section 75?

A

Under section 75, the HC has the jurisdiction to deal with cases involving the Cth suing another person/organisation and disputes between states or residents of different states and historically the HC has sided with Cth which has resulted in an increase in their lawmaking powers

92
Q

What does Brislan’s High Court case involve?

A

R v Brislan (1935) involves the HC interpreting ‘like services’ to include all forms of communication including the wireless communication that Brislan possessed as these forms had not been invented when the constitution was written

93
Q

What legislation was involved in Brislan?

A

Section 51(v) of the constitution and the Wireless Telegraphy Act (1905)

94
Q

What was the ruling of the High Court?

A

The HC ruled that Cth had the ability to pass laws on a range of communication technologies and this widened the scope of section 51(v) and expendad Cth power in relation to electronic communication

95
Q

What was the significance in the ruling in Brislan?

A

Not only did it widen the scope of section 51(v) and of the Cth power, it also meant that this power now lay with the Cth and this meant it was now considered a concurrent power

96
Q

What are external affairs powers?

A

It refers to the ability of the Cth to make laws to implement international treaties and declarations

97
Q

What are treaties/conventions?

A

They are formal agreements two or more nations, are legally binding at international law and cover areas of importance that signatories must abide by

98
Q

What are declarations?

A

They are aspirational goals that arent legally binding and that a State aims to achieve but are not bound to implement into legislation

99
Q

What is Section 51(xxix)?

A

It states that parliament shall have ‘the power to make laws for peace, order and good government of the Cth with respect to: external affairs’

100
Q

What does Section 51(xxix) mean?

A

It means that Cth has the power to enter into international declarations and treaties which is an executive power, has the power to implement internaitional declarations and treaties which is a legislative power and it gives Cth the power to legislate with respect to external affairs which the HC interprets as the power to legislate to implement into Aus law

101
Q

What are the impacts on external affairs on Aus law?

A

All treaties must be tabled in both houses of Cth atleast 15 sitting days prior to the gov agreeing to ratify the treaty and a treaty can not apply in Aus law until parl passes an Act that incorporatesthe provisions of the treaty into Aus law

102
Q

What is ratification?

A

It is the process whereby parliament confirms and gives its approval to an international treaty signed by the government, ratification makes it binding under international law and the executive has the right to remove itself from the obligations if it considers that the treaty no longer serves Aus’s interests

103
Q

What are the facts of the Tas Dam case?

A

Tas gov challenged the validity of the World Heritage Properties Conservation Act 1983 (Cth) because the Act prevented the clearing of land and building of a dam in protected areas under the Convention Concerning the Protection of the World Cultural and Natural Heritage treaty that Aus signed

104
Q

What was the legal argument of the Tas Dam case?

A

The HC was asked to determine if the Cth had the power to prohibit the building of a dam in Tas and the Cth argued that S51(xxix), S51(xx) and S51(xxvi) that it could make laws of national concern

105
Q

What was the High Court decision of the Tas Dam case?

A

The HC ruled that the affairs power gave Cth the power to make laws to fulifill Aus obligations to treaties and therefore Cth was able to make laws to protect Aus’s heritage

106
Q

What is the impact of the High Court decision in the Tas Dam case?

A

There was a shift of law-making powers from the States in relation to their residual powers to that of the Cth when there is an international treaty and this was seen as greatly expanding the powers of the Cth parliament

107
Q

What are the limitations of external affairs powers?

A

The power cannot extend beyond the limits of the treaty, it must be a bona fide agreement and the power of Cth to uphold treaties is limited by express rights

Legal notes (5 decks)

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