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Legal 3/4 > Unit 4 AOS 1 > Flashcards

Unit 4 AOS 1 Flashcards

1
Q

Definition: Parliament

A

Democratically elected members (lower and upper house) + Governor General +King

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2
Q

Definition: The Constitution

A

Alongside the monarchy, recognised as the source that grants lawmaking authority to Parliament and the High Court

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3
Q

Structure of parliament:

A

Bicameral = two houses that participate

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4
Q

House of Reps:
Structure

A

-151 seats/76 required to secure government
-Voted by population from their electorate every 3 years
-Leader becomes PM

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5
Q

Senate: Structure

A

-Rep interests of States and Territories regardless of population
-12/state, 2/territory

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6
Q

Definition: Government

A

Party which has won the latest election and hold the most seats in the LH
(Currently Labour-Albanese)

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7
Q

Roles: Governor General
(2)

A

-Grant royal assent: to bills on behalf of the crown, after is it approved by both houses, to enact it to law

-Suggest amendments: to proposed bills. In the event of a mistake/ req change=return bill to parliament (granted by s 58 of Constitution)

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8
Q

Roles: House of Reps
(3)

A

-Introduce bills: which reflect needs of soc/areas of reform, eg: s 53 of Constitution req bills rel to gov spending be initiated in LH

-Scrutinise legislation: introduced by the senate to reflect soc views

-Form government: when most seats elected/in hung parliament seek support from independents to form government

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9
Q

Roles: Senate
(3)

A

-Act as house of review: to bills introduced by the LH

-Ensure equal rep of states: due to having equal no. of members = smaller states have a voice

-Introduce bills (rare)

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10
Q

How is Victorian Government formed?

A

-Elections every 4 years

-Party req majority seats in the lower house (45/88 in LA)

-Voters vote for a member in their district (appx. 50,000)

-Leader of LA =premier
-Voters also select 5 members in LC per region (5x8 members = 40)

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11
Q

Roles: The Crown/Governor
(2)

A

-Grant royal assent; on behalf of the crown

-Chair executive councils: act on advice of Executive Council + meet w ministers to discuss leg matters

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12
Q

Roles: Legislative Assembly
(3)

A

-Initiate new legislation introduced by Ministers

-Represent people of Vic in lawmaking: rep voters in district based on community feedback

-Review and amend legislation (opposition)

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13
Q

Roles: Legislative Council
(2)

A

-Scrutinise legislation introduced by the lower house

-Initiate bills (except for bills re gov funding)

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14
Q

Purpose of The Constitution:

A

Establish a rule book for the way in which Australia is governed

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15
Q

Specific Powers:
+section

A

Section 51 and 52 establish the areas of law Cwlth parliament is able to legilate on
Comprised of exclusive, concurrent

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16
Q

Exclusive Powers:
+section example

A

Powers only given to the cwlth parliament excl states

Eg: s51 = power over currency, in conjunction with s115 which establishes that it is an exclusive power of cwlth

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17
Q

Concurrent powers:
+example

A

Powers shared by the state and cwlth however if an inconsistency = cwlth prevails
eg: marriage and education

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18
Q

Residual Powers:

A

Powers not explicitely stated by the constitution reside with the state
eg: prisons, criminal law, public transport

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19
Q

Example of differing state laws

A

Roal rules:
Provisionary licence at 18 vs 17 (Vic vs NSW)

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20
Q

Section 109 of the Constitution states:

A

When a law of state is inconsistent with the law of The Commonwealth, the latter shall prevail and the state law will become invalid to the extent of the inconsistency

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21
Q

When might an inconsistency occur:
(2)

A

-When both state and cwlth legislate in concurrent areas

-when state and cwlth attempt to legislate in own areas of lawmaking and a conflict still arises

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22
Q

Operation of S109
(3)

A

1) The commonwealth shall prevail- regardless of which was passed first

2) To the extent of the inconsistency- only conflicting sections are invalid

3) States can still legislate within the area- with limitations in specific circumstances

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23
Q

Case of S109:
McBain v Victoria 2000
(Federal)

A

Dr McBain was made to deny IVF services to single and lesbian women, as per the Infertility Treatment Act 1995 (Vic). However this contradicted the Sex Discrimination Act 1984 (Cwlth) which states it is an offence to deny a service based on sexual orientation/status

Thus S109 operated to make state leg invalid

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24
Q

Impacts of S109 on States:
(3)

A

1) Requires a case to be brought before the courts

2) Can restrict state bill initiation if cwlth already exists- cannot overide

3) If cwlth legislation which previously caused an inconsistency, is changed or removed state is able to legislate again

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25
Q

Influence of the High Court case on division of powers: Name

A

R v Brislan; Ex parte Williams 1935

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26
Q

Influence of the High Court

A

-S75 + S76 gives jurisdiction to interpret the Constitution and resolve matter btw cwlth and states

-Descision sets binding precedent/ parliament may not abrogate (HC not bound by previous descisions)

-Able to declare law/ part of law ULTRA VIRES (beyond powers) = invalid

27
Q

HC precedent can be changed when:
(2)

A

1) A refferendum occurs changing the constitution

2) A subsequent case is brought to the HC and a different interpretation is given

28
Q

Impact of R v Brislan:

A

-HC req to interpret s51(v) of the constitution which gave cwlth power to legislate in areas of “postal telegraphic, telephonic and other like services”

-Brislan argured cwlth x have power to fine for a wireless radio bc x “like services” tf ultra vires

-Broad interpretation of “like services” deemed wireless radio and future technology within cwlth power

-Therefore increased lawmaking power of cwlth and set binding precent for future cases (HC not bound)

29
Q

Factors that affect law making

(3)

A

1) Bicameral structure
2) International pressures
3) Representative nature of parliament

30
Q

Bicameral structure:
Composition of the upper house
+eg

A

1) Composition of the upper house: Occurs when the political party in government does not hold majority seats in the upper house= req negotiations with cross benchers and independent parties. tf have disproportionate level of power (balance of power)
eg: Pandemic management Bill 2021 where amendments occurred to give indep more say in order to gain approval

31
Q

Bicameral Structure:
Hostile Upper house

A

Occurs when government does not hold majority in the upper house

As a result the opposition and crossbenches deliberately try to block or reject initiatives

Causing delays and a lack of reform

32
Q

Bicameral Structure:
‘Rubber stamp effect’

A

Occurs when government hold majority seats in both houses

Less likely to critically examine or scrutinise bills thus showing approval without adequate checks

However allows efficient passing of bills without delay

eg: Workchoice Act 2005 whereby the liberal national coalition passed the bill

33
Q

Bicameral Structure:
Number of sitting days

A

Reffers to the amount of days which MPs are req to attend Parliament to consider and debate bills+qna

Can cause delays thus delegative power exists to other statutory bodies

eg: 2022 64 days lower house 51 days upper house

34
Q

International Pressures:
Treaties

A

Agreement between two or more countries re human rights

Acknowledged by signing which binds country to terms

Ratification occurs = Cth parliament produce bill to formally acknowledge

Royal assent = legal effect

eg: International covenant on civil and political rights
–> Aus Human Rights Commision Act 1985

35
Q

Internatinal Pressures:
Declarations

A

Not legally binding:
Establish aspirational rights and obligations

Pressures Cth to produce bills to uphold principles

eg: UNDRIP in 2007

36
Q

International Pressures:
The United Nations

A

Aim to promote HR and peace
Granted power to act on a range of issues
Considered an international treaty tf can impose sanctions

Criticise Aus tf causing age of criminal responsibility from 10-12 by the end of 2024

37
Q

International Pressures:
Other
(Greenpeace)

A

Independant campaign group which pressures preservation environmental causes

38
Q

Strengths: Int Pressures

A

-Declarations place pressure on parliement to uphold obligations
-Treaty legally binding
-UN+WTO can impose sanctions for poor international conduct

39
Q

Weaknesses: Int Pressure

A

-Dec x legally binding
-x obligation to ratify treaties
-many pressures conflict req Aus to prioritise

eg: economic conflict with environmental

40
Q

Strengths: Bicameral Structure

A

-acts as a check and balance for bills increasing quality
-rubber stamp effect increases efficiency
-only most imp bills passed via house of review

41
Q

Weaknesses: Bicameral Structure

A

-Hostile upper house unnecessarily causes delays
-rubber stamp effect reduce quality of review
-lengthy process

42
Q

Limitations: Brislan Case

A

-Another case can still challenge cth legislative power
-HC judges x bound by HC precedent

43
Q

Representation in Parliament:
(What?)

A

Acting and speaking on behalf on groups

Avg MP= male, over 45, Aus, Uni educated

44
Q

Representation:
Reflecting the Community

A

Although elected, lack of diversity exists

MP w intentions of speaking on behalf of disadvantaged groups=lack lived experience tf not able to represent views

However still use methods such as petitions and demonstrations to express views

Parliament can also use law reform bodies such as Vic law reform commission to increase rep

45
Q

Representation:
Regular elections

A

Enable constant change in veiws to be met

3 year term (clth) 4 year term (state) ensures efficiency and commitment to promises

Manditory voting ensures participation and all demographics to be accounted for

46
Q

Example: proposed change to represent

A

extend the safety notice of DV victims from 14 days to increase protection and safety.

Not made to attend court to do so to decrease trauma

Increased police power for DV matters

47
Q

Strengths:
Representation

A

-Regular elections and 3/4 yr term increases efficacy

-increased women in parliament

-compulsory voting increases participation and account for all demographics

48
Q

Weaknesses:
Representation

A

-Lack of minority representation

-May x chose to reform in maj concern out of fear of not reelected bc upset minorities

-3/4 year term not long enough to commit to reform= shallow election promises

49
Q

Checks on Clth Lawmaking Powers:
(3)

A

1) Representative government
2) Separation of powers
3) Express rights

50
Q

Representative Government:
(check)

A

S7 + S24 state that all MP’s should be democratically elected by the people

In order to reflect views of people

51
Q

Role of the High Court as a check:

A

S75 + S76 = jurisdiction
-Parliament cannot abrogate
-Only way to change constitution of referendum if parliament disagree with HC ruling
-Cases req standing and leave for HC
-Outside of abilities= ultra vires

52
Q

Roach v Electoral Commisioner 2007

A

2006 Howard gov passed Electoral Refferendum Act, banning all prisoners from voting in fed elections
-2004 previous Act made inelegible is serving sentence over 3 years
-Roach, (6 yr server) = deemed conflict with S7 and S24 and reduced representation of parliament
-HC agreed + deemed act ultra vires
-Role of S24 and S7 affirmed + acted as a check for clth

53
Q

Strengths: HC as a check

A

-Deem invalid (ultra vires)
-Independent judiciary = not subject to politics and popularity tf IMPARTIAL
-Parliament x abrogate

54
Q

Weaknesses: HC as a check

A

-Req a case to be able to interpret constitution or declare ultra vires
-diff to establish standing and leave for HC
-cost and time of case disincentivises bringing to HC

55
Q

Separation of Powers as a check

A

Aims to prevent abuse of concentrated power

Legislative S1: power to make laws, eg: cwlth+ houses

Executive S61: power to administer or enact the law, eg: GG/police

Judiciary S71: power to apply and interpret the law, eg: courts

56
Q

Strengths: Separation of powers as a check

A

-Ensures check and balance on powers of parliament to minimise abuse of power
-independent judges not subject to politics
-written into constitution tf x removed w out reffurendum

57
Q

Weaknesses: Separation of Powers

A

-Clear overlap between legislative and executive tf limit separation
-diff to prove standing to take challenge invalid law in HC
-not guaranteed at state level due to contitution being federal doc

58
Q

Express Rights as a check:
1/5

A

1) Right to acquisition of a property on just and fair terms

SECTION 51 xxxi: ability to take property for any purpose w in scope of power with market value return

59
Q

Express rights as a check:
2/5

A

2) No discrimination based on state

SECTION 117: cannot apply or create laws in a discriminatory manner based on state of residence

60
Q

Express rights as a check
3/5

A

3) Trial by jury for indictable commonwealth offences

SECTION 80:
For above oddences and not guilty plea trial by jury is a right eg human trafficking

-does not prevent states from judge alone trials

61
Q

Express rights as a check:
4/5

A

4) Freedom of interstate trade and commerce shall be free

SECTION 92: cannot restrict the flow of trade and goods and services eg taxes and tarrifs of a protectionist nature

62
Q

Express rights as a check:
5/5

A

5) Right to freedom of religion

SECTION 116:
cannot make law that restricts, imposes, promotes discrimination of religion.

Not applicable to states

63
Q

Strengths: Express rights as a check

A

-Only change via referendum
-enforceable by HC=ultra vires
-Political independence of judiciary in HC

64
Q

Weaknesses: Express rights as a check

A

-only 5
-req bring to HC
-establish standing
-referendum to create new rights tf unlikely

Legal 3/4 (3 decks)

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