Unit 4 AOS 1 Legal (The people and the law makers)

Question 1

What is the Australian constitution

Answer 1

A set of rules and principles that guide the way of Australia, which is set out in the ‘commonwealth of Australia constitution act’

Question 2

What is the Westminster system

Answer 2

A parliamentary system of government which has 2 house the upper and lower house’s which pass proposed bills

Question 3

Explain the separation of powers and the principle of responsible government

Answer 3

The principle of a responsible government is where a government is responsible and accountable for its actions and will reflect the morals and values of the public. Elections ensure that the principle stays in place because it ensures that the government will reflect the values of the community which elected them as well as follows there promises, if they do not they are likely to lose there position.

The separation of powers refers to how no single body that is either parliament, government or court can hold all 3 main law making powers

Question 4

What are the 2 features of the Westminster system

Answer 4

1. The principle of responsible government
2. The principle of the separation of powers

Question 5

What is bicameral parliament

Answer 5

Bicameral parliament refers to the 2 forms of house in Australian parliament both lower and upper house

Question 6

What is the upper, lower and kings reps name in both commonwealth and state parliament

Answer 6

COMMONWEALTH

UPPER- House of reps
LOWER- Senate
KINGS REP- Governer general

STATE
UPPER- Legislative assumably
LOWER- Legislative council
KINGS REP- governor general

Question 7

What is the crown and the role of the crown in law making

Answer 7

The crown is represented by the governor- general and exercises the function and role of the crown and acts on the advice of the executive council (cabnit)

The role is
- Sign bills and grant royal assent to bills
- To appoint the times for holding parliament
- To dissolve the house of reps and bring about a election

Question 8

Main role of parliament

Answer 8

Main role is to make laws on behalf of the people through proposed laws or bills

Question 9

What is the role of the courts in law making

Answer 9

Main role of courts is to apply existing laws and to resolve and hear cases

Question 10

What is the house of representatives

Answer 10

Lower house at federal level and is referred to as the peoples house because whoever wins the most seats wins the general election

Question 11

What are the 6 roles of the house of representatives

Answer 11

1. Initiate bills and make laws
2. Determine government (form government, after winning election)
3. Provide representative government
4. Provide a responsible government (Members of the house of reps present the views of there electorate during question times)
5. Scrutinizing government (To publish the policies of gov and to make sure legislation is debated and public issues are discussed)
6. Controlling government spending

Question 12

What is the Senate

Answer 12

Upper house at federal level. 12 Senators from each state and 2 from each territory, state senators serve 6 year terms will territory senators serve 3 year terms. They look at bills passed from the house of reps and decide to either proceed with the bill or make a amendment and send it back to the house of reps.

Question 13

Role of the senate

Answer 13

1. Initiate bills and make laws
2. Provide for a representative government
3. Act for a house of review
4. scrutinizing government

Question 14

What are the differences between Victorian and federal parliament

Answer 14

The names of the upper and lower house for vic compared to commonwealth as well as the jurisdiction of the 2 parliaments are different

Question 15

What is the legislative assembly

Answer 15

It is the lower house of Victorian parliament, whoever gets the most seats (45) wins and forms government and assigns a premier, election held every 4 years

Question 16

Role of the legislative assembly

Answer 16

1. Form government
2. Scrutinize government administration
3. Represent the people
   4.Act as a house of review
4. Control government

Question 17

What is the legislative council

Answer 17

It is the upper house of Victorian parliament, VIC is divided into 8 regions consisting of 11 electoral districts

Question 18

Role of the legislative council

Answer 18

1. Act as a house of review (similar to the senate reviews all bills passed by the legislative assembly, it does this by either rejecting the bill or amending the bill)
2. Initiate and pass bills (like the senate it can initiate bills but cannot initiate money bills, must be passed by assumably first)
   3.Scrutinize government administrations (Ministers who are members in the upper house can be questioned by opposing members about policies and proposed legislation in question time)

Question 19

What are the divisions of law making powers

Answer 19

The divisions of both state and commonwealth parliament include exclusive, concurrent and residual powers

Question 20

What are specific powers

Answer 20

Powers that are set out in the constitution are called specific powers

they can either be exclusive or concurrent and they are set out in S51 to make laws for peace, order

Question 21

What are exclusive ,concurrent and residual powers

Answer 21

Exclusive powers- Listed in the constitution states cannot legislate in these areas. Exclusive due to only commonwealth making laws in these areas they are set out in S52 of constitution

Concurrent powers- Listed in the constitution both commonwealth and state can legislate in these areas all specific powers that are not made exclusively are concurrent, all listed in S51

Residual powers- Not listed in constitution some deliberately left to the states other developed as areas of law over time, S107, every power of the states shall continue unless exclusively given to the commonwealth or withdrawn from the states

Question 22

Examples of S51 and S52

Answer 22

Examples of what is in S51 ( concurrent powers)
- Marriage
- Divorce
- Taxation

Examples of what is S52 (Exclusive powers)
- Military
- Currency
- Immigration (exclusive by nature )
- External laws (exclusive by nature)

Question 23

What is section 109 and the significance of section 109

Answer 23

S109 of the Australian constitution is designed to help resolve conflicts and inconsistencies between state and commonwealth. These inconsistencies occur with concurrent powers when both states and commonwealth can make laws.

When a law is deemed invalid not all of it is destroyed only the section that is inconsistent with the commonwealth law, section only applies to states not territory’s (To the extent of the inconsistency)

Question 24

How does section 109 have and not have impact

Answer 24

Impact
- Provides solutions ro inconsistencies with laws between the states and commonwealth parliament
- Increases the lawmaking power of the commonwealth
- Allows less confusion

Not impact
- Someone needs to notice the inconsistency and challenge it in the High court
-Individuals have to challenge the high court which can cost a lot od money (hiring a king council) and it is very timely
- Doesn’t stop states from making laws in concurrent areas of lawmaking

Question 25

Define international pressures and the United nations

Answer 25

International pressures- Are demands or forces applied to parliament to persuade them to make (or not make) law to address matters of international concerns

United Nations- A major international organization established after WW 2, to maintain international peace, security and cooperation between nations

Question 26

what are some sources of international political pressures

Answer 26

• Local activists who organize petition for change
• International activists who seek to generate change across the globe
• Other country’s which may urge AUS to change it’s law or may criticize AUS in relation to legislative reform e.g US pressuring AUS to address issues with china
• United nations
• Non gov organizations (NGO)
• Large transactional corporations (TNC’s) such as meta

Question 27

What is a example of the S109 case in action

Answer 27

John McBain v the state of Victoria (2000)

The 2 laws with inconsistency’s are the Victorian infertility treatment act (1995) and the commonwealth sex discrimination act (1984).

Impact- The decision enabled all women to access this treatment as they could no longer be discriminated against based on their marital status

Question 28

What is the representative nature of parliament

Answer 28

The representative nature of parliament is meant to represent the people of Australia as w hole, since all MP’s are meant to represent the people of there electorate, and therefore to ensure this we hold regular elections and of MP’s do not represent the people of there electorate then they will not be elected therefore ensuring a representative nature

Question 29

The 3 forms of the separation of powers

Answer 29

1. Legislative functions
2. Executive function
3. Judicial function

Question 30

Strengths and weaknesses of the separation of powers

Answer 30

Strengths
- While parliament is the supreme law making body, the judiciary (courts) have the power to invalidate, strike down or declare void a statue that has been passed by parliament beyond its law making powers
- The judiciary is independent of legislative and executive. This independence is vital especially when the commonwealth is a party in a case before court. It also ensures decisions about the application of law can be made without fear of electoral backlash as judges are not aligned with political party’s

Weaknesses
- Judges are appointed by the executive this may result in the perception that the executive seeks to influence judicial benches. The government can choose which judges they want to serve on the court and some believe that these choices are influenced by their progressive or conservative views
- The ability of the judiciary to act as a check on parliament is depending on the peoples willingness to challenge laws. That is the courts can only act as a check if a case is presented before the and therefore somebody must bring it forward

Question 31

What is the legislative function

Answer 31

• The power to make laws exercised by parliament

In the Australian legal system the legislative function otherwise known as law making power is given to the parliament, at both state and federal level

Question 32

What is the judicial function

Answer 32

• The power to enforce the law and settle dispute, exercised by the courts. Kept completely separate courts are independent of political pressures and influence, necessary to maintain confidence in the legal system. Courts can interpret the law to decide how these laws apply to individual cases, remember courts are separate from the 2 other functions and therefore are not influenced.

Question 33

What is the executive function

Answer 33

The executive function includes the administration of laws and the carrying out of the governments business, includes day to day management of gov affairs, ministers and gov departments are largely responsible for the carrying out of the business of the gov

Question 34

What are the 5 express rights

Answer 34

• Freedom of religion (S116)
• Interstate trade and commerce (S92)
• Discrimination (S117)
• Jury trial (S80)
• Just term when acquiring property

Question 35

Strengths and weaknesses of express rights

Answer 35

Strengths
- Express rights impose limit on parliament when making law in certain area. For example S116 prohibits the commonwealth parliament from making a law that restricts the free exercise of any religion. This protects the public against the parliament being able to makr any laws they want to.

Weaknesses
- The rights that are protected are limited in scope e.g some express rights only apply to commonwealth and not states, some rights are narrow such as the right to trial by jury, this limits the restriction imposed on the commonwealth parliament