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Year 12 VCE Legal Studies > Unit 4: Area of Study 1 - The People and the Australian Constitution > Flashcards

Unit 4: Area of Study 1 - The People and the Australian Constitution Flashcards

1
Q

The Australian Constitution

A

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

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2
Q

Structure of the Commonwealth Parliament

A
  • The Queen: Represented by the Governor-General
  • The Senate: The Upper House
  • The House of Representatives: The Lower House
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3
Q

Why is the House of Representatives Known as the ‘People’s House’?

A

The House of Representatives reflects the majority of people at an Election, because the people determine which Party or Coalition should form Government

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4
Q

The Composition of the House of Representatives and Some Key Personnel Within

A

There are 151 seats. It is composed of:

  • The Government: Holds the majority of seats
  • The Opposition: Holds the next highest amount of seats
  • The Independents and Minor Parties: Holds a small amount of seats
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5
Q

Why is the Senate Known as the ‘House of Review’ and/or the ‘State’s House’?

A

The Senate reviews laws that are initiated in the House of Representatives and balances State power so all States have the same number of votes, regardless of population

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6
Q

Composition of the Senate

A
  • 76 Senators
  • 12 per State
  • 2 per Territory
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7
Q

Structure of the Victorian Parliament

A
  • The Queen: Represented by the Governor of Victoria
  • The Legislative Council: The Upper House
  • The Legislative Assembly: The Lower House
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8
Q

Why is the Legislative Assembly the House Where the Majority of Bills Commence?

A

The Legislative Assembly is the Lower House where the Government is formed, therefore where most Bills begin

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9
Q

Why is the Legislative Council known as the ‘House of Review’?

A

The Legislative Council is the Upper House, which typically reviews the Bills that originate in the Legislative Assembly

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10
Q

Roles of the Senate in Law-Making (List 1)

A
  • Reviews laws that are initiated in the House of Representatives
  • Inspects Bills through the committee process
  • Initiates and passes Bills
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11
Q

Roles of the House of Representatives in Law-Making (List 2)

A
  • Initiates most Bills
  • Determines the Government
  • Provides a responsible Government
  • Represents the people
  • Initiates all Bills relating to Taxation or Commonwealth Revenue
  • Represents the people in Law-Making
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12
Q

Roles of the Legislative Council in Law-Making (List 1)

A
  • Acts as a ‘House of Review’
  • Examines Bills through its Committees
  • Initiates and passes Bills
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13
Q

Roles of the Legislative Assembly in Law-Making (List 2)

A
  • Initiates and passes Bills
  • Determines the Government
  • Represents the people
  • Controls Government Expenditure
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14
Q

The Crown and its Representatives at Commonwealth and State Levels?

A
  • The Crown refers to the Queen and is represented by the:
  • Governor-General: Commonwealth Level
  • Governor of Victoria: State Level
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15
Q

The Crown’s Primary Responsibility in Australia

A

Grants Royal Assent to Bills, making them laws

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16
Q

Roles of the Crown in Law-Making (List 1)

A
  • Granting Royal Assent
  • Withholding Royal Assent
  • Appointing Executive Council: Prime Minister and Senior Ministers
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17
Q

Roles of the Crown (Victorian Level) in Law-Making (List 1)

A
  • Granting Royal Assent
  • Withholding Royal Assent
  • Appointing Executive Council: Premier and Senior Ministers
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18
Q

Division of Powers

A
  • Residual Powers
  • Concurrent Powers
  • Exclusive Powers
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19
Q

Division of Powers: Residual Powers

A

Refers to powers not given to the Commonwealth Parliament under the Constitution, so therefore remain with the States

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20
Q

The Parliaments that Holds Residual Powers

A

State Parliaments

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21
Q

Areas of Residual Powers (List 2)

A
  • Health
  • Education
  • Criminal law
  • Police
  • Public transport
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22
Q

Sections of the Constitution Where Residual Powers are Found

A

Sections 106, 107, 108

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23
Q

Division of Powers: Exclusive Powers

A

Refers to powers that are set out in the Constitution which only the Commonwealth Parliament can exercise

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24
Q

The Parliament that Holds Exclusive Powers

A

Commonwealth Parliament

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25
Q

Areas of Exclusive Powers (List 1)

A
  • Defence Forces
  • Currency
  • Customs and border protection
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26
Q

Sections of the Constitution Where Exclusive Powers are Found

A

Sections 51, 52

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27
Q

Division of Powers: Concurrent Powers

A

Are powers in the Constitution that may be exercised by the Commonwealth and one or more of the State Parliaments

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28
Q

The Parliaments that Holds Concurrent Powers

A

Commonwealth and State Parliaments

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29
Q

Areas of Concurrent Powers (List 2)

A
  • Trade
  • Tax
  • Marriage and Divorce
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30
Q

Section of the Constitution Where Concurrent Powers are Found

A

Section 51

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31
Q

Similarities Between Residual and Concurrent Powers (List 1)

A
  • Both Powers are protected by the Constitution

- Both Powers can affect States

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32
Q

Differences Between Residual and Concurrent Powers (List 1)

A
  • Residual Powers are not listed in the Constitution whereas Concurrent Powers are
  • Residual Powers are held by State Parliaments whereas Concurrent Powers are held by both the States and the Commonwealth
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33
Q

Similarities Between Residual and Exclusive Powers (List 1)

A
  • Both Powers are protected by the Constitution

- Both Powers can affect States

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34
Q

Differences Between Residual and Exclusive Powers (List 1)

A
  • Residual Powers are held by State Parliaments whereas Exclusive Powers are held by the Commonwealth
  • Residual Powers are not listed in the Constitution whereas Exclusive Powers are
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35
Q

Similarities Between Concurrent and Exclusive Powers (List 1)

A
  • Both Powers are listed in the Constitution
  • Both Powers are protected by the Constitution
  • Both Powers can affect States
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36
Q

Differences Between Concurrent and Exclusive Powers

A

Exclusive Powers are held by the Commonwealth whereas Concurrent Powers are held by both the States and the Commonwealth

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37
Q

Description of Section 109 of the Constitution

A

When a State law is inconsistent with a Commonwealth law, the Commonwealth law will prevail

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38
Q

Case Relevant to Section 109 of the Constitution

A

The McBain Case

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39
Q

Significance of Section 109 of the Constitution

A

It is significant because if a State Parliament passes a law where there is a Commonwealth law, the Federal law will prevail over the State law, ensuring consistent approach to these problems

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40
Q

Disadvantages of Section 109 of the Constitution as Acting as a Check on Parliament in Law-Making (List 2)

A
  • It doesn’t stop the laws being made

- It requires a High Court case to find the law invalid

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41
Q

Bicameral Parliament

A

Refers to a Parliament that has 2 Houses

42
Q

Section of the Constitution that Specifies a Bicameral Parliament

A

Section 1

43
Q

How the Bicameral Structure Acts as a Check on Parliament

A

The bicameral structure of parliament acts as a check on parliament in law-making by most Bills being introduced in the House of Representatives whilst the Senate reviews these Bills, which check the introduced Bills

44
Q

Strengths of the Bicameral Parliament Acting as a Check on Law-Making (List 1)

A
  • Allows for a review of Legislation by a second House
  • The hostile Senate or a significant number or minor parties and independents in the Senate can ensure the careful review of Bills
  • This requirement is specifically stated in the Constitution, meaning the Houses cannot be abolished through Legislation
45
Q

Weaknesses of the Bicameral Parliament Acting as a Check on Law-Making (List 2)

A
  • A debate will be unlikely to occur in the Lower House if the Government holds a strong majority
  • If the Government controls the Upper House, it tends to be a ‘Rubber Stamp’
  • The Bicameral requirement only applies to the Commonwealth Parliament
  • Laws will generally only pass if the Federal Government supports them
46
Q

Separation of Powers

A

A principle in the Constitution that ensures the three powers (Judicial, Executive, Legislative) of the Parliamentary System remain separate

47
Q

Separation of Powers: Judicial Powers

A

Refers to the power that is given to the Courts to hear and settle disputes

48
Q

Separation of Powers: Executive Powers

A

Refers to the power to administer the laws and manage the business of Government

49
Q

Separation of Powers: Legislative Powers

A

Refers to the power to make laws, which resides with the Parliament

50
Q

Why are Judicial, Executive and Parliamentary Powers Separate? (List 2)

A
  • To prevent one body or person from making the law, administering the laws and deciding on the laws
  • Ensures a check on each of the powers
  • Judges cannot be a Politician at the same time, which prevents those who Judge the law, from making the law
  • If someone believes a law infringes on their Human Rights, they can take the case to Court and have the matter heard independently of those who made the law
51
Q

Where do Judicial, Executive and Legislative Powers Overlap?

A

The Executive and Legislature overlap because all members of the Executive are also members of the Legislature

52
Q

Strengths of Separation of Powers Acting as a Check on Parliament in Law-Making (List 2)

A
  • Allows for the Government to be inspected by the Legislature
  • The Judiciary is independent
  • At times, the Upper House is not controlled by the Government, allowing for greater inspection
  • The principle is entrenched in the Australian Constitution, which means it can only be changed by a Referendum
53
Q

Weaknesses of the Separation of Powers Acting as a Check on Parliament in Law-Making (List 2)

A
  • The Legislative and Executive Powers are combined, decreasing the Check on Powers
  • The Government controls the Senate, which means there is far less inspection
  • Judges are appointed by the Government
  • The Separation of Powers in the Constitution only applies at a Federal level
54
Q

Implied Rights

A

Refers to Rights that are not explicitly stated in the Constitution but exist through the the interpretation by the High Court

55
Q

Express Rights

A

Refers to the rights that are specifically stated in the Constitution, and can only be changed by a Referendum

56
Q

The 5 Express Rights

A
  • The Right to Freedom of Religion
  • The Right to Free Interstate Trade and Commerce
  • The Right to Achieve Just Terms when Property is Acquired by the Commonwealth
  • The Right to Trial by Jury for Commonwealth Indictable Offences
  • The Right not to be Discriminated on the Basis of the State in Which you Live
57
Q

The Right to Freedom of Religion

A

The Commonwealth cannot make any law that establishes a State religion, forces any religious observance, stops the free exercise of any religion or requires a religious test as a requirement for holding any Commonwealth office

58
Q

What Section is the Right to Freedom of Religion in?

A

Section 116

59
Q

The Right to Free Interstate Trade and Commerce

A

Refers to how Interstate trade and commerce must be free and prevents Parliament from treating Interstate trade differently from trade within a State

60
Q

What Section is the Right to Free Interstate Trade and Commerce in?

A

Section 92

61
Q

The Right to Achieve Just Terms when Property is acquired by the Commonwealth

A

Refers to how the Commonwealth must pay a fair and reasonable compensation for the property, whether it is Tangible or Intangible. The Commonwealth is only able to acquire property from a person or area it has the power to make laws, such as Airports

62
Q

What Section is The Right to achieve just terms when property acquired by the Commonwealth in?

A

Section 51 (xxxi)

63
Q

The Right to Trial by Jury for Commonwealth Indictable Offences

A

Refers to how there must be a Jury Trial for Indictable Commonwealth offences and the Trial will be held in the State where the offence was committed

64
Q

What Section is The Right to trial by Jury for Commonwealth Indictable Offences in?

A

Section 80

65
Q

The Right not to be Discriminated on the Basis of the State in Which you Live

A

Refers to how the Constitution makes it unlawful for the Commonwealth or State Parliaments to discriminate on the basis of the State in which someone lives. However, States can favour their residents in certain circumstances, such as only residents of a State may vote in State Elections

66
Q

What Section is The Right not to be discriminated on the basis of the state in which you live in?

A

Section 117

67
Q

Strengths of Express Rights Acting as a Check on Parliament in Law-Making (List 2)

A
  • They impose limits on Parliament in Law-Making
  • They can only be removed by a Referendum
  • The High Court can swiftly act if a case is brought before it
  • Any person whose rights are infringed can take the matter to the High Court
68
Q

Weaknesses of Express Rights Acting as a Check on Parliament in Law-Making (List 2)

A
  • There is limited ability to add further Rights
  • The costs of initiating a Court action is high
  • Many of the Rights are limited in Scope
  • The protection of Rights does not prevent the Commonwealth Parliament from passing the law
  • Express Rights are relatively few in number compared to other Countries
69
Q

Roles of the High Court in Interpreting the Constitution (List 1)

A
  • Acting as a Guardian of the Constitution
  • Interpret and give meaning to the words of the Constitution
  • To decide the validity of Legislation
70
Q

Strengths of the High Court Acting as a Check on Parliament in Law-Making (List 1)

A
  • Judges are independent of Parliament and free from political pressure. Decisions are therefore based on principle of Law and Justice
  • The High Court allows individuals who have legal standing in a case to challenge Legislation, encouraging public confidence
  • The Judges of the High Court are very experienced in their field and can read widely in assessing Law and Evidence
71
Q

Weaknesses of the High Court Acting as a Check on Parliament in Law-Making (List 1)

A
  • Judges can only rule on the facts of the case that is brought before them, so their power to create legal principles is limited
  • For the High Court to Adjudicate on a matter involving the validity of Legislation, the matter must be brought before the Court. In this regard, the Court is reactive
  • The role of the High Court in interpreting the Constitution is limited by the fact that taking matters to the Court is expensive, which limits the involvement of some people
72
Q

Referendum

A

Refers to the method that is used for changing the wording of the Constitution. For a Referendum to pass, the proposal needs to be approved by the Australian people in a public vote by a Double Majority

73
Q

Section of the Constitution where the Referendum Process is found

A

Section 128

74
Q

The Significance of the People in the Referendum Process

A

The people help protect the Constitution by voting against the new change/s

75
Q

Double Majority Provision

A

Refers to how the majority of voters in a majority of States must vote ‘Yes’ for a Referendum to be successful. This means that a minimum of 4/6 States or more must vote ‘Yes’

76
Q

How the Double Majority Provision Act as a Check on Parliament

A

It ensures that there is no change to the Constitution unless the majority of the States agree

77
Q

Strengths of a Referendum Acting as a Check on Parliament in Law-Making (List 2)

A
  • It allows public control over the change
  • The requirement is strict
  • The requirement for a Double Majority protects the smaller States
  • The Vote is compulsory
  • The process is lengthy and provides voters with information about the change
78
Q

Weaknesses of a Referendum Acting as a Check on Parliament in Law-Making (List 2)

A
  • Voters may not understand the complex details of the Referendum
  • The Double Majority requirement is difficult to achieve
  • It is a timely and costly process
  • The States can influence against the Referendum
  • The result may appear Undemocratic if the majority of Australians vote in favour of it, but the majority of voters in the majority of States do not
79
Q

Section 7 of the Constitution

A

Sets out some of the rules and the composition of the Senate

80
Q

Section 24 of the Constitution

A

This Section relates to the House of Representatives

81
Q

Name of a Case in Relation to Sections 7 and 24 of the Constitution

A

The Roach Case

82
Q

Details of the Roach Case

A

In 2006, the Commonwealth Electoral Act 1918 was amended to ban all prisoners from voting in Federal Elections. Roach decided to challenge the validity of both the blanket ban, and the ban for sentences over three years

83
Q

Court’s Decision on the Roach Case

A

This case found that the Commonwealth Parliament must be directly chosen by the people and they acted outside their powers in the Constitution by denying the vote to prisoners

84
Q

Significance of the Roach Case (List 1)

A
  • It found that the Parliament had acted outside of their powers in the Constitution by denying the vote to prisoners
  • It found that any limitations to who can vote must be a valid reason
  • The significance was confirmed in the Rowe Case where the High Court felt that this gain was an unnecessary restriction on people directly chosen the Parliament
85
Q

Specific Case Where the Australian People have Protected or Changed the Constitution

A

The 1999 Referendum

86
Q

Details of the 1999 Referendum

A

There were 2 proposed changes to the Constitution:

  • Change 1: Alter the Preamble
  • Change 2: Making Australia a Republic
87
Q

Significance of the 1999 Referendum

A

It showed how the people have the ability to protect the Constitution when they are opposed to a change

88
Q

Case that Impacted the Division of Constitutional Law-Making Powers

A

The Brislan Case

89
Q

Details of the Brislan Case

A
  • The Commonwealth Parliament had passed an Act in 1905 which required all owners of radios to hold a licence
  • The Defendant, Ms Brislan was charged with not holding a license
  • Ms Brislan challenged the validity of the Act in the High Court, arguing that broadcasting to a wireless set was not a service, in which the term was used in Section 51 [v]
90
Q

Court’s Decision: The Brislan Case

A

The Division of Law-Making Powers was extended by the Commonwealth Parliament’s power to include broadcasting to a wireless set as an additional form of communication

91
Q

Significance of the Brislan Case

A
  • After the decision, the Commonwealth Parliament had the power to make laws with respect to broadcasting wireless sets
  • If a State Parliament passed a law in the area of broadcasting wireless sets and there was conflict between the State law and the Commonwealth law, the Commonwealth law would prevail under Section 109 of the Constitution
  • The decision of the Brislan case has opened up the power to include more modern communication services, such as the internet
92
Q

Ex Post Facto

A

A legal term that is used to describe a law that is established in relation to an event that has already taken place

93
Q

Preamble

A

The introductory part of a Statute that outlines its purpose and aims

94
Q

External Affairs Power

A

The power of the Commonwealth to Legislate on International matters that involve Australia. This is interpreted by the High Court to mean that when the Commonwealth signs an International Treaty or Convention it has the authority to enact laws and to give effect to this International law within Australia

95
Q

International Declaration

A

A non-binding agreement between Countries that sets out certain hopes of the Parties in the agreement

96
Q

International Treaty

A

A legally binding agreement between Countries or Intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws

97
Q

Case that Interpreted the Meaning External Affairs

A

The Tasmanian Dam Case

98
Q

Details of the Tasmanian Dam Case

A
  • The Tasmanian Government intended to dam the Franklin River to create a source of Hydroelectricity
  • The Tasmanian Parliament passed an Act to dam the river
  • There were protests Australia-wide, which caused the Commonwealth Government to intervene in an area of State power
  • Tasmania maintained that it had the right to make laws concerning the dam, as it was a State issue
99
Q

Court’s Decision: The Tasmanian Dam Case

A
  • The High Court decided that as all aspects of Australia’s relationships with other Countries are included under the External Affairs Power and because the Franklin River area was covered by an International Treaty, it too came under the External Affairs Power
  • This decision interpreted the words ‘External Affairs’ to include any area covered by an International Treaty
  • As a result of the decision, there was an inconsistency between the State and Commonwealth laws, which meant that the Commonwealth prevailed under Section 109, and Tasmania couldn’t build the dam
100
Q

Significance of the Tasmanian Dam Case

A

Consistent with the decision in the Tasmanian Dam case, the High Court held that the Legislation passed by the Commonwealth Parliament was supported by Section 51 (xxix) of the Constitution, being the power to Legislate with respect of External Affairs

Year 12 VCE Legal Studies (4 decks)

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