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Legal Studies > UNIT 3: AOS 2 > Flashcards

UNIT 3: AOS 2 Flashcards

1
Q

The division of law making powers

A

Enumerated/Specific powers (all the powers listed in the Constitution) S51 and S52

Exclusive (only Commonwealth can legislate) e.g Immigration

Concurrent powers (shared powers between the Commonwealth and States) e.g Taxation, marriage

Any power not listed in the Constitution is known as a residual power and remains with States e.g. Public transport, criminal law.

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2
Q

Constitution Act

A

The Commonwealth of Australia Constitution Act 1900 (UK) came into operation January 1st 1901

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3
Q

Constitution

A
  • The structure and operation of the Senate and the House of Representatives
  • Establishes the High Court (S71) and sets out its jurisdiction (S75 and S76) to hear matters relating to the Commonwealth and Constitutional matters
  • All powers given to the Commonwealth are listed in the Constitution and are referred to as specific or enumerated powers and are found in S51 and S52
  • S111 and S122 give the Commonwealth Parliament power over Commonwealth territories
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4
Q

Restrictions imposed by the Commonwealth Constitution on the law making powers of the Commonwealth Parliament

A

S107 and S108 guarantee the State their powers
S128 referendum
S116 and S117 discrimination (religion and state)

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5
Q

Restrictions imposed by the Commonwealth Constitution on the law making powers of the State Parliaments

A

S114 raising military forces
S115 coining money
S90 imposing customs duties
S109 passing legislation inconsistent with that of Commonwealth Legislation

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6
Q

Commonwealth Parliament Restrictions: S116

A

“Freedom of Religion”

This prevents the Commonwealth Parliament from ;legislating with respect to religion, thereby guaranteeing freedom of religion. Therefore, no individual can be discriminated against, through legislation, in regards to their own religion. Practices and beliefs cannot be legislated against by the Commonwealth Parliament

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7
Q

Commonwealth Parliament Restrictions: S117

A

“Rights of residents in States”

This prevents the Commonwealth Parliament from legislating any laws that are discriminatory to residents of a state. Therefore, regardless of what state you reside in, every resident has the right to be treated equally to residents of other states

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8
Q

State Parliament Restrictions: S114

A

“Raising military forces (exclusive power)”

The States are prohibited from raising naval and military forces. Therefore, the States cannot build their own defences and must rely on the defence force raised by the Commonwealth (excludes Police)

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9
Q

State Parliament Restrictions: S115

A

“Coining money (exclusive power)”

The States are prevented from coining money through this section of the Constitution. Therefore, The States are prohibited from creating their own currency for their independent state and must use the currency coined by the Commonwealth Parliament

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10
Q

Changing the division of law making powers under the Constitution

A
  • The actual words of the Constitution can only be changed by referendum of all voters by either inserting words (S51xxiiiA) or deleting words (S51xxvi)
  • The meaning of the words in the Constitution can be changed by decisions of the High Court in cases that arise over law-making powers, this is a key part of the High Court authority
  • One or more of the States can hand over (refer) one or more of its powers to the Commonwealth
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11
Q

Changing the Constitution via a Referendum

A

Conducted according to the strict formula of S128 that requires a double majority to pass
The proposal must first be written into legislation passed through the Commonwealth parliament (both houses)
Then Governor General submits question to voters in each state
Passed by the majority of voters in any affected states
Presented to the Governor General for royal assent
Constitution changed

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12
Q

Double Majority

A

Majority of support in the majority of states (4 out of 6 states)
Majority of support of all voters across Australia.

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13
Q

High Court interpreting the Constitution

A

First sat in 1903
S71 gives the HCA it’s judicial power and the courts
S76 gives the HCA additional original jurisdiction regarding the constitution
Guardian of the constitution
Determines its day to day operation through interpretation of the words and giving meaning to them
Unable to change words writing directly but when interpreting can add meaning to it and can change the division of law making powers between the commonwealth and states

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14
Q

Roads Case 1926

A

Passed the Federal Aid Roads Act: financial assistance to the states in regards to constitution and upkeep of roads
States argued that the commonwealth should not be able to order the states to spend money according to their desires.
High court interpreted S96 with a literal meaning so Commonwealth can grant financial assistance if they saw a need
S96 followed exactly how it is stated, irrespective of residual powers
Received more power

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15
Q

Brislan Case 1934

A

Owned a wireless but didn’t posses a current license for the technology
Commonwealth enacted legislation making people have licenses
Charged with not holding a license
S51(v) “other like services” to include the wireless
Fined 1pound and 8 shillings for failing to comply with legislation
More power to commonwealth
Interpreted s51(v) to go beyond what was specifically specified

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16
Q

Referral of law making powers

A

S51(xxxvii) the states can refer powers to commonwealth
Uncertain if the referred power becomes exclusive or concurrent
Uncertain if the referral can be revoked
One state agrees
Examples:
Terrorism
Defence power s51(vi) allows commonwealth to make laws on military matters of national security but not internal security
States referred their internal security powers so commonwealth could legislate against terrorism to stop it

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17
Q

Section 109

A

Commonwealth law prevails to the degree of inconsistency between state and commonwealth in concurrent power dispute

18
Q

Constitution: Definition

A

A document that describes the structure of parliament and how law making power is divided between federal and state parliaments

19
Q

Reasons why referendums have been largely unsuccessful

A

Strict conditions listed in S128, for example support from 4/6 states
Proposals are often complex and voters may have difficulty understanding this task
Lack of bipartisan support across the major parties for some proposals
Voters sometimes mistrust politicians
The desire to maintain states’ rights.

20
Q

High Court Jurisdiction

A

Sections 75 and 76 of the Constitution give the High Court has the jurisdiction to hear and determine cases that involve disputes over law-making powers between the Commonwealth and states as well as matters arising under a treaty

21
Q

Protecting rights in Australia

A

Common Law (Court made law)
Statute Law (Parliament)
International Treaties
Constitutional Protection

22
Q

Common Law

A

Criminal offences and defences have developed over time through our courts. For example murder and rape laws protect our right to security, arson and stealing offences protect our right to property, Mabo v Queensland (HCA decision) protect the right to Native Title

23
Q

Statute Law

A

Protect the rights of people in Australia, for example anti discrimination legislation such as the Equal Opportunity Act 1995 (VIC) and the Human Rights and Equal Opportunity Act 1986 (Cth) ensures the right of all people are equal in places such as the workplace.

24
Q

International Treaties

A

For example: The Universal Declaration of Human Rights Conventions Against Torture and other cruel, inhumane or degrading treatment or Punishment. This protects the rights of the people who are prisoners or are suspected of a crime.
NB»»>
Signing an international treaty does not automatically make it law in Australia. The Commonwealth parliament must enact legislation to uphold the terms of the treaty.

25
Q

Constitutional Protection

A

> Rights covered by the Structural protection- the structure and text of the Constitution provides some rights such as the limited right to vote
Express rights in the Commonwealth Constitution- there are five express rights in the constitution and they are:
S51(xxxi) Acquisition of property on just terms
S80 Right to trial by jury in Commonwealth indictable offences
S92 Right to freedom of interstate trade and commerce
S116 Freedom of religion
S117 Freedom from interstate discrimination
Implied rights in the Commonwealth Constitution- rights may be implied in the Constitution by the High Court. There is one implied right in the Constitution and that is the freedom of political communication.

26
Q

Structural Protection of rights

A

Ensure the ‘peace, order and good government of Australia’. System of structures were incorporated into the Constitution to prevent governmental power being concentrated in the hands of a small number.
>The bi-cameral parliament where the senate acts as a house of review for the house of representatives
>Separation of powers which ensures that no one body holds the power to make (legislative), enforce (exclusive) and adjudicate a breach (judicial) of the law
>Representative government which ensures that all members of parliament represent the views of the voters in the electorates (Vicki Lee Roach)
>Responsible government requires that the members of the executive are drawn from and answerable to the parliament.
>The High Court who is seen as the guardian of the Constitution, ensure that the governments of Australia abide by the term

27
Q

Implied Rights

A

THE RIGHT TO FREEDOM OF COMMUNICATION ON POLITICAL MATTERS
The High Court has determined that the Constitution contains this right even though it is not explicitly stated.
The right was recognised in the Case of AUSTRALIAN CAPITAL TELEVISION PTY LTD v. THE COMMONWEALTH (1992) (THE POLITICAL ADVERTISING CASE)

28
Q

The Political Advertising Case

A

Dealt with Commonwealth legislation that banned all political advertising on radio and television during election periods. The Legislation was deemed invalid because it overrode the constitutional right to freedom of political communication.
The High court stated that:
> The constitution establishes a system of representative government
>In a representative government, members of the parliament are directly elected by the vote of electors
>A free discussion or debate about public affairs and political matters is essential to an informed vote and the system of representative government
>Since the Constitution provides for an elected and representative government , it implies the need for a free debate so that the vote is informed and the representative government effective

29
Q

Theophonous Case

A

Confirmed and extended this implied right as it allowed for comments about members of parliament and their suitability for office to be included within the public’s freedom to political communication.

30
Q

Express Rights

A

> S51(xxxi) Acquisition of property on just terms
S80 Right to trial by jury in Commonwealth indictable offences
S92 Right to freedom of interstate trade and commerce
S116 Freedom of religion
S117 Freedom from interstate discrimination

31
Q

S51(xxxi) Acquisition of property on just terms

A

This provides that the Commonwealth Parliament may make laws to acquire property from individuals on ‘just terms’. It recognises that the parliament may have a reason to acquire a persons property.
High Court Interpretation:
>may acquire property for a purpose for which it has the power to make laws
>must be able to show ‘just terms’ therefore fair and reasonable compensation must be provided

32
Q

S80 Trial on indictment for any offence against the law of the Commonwealth shall be by jury

A

Applies to commonwealth indictable offences.
does not extend in theory to offences against state law
An accused person can not elect to have a trial by judge alone in commonwealth indictable offences.
Majority verdicts cannot be used for commonwealth offences, must be unanimous.

33
Q

S92 On the imposition of uniform duties of customs, trade, commerce and intercourse among the states, whether by means of internal carriage or ocean migration, shall be absolutely free.

A

> primarily relates to trade, commerce and communication
‘The protection of S92’ is given to the movement of people, the transport of goods, the transmission of communications, the passage of signals of any kind and any other means by which interchange, converse and dealings between states in the affairs of are carried across state boundaries.
does not provide an absolute guarantee of freedom of movement

34
Q

S116 Freedom of Religion

A

> cannot establish a particular religion, but can assist in the practice of a religion by providing financial assistance to religious schools.
make no law imposing religious observance. However, this freedom is not absolute. Limited for national security or to ensure that people follow ‘ordinary laws’ of the community
cannot make a law requiring a person to have a particular religious belief in order to be employed by the Commonwealth or to be appointed to a Commonwealth office
Few state constitutions specifically recognise religious freedom, only applies to the commonwealth

35
Q

S117 Residents of any state ‘shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state.’

A

Unlawful to discriminate against a person based on the fact that they live in another state.
Does not provide a general protection against discrimination

36
Q

Enforcement of Constitutional rights

A

enforced by High Court
legislation invalid:-
-amend it so it is valid
-amending constitution s128

37
Q

Complaints based approach

A

people/groups who think their rights have been infringed can challenge it before the High Court

38
Q

Watch dog approach

A

Human rights bodies (Australian Human Rights Commission) investigate laws that may contravene rights.

39
Q

USA and AUS- Similarities

A 
Federation of states
Constitution 
have an implied right (theres is to privacy)
Structural protection of rights
separation of powers
representative government 
US Supreme court determines meanings 
courts declare law invalid
no clause stating a balance the rights with public interest
40
Q

USA and AUS- Differences

A

Bill of Rights (10 Amendments of Constitution)
mainly concerned with civil and political rights
federal govt can act on behalf of individuals if their rights have been encroached by local or state govt
no responsible govt
rights apply to actions of both federal and state parliaments

Legal Studies (7 decks)

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