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legal 3/4 > unit 4 aos 1 > Flashcards

unit 4 aos 1 Flashcards

1
Q

define constitution

A

a set of rules that establishes the nature, functions and limits of government. its role is to determine the powers and duties of government.

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2
Q

features of the constitution

A

establishes commonwealth parliament & outlines its structure, sets out state matters, establishes the high court of Aus and gives it powers to interpret the constitution, sets out law making powers held by commonwealth parliament

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3
Q

3 parts of commonwealth parliament

A

the queen (represented by governor general), the senate (upper house) and the house of representatives (lower house)

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4
Q

the house of representatives

A

lower house. 150 members that each represent an electoral division. 3 years in office. party that achieves majority of elected members becomes government. leader is the prime minister who appoints government ministers. party with 2nd highest number of votes becomes opposition. they appoint shadow ministers to keep a check on activities of corresponding government minister

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5
Q

role of hor in law making (4)

A

initiate and make laws(bills must be passed by HOR and senate), determine the government (political party with the most members in the HOR forms government), provide responsible government (opposition members examine them about ideas for law reform), represent the people (laws should reflect community values), scrutinise government administration(ensure legislation is debated and matters of public importance are discussed), act as a house of review, control government expenditure (only lower house can introduce money bills)

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6
Q

the senate

A

upper house. 76 members (12 from each state & 2 from each territory). each senator is elected by proportional representation for 6 years (half are elected every 3 years and the changeover takes place on july 1 of the relevant year)

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7
Q

role of the senate in law making

A

act as a house of review (reviewing bills passed throughout the lower house to ensure only relevant bills pass through), act as a states house (should have equal representation from each state regardless of size/population =section 7), scrutinise bills through committee process (the senate standing community for the scrutiny of bills role is to assess legislative proposals to determine what effect they have on individual rights, freedoms & rule of law), initiate & pass bills

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8
Q

3 parts of victorian parliament

A

the queen (represented by governor of victoria), legislative council (upper house), legislative assembly (lower house)

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9
Q

legislative assembly

A

lower house. vic is divided into 88 districts and 1 member represents each district remaining in office for 4 years. political party with most seats forms parliament (premier) second highest is opposition. leader of opposition appoints shadow ministers to keep check on activities of corresponding government minister

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10
Q

role of legislative assembly in law making

A

initiate and pass bills(main role), form government (party with most members), provide representative government (members represent interests of community), act as a house of review (when bills are initiated and passed by legislative council), control government expenditure(only vic house that can initiate money bills)

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11
Q

legislative council

A

upper house. vic is divided into 8 regions and 5 members are elected from each region (40) serving a 4 year fixed term.

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12
Q

role of legislative council

A

act as a house of review (scrutinise and debate initiated legislation), examine bills through committees(has a number of committees that debate proposed laws & recommend if bills should be supported), initiate and pass bills (less common)

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13
Q

the crowns representatives

A

governor general (federal) and 6 governors (1 for each state)

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14
Q

main roles of the crown (3)

A

granting royal assent, withholding royal assent, appointing executive council

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15
Q

granting royal assent (role of the crown)

A

approving bills before they become law. royal assent is given on the advice of the prime minister at commonwealth level and on the advice of the premier of vic at state level

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16
Q

withholding royal assent (role of the crown)

A

refusing to approve a bill (rare). circumstances where a governor general can withhold royal assent are listed in the constitution

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17
Q

appointing executive council (role of the crown)

A

comprises of the leader of the governmemt as well as senior ministers. role is to give advice on government matters and approve secondary legislation (rules/regulations made by government bodies such as government departments/statutory authorities)

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18
Q

state the divisions of law making powers (3)

A

residual powers, exclusive powers, concurrent powers

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19
Q

residual powers (division of law making)

A

law making powers left with the states during federation that arent listed in the aus constitution. commonwealth parliament has no authority to make laws in these areas (criminal law, road laws, public transport)

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20
Q

exclusive powers (division of law making)

A

powers that can only be exercised by commonwealth parliament. only commonwealth parliament can make laws in these areas (defence, currency, customs & border protection)

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21
Q

concurrent powers (division of law making)

A

law making powers shared by state & commonwealth parliament. includes trade, taxation(commonwealth taxes are income tax & GST where state taxes include stamp duty and payroll tax), marriage & divorce, postal & telegraphic services

22
Q

section 109 of the constitution

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’ its designed to help resolve conflicts between state & commonwealth laws.

23
Q

significance of section 109

A

can act as a restriction on state parliaments. when passing laws in areas of concurrent powers, the state parliament will recognise that its powers are constrained where a commonwealth law already exists. law needs to be challenged before declared invalid. the state law will have no practical effect as long as the commonwealth law remains in force.

24
Q

checking process (bicameral)

A

the bicameral structure of parliament is designed to act as a check on parliament in its law making role. most bills are introduced into the lower house, meaning the senate will act as a house of review. senators should vote according to interests of the state aswell as the interests of the political party.

25
Q

bicameral structure of parliament

A

section 1 states commonwealth parliament must have 2 houses but not required by state parliaments

26
Q

strengths of bicameral parliament

A

allows for review of legislation by second house, cannot be abolished as its in the constitution, if government holds slim majority then considerable debate can occur in the lower house

27
Q

weaknesses of bicameral parliament

A

if government holds majority in lower house debate is unlikely to occur, doesnt require state parliaments to be bicameral

28
Q

separation of powers

A

ensures 3 powers of our parliamentary system remain seperate. purpose is to ensure that no one body has absolute power over functions of political and legal systems. (executive power, legislative power, judicial power)`

29
Q

executive power

A

power to administer laws/manage business of government. section 61 states that executive powers are vested in the queen/exercisable by governor general. carried out by prime minister, senior ministers and government departments

30
Q

legislative power

A

power to make laws. section 1 states its vested in federal parliament.

31
Q

judicial power

A

power to enforce the law/settle disputes. section 71 states its vested in the courts. legislative and judicial powers must be kept seperate. courts are independant of political influence to protect citizens from misuse of political power

32
Q

reasons for separation of powers

A

governmemt and parliament must work together to pass laws and the independence of judiciary must be preserved. itd be a conflict of interest if parliament, which make laws, were given powers to adjuciate issues relating to those laws. judges cannot take a seat in parliament where laws are made

33
Q

strengths of separation of powers

A

judiciary is independant, entrenched in the constitution, allows for executive to be scrutinised by legislative which provides checks/balances

34
Q

weaknesses of separation of powers

A

constitution only requires it at federal level not state, judges are appointed by executive meaning they may influence composition of benches of superior courts

35
Q

express rights (5)

A
  1. right to freedom of religion by preventing the commonwealth from making laws establishing a religion, imposing any form of religious ceremony or worship and prohibiting the exercise of any region (section 116)
  2. right to free interstate trade and commerce (section 92)
  3. right to receive just terms when property is acquired by commonwealth (section 51)
  4. right to trial by jury for indictable commonwealth offences (section 80)
  5. right not to be discriminated against on the basis of the state where you reside (section 117)
36
Q

strengths of express rights

A

limits what parliament can make laws on which protects public from unfair laws, can only be removed through a referendum, stability of the rights allows public to become aware of rights and undertake legal action

37
Q

weaknesses of express rights

A

limited ability for further rights to be added (needs a referendum), high costs to initiate, generally ineffective as a check on parliament since theres only 5

38
Q

right to free interstate trade and commerce (express right)

A

section 92. provides freedom of movement between states without burden. can only refer to movement of people between states

39
Q

right to receive just terms when property is acquired by commonwealth (express rights)

A

section 51. commonwealth must pay a fair compensation for property. only can acquire property for a purpose or area for which it has the power to make laws (airports). doesnt apply to state parliaments unless state legislation is passed under a commonwealth funding agreement

40
Q

right not to be discriminated against on the basis of the state where you reside (express rights)

A

section 117. high court has also said states can favour their own residents in limited circumstances (right for only residents of a state to vote in state election)

41
Q

role of the high court (3)

A

act as a guardian of the constitution, act as a check on any abuse of power, give meaning to its words

42
Q

act as a guardian of the constitution (role of the high court)

A

explain what the constitution means and decide how it should be interpreted. ‘protects’ the constitution

43
Q

act as a check on any abuse of power (role of the high court)

A

state/territory/commonwealth bodies may argue parliament has made a law beyond its power. these people can bring the matter to the high court for a ruling to be made on whether the law is constitutional.

44
Q

give meaning to its words (role of the high court)

A

the court needs to give meaning to words in the constitution and apply words to the case. they must consider facts of the case and decide whether a statute thats been passed is unconstitutional

45
Q

strengths of the high court

A

judges are independant of executive and legislation and make decisions based on legal principles not political pressure, acts as a check where parliament has made law outside its power, allows people to bring a matter to court ensuring parliament arent above the law

46
Q

weaknesses of the high court

A

expensive to bring a case forward which reduces volume of cases heard, only interpret cannot change words in constitution, some judges are very conservative in interpreting the constitution, judges can only rule on the facts of the case brought before them

47
Q

strengths of the double majority

A

allows people to refuse proposed change if deemed inappropriate so commonwealth cant exert power in an arbitrary manner, difficult to achieve so it protects the constitution, removes power from parliament to decide outcome of change, large states dont determine success which protects smaller states

48
Q

weaknesses of the double majority

A

public may be reluctant to change, timely/costly, difficult to change(only limited to proposals with overwhelming support)

49
Q

referendum

A

compulsory vote on a proposed change to the wording of the constitution, acts as a restriction on parliament since this is the only way the constitution can be altered.

50
Q

double majority

A

majority of voters in aus vote ‘yes’ & majority of voters in a majority of states (4/6) vote ‘yes’

51
Q

steps of a referendum

A
  1. referendum setting out proposed change is put to the people 2-6 months of it being passed through both houses of parliament or one twice
  2. before referendum is put to people the Aus electoral commission sends info to every household that explains proposed change and arguments for/agaiinst it
  3. if proposed change recieves a yes from majority, its sent to governor general for royal assent

legal 3/4 (9 decks)

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