legal studies AOS 1 unit 4 Flashcards
(54 cards)
1
Q
The federation of Australia:
A
- Australia became a nation on 1st January when 6 British colonies united to form the commonwealth of Australia. This process is known as federation.
- Prior to federation, Australia was an extension of Britain but after federation was it own unified country
- This meant that Australia had to establish a new system of government, a new set of laws and legal processes
2
Q
The rule of law:
A
- At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it
- The rule of law is an idea that all people, including those in power, should be ruled by the law and be willing to live by and obey its expectations
- The rule of law is more than simply the government and citizens knowing and obeying the law
3
Q
- Parliament→
A
Elected representatives who make or change laws on behalf of the people
- Proposals of new laws go through an extensive system of review and need ultimate approval from the monarchs representative
- This is referred to as statute law
4
Q
Courts→
A
- Main role of courts is to apply existing laws
- Judges in superior courts can make or change laws that are related to their cases
- Their law making should be complimentary to parliament
- Laws made in court are referred to as common law
5
Q
Australia’s Parliamentary system 5 functions
A
- To form a government
- To legislate (create laws)
- To provide the funds needed to government (make a budget)
- To provide a forum for in which the people are represented
- To scrutinise the actions of the government
6
Q
- Australia has a bicameral parliament, meaning it is a two-house system
A
- The upper house
- The lower house
7
Q
The commonwealth Parliament
A
- The commonwealth parliament represents all people of Australia
- They are concerned with issues of a national interest and keeps a check on the work of the government
- The parliament is divided into two houses meaning it is bicameral. This ensures power is not held by one group and that there are checks and balances in place.
8
Q
Upper house: The senate
A
- Representative of states and territories
- It consists of 76 senators, twelve from each of the six states and two from each of the mainland territories
- New laws need to be passed and debated by the senate. The senate can also propose new laws
- The senate is important because it debates any changes to Australian law and keeps the government in touch with the views of the community it represents
- The senate is also a watchdog for the government. It establishes committees which investigate government actions
9
Q
Lower house: House of representatives
A
- Seats in the lower house are representative of electorates. The house currently has 150 members. Each member represents an electoral division.
- The houses main job and the one which takes up most of its time is the consideration of new laws and changes to existing laws
- The house also controls government expenditure (spending’s)
- It also determines the ruling government. After an election the political party which has the most members in the house of representatives becomes the governing party. Its leader becomes prime minister
10
Q
The legislative Assembly: lower housey
A
- Victoria is divided into 88 divisions and there are 88 members of the legislative assembly
- Each member is elected to represent their electorate every four years
- The political party that wins the majority of seats in the Legislative Assembly forms government
- The premier is the leader of the party which has the support of the majority of members in the Legislative Assembl
11
Q
The Australian constitution:
A
- A national constitution is a set of rules for governing a country
- The federal structure
- Seperation of powers
- The role of monarch
- Rules of a representative democracy
- Commonwealth and state powers
- Some rights of Australians
- The Australian constitution originated as an agreement under which the former colonies came together as states in a federation
- One of the roles of the high court is the interpretation of Constitution
- The constitution can be changed through referendum
12
Q
Residual powers:
A
- states retain powers that they had prior to federation and cant be touched by federal parliament
13
Q
Concurrent powers=
A
law making powers shared by government at the states
14
Q
Exclusive powers=
A
states handed over powers to the commonwealth
15
Q
Section 109: INCONSISTENCY OF LAWS
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.
16
Q
Significance of section 109:
A
- Designed to help resolve conflicts
- Limits the ability of states to implement policies and programs
- It highlights the constraints on states concurrent powers
- Importantly section 109 forces consistency in how concurrent powers are managed
- The high court cannot favour a law, they need to follow the rule of the constitution
17
Q
The high court of Australia:
A
- Established in 1901 by section 71 of the constitution. The high court of Australia has the highest court in Australian judicial system
- Its bench is composed of seven justices, including a chief justice, currently Stephen Gageler
- It interprets and applies the law of Australia, decides on the constitutionality of laws and hears appeals
- The high court is the guardian of the Australian Consitution:
- It interprets its words and gives meaning to it
- The high court determines if laws that are made by parliaments are valid under the consitution
- The court is not ‘proactive’ in checking the validity of laws according to the consitution, it waits for a challenge
18
Q
Ways the high court impacts parliamentary law-making power:
A
- The high court will declare legislation invalid if it is outside of the Parliaments law-making jurisdiction as defined by the consitutions divsion of powers
- The high court will declare any legilsation which encroaches an express rights or implied rights to be invalid
- The court upholds the seperation of bias powers by declaring any legilation which gives MP judical power invalid
19
Q
Seperation of powers:
A
- Executive→ (Government PM)
- Judical→ (high court)
- Legislative→ (Parliament)
20
Q
Limitations of the Hight court in impacting Parliamentary law-making:
A
- The court is not proactive in limiting the power of parliaments as it waits for legislation to be challenged
- Challenging legislation is time consuming and difficult
- The high court cannot award damages
- to those who suffer from a parliament breaching its law-making ability. It is merely deemed invalid.
21
Q
THE BIRSLAN CASE:
A
- Case involving Dulcie Brislan who was prosecuted for refusing to purchase a broadcast listeners licence. The high court ruled that the commonwealth Parliament has the power to impose and collect license. The court ruled that wireless (radio) came under section 51(v) of the consitution which gave the commonwealth power to legislate on “postal, telephonic, telegraphuc and other like services”.
- Significane:
- Provides an example of how the high court can change the division of law making powers
- It is important as it showcases a shift in law-making power from states towards the commonwealth
- This shifted the power away from the states. It also meant that the commonwealth has moved into an area of residual power as broadcasting to wireless sets was not mentioned in the Consitution.
22
Q
Ways the High court impacts parliamentary law making power:
A
- The high court will declare legislation invalid if it is outside of the parliaments law-making jurisdiction as defined by the constitutions division of powers
- The high court will declare any legislation which encroaches on express rights or implied rights to be invalid
- The court upholds the separation of powers by declaring any legislation
23
Q
External Affairs powers:
A
- The Australian constitution (Section 51 xxix) giver power to the commonwealth to make laws in relation to ‘external affairs’ (international agreements)
- The high court of Australia has interpreted this section as giving parliament the power to pass legislation, giving effect to obligations under international law
- This allows the parliament to ratify treaties or declarations. These are areas of law which are neither exclusive or concurrent areas of power
24
Q
Limitations imposed on external affairs powers:
A
- Extending beyond the treaty. It cannot legislate in an unlimited manner beyond what the treaty defines
- The agreement must be bona fide (legitimate)
- The parliament is still limited by express rights
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Factors that impact parliaments ability to make law
Bicameralism, international pressures and representative nature.
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Bicameral structure:
- Section 1 of the Australian constitution requires that the commonwealth Parliament be bicameral
- The constitution does not require stat parliaments to be bicameral (Queensland is unicameral)
- A bicameral structure means that there is quality control on the bills being passed as they must be approved in its identical form by both houses
- The second house double checks the bill and possibly suggests amendments.
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Law making process:
- A bill needs to be approved by both houses to become law
- This is criticised as being a slow and arduous process when law reform is necessary
- However the length of a bill being passed is often related to how controversial it is as more people will want to debate it
- Sitting days of parliament can impact the ability of parliament to make law as there are only so many days when parliament is in session
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Composition of the upper house:
- Because most bills are introduced in the lower house (because government is formed in the lower house) the second house tends to take on a different law making role
- The composition of the upper house can be critical in the law making process
29
No government majority in the upper house (hostile senate)
- Because of different way the upper house is elected, it tends to mean there are more minority parties and independents (crossbenchers)
- If there is no government majority in the senate the balance of power shifts to the cross bench and they become highly influential in the law-making process
- This is referred to as a hostile senate. This is because the government will face difficulty in passing law reform.
- The effect of a hostile senate is:
- Negotiation with the cross bench
- Forced consideration for a wide range of views
- crossbench holds disappropriate amount of power
- Stall the law-making process, which could require more urgent attention
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Weaknesses of a hostile senate:
- slow law making
- compromised law- making
- Forced negotiation
- disproportionate power to the cross bench
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Strengths of hostile senate:
- Checks the government
- Insight from greater cross-section
- Representation of views in debates → does this tend to better laws
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Government majority in the upper house (Rubber stamping):
- In the opposite situation, it is possible for the governemnt to hold a majority in both house of parliament
- This impacts the role of the upper house as they essentially become known as a rubber stamp. Especially if members all vote along party lines (which is expected)
- To rubber stamp refers to an “organisation that gives automatic approval or authorization to the decisions of others, without proper consideration”
- The effectof rubber stamping on parliament law making is:
- A quicker process for law reform
- Easy for the government to implement a full legisaltive program
- lacks adequate input from the ‘house of review’
- little debate on new laws
- Government easily reject private members bills
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weaknesses of rubber stamping:
- doesn't allows for many perspectives to be debated
- ‘house of review no longer an effective check on government
- Easily rejects private member bill
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Strengths of rubber stamping:
- Fast and effective
- Leads to government implementing a complete legislative program
35
Representative nature:
Australia is a representative democracy, meaning that the parliament and government consist of people who are chosen by the people to make laws on their behalf.
36
Representative nature
- It can be argued that without literal representation of diverse groups in the law-making process, their interests are not represented well enough
- On the other hand, other people argue that members of parliament can still be effective law makers. They are still able to understand the needs of the people even if they are not directly affected in the same way.
- Points to consider:
- Individuals and communities can express their opinions though petitions and protests
- Parliaments refer to committees and VLRC who consult with the community before making their recommendations
- Previously, parliaments have passed laws to protect majority groups (they have also passed which disadvantage these groups)
37
Views of the majority:
- Politicians are encouraged to make laws in accordance with those who elected them
- They are able to listen to the people when they make calls for legislative change (demonstrations, protests, petitions, social media, strikes)
- Politicians will often introduce popular laws with the purpose of winning votes
- Law reform is expansive so could be avoided by the government. Parliamentary committees and the Victorian Law Reform Committe are consultantions which take time and may lead to recommendations that governments do not adopt
38
Challeneges with representative democracy:
- Limitations can occur when parliaments are despearte for re-elcetion and look to win favour of the public:
- Keen to look ‘tough on crime’ many governments try to implement harsher penalities for crime but this has no basis in academic research on being effective and has a significant impact on the criminal justice system
- Politicians can be reluctant to introduce law reform when there is a lrage or loud opposition group. For instance, the voluntary euthanasia bill and safe injecting rooms has strong outspoken groups which went against the bills
39
Regular elections:
- The government must represent the needs of the people and therefore regular elections are held and it is compulsory to vote
- Federal parliament elections are held every three years and state elections in Victoria are held every four years (This is happening in November 2022)
- A critique of our election system us often that not everyone wants the compulsory vote and that federal elections are not held on a fixed date, allowing the government to select a time which is most favourable to them.
40
International pressure:
- Auatrlia is involved in various organisations and networks
- Australia has signed to international treaties
- Once an international treaty is signed, Australia is expected to ratifiy this by enshrining this in their own legal system and a laws
41
International pressures definition:
International pressures are demands which can be placed on parliament to legally address matters of international concern. For example: terrorism, global pandemics, age of criminal responsibility.
42
Sources of international pressures:
- NGO’s
- petitions
- international activists
- other countries making comments
- United Nations (UN)
- TNC’S
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- Section 71: Judicial power and courts
- Issues relating to the interpretation of the constitution
- Matters where the commonwealth is a party
- Disputes between states
- issues with treaties
- Note: the high court does not have the authority to change the wording of the constitution.
44
1. The senate
- The senate shall be composed of senators for each state. Directly chosen by the people, voting, until the parliament otherwise
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24 . constitution of House of representatives
- the house of representatives shall be composed of members directly chosen by the people.
46
. Protecting the right to vote
- Section 7 and 24 of the constitution require that the houses of parliament are “chosen by the people”. This enshrines Australia's representative democracy
- The high court determined in Roach v Electoral Commissioner that any law which interferes with
- he ability of people to vote at elections is invalid.
- The elctroal and referendum amendment Act 2006 (Cth) banned all convicted and sentenced prisoners from voting in elections
- Roach who was serving a sentence at the time challenged the law stating that the constitution protected her right to vote
47
Protecting the freedom of political communication:
- The high court has found that there was an implied freedom of political communication
- Lange v Australian Broadcasting Corporation (1997)
- The Australian Consitution does not explicity protect freedom of expression. However, the high court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the constitution.
- In 1991 the commonwealth passed laws which restricted television advertising during election campaigns. This was challenged in the high court as it was deemed necessary for people to hear from political parties
48
Seperation of powers:
- The Austrlian constitution dictates that there are three types of powers in the law making and parliamentary process
- This is a core principle of the rule of law
- In having the seperation of powers, it is ensured that no body has absoultue power of the control and functions of the political and legal system
49
Executive → the Government
- Empowered by s. 61 if the Australian constitution
- Constitution refers to it as the Governor general who takes upn the moarches power. In practise this power is excersised by prime minister, their senior ministers and the governemnt departments
- Have the power to implemenrt and initate policy and manage the business of government
50
The Legislative
- The power to make laws
- Exercised by the parliament (both houses)
- Section 1 of the Australian Consitution outlines legislative powers
- This is combined with the executive power. However, despite an executive power wanting to make legal changes, the legislative power can still disallow or reject
51
-Overlap between executive and legislative:
- Prime minister and ministers in parliament: The prime Minister and most ministers are members of the parliament, meaning they hold positions in both the executive, meaning they hold positions in both executive and legislative branches. This creates a direct link between the two branches
- Legislation proposal and implementation: The excecutive branch propses and implements legilsation. While laws are debated and passed in parliament, it is executive that drafts these laws and ensures they are enforced
- Parliamentary accountability: The executive is accountable to the parliament. Ministers must regularly answer questions and provde reports to parliment, ensuring that their actions and decisions are subject to legisaltive scrutiny and approval
52
1. The Judiciary:
- power to enforce the law and settles disputes.
- Excercised by the courts
- At the federal level this is granted by chapter 3 of the consitution and section 71
- Kept sepearte and independent. This ensures there is no political pressure on the courts and allows people to retain confidence in the legal system
- It is the rile of the high court of australia to deal with consitutional issues and it has the secondary role of law making.
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stengths
Allows thr executive to be scrutinised by the legislative (provides checks and balances)
The judiciasy is independent of the parliament and government
Ministers are subjects to scrutiny in parliamentary question time
When the opposition holds senate power there is greater scrutiny
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Weaknesses
Combining of the executive and legislative powers
Judges are appointed by the executive
When a government has control over the senate there is less scrunity
If the opposition controls the senate is can obstruct bills for political gain
