Part 2-The Legislature 1 Flashcards
(27 cards)
What is the Constitution?
The highest law in Australia which guides the institution and processes around passing legislation.
What are the roles of the Constitution?
Outlining the three arms of power in Australian governance
Outlining the legislative powers of the Federal Parliament
Outlining the role of the Governer-General and the administration of legislation
Outlining the way the High Court operates
What is the Separation of Powers?
A doctrine (guiding principle) established by the Australian Constitution that ensures that the three powers of our legal system (the legislative, executive and judiciary) remain separate.
What is the Legislature
The branch of governance with the primary power to pass legislation, chiefly the parliment
Who is in the Legislature?
The Monarch represented by the Governer-General
The two houses (The House of Representatives and the Senate)
What is the role of the Legislature?
To pass legislation and amend legislation for the good governing of the people
What is the Executive?
The branch of governance with the primary power to administer legislation and manage the business of governing, chiefly the Governer-General at the Commonwealth level, along with the Prime Minister and senior ministers.
Who is in the Executive?
Governer-General
The Prime Minister
Senior ministers
What is the role of the Executive?
To administer legislation by giving royal assent to laws made by the houses of parliament thereby lending them the legitimacy under the constitutional monarchy
What is the Judiciary?
The branch of governance with the primary power to interpret and apply legislation, chiefly the High Court (but the Judiciary also includes state courts)
Who is in the Judiciary?
The High Court of Australia
The courts of the states
What is the role of the Judiciary?
To interpret (read meaning from) and apply legislation, in particular those made by the Legislature.
What are checks and balances?
Counterbalancing influences or powers in a system that ensure accountability and limit the risk of total control by one branch of power
What is the importance of the Separation of Powers?
It keeps the three powers in the legal system separate. This is because it provides a system of checks and balances on each power to ensure that power is not concentrated in one set of hands.
How is the Separation of Powers well achieved?
The parliment is separate from te judiciary and annot interppret and apply is own laws to resolve disputes, a role reserved for the courts (judiciary). This is a strength as it limits the risk that parliment can gain total control and ensres that the courts can independently make ‘just’ decisions.
The High Court can interpret the consitution to validate or invalidate legislation made by parliament. This is a strength as it allows the High Court to act as a check on the Parliament, ensuring that they are passing legislation within the powers given under the consitution.
How is the Separation of Powers not well achieved?
There is an overlap between the Legislature and Judiciary through the Governer-General and senior ministers. This is a weakeness for the achivement of the separation of powers as each may not effectively act as an independent check on the parliament before administering legislation
What is the division of law making?
the distributio of law making (legislative) power betwen the Commonwealth and the six states from Federation, as described in the Consitution.
What is exclusive powers?
Law making powers that only the commonwealth parliament can excersise, including defence and currency.
What are concurrent powers?
Law making powers that are shared between the commonwealth parliament and the state parliaments, including marriage and taxation.
What are residual powers
law making powers that are not addressed in the constitution (not explicitly mentioned) and are therefore retained by the states, including public transport and urban planning.
When are laws inconsistent?
Inconsistent laws in an area of concurrent law-making power that occur when commonwealth and state legislation come into conflict if the laws clash on an issue such as taxation.
Inconsistent laws are passed in separate areas (commonwealth exclusive and state residual), creating conflict in their operation.
What does section 109 state?
Section 109 states that when a law of state is inconsistent with a law of teh commonwealth, the shall prevail, and the former shall, to the extent of the inconsistency.
What are key facts of the mcbain case?
Dr Joh McBain (Melbourne doctor specialising in reproductive technologies and a gynecologists) was consulted by Liza Meldrum, a single woman (not married) wishing to conceive through IVF using donor sperm
Mc Bain told Meldrum he was prohibited by Victorian legislation, the Infertility Treatment Act 1995 (Vic) form administering the IVF treatment to her because she was single
However, Dr McBain was also subject to Commonwealth legislation, the Sex Discrimination act 1984 (Cth) which outlines that a person must not be denied services such as medical care due to their marital status
Dr McBain then went on to commence proceedings in the federal court to show the inconsistency between the infertility treatment act 1955 (Vic) and the sex discrimination act 1984 (Cth).
