U4 AOS1: Key concepts Flashcards Preview

VCE Legal Studies > U4 AOS1: Key concepts > Flashcards

Flashcards in U4 AOS1: Key concepts Deck (25)
Loading flashcards...
1

Role of the crown

At the commonwealth level the crown is the governor general while at the state level the crown is the governor

2

Role of parliament in law making

The main role of parliament is to make laws. A bill is a proposed law which must go through specific stages to become a statute (act of parliament) requiring a majority vote.

3

Commonwealth parliament: House of Reps

Lower house - 'the people house' or 'the house of government'
- 150 members
- Each member represents an electoral division

4

Division of constitutional law making powers of state and Commonwealth

The constitution gave the Commonwealth Parliament specific powers to make laws. Some of these powers are shared with the states (concurrent powers) and some are exclusive to the commonwealth (Executive powers) and some are left with the states (Residual powers)

5

Exclusive

Law-making powers that are held only by the Commonwealth Parliament and only that parliament has legislative authority over those areas. The states cannot create law regarding those areas

- Law-Making powers of Commonwealth are set out under Section 51 of the AC
- Currency, customs

6

Concurrent

Law-making that are shared by the Commonwealth and the state parliaments.

- Trade, taxation

7

Residual

Those law-making powers left with the states at the time of federation. The Commonwealth Parliament has no legislation authority over these areas.

8

Significance of Section 109

- Acts as a restriction on state parliaments (cannot be inconsistent with the law of the Commonwealth and constrains powers where c-wealth exists)
- s109 does not automatically come into operation, rather the state passes a law inconsistent with the Commonwealth law and must be challenged to be deemed invalid.

9

Section 109

Designed to help resolve conflicts and inconsistencies between state and Commonwealth laws. If there is a conflict between the state and Commonwealth laws, the Commonwealth will prevail, to the extent of the inconsistency between the two pieces of legislation, and the state law provisions inconsistent shall be deemed invalid.

10

3 levels of government

- Federal (or national) parliament in Canberra
- State / territory parliament in each state / territory capital city
- Local councils (Shires / municipalities) across nation

11

Constitutional hierarchy

Has a monarch as the head of state and a constitution that establishes the parliamentary system and provides a legal framework for making laws

Australia = Representative democracy. A system in which the people vote to elect representatives to the parliaments and to make ;was and govern on their behalf

12

Federal

Raises money to run the country by collecting taxes on incomes, goods, services and company profits before spreading to national matters. ie trade, military

13

State / territory

Also raise money from taxes but receive more than half their money from the federal government and spend it on state / territory matters. ie: schools, housing, hospitals, roads

14

Local

Collect taxes (rates) from all local property owners and receive grants from federal and state / territory governments while spending on local matters. ie: town planning, rubbish collection, water and sewage

15

The Australian Constitution

A set of rules and principals that guide the way Australia is governed. The Australian Constitution was passed by the British Parliament and its formal title is Commonwealth of Australia Constitution Act 1900

16

Commonwealth parliament: House of Reps roles in law-making

- Form government
The political party with the most members in the HOR forms the government
- Represent the people
The laws that the government create are to be in the best interest of the AUS people
- Provide responsible GOV
Ministers are responsible to parliament and therefore to the people. They are examined by opposition members about their ideas for law reform during question time, where deficiencies in legislation can be opposed
- Initiate bills / make laws
To become a law a bill must be past through both houses of parliament. Majority of bills presented in HOR. A bill presented w/o authority of the cabinet = private members bill. Bill must be passed by both HOR and senate

17

Commonwealth parliament: The senate

Upper house: 'rubber stamp' 'house of review'

- 76 members
- Each state elects 12 representatives regardless of population of state, each territory elects 2

18

Commonwealth parliament: The senate roles in law-making

- Represent the states
Each state has the same number of senators = equally represented. The senators will make the decisions for the interest of their state. Sections 7 of the constitution provides that the senate should have equal rep from each state, regardless of its size / population

- Acts as a house of review
The senate reviews that were proposed by the House of Representatives (lower house)

- Initiate and pass bills
Able to initiate bills (other than money bills) or pass bills that have previously been passed through the HOR. Senate may pass a bill w/o amendments or w/ amendments or reject it. Able to insist on changed on proposed laws before they become laws

19

Victorian parliament: The legislative assembly

Lower house

- State elections - Victoria divided into 88 districts. One member from each
- Members hold their seats for 4 years

20

Victorian parliament: The legislative assembly roles in law making

- Initiate and pass bills
MAIN FUNCTION to initiate new laws, usually introduced to the legislative assembly by the government. Although any member may introduce a bill

- Form the government
The political party that has the most members in the legislative assembly forms government. Most bills are initiated in the form of government bills, reflecting the policies laid down by the premier and senior ministers

- Provide representative government
Members of the LA are elected to represent the interests of the people. Their actions in law-making should reflect the views and values of the people. If not, they are at risk of being voted out of government at the next election

21

Victorian parliament: The legislative council

Upper house

- 40 members
- Victoria divided into 8 regions each with 11 districts. 5 members of the LC are elected from each region
- Members hold their seats for 4 years

22

Victorian parliament: The legislative council roles in law-making

- Act as a house of review
The role of the LC is similar to the senate. Acts as a house of review for legislation that has been passed in the LA. Does this by scrutinising, debating and on occasion amending / rejecting legislation that has been initiated by the government. Performing these functions in the law making process, the upper house can apply many of the important checks and balances that ensure the parliament is reflecting of the will of the people

- Examine bills through its committees
Has a number of committees that debate the proposed las at length and recommend to the house whether bills should be supported as part of the legislative process

- Pass bills
Bills can be ignited in the LC but is less common than the LA. If the government holds a majority in both lower and upper houses, increases the governments ability to get the parliament to pass legislation. However this could lead to scrutiny of government programs and less debate in parliament.

23

The crown roles in law-making

- Granting royal assent
ONE MAIN ROLE: Representing the queen by giving royal assent (final approval) to the laws made by parliament. The crown receives the laws that have passed through the parliaments and gives a signature of approval

- Withholding royal assent
The crowns rep has the power to withhold royal assent (refuse to approve bill and make act) However this rarely occurs. At the state level the AUS constitution specifics circumstances in which the Gov general can withhold RA

- Appointing executive council
The government general/ governor of each state has the responsibly of appointing the executive council. This comprises the leader of government (The prime minister at the federal level and premiers at the state level) + senior ministers. The role of the EC is to give advice on government matters and approve secondary legislation

24

Specific powers

The constitution divides the law making powers between the commonwealth parliament and the state parliaments. All powers of Commonwealth Parliament are listed in the constitution, know as enumerated (name one by one) or specific powers mostly listed in sections 51 & 52 of the constitution.

Specific to 'make laws for the peace, order and good of the government of the Commonwealth. in relations to any specific powers listed in the constitution.

25

Section 109 check on law making

Although parliament is the supreme law making body in Australia, does not have absolute power. AC prevents this by acting as a check on parliament when it comes to law making through
- Bi cameral structure
- Separation of powers (E+L)
- Express rights of protection
- The role of the High court in interpreting the AC
- Requirement of a double majority