Unit 4 AOS 1 Flashcards

Question

Commonwealth v Tasmania (1983) facts

Answer 1

In this case the Tasmanian government passed the Gordon River Hydro-Electric Power Development Act in 1982 (Tas) in order to construct a dam on the Franklin River which in turn would result in the flooding of the river. Due to public outcry, the United Nations included the Franklin River in their ‘World Heritage List’ which made Australia obligated to pass legislation preventing the damming of the Franklin River.

Answer 2

The Tasmanian Government challenged the Commonwealth's 'World Heritage Properties Conservation Act 1983 (Cth)', claiming that the Act was in breach of the Constitution as the construction of dams is a residual power that Commonwealth cannot legislate on. On the other hand, the Commonwealth argued that according to the external affairs powers (s51xxix) they had to power to make laws that involve matters covered by treaties regardless of whether they are in the Constitution or not due to their international obligations.

Answer 3

The High Court interpreted that the external affairs power allowed the Commonwealth to legislate in such areas that are a part of residual powers as long as the Commonwealth was upholding it's international obligations, thus expanding their law making powers. Further the High Court determined that section 9 of the World Heritage Properties Conservation Act 1983 (Cth) was valid, making it unlawful for the dam to be constructed on the Franklin River since the construction would breach the Commonwealth legislation.

Answer 4

This impacted Commonwealths law making powers as they now have a broadened scope of areas in which they can legislate on despite residual powers as long as they are legislating based on their international obligations. Therefore, potentially removing states ability to legislate on local matters for their people and restricting states law making powers. However, the external affairs power still has limitations such as express and implied rights therefore, they are still restricted in their law making powers, meaning they can only legislate to the extent that they are bound by because of their international obligations.

Answer 5

Law making body with two houses and a head of state. Cth – House of Reps and Senate + Governor-General. State – Legislative Assembly and Legislative Council + Governor.

Answer 6

law making process- Requires proposed bills to pass steps in each house to ensure there are sufficient checks and balances prior to implementation.=takes a long time On the other hand, it does allow for meaningful and well thought out law making to occur as it gives MPs time to prep to debate/ contest/ review and question others in the houses. composition of the upper house - Hostile senate: occurs when government of the day does not hold a majority in the upper house, and therefore the balance of power is held by a combination of – opposition, minor parties and independents. Government members have to rely on support from the opposition when making amendments/ voting. Rubber stamp senate: majority of seats are held by the same party in both houses and approves decisions with little review.

Answer 7

ensures bills are scrutinies and debated so that the government does not chnage the law dramatically without discussion. ensures that the government does not pass legislation that soley aligns witht heir political agenda. a hostile upper house delays the speed as they are debated to a high degree. However a rubber stamp upper house bills would be approved with vetr little scrutiny,.

Answer 8

Influence that other countries and international organisations exert on parliaments to ensure the laws created comply with international standards. Parl’ can face pressures from actors if it fails to comply with international human rights standards or obligations. Result in parl’ creating or amending laws to uphold standards. Pressures may encourage parl’ to not pass legislation that breaches international law. Australia’s desire to comply with international forces directly impacts its ability to amend current and future laws and can result in scrutiny from others.

Answer 9

international treaties and declarations Although Australia being a signatory and therefore obligated to ratify treaty into domestic law to ‘fulfil commitments’ – limited mechanisms by which UN can enforce compliance. However, when a member state breaches international law = faces criticism and scrutiny from other member states for failure to uphold obligations set out in international treaties = places pressure on parl’ to create or amend domestic laws based on recommendations from other countries or international bodies. = encourages parl’ to make laws that reflect these basic standards of human rights to align Aus with international law.

Answer 10

If Australia is found to be in breach of the obligations within international treaties they will likely face criticism from other countries This may influence parliament to change the law to avoid further criticism. International treaties can be implemented by enacting legislation into domestic law, for example, by enshrining human rights protections in statute law. Pressures from international organisations may limit the ability of parliaments to make laws that are tailored to the unique needs and circumstances of a population. There are limited mechanisms by which UN Member States and international organisations can enforce compliance with international law.

Answer 11

Parl’ = supreme law-making body = has a duty to utilise its power to represent interests of the people. Principle and process that underpins duty to be “representative” is the electoral system. Allows for a democratic society – an organised system of people living in a community, in which the laws and processes that govern people’s lives are created by elected representatives. outlined in s7 and s24 of the aus constitution

Answer 12

Reflecting the community is one way that the representative nature of parliament may affect its ability to make laws. Since representation for diverse populations and minority groups is limited, this restricts the ability for a MP to fully represent that community in law making as they may underrepresent certain groups due to lack of experience or knowledge in that area. Additionally, regular elections may impact the parliament’s ability to make laws. Due to the short period in office this influences the MPs to act promptly to improve society through making laws. By enacting legislation to benefit society in order to maintain office positively impacts their ability to make laws.

Answer 13

regular elections place pressure on mp to represent the people and enact laws that represent the viewsd and values of the people if they want to stay in office compulsory voting ensures a large proportuon of individuals particaprte to reprenet the community compulsory voting may result in people casting uninformed votes and not truly representing the peoples views mp feel compelled to vote witht ehir political party rather than in line with the views of the people

Answer 14

Government must represent those views of the people, or they risk being voted out at the next election. S7 establishes that members of the Senate shall be selected for 6 years and must be directly chosen by the people. s24 establishes that members of the House of Representatives must be directly chosen by the people s28- establishes that members of the House of Representatives will be chosen for 3 years

Answer 15

Parliament cannot legislate to remove election- they are required by the Constitution. The High Court has interpreted the meaning of directly chosen by the people to show that a substantial majority of the population must vote in an election

Answer 16

(+) The High Court can declare a law, or part of a law, invalid if it breaches the principle of representative government and has been made beyond the law-making powers of parliament (-) The High Court can only interpret the Constitution and declare a law, or part of a law, invalid for breaching the principle of representative government if a case is brought before it. (+) The High Court is an independent judiciary, meaning it is not subject to the influence of other branches of government. This independence enables the Court to impartially interpret the Constitution (-) The High Court can only protect the principle of representative government relevant to the facts of the case before it. Therefore, the High Court cannot create laws to further protect representative government outside the case. (+) When interpreting the Australian Constitution, the High Court may recognise implied rights, such as the right to freedom of political communication, which is fundamental to upholding the principle of representative government (-) As the cost and time associated with bringing a case to the High Court are significant, this decreases the number of cases initiated in the High Court. Thus, the Court’s ability to act as a check on parliament in law-making is limited.

Answer 17

In 2006, the Commonwealth amended the Commonwealth Electoral Act 1918 (Cth) to ban all prisoners from voting in Commonwealth elections. Before this new law was passed, the law prevented those serving a prison term over three years from voting. At the time the legislation was passed, Roach was serving a six-year prison term.

Answer 18

Roach challenged the validity of the law, arguing the Australian Constitution guaranteed her the right to vote under ss 7 and 24 of the Constitution.

Answer 19

The High Court held that a complete ban on all prisoners from voting was unconstitutional as it was inconsistent with the protection of the representative government principle under ss 7 and 24 of the Constitution. The government must be chosen by the substantial majority of the population and thus, the right to vote could only be removed for a significant reason. Furthermore, the Court found that a person who is imprisoned is still a member of the community and usually maintains an interest in how society is governed, so removing the ability to vote can only be done in serious cases.

Answer 20

As a result of the decision, Roach did not regain the right to vote as she was serving a prison term longer than three years. However, prisoners serving shorter prison terms of three years or less, and those on remand, had their ability to vote reinstated. The Commonwealth retained the ability to pass laws about who may vote. However, this decision is significant as the interpretation of ss 7 and 24 restricted the Commonwealth’s ability to pass laws regarding who may vote.

Answer 21

(+) The High Court can declare a law, or part of a law, invalid if it breaches the principle of representative government and has been made beyond the law-making powers of parliament (-) The High Court can only interpret the Constitution and declare a law, or part of a law, invalid for breaching the principle of representative government if a case is brought before it. (+) The High Court is an independent judiciary, meaning it is not subject to the influence of other branches of government. This independence enables the Court to impartially interpret the Constitution (-) The High Court can only protect the principle of representative government relevant to the facts of the case before it. Therefore, the High Court cannot create laws to further protect representative government outside the case. (+) When interpreting the Australian Constitution, the High Court may recognise implied rights, such as the right to freedom of political communication, which is fundamental to upholding the principle of representative government (-) As the cost and time associated with bringing a case to the High Court are significant, this decreases the number of cases initiated in the High Court. Thus, the Court’s ability to act as a check on parliament in law-making is limited.

Answer 22

The splitting of legislative, executive, judicial power to separate bodies. Legislative power- the power to make laws Executive power- the power to administer the laws and manage the business of Government but in practise carried out by the PM. Judicial power- the power to settle disputes arising under the law. Section 1- Legislative power. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. Section 61- Section 61 says that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General. Section 71- The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia

Answer 23

To prevent power from being concentrated in one body, and helps protect indiviual rights by providing checks and balances on the law making powers of the Commonwealth Parlimant.

Answer 24

The separation of powers ensures there is a constitutional check and balance that minimises the possibility of an abuse of powers. * The independence of the judiciary ensures legal matters can be determined without the influence of external factors, s , judges are appointed by the executive. Consequently, the composition of the judiciary may be somewhat influenced by the political motivations and values of the executive of the dayIn practice, legislative and executive powers overlap and operate together, which can limit the ability of parliament to act as a check on itself internally.

Answer 25

Rights explicitly written in to the Constitution. These rights are entrenched because they cannot be changed or removed without following the referendum process.

Answer 26

The Parliament is restricted from making any law that breaches one of these express rights Any legislation that breaches these express rights will be declared invalid by the High Court.

Answer 27

section 51 (xxxi) The Commonwealth must pay fair and reasonable compensation for property that is compulsorily acquired

Answer 28

section 80 There must be a trial hy jury for indicatbale commonwealth offences undet the crimnal law

Answer 29

section 92 prevents Parliament from treating interstate trade any differently from trade within a state. Provides freedom of movement between states

Answer 30

section 116 the ‘Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.

Answer 31

section 117 it is unlawful fir state and the commonwealth governments to discriminate against someone on the basis of the state in which a person resideseva

Answer 32

Express rights are enshrined in the Constitution and can only be modified or removed through a referendum, meaning they cannot be changed by parliament alone - Express rights are fully enforceable by the High Court There is no mechanism preventing parliament from passing laws that are constitutionally invalid or breach the express rights in the first place. Given a referendum is required to add new express rights to the Constitution, it is unlikely more rights will be introduced to further limit parliament’s law-making powers, as referendums are very costly and time-consuming.

Answer 33

Statutory interpretation occurs when the courts interpret and apply legislation to the case presented before them.

Answer 34

the specific meaning of words - deing v tarola 1993 the changing nature of words - Attorney-General (Cth) v Kevin and Jennifer [2003] unforeseen circumstances. - R v Brislan 1935

Answer 35

Judges may be required to interpret the specific meaning of words or phrases to identify the scope of the statute and determine whether it extends to certain areas. Where words or phrases are not defined in the legislation, the court may add meaning to the words and phrases of the Act through their interpretation.

Answer 36

As society progresses, the meaning of words and how they are used reflects these changes. Judges may interpret the meaning of words to align with society’s values.

Answer 37

Laws are drafted with the intention to cover future legal issues. There are many instances where legislative drafters have not taken into account all possible circumstances where the statute could apply. The court must interpret the legislation and apply it to unforeseen circumstances that were not anticipated by parliamentarians when drafting legislation

Answer 38

the creation of precedent deing v tarola 1993 * broadening the operation of a statute/ narrowing the operation of a statute - Carr v State of Western Australia [2007] * prompting legislative change. - mabo v queensland 1992

Answer 39

Judges’ interpretation of statutes establishes a precedent for the cases that follow. This creates consistency between cases with similar facts and ensures they are treated the same before the law

Answer 40

When the courts interpret laws, they can broaden the meaning of legislation, thereby expanding its scope. This can result in the statute applying more frequently

Answer 41

Parliament may amend legislation in response to statutory interpretation

Answer 42

a rule in which judges must follow the reasons for decisions given by superior courts in the same court hierarchy when deciding a case before them with similar facts. - Donoghue v Stevenson [1932]

Answer 43

Binding precedent is a previous court decision that lower courts within the same court hierarchy are obligated to abide by when the facts of a case are similar

Answer 44

Persuasive precedent refers to decisions that are not binding, but can be used as a tool to help judges determine an outcome for the case before them

Answer 45

Overruling a precedent occurs when a superior court invalidates a previous decision made by a lower court by setting a new precedent in a new case with similar facts. Courts can also overrule their own past decisions.

Answer 46

an act whereby a lower court avoids applying a precedent by demonstrating that the case before it has different material facts to the case in which the precedent was established

Answer 47

Disapproving a precedent an act whereby a lower court expresses its disapproval of a precedent established by a higher court through its written judgment, but is still bound to follow it.

Answer 48

strength - If no statute or common law exists, or it is not clear how the law should be applied to the case before them, judges are able to create a precedent, thereby developing the law. Judges on the same hierarchical level or from superior courts can overrule or reverse a decision made by lower courts in the hierarchy weakness In civil disputes, judges must wait for an individual with standing to bring a civil case to court before they can establish a new law. Even if judges are in a position to change the law, some may be hesitant or unwilling to do so.

Answer 49

Judicial conservatism a judicial approach where a judge is reluctant to develop new law as they feel it is the role of parliament, as the elected representative body, to do so.

Answer 50

Strength Judicial conservatism prevents the creation of controversial laws as judges do not base their decisions on their own political views and opinions. Judicial conservatism means courts will not make radical and controversial changes in the law, reducing the likelihood of appeals being made on a question of law, whereby the precedent may be reversed. weakness - Judicial conservatism may result in judges in superior courts applying outdated precedents rather than creating new ones,

Answer 51

State Government Insurance Commission v Trigwell [1979]

Answer 52

Judicial activism a judicial approach where a judge takes into account numerous social and political factors when interpreting the law and deciding cases. mabo v queensland 1992

Answer 53

strengths Judges can develop laws that put pressure on parliament to make legislative changes. * As the High Court is not bound by any previous decisions, judges in this court are able to engage in judicial activism and radically change the law weakness Courts must still wait for a relevant case before actively changing the law. * Judges are not elected by the wider community meaning that the common law created may not actually reflect the views and values of the majority.

Answer 54

The costs involved in bringing a case to court can be a significant burden for many parties. Some of the costs involved in pursuing a matter through the courts can include: * fees for legal representation, such as paying a solicitor and a barrister * court fees to commence and progress a court proceeding, such as court filing fees * jury fees if one or both of the parties request one * some or all of the other parties’ fees, depending on the outcome of the case.

Answer 55

strength Judges often give directions to parties, such as limiting the number of witnesses or topics that they may be questioned about, with the aim of reducing the costs associated with a trial. weakness The eligibility criteria for VLA is strict for civil cases, as it is generally limited to criminal matters and is not an exhaustive resource The reluctance of parties to pursue a matter through the courts, due to the high costs,

Answer 56

Pursuing a claim in court can be very time-consuming. There is a significant backlog of cases in the justice system, which means individuals may have to wait months, or even years, to have a matter heard before the courts.

Answer 57

strength Judges will often give directions to parties, such as limiting the number of witnesses or topics they are questioned on, with the aim of reducing the length of a trial. weakness The reluctance of parties to pursue a matter through the courts due to the time it takes for a case to be resolved means there are fewer opportunities for judges to develop common law. C

Answer 58

Standing the requirement that, in order to bring a case to court, an individual or group must be affected by, or have a special interest in, the issues involved in the case. - Kinglake Friends of Forest Inc. v VicForests

Answer 59

the requirement for standing reduces the number of frivolous claims being made in court by individuals who merely have a general interest in the matters involved in a case weakness - The requirement for standing limits the ability of individuals with a general interest to change the law as they will be unable to pursue the matter through the courts

Answer 60

Parliamentary supremacy refers to the fact that parliament is the superior law-making body, meaning it can make and alter any law within its constitutional power. For example, parliament can override the laws of other law-making bodies, such as the courts.

Answer 61

When handing down their final judgment, judges and magistrates may make remarks in obiter dictum, which often involves sharing an opinion on the current state of the law that applied to the case. These comments have proven to be influential on parliament as their aim is to create laws that suit the conditions of current-day society and improve the justice system for the better.

Answer 62

Codification the process of parliament confirming common law precedent by enacting legislation to give effect to the legal principles

Answer 63

Abrogation the process of parliament overruling common law by creating a statute contrary to a decision of the courts.