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legal studies > UNIT 4 AOS 1 > Flashcards

UNIT 4 AOS 1 Flashcards

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1
Q

Bill:

A

proposal for a law introduced to parliament

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2
Q

Statute law:

A

law made by parliament that has received royal assent

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3
Q

ROLE OF COURTS: Judiciary

A

apply existing law to resolve disputes + hear cases

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4
Q

LAW REFORM:

A

process of changing the law
(keep pace with changes in living conditions to better protect the community)

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5
Q

Rule of law:

A

Everyone is bound by + must adhere to law

Laws should be such that people are willing to abide

Open and free criticism – upheld through media

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6
Q

House of representatives = (lower house)

A

150 members, leader = PM, opposition = shadow minister, “peoples house”

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7
Q

Role of the HOR:

A

Initiate + make laws, act as house of review, scrutinise government administration

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8
Q

CABINET

A

Role = direct government policy and make decisions about national issues.

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9
Q

Senate = (upper house)

A

76 members, “states house”

Government does not hold the majority in the upper house (hostile upper house)

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10
Q

Role of the senate:

A

Act as a house of review

Allow for equal representation of the states

Scrutinise bills + government administration

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11
Q

VICTORIAN PARLIAMENT:

A

Lower house, 88 electorates, leader of political party = Premier of VIC

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12
Q

LEGISLATIVE ASSEMBLY: [ROLE]

A

Initiate + pass bills, form Government, scrutinise government administration

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13
Q

LEGISLATIVE COUNCIL:

A

Upper house, 40 members, divided = 8 regions, 11 electoral districts

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14
Q

LEGISLATIVE COUNCIL: [ROLE]

A

Act as house of review, initiate + pass bills, scrutinise government administration

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15
Q

THE CROWN: (British Monarch)

A

One Governor-General – FEDERAL

Six Governors – STATE

Governor-General is appointed by the Crown on the advice of PM

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16
Q

THE CROWN: [ROLE]

A

Grant Royal Assent – approve bills before they become law

Withhold Royal Assent – power to refuse approval of a bill

Appoint the Executive Council

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17
Q

Role of the Executive Council:

A

Give advice to the Crown’s representative on matters

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18
Q

Law-making powers:

A

powers given to the parliament to make laws in certain areas

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19
Q

Parliament is a?

A

Supreme Law-Making Body

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20
Q

Division of law-making powers:

A

Residual powers
Concurrent powers
Exclusive powers

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21
Q

Residual powers

A

law-making powers left to the states (healthcare, transport)

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22
Q

Concurrent powers

A

law-making powers shared by the states + Commonwealth (marriage, taxation, trade)

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23
Q

Exclusive powers

A

law-making powers held by only Commonwealth (defence, currency)

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24
Q

SECTION 109:

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.

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25
ONE HIGH COURT CASE THAT HAS HAD AN IMPACT ON STATE AND COMMONWEALTH LAW-MAKING POWERS:
BRISLAN CASE: (Section 51)
26
BRISLAN CASE: (Section 51)
s. 51 (v) of the Constitution gives the Commonwealth power to legislate on postal, telegraphic, telephonic, and other like services The defendant (Brislan) was charged and fined for not having a license (£1) The High Court determined that wireless radios did fall under ‘other like services’ and therefore the Wireless Telegraphy Act remained valid.
27
TASMANIAN DAM CASE:
Tasmanian Government wanted to build a Dam which would flood a river and damage a national park which was on the World Heritage List Commonwealth tried to intervene by passing World Heritage Properties Conservation Act 1983 (Cth) TAS argued they didn't have a constitutional right to do so 4:3 majority of HC held that the CTH legitimately prevented construction of the dam, and that the World Heritage Act was authorised under "external affairs" power
28
Bicameralism:
a parliament or legislature that is made up of two separate houses or chambers
29
Hostile upper house:
Labour does not hold as many seats in the Senate
30
Rubber stamp upper house:
does hold a majority in both upper + lower house
31
INTERNATIONAL PRESSURES
Demands applied to parliaments to persuade them to make/not make laws to address matters of international concern (terrorist attacks, protests)
32
The representative nature of Parliament:
Men represent, females, first-nations are underrepresented in parliament
33
The means by which the Australian Constitution acts as a check on parliament in law-making:
"Ultra Vires" - nobody can hold ABSOLUTE power
34
The role of the high court in protecting the principle of representative government:
Existence of high court (Australian Constitution seeks to prevent misuse of law-making power) Established under section 71 of Constitution High court CANNOT change words, only what words mean (statutory interpretation)
35
SECTION 7
Senate should be composed by people electing them
36
SECTION 24
HOR should consist of members elected by the public
37
EXPRESS RIGHTS
The right to vote (Section 41) Protection against property acquisition on unjust terms (Section 51) The right to a jury trial (Section 80) Freedom of religion (Section 116) Protection against discrimination based on state residency (Section 117)
38
Strengths of express rights:
impose certain limits on parliament when making laws cannot be removed/amended without successful referendum high court is independent
39
Weakness of express rights:
Limited in scope Express rights have not increased since federation Does not prevent Commonwealth from passing law
40
Implied right:
freedom of political communication
41
Limitations on the ability of the high court to protect the principle of representative government:
High court can only intervene + protect the principle of representative government if someone with standing (locus standi) challenges the law (COST + LENGTHY)
42
Locus standi
requirement of standing (individual must be personally and directly affected by legislation in order to bring to the High Court)
43
Separation of powers:
Executive, legislative, judicial
44
Executive
power to administer laws (carried out by PM)
45
Legislative
power to make laws Cabinet in practice has power to administer laws + carry out business of government
46
Judicial
power to enforce laws
47
Purpose of Constitution:
ensures no body holds all control over functions of the political and legal system
48
Reasons for the separation of powers:
Prevents power from being concentrated in one body No body can make law, administer law, rule on its legality Government + parliament must work together to pass laws, independence of the judiciary must be preserved
49
THE VICTORIAN COURTS AND THE HIGH COURT IN LAW-MAKING:
Judges can make law when interpreting meanings of statute to resolve cases (common-law) Legal reasoning behind the judge's interpretation may set a legal principle (precedent) that can be followed in future similar cases (depending on superiority of courts)
50
Ratio decidendi
reason behind judge's decision
51
State decisis
to stand by what has been decided
52
Obiter dictum
by the way statement
53
Locus standi
legal standing
54
In futuro
in the future
55
Ex post facto
made by judges after the event
56
CODIFICATION
parliament passes a law to confirm a common-law decision
57
ABROGATION
parliament passes legislation to override the common-law decision
58
Reason for statutory interpretation:
To resolve problems that occur during the drafting process To resolve problems that occur when a court is applying the Act of Parliament to resolve a case
59
RESOLVING PROBLEMS THAT OCCUR DURING THE DRAFTING PROCESS:
The bill might have not taken future circumstances into account The intention of the bill might not have been clearly expressed Mistakes in the drafting of the bill
60
RESOLVING PROBLEMS THAT OCCUR DURING THE APPLICATION OF STATUTES
Most legislation is drafted in general terms The act may have become out of date and no longer reflect community views and values The meaning of the words may be ambiguous The act might be silent on an issue and the courts may need to fill the gaps in the legislation
61
THE EFFECTS OF STATUTORY INTERPRETATION
The words or phrases contained in the disputed legislation are given meaning The court’s decision on the meaning of the legislation is binding on the parties
62
FEATURES OF THE DOCTRINE PRECEDENT
A precedent is the reasoning behind the court’s decision It establishes a legal principle or rule which can be used by judges when deciding on future cases A decision made in the High Court on appeal is binding on courts in all states and territories
63
REASONS FOR PRECEDENT:
Like cases are decided in a like manner, enabling parties to gain an idea of their outcome Legal representatives can advise on the likely outcome of a case
64
KEY FEATURES OF THE DOCTRINE OF PRECEDENT
1) Binding precedent Ratio decedendi Stare decisis 2) Persuasive precedent Obiter dictum 3) Ways to develop and avoid precedent - Reversing - Overruling - Distinguishing - Disapproving
65
BINDING PRECEDENTS
been established in the superior courts and MUST be followed by lower courts in the same hierarchy when resolving disputes with similar material facts If a judge or magistrate is bound by an existing precedent, they are obliged to follow it, regardless of whether they agree with the legal reasoning behind it
66
RATIO DECIDENDI
The binding part of a court judgement It is not the decision itself, but the legal reasoning behind it
67
THE PRINCIPLE OF STARE DECISIS
Translates to ‘to stand by what has been decided’ This principle is another way of describing the process of lower courts following the reasons for the decisions of higher courts
68
PERSUASIVE PRECEDENTS
Persuasive precedents are precedents that are NOT binding on a court but may be considered and used to influence a judge’s decision It may be an important legal principle that is relevant to the case at hand
69
PERSUASIVE PRECEDENTS MAY BE:
Set by courts in another hierarchy Set by lower courts in the same hierarchy
70
OBITER DICTUM
Translates to ‘a thing said by the way’ It refers to comments made by the judge that are not part of the reason for the decision, but are still important and may be considered persuasive in future cases
71
FACTORS THAT AFFECT THE ABILITY OF COURTS TO MAKE LAW
1) THE DOCTRINE OF PRECEDENT 2) JUDICIAL CONSERVATISM AND JUDICIAL ACTIVISM 3) COST AND TIME OF BRINGING A CASE TO COURT 4) THE REQUIREMENT FOR STANDING
72
JUDICIAL CONSERVATISM:
Refers to the idea that courts should show restraint or caution when making decisions or rulings that could lead to significant changes in the law
73
JUDICIAL ACTIVISM:
The willingness of judges to consider a range of social and political factors, including community views and values and the rights of people, when interpreting the law and making decisions
74
COSTS AND TIME OF BRINGING A CASE TO COURT:
The cost of legal representation One benefit is that is deters people from launching trivial or frivolous claims Courts can make law relatively quickly once a dispute has been brought before them

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