Week 1 Important Flashcards
(19 cards)
How would you define the law?
A system of rules made by the state and enforceable by prosecution or litigation.
Why is the law often changing?
Political change, need to fix a problem, changing community values, pressure from lobby groups, changing technology.
In what ways does the law impact upon your personal life?
Various ways – e.g. contract law is buying a coffee in the morning, tort law governs driving or going to the doctor (avoiding being negligent), buying a house involves property law.
In what ways does the law impact upon business activities?
Paying tax, licencing, advertising, workplace health and safety.
What is the difference between public law and private law?
Public law concerns the relationship between the citizen and the state e.g. taxation law, criminal law.
Private law concerns the relationship between individuals e.g. contract law and tort law.
Which category or categories of law would be the most relevant in each of the following situations?
a. The Federal Parliament has passed legislation establishing new industrial relations regime. The Queensland government claims that the Federal Parliament does not have authority to pass such a law.
Constitutional law
b. A journalist has written a news story that contains defamatory allegations about Ash that are not true.
Tort law - defamation
c. The Department of Transport has refused to grant Johnny’s mother a driver’s licence. Johnny’s mother believes that the decision maker was biased.
Administrative law.
d. Ash has been charged with shoplifting.
Criminal Law.
e. One of Johnny’s competitors is using a logo that looks substantially similar to Johnny’s logo
Copyright law.
f. In breach of a written agreement, one of Johnny’s suppliers has failed to deliver important supplies to his restaurant on the agreed date.
Contract Law.
The Australian Constitution gives the Australian government full power to make any laws it wants. Discuss this statement.
The Commonwealth Parliament does not have the power to make any laws it wants. It may only make laws for which it is authorised under the Constitution. These are the exclusive powers (eg over defence, customs and money) and the heads of power listed in s 51 of the Constitution (there are 40 heads of power). Most of the s 51 heads of power are also concurrent powers in that the States may also enact law in those areas. However, if there is an inconsistency between Commonwealth and State law, Commonwealth law will prevail: s 109 of the Constitution. Interestingly, the High Court has given a broad interpretation to the external affairs head of power – s 51(xxix) – and this has meant that Federal law has prevailed over State law where the Commonwealth has enacted local law to give effect to international treaties that it has signed, eg Koowarta v Bjelke-Petersen and Commonwealth v Tasmania (the Tasmanian Dam case).
Which government (State or Federal) can pass legislation in respect of the following matters? (a) Education:
This is a State power but the Federal government exercises a huge influence through use of its grants power (s 96 of the Constitution).
(b) Trade and commerce:
Interstate and international trade and commerce is a federal head of power (s 51(i) of the Constitution), but it is not exclusive to the Federal Parliament.
Since Victoria can pass any laws for the peace, order and good government of Victoria (with the exception of the exclusive powers of the Commonwealth), it may pass laws on intrastate trade and commerce.
If there is a clash between a legitimate State and legitimate Federal law, the federal law prevails: s 109 of the Constitution.
(c) The Royal Australian Air Force:
This is covered by the defence power: s 51(vi) of the Constitution. This is an exclusive federal power: s 114 of the Constitution.
(d) Taxation:
Both Federal (s 51(ii) of the Constitution) and State governments can tax but the Federal government dominates income tax and has exclusive power over customs and excise (s 90 of the Constitution). During World War 2, all State governments referred their income tax powers to the Federal government to aid in the war effort.
(e) Customs and excise:
Exclusive to the Federal Parliament: s 90 of the Constitution.
(f) Environmental Issues:
The environment is a State power only. In general, with the exception of fisheries and quarantine, the Federal government has no constitutional powers regarding the environment. However, the Federal Parliament can exercise great influence through the use of powers such as:
- Trade and commerce (s 51(i) of the Constitution)
- Corporations power (s 51(xx) of the Constitution)
- External Affairs (s 51 (xxix) of the Constitution): the Tasmanian Dam case
- Taxation (s 51(ii) of the Constitution).
- What are the three levels of government in Australia?
Local council, state government and federal government.
