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Legal Unit 4: AOS 1
| Question | Answer |
|---|---|
| Who is the crown and what is their role? | The crown is the governor at a state level and the governor general at a commonwealth level. Their role is to give royal assent to bills and act as a representative of the queen |
| What is the Senate and their role? | The upper house of the commonwealth parliament, their role is to initiate legislation, review legislation and act as a states house. |
| How effective is the senate? | As a house of review, the Senate is usually effective if it is a hostile senate, if it is a rubber stamp senate they are not as effective. As a states house they are largely inefficient as senators often vote according to political party rather than state |
| What is the House of Representatives and their role? | The lower house of the commonwealth parliament, roles include initiating legislation, specifically all legislation that imposes taxation or spends commonwealth revenue and representing people in law making (members should reflect majority in their area) |
| What is the Legislative Council and their role? | The upper house of the victorian parliament, initiating and reviewing legislation |
| What is the Legislative Assembly and their role? | Lower house of Victorian Parliament, role to initiate most new legislation, initiating all legislation related to taxation of government revenue, representing the people |
| What are Exclusive powers? | Powers granted to Commonwealth including customs and excise duties, control of armed forces and currency |
| What are Concurrent Powers? | Powers granted to both Commonwealth and State including issues such as marriage/divorce, taxation, banking, insurance etc. |
| What are Residual Powers? | Powers granted to the State including issues such as health, education, agriculture, police etc. |
| What does Section 109 of the Constitution state? | When a Law of the State is inconsistent with the law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency be invalid. |
| Who decides whether the State is invalid? | The High Court |
| Why is Section 109 important? | It provides a way of resolving inconsistencies between the state and commonwealth, as well as creating restrictions on the law-making powers of the state in areas of concurrent powers |
| How does the Bicameral Structure act as a check on law making powers? | The inclusion of a second house ensures all bills are reviewed and debated ensuring no law is altered dramatically without scrutiny, it also stops legislation from being passed to please majority voters at the expense of minorities |
| How does the Bicameral structure fall short as a check on law making? | One political party is still able to hold the majority seats, meaning legislation may be rushed through without debate |
| How does the separation of legislative, executive and powers act as a check on law making? | Ensures there is no abuse of power by bodies involved in the creation of laws, by splitting the power to make laws, the power to administer laws and the role of determining new laws breaching the constitution. Also cannot be changed without a referendum |
| Why are the Judicial Powers important? | Judges are independent from any political party, so they provide an unbiased look at new legislation. They also are well versed in the constitution and are effectively able to determine whether a law effects it in any way |
| Name 2 Express Protection Rights | 1. Section 51 (xxxi) Right to Just Terms if commonwealth seek to acquire property and 2. Section 92: right to free Interstate trade |
| How do the express protection rights limit parliamentary law making? | any laws breaching these rights are declared invalid by the high court and they cannot be amended/removed without a referendum |
| How do the express rights fall short as a check on law making? | There are few express rights with narrow operation, eg s.80 only refers to commonwealth indictable offences as most criminal laws are made in the state. Laws breaching an express right operate until it is challenged in the high court |
| How does the High court act as check on parliamentary law making? | Declaring legislation invalid if it is outside the jurisdiction of parliament and declaring legislation invalid that breaches the express rights implied rights |
| How does the High court call short as a check? | The court cannot be proactive, only declaring things invalid, and the challenging the validity is time consuming |
| What is a double majority? | A referendum vote that requires a majority of voters Australian wide to vote yes, as well as a majority of voters in the majority of states to vote yes. |
| How does a double majority act as a check on Law making? | Prevents the commonwealth parliament from changing the constitution without public majority. Double majority is so hard to achieve, so if there is a majority yes it displays the publics need for change |
| How does a double majority fall short? | Applies only to constitutional change and not any other law making power |
| What is the significance of the Roach v Electoral Commissioner (2007) case? | It demonstrates the significance of S. 7 +24. In the case Roach's team argued that the Commonwealth acted 'Ultra Vires' (Beyond Power) as members of the senate and HOR should be directly chosen by the people |
| What is the significance of the 1967 Referendum? | This referendum gave the commonwealth the ability to make national laws regarding aboriginal Australians, as it was state domain, changing powers from residual to concurrent. It was widely successful because 90% of the population agreed |
| How do the people have access to protect and change the constitution? | Section 128 gives Australian voters the power to veto changes to the constitutions through a yes/no vote, which is called a referendum. |
| What is WHPCA? | World Heritage Properties Conservation Act |
| What is UNESCO? | United Nations Environmental Science and Cultural Organisation |
| What is PWCNH? | Protection of World Cultural and National Heritage |
| What happened in the Commonwealth v Tasmania (1983) case? | Tasmania wanted to dam the franklin river, however the commonwealth intervened to prevent this in order to adhere to an international treaty (PWCNH), which they were empowered to do so by sections 6 and 9 of the WHPCA. |
| What did Tasmania seek from the high court? | a declaration that S. 6 and 9 were invalid because it was not within the Commonwealth's exclusive and concurrent powers. |
| What did the high court conclude? | That the 'external affairs' power in section 51 (xxix) gives the commonwealth the ability to pass laws that give effect to Australia's International obligations (such as upholding treaties) |
| What is the High Court's impact on the division of law-making powers? | The court cannot initiate a change in all division of powers, rather wait fro validity of legislation to be challenged. The high court cannot alter words, but their interpretation of words can change the powers of state and commonwealth |
| What is the difference between a Treaty and an International Declaration? | A treaty is an agreement between two or more countries that is legally binding when parliament passes legislation to give effect to it. An international declaration is a statement of principles that is not legally binding |
| How does the Tasmania V Commonwealth case relate to the external affairs powers? | It is an example of an international treaty being passed that has effected the subject matter of a state, resulting in the state challenging the WHPCA as invalid. |
| What is the relationship between the external affairs powers and international treaties? | The connection is ultimately founded upon the decisions by the high court that have established the power to pass laws giving effect to international treaty obligations as an external affairs power |
| What does the court's interpretation of External Affairs allow to happen? | allows the commonwealth to pass laws giving effect to treaties, if the resulting legislation enters a topic that is normally within the residual powers of the states, that is acceptable if the legislation accurately reflects the treaty. |
Created by:
fergus.12