AOS 3 The People and the Law Makers

    Cards (61)

    • Representative democracy: political government carried out by elected representatives of the people
    • House of Representatives
      • lower house
      • 151 members
      • members are voted in to represent the people and reflect the majority of views
      • determines government
      • initiates bills
    • Senate
      • upper house
      • 76 senators
      • ensures all states are equally represented according to their electorates
      • acts as house of review
      • scrutinse and debate bills passed from lower house
    • Legislative Assembly
      • lower house
      • determines government
      • initiates legislation
    • Legislative Council
      • upper house
      • house of review
      • debate and scrutinise
      • represents regions of victoria
    • Crown
      • Governer-General
      • Governer
      • dissolve parliament
      • appoint times for holding of parliament
      • grant/withhold royal assent
      • appoint executive council
    • Division of Law-Making Powers
      Exclusive
      • specifically listed in the constitution
      • only apply to the commonwealth
      • customs/excise, naval military, coining money, aliens
    • Division of Law-Making Powers
      Concurent
      • shared between the states and commonwealth
      • listed in Constitution
      • lighthouses, marriage, taxation, trade
    • Division of Law-Making Powers
      Residual
      • not listed in constitution
      • left at states after federation
      • education, health, PT, environment
    • Significance of Section 109
      When a law of the state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be deemed invalid.
      • only applies to concurrent powers
    • Strengths of Section 109
      • resolves inconsistencies of concurrent power between states and commonwealth
      • consistent approach to laws
      • restrictions on the state parliament
    • Limitations of Section 109
      • law needs to be challenged to come into effect
      • does not actually impact the law-making powers for state or commonwealth parliaments to make laws
    • High court has the power to interpret the constitution.
      • guardian of the constitution
      • binding on the states and commonwealth
    • Tas Dam case
      • Tasmanian parliament wanted to build a dam in the Franklin river under their residual powers of environment
      • The Franklin river was put as part of the world heritage sites
      • Commonwealth power under obligation to fufill international treaties under s51 (xxix) external affiars
      • Commonwealth was allowed to act in areas outside their law-making powers as part of external affairs in regards to fufill an international treaty
    • Parliament's ability in Law-Making: Bicameral Structure
      • two houses
      • s7 and s24
      • bills must pass through both houses being scrutinised and debated
    • Hostile senate
      government does not hold a majority in the upper house.
    • Rubber stamp
      majority of seats are held by the same party in the upper and lower house
    • Strengths of Bicameral Structure
      • bicameral structure allows for scrutiny even if one house is rubber stamp
      • no majority can stop parliament with one party from quickly altering or introducing laws that are not properly scrutinised or debated
    • Limitations of Bicameral Structure
      • rubber stamp can delay bills being passed by parliament
      • rubber stamp means bills are not properly debated and scrutinised, this can cause changes in laws too quickly
    • Parliament's ability in Law-Making: International pressures
      demands or forces applied to parliaments to persuade them to make/not make law to address matters of international concern.
    • Strengths of International Pressures
      • international organisations can spark interest that Australia fails to uphold. Puts pressure on parliament to create or amend laws to reflect international standards
    • Limitations of International Pressures
      • no ratification of an international treaty means Commonwealth has no legal obligation to comply with international expectations and standards
    • Parliament's ability in Law-Making: Representative Nature
      • AUS is a democracy
      • regular elections
      • reflects the community
      • s7 and s24
    • Strengths of Representative Nature
      • lower house is expected to be representative as they are voted in by the people
    • Limitations of Representative Nature
      • public elect parliament whose policies they agree with, no restriction in legislating in these areas
    • Means by which the Aus Constitution acts as a check on parliament in Law-Making: Role of High Court in Protecting principle of Rep Gov
      • s76 high court has the power to hear disputes arising in regards to the constitution
      • s7 and s24 senate and hors voted in by the people
      • high court often has to interpret what these sections mean
    • Roach v Electoral Commissioner
      • initially, legislation was made that banned any prisoner serving more than three years from voting.
      • this was changed to all prisoners
      • Roach challenged this legislation stating it had breached s7 and s24 (principle of representative government)
      • high court ruled that the legislation was in breach of this principle. The legislation was invalid and overturned
      • However, high court found it was a reasonable restriction to ban prisoners serving more than 3 years from voting
    • Strengths of High Court protecting principle of rep gov
      • high court can declare a law or part of a law is invalid if it breaches the principle of representative government
    • Limitations of High Court protecting principle of rep gov
      • high court can only interpret the constitution and declare a law invalid if a case is brought before it
    • Means by which the Aus Constitution acts as a check on parliament in Law-Making: Separation of Powers
      • constitution separates law-making responsibilities
      • legislative = parliament to make laws
      • executive = cabinet to administer laws
      • judiciary = courts to interpret and apply laws
    • Strengths of Separation of Powers
      • Legislative branch (parliament) elected by the people to represent their views and values
      • Executive branch (cabinet), parliament was ask questions and challenge decisions to keep executive accountable
      • Judiciary branch (courts) are separate, objective and impartial on interpreting and applying the laws
    • Limitations of Separation of Powers
      • Executive powers essentially control both legislative and executive branches
      • executive members are apart of parliament from the political party that has the majority of seats
      • judiciary is not elected by the people so decisions may not reflect community values
    • Means by which the Aus Constitution acts as a check on parliament in Law-Making: Express Rights
      • s92 = free interstate trade and commerce
      • s116 = right to freedom of religion
      • s117 = no discrimination based on state
      • s80 = right to trial for commonwealth indictable offense
      • s51 (xxxi) = acquisition of property on just terms
    • Strengths of Express Rights
      • entrenched in the constitution, meaning they can only be changed via referendum
      • high court can rule parliament legislation invalid (ultra vires) if it breaches an express right
    • Limitations of Express Rights
      • there are only 5 limited rights which are narrow in scope (s80 eg)
      • can only rule ultra vires if it is challenged by someone with standing
      • cannot prevent parliament from passing laws that impede these rights
    • Statutory Interpretation is interpreting the meaning of words in an act of parliament.
    • Reasons for Statutory interpretation
      • not taken into account future circumstances
      • inconsistent use of the same word in the act
      • not included new types of technology
      • legislation drafted in general terms
      • outdated
      • meaning of words may be ambiguous
      • meaning of words can change overtime
    • Effects of Statutory Interpretation
      • words in the act are given meaning
      • precedents set for future cases to follow
      • consistency and predictability
      • parliament can abrogate and codify law made by courts
      • extending the law by a broad interpretation of a statute
    • Precedents are new cases or decisions made by a court that then impacts other similar cases. (Ratio decidendi that other cases with similar or same material fact must follow)
    • Binding Precendent
      • established by superior courts that is binding on inferior courts in the same court hierarchy with similar or the same material facts
      • ratio decidendi = reason for the decision
      • stare decisis = to stand by what has been said
    See similar decks