VCE Legal Studies Unit 4, Area of Study 1 Practice Flashcards

These flashcards cover the key principles of VCE Legal Studies Unit 4, AOS 1, including the division of powers, constitutional checks, the doctrine of precedent, and the relationship between parliament and courts.

What is the meaning of the term Bicameral?

A law-making institution made up of two houses or chambers plus the Crown.

Identify the two houses of the Commonwealth Parliament.

The House of Representatives (the lower house) and the Senate (the upper house).

Identify the two houses of the Victorian Parliament and specify their respective number of members.

The Legislative Assembly (88 members) and the Legislative Council (40 members).

What is the specific role of the Crown in the law-making process?

The Crown grants Royal Assent, which is the formal approval required to turn a bill into an Act of Parliament.

Under the Constitution Act 1975 (Vic), what is the restriction on the Victorian Legislative Council regarding money bills?

The Legislative Council can suggest amendments but cannot block supply; this is a constitutional restriction, not a mere convention.

Contrast a 'rubber stamp' upper house with a 'hostile' upper house.

A 'rubber stamp' occurs when the government holds a majority in the upper house, leading to fast law-making but weak review. A 'hostile' upper house occurs when the government lacks a majority, leading to rigorous scrutiny but potential obstruction of the government's mandate.

Define Exclusive Powers and provide one constitutional example.

Powers that only the Commonwealth can exercise, such as currency (Section 51(xii)), customs and excise duties (Section 90), or defence (Section 51(vi)).

Define Concurrent Powers and provide one constitutional example.

Powers that both the Commonwealth and the states can exercise, such as taxation (Section 51(ii)) or marriage (Section 51(xxi)).

Define Residual Powers and identify which section of the Constitution preserves them.

Powers not listed in the Constitution that were kept by the states (e.g., criminal law, education). They are preserved by Section 107.

State the wording of Section 109 of the Australian Constitution.

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.

What was the significance of McBain v State of Victoria (2000)?

It applied Section 109 to show that a Victorian law restricting IVF to married/de facto couples was inconsistent with the Commonwealth Sex Discrimination Act 1984; the state restriction became inoperable to the extent of the inconsistency.

Explain the outcome and significance of R v Brislan; Ex parte Williams (1935).

The High Court ruled that wireless broadcasting fell under the Section 51(v) power of 'postal, telegraphic, telephonic, and other like services,' confirming that a residual area (broadcasting) could shift into concurrent power through broad interpretation.

What was the landmark significance of Commonwealth v Tasmania (1983)?

It established that the Commonwealth could use the external affairs power (Section 51(xxix)) to legislate in residual areas, such as environment/dams, if it is implementing obligations under a bona fide international treaty.

Identify the three factors affecting parliament's ability to make law (B-I-R).

Bicameral structure, international pressures, and the representative nature of parliament.

In Roach v Electoral Commissioner (2007), what threshold did the High Court set for limiting the right to vote?

The government must provide a 'substantial reason' for limiting the franchise, rather than just a rational basis.

Name the two cases associated with the implied freedom of political communication and their roles.

Lange v Australian Broadcasting Corporation (1997) established the freedom; McCloy v New South Wales (2015) reformulated it into a three-stage proportionality test.

Define the Separation of Powers and specify which arm is strictly separated at the Commonwealth level.

The division of government into the legislature, executive, and judiciary. Only the judicial power is strictly separated at the Commonwealth level (via Chapter III of the Constitution and the Boilermakers' case).

List the five express rights protected by the Australian Constitution.

Freedom of religion (Section 116), free interstate trade and commerce (Section 92), acquisition of property on just terms (Section 51(xxxi)), trial by jury for indictable Commonwealth offences (Section 80), and non-discrimination based on state of residence (Section 117).

Explain the significance of the DOGS case (1981) regarding Section 116.

The High Court read Section 116 narrowly, ruling that Commonwealth funding of church schools did not amount to 'establishing' a state religion.

What did the High Court decide in JT International v Commonwealth (2012) regarding property rights?

It ruled that plain packaging laws did not constitute an 'acquisition' of property under Section 51(xxxi) because the Commonwealth did not gain a proprietary benefit.

Explain the ruling in Deing v Tarola (1993) concerning statutory interpretation.

The court narrowed the definition of a 'regulated weapon' to mean something not in common use for any other purpose, ruling that a studded leather belt used to hold up pants was not a weapon.

Define ratio decidendi and obiter dicta.

Ratio decidendi is the legal reasoning for a decision that forms binding precedent; obiter dicta are remarks made by the way that are persuasive but not binding.

Differentiate between Reversing and Overruling in the doctrine of precedent.

Reversing occurs when a superior court overturns a lower court's decision in the same case on appeal; Overruling occurs when a superior court declares an earlier precedent in a different case was wrongly decided.

What is the significance of Mabo v Queensland (No 2) (1992) as an example of judicial activism?

The High Court overruled the doctrine of terra nullius and recognised native title, making a dramatic change to the common law to address contemporary justice.

Define Standing (locus standi) and name the relevant case.

The requirement that a party bringing a case must be directly affected by the matter. In Re McBain (2002), the Catholic Bishops lacked standing to challenge an IVF ruling.

Define Abrogation and provide a contemporary example from the notes.

When parliament passes legislation to cancel or override a common law decision. Example: The Victorian Parliament abolished the common law offence of outraging public decency (Section 195J of the Crimes Act) following the Eastern Freeway incident.

Define Codification and provide the example mentioned in the text.

When parliament writes common law principles into statute to clarify or confirm them. Example: The Native Title Act 1993 (Cth) codified the principles from the Mabo case.

Identify the four features of the relationship between courts and parliament (S-I-C-A).

Supremacy of parliament, Influence of courts on parliament, Codification, and Abrogation.