Legal studies Part A revision

Constitutional monarchy 

a system of government where a monarch is the head of state, but their powers are limited by a constitution and laws.

Federal system of government 

a form of government where power is divided and shared between a central (or national) government and regional (state or provincial) governments, with each level possessing its own distinct powers and responsibilities defined by a written constitution. 

The Australian Constitution and it's functions 

Its main functions are to establish a federal system with a separation of powers between the legislature, executive, and judiciary; grant the Parliament the power to make laws on specific matters; and provide a legal framework for the functioning of government and the High Court, which interprets the Constitution.  

S128 of the Constitution and the process to change the Constitution 

requires a proposed law to be passed by an absolute majority of both houses of Parliament before being put to a national referendum. 

The Voice referendum 

The Voice referendum was a 2023 Australian national vote on whether to alter the Constitution to establish an Aboriginal and Torres Strait Islander Voice to Parliament. The Voice would have been an advisory body to provide advice to the Parliament and the Executive Government on policies relating to Aboriginal and Torres Strait Islander peoples. The proposal was to recognize Indigenous peoples in the Constitution, but the referendum did not pass.  

Exclusive powers 

are law-making and governing authorities that are granted solely to the national or federal government, and which the state or local governments cannot legislate on. Examples include making laws about national defence, immigration, currency, and foreign affairs. 

Concurrent Powers 

legislative powers shared by two or more levels of government, such as federal and state governments. This means that both the federal and state parliaments can make laws on the same subject, like taxation or marriage.  

Residual Powers 

law-making powers that are not explicitly given to a national government by a constitution, and therefore remain with the sub-national entities, such as states or provinces. 

Separation of powers 

The principle that the powers of government, legislative, executive, and judicial as they should be held by separate institutions or bodies. This prevents any single branch from becoming too powerful and provides a system of checks and balances. 

Legislative

Legislative power in the Commonwealth refers to the authority to make and pass laws, which is granted to the Parliament. This power is exercised by both the House of Representatives and the Senate, with the Governor-General representing the King and formally assenting to laws. The Parliament also plays a crucial role in approving government spending and taxation, scrutinizing the actions of the Executive Government, and providing a platform for public policy debate. 

Judicial

The Constitution vests the judicial power of the Commonwealth—the power to interpret laws and to judge whether they apply in individual cases—in the High Court and other federal courts. The High Court is established by the Constitution. Other federal courts are created by legislation of the Parliament. Judges are appointed by the Governor-General acting on the advice of the Prime Minister and Cabinet. Judges can only be removed from office by the Governor-General following a request for the removal from both Houses of Parliament on the ground of proved misbehaviour or incapacity 

Prime Minister 

The Prime Minister is the head of the government. He or she achieves this position by being the elected leader of the party in government (in the case of a coalition government, the major party). 

Governor General 

The Governor-General performs the ceremonial functions of head of state on behalf of the King. While Executive Government powers are exercised by the Governor-General or in his or her name, such actions are carried out as advised by the Prime Minister and Ministers. 

King

In Australia the powers of the King have been delegated by the Australian Constitution to her representative in Australia, the Governor-General. That is, while Australia’s head of state is the King, the functions of head of state are performed by the Governor-General. The King’s only necessary constitutional function is to appoint the Governor-General, and in doing this the King acts as advised by the Australian Prime Minister. 

Importance of judicial independence 

Judicial independence means that judges and courts make decisions free from influence or pressure by the government, politicians, or any outside groups. It ensures that justice is based only on the law and evidence, not personal or political interests. 

Role of the High Court  

The High Court of Australia is the highest court in the country. Its main role is to interpret the Constitution and decide what it means in different situations. It also hears appeals from lower courts, making it the final authority on legal decisions. In addition, the High Court settles important disputes, such as disagreements between the state and federal governments. Overall, it makes the final decisions on major legal and constitutional issues in Australia. 

Responsible government 

Responsible government is a political principle where the executive government (Prime Minister/Premier and Ministers/Cabinet) must be accountable to the Parliament, and specifically maintain the confidence of the majority of members in the lower house to remain in office.  

Role of Governor-General 

The Governor-General is the King's representative in Australia and acts as Australia's de facto Head of State in a constitutional monarchy and parliamentary democracy. Their role is primarily to ensure stable government in accordance with the Constitution and established conventions, rather than exercising political power independently.  

Democratic system 

A democratic system is a type of government where power comes from the people. Citizens choose their leaders through free and fair elections, and those leaders can be voted out if they don’t do a good job. Everyone is protected by the law, including the government itself, which helps prevent anyone from having too much control. People also have important rights and freedoms, like being able to speak their mind, practise their religion and take part in protests. In a democracy, representatives are elected to make decisions for the community, and they must explain their actions and answer to the public. Overall, democracy is designed to make sure the government serves the people and respects their freedom. 

Representative government 

A representative government is a system where citizens elect individuals to make decisions and create laws on their behalf. Instead of voting on every issue themselves, the elected representatives speak for the community and are expected to act in the best interest of those who elected them. These representatives can be questioned and held responsible for their decisions, and if they stop representing the community properly, voters can replace them in the next election. This kind of government helps large countries run smoothly while still giving citizens a voice in how their society is governed.  

Compulsory voting 

Compulsory voting is a system where eligible citizens are legally required to vote in elections. The idea is that since the government makes decisions that affect everyone, everyone should take part in choosing who runs the country. In places like Australia, voters must enrol and attend a polling place on election day, and if they don’t, they may receive a fine. Compulsory voting aims to make elections fairer by ensuring the results represent the whole population, not just the people who feel like voting. 

2. Explain the concept of responsible government. 

Responsible government is a political principle where the executive government (Prime Minister/Premier and Ministers/Cabinet) must be accountable to the Parliament, and specifically maintain the confidence of the majority of members in the lower house to remain in office.  

3.Explain the concept of representative  government. 

A representative government is a system where citizens elect people to make decisions and create laws on their behalf. Instead of everyone voting on every issue, the elected representatives speak for the community and are expected to act in the best interest of the people who chose them. These representatives can be questioned and held accountable for the choices they make, and if they stop representing the community properly, voters can replace them in the next election. This type of government helps large countries run smoothly while still giving citizens a voice in how their society is governed. 

4. Explain the division of powers under the Constitution. Use examples to explain the importance of s51 and s109. 

The Constitution divides powers between the Commonwealth and the states. Section 51 is a laundry list of powers for which Commonwealth may make legislation. Many of the powers are concurrent powers (marriage, taxation) whereby Commonwealth and states may legislate. However, whereby Commonwealth makes legislation on the same issue as the states and there is an inconsistent law, Section 109 states that the law of the Commonwealth shall prevail in the face of an inconsistent state statute. Thus, laws will be consistent and prevail across the nation; however, there is the assertion that states will have power over residual powers (health, education). Thus, Sections 51 and 109 work together to ensure a federal system of government. 

5. Explain Australia’s separation of powers  

The principle that the powers of government, legislative, executive, and judicial as they should be held by separate institutions or bodies. This prevents any single branch from becoming too powerful and provides a system of checks and balances. 
Australia: The Parliament (Legislative) makes laws, the Executive (Prime Minister and Cabinet) enforces them, and the High Court (Judicial) interprets and applies them. These branches are independent from each other, ensuring no one branch can dominate the government. 

6. Explain the importance of judicial independence under the Constitution.  

Judicial independence means that judges and courts make decisions free from influence or pressure by the government, politicians, or any outside groups. It ensures that justice is based only on the law and evidence, not personal or political interests. If a government minister is accused of corruption, an independent judiciary can fairly try the case without being pressured by the government to rule in the minister’s favour. This shows the court is acting independently and upholding justice. 

7. Explain the role of the Governor-General in ensuring responsible government 

The Governor-General performs the ceremonial functions of head of state on behalf of the King. While Executive Government powers are exercised by the Governor-General or in his or her name, such actions are carried out as advised by the Prime Minister and Ministers. 

8. Explain the role of the High Court using case examples from our unit of study such as the Tasmanian Dam case and an appeal case such as Baden-Clay. 

The High Court of Australia sits atop the hierarchy of courts in Australia and has as its major functions the interpretation of the Constitution, resolving disputes on law-making powers, and delivering final decisions on appeals. Its constitutional role was illustrated in the Tasmanian Dam case-the Court held that the Commonwealth could use its external affairs power to prevent a state from continuing a dam project. The decision indicated how the High Court may redefine the balance of power between state and federal governments. It also serves as the final appeals court on criminal and civil matters. An example is an appeal against a downgraded manslaughter verdict by Baden-Clay, where the High Court reinstated the murder conviction on the grounds that the lower court incorrectly applied the evidence. These cases illustrate how the High Court shapes constitutional boundaries and ensures justice is consistently applied across Australia.