Australian Legal System & Constitutional Law Lecture

Vocabulary flashcards covering key institutions, constitutional provisions, landmark cases, principles of parliamentary and judicial power, and mechanisms of Australian law-making.

House of Representatives

Lower house of Commonwealth Parliament where government is formed and money bills originate; 151 members.

Senate

Upper house of Commonwealth Parliament acting as a house of review; 76 members (12 per state, 2 per territory).

Crown (in Australian Parliament)

Monarch represented federally by the Governor-General and in states by Governors; performs ceremonial and reserve powers such as dissolving parliament.

Bill

A proposed law presented to parliament; becomes an Act once passed by both houses and given Royal Assent.

Act of Parliament

Legislation that has passed both houses and received Royal Assent, making it enforceable law.

Governor-General

Representative of the Crown at the Commonwealth level; appoints ministers, dissolves parliament, gives Royal Assent.

Legislative Assembly (Victoria)

Lower house of Victorian Parliament; 88 members; forms government and initiates most state legislation.

Legislative Council (Victoria)

Upper house of Victorian Parliament; 40 members; primarily reviews legislation and cannot initiate money bills.

Exclusive Powers

Law-making powers granted solely to the Commonwealth (e.g., defence, immigration, currency).

Concurrent Powers

Powers shared by Commonwealth and state parliaments (e.g., taxation, marriage); subject to s109 inconsistency rule.

Residual Powers

Areas of law left to the states at Federation and not listed in the Constitution (e.g., criminal law, education).

Section 109

Constitutional clause stating that federal law prevails over inconsistent state law to the extent of the inconsistency.

McBain v State of Victoria (2000)

Federal Court case where Victorian infertility law was struck down for conflicting with the Sex Discrimination Act under s109.

High Court of Australia

Highest court; interprets the Constitution; decisions are final and binding on all courts and parliaments.

Tasmanian Dam Case (Commonwealth v Tasmania 1983)

High Court upheld federal external affairs power to stop a state dam, expanding treaty-based legislation ability.

Bicameral Parliament

A legislature with two houses; both Commonwealth and Victorian parliaments are bicameral.

Private Member's Bill

Legislation introduced by a non-government MP; may become law if passed by both houses.

International Pressures

External influences (UN, NGOs) urging law reform; Australia, as a sovereign state, is not legally bound to comply.

Representative Government

Principle that parliament reflects the will of the people through regular elections (every ~3 years federally, 4 in Victoria).

Section 7 of the Constitution

Requires the Senate to be ‘directly chosen by the people,’ underpinning representative democracy.

Section 24 of the Constitution

Requires the House of Representatives to be ‘directly chosen by the people.’

Roach v Electoral Commissioner (2007)

High Court ruled blanket ban on prisoner voting invalid, affirming representative government under ss7 & 24.

Separation of Powers

Division of government powers into legislative, executive and judicial branches to prevent concentration of power.

Legislative Arm

Parliament; makes and amends laws (s1, s61).

Executive Arm

Governor-General and Cabinet; administers laws and government policy.

Judiciary Arm

Courts; interpret and apply laws, ensuring justice and constitutional compliance.

Rule of Law

Doctrine that everyone, including government, is subject to the law.

Express Rights (Australian Constitution)

Five explicitly protected rights: jury trial (s80), interstate trade (s92), state discrimination (s117), religion limits (s116), just terms (s51(xxxi)).

Right to Trial by Jury (Section 80)

Guarantees jury for Commonwealth indictable offences.

Freedom of Interstate Trade (Section 92)

Prohibits tariffs or restrictions on movement of goods among states.

Freedom from State Discrimination (Section 117)

Bars discrimination based on state residency.

Freedom of Religion Limitation (Section 116)

Prevents Commonwealth from establishing a religion or prohibiting free exercise of any religion.

Just Terms Compensation (Section 51(xxxi))

Requires Commonwealth to pay fair compensation when acquiring property.

Statutory Interpretation

Judicial process of clarifying and applying legislation’s meaning to cases.

Studded Belt Case (Deing v Tarola 1993)

Supreme Court ruled a studded belt is not a weapon when worn as clothing, illustrating statutory interpretation.

Doctrine of Precedent

System where past judicial decisions guide future cases with similar facts.

Ratio Decidendi

Legal reasoning for a decision; forms the binding element of precedent.

Binding Precedent

A prior decision that lower courts in the same hierarchy must follow in similar cases.

Persuasive Precedent

Non-binding decisions that may influence a court, such as from another jurisdiction.

Stare Decisis

Latin for ‘to stand by what has been decided’; underpins precedent.

Reversing (precedent)

Higher court overturns decision of same case on appeal, creating new precedent.

Overruling (precedent)

Higher court in different case sets new precedent, replacing earlier one.

Distinguishing (precedent)

Court avoids precedent by showing material factual differences.

Disapproving (precedent)

Lower court follows but formally criticises a binding precedent, signaling need for change.

Judicial Conservatism

Judicial philosophy favouring minimal court interference in law-making; defers to parliament.

Trigwell Case (State Government Insurance Commission v Trigwell 1979)

High Court upheld old rule absolving farmers of livestock liability, exemplifying conservatism.

Judicial Activism

Approach where judges consider social change and values, willing to develop law.

Mabo Case (Mabo v Queensland (No 2) 1992)

High Court recognised native title, overturning terra nullius and demonstrating activism.

Requirement for Standing

Only parties directly affected have the legal right to initiate court action.

Codification of Common Law

Parliament enacts legislation that incorporates and confirms judge-made principles.

Abrogation of Common Law

Parliament passes legislation to override or abolish existing common law rules.

Costs and Time in Litigation

High legal fees, court charges, and lengthy proceedings that may deter individuals from accessing courts.