Free QCE Legal Studies Flashcard Review

Section 51 sets out the enumerated heads of power on which the Federal Parliament (the Commonwealth) may legislate — for example taxation, external affairs, defence, bankruptcy, patents and copyrights, interstate trade and commerce, and marriage. These are predominantly concurrent powers: both the Commonwealth and the states may legislate on them, and where a valid Commonwealth law is inconsistent with a state law, s 109 renders the state law inoperative to the extent of the inconsistency. Only heads accompanied by an express prohibition on the states (e.g. defence read with the customs/excise prohibition in s 90) operate as exclusive Commonwealth powers. If the Commonwealth legislates beyond its s 51 heads of power, that law is invalid.

Section 109 provides that if state and Commonwealth laws are inconsistent, the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency. This maintains federal supremacy. Inconsistency occurs when: (1) both laws cannot operate simultaneously, or (2) a state law directly contradicts a Commonwealth law's purpose. S109 reinforces the hierarchy of laws in Australia's federal system.

Section 128 referendum procedure requires: (1) both houses of Parliament pass an alteration bill, OR a constitutional convention votes to propose alteration; (2) the Governor-General calls a referendum; (3) a majority of voters nationally AND a majority of voters in a majority of states (4 of 6) must approve. This dual majority protects state interests. Amendments protecting state powers need even stronger support (s128 'entrenched' provisions).

Separation of powers is the constitutional principle that divides government into three branches: (1) legislative (Parliament makes laws), (2) executive (Governor-General/Ministers administer laws), (3) judicial (courts interpret and apply laws). Each branch has distinct roles and checks on others' power. Australia's system is a 'separated but linked' model where the executive sits within Parliament, unlike the strict US separation.

Parliamentary sovereignty is the principle that Parliament is the supreme lawmaking authority. Parliament can make, repeal, or amend any law; no Parliament can bind its successors; courts cannot override valid legislation; Parliament cannot be overruled by any other body. In Australia, this is limited by: the Constitution, federalism (Commonwealth/state divisions), and increasingly, international law obligations and human rights frameworks.

Representative government means citizens exercise political power through elected representatives rather than direct participation. Citizens vote for MPs who make laws and policy on their behalf. Queensland's Legislative Assembly (unicameral) has 93 members elected from single-member electorates using preferential voting. Representatives are accountable to constituents via elections every 3 years and are expected to reflect community interests.

Responsible government is the principle that the executive (Premier and Ministers) must have the confidence (majority support) of the legislature (Parliament). If government loses majority support, it must resign or call an election. This ensures executive accountability to Parliament. In Queensland, the Premier and Cabinet are members of Parliament and answerable for their policies and actions to the Legislative Assembly.

The Governor-General represents the British monarchy as Head of State for the Commonwealth. Key roles: (1) formal executive authority (acts on PM advice), (2) Royal Assent to legislation, (3) commissions senior appointments, (4) commander-in-chief of armed forces, (5) reserve power to dismiss government (exceptionally, if it loses confidence). The role is largely ceremonial; real power held by the Prime Minister and Parliament.

The Governor represents the British monarchy as Head of State for Queensland. Roles: (1) formal executive authority (acts on Premier's advice), (2) Royal Assent to Queensland legislation, (3) commissions senior state appointments, (4) commander-in-chief Queensland Defence Force. Like the Governor-General, the Governor is largely ceremonial; the Premier and Parliament hold real political power. The Governor ensures constitutional rules are observed.

Law reform commissions review existing laws and recommend improvements. Their functions include: (1) conducting research and consultation on legal problems, (2) proposing legislative amendments or new laws, (3) identifying inconsistencies and obsolete provisions, (4) consulting stakeholders (community, practitioners, government), (5) producing reports with detailed recommendations. They provide expert, independent analysis to inform government policy and parliamentary debate.

Three main alternatives: (1) New legislation—creating entirely new laws to address problems (e.g., new Privacy Act sections for digital rights); (2) Amendment—altering existing legislation to improve clarity, scope, or effect (e.g., raising sentencing levels); (3) Procedural change—modifying how laws are administered without changing the law itself (e.g., streamlining court procedures, changing agency guidelines). Each suits different reform needs.

Justice as a criterion assesses whether a reform achieves fairness and protects rights. Questions include: Does the reform protect fundamental freedoms? Is the reform applied impartially? Does it provide fair procedures and due process? Does it remedy wrongs? A reform may improve efficiency but fail the justice criterion if it undermines procedural fairness or disproportionately disadvantages vulnerable groups.

Equity assesses whether a reform is fair to all groups and reduces inequality. Questions: Does the reform treat similar cases similarly? Does it address systemic disadvantage? Does it unfairly burden particular groups? A reform increasing women's workplace protections scores high on equity; a reform applying only to wealthy individuals scores low. Equity focuses on substantive fairness and reducing disparities.

Consistency evaluates whether a reform aligns with existing legal principles, other laws, and international obligations. Questions: Does it contradict other legislation? Does it align with constitutional principles? Is it consistent with Australia's treaty obligations? Inconsistency creates legal complexity, confusion, and potential conflicts. A reform is stronger if it integrates harmoniously with the broader legal framework.

Accessibility assesses whether people can practically understand and use reformed laws. Questions: Is the language clear to ordinary citizens? Are procedures simple and affordable? Are there barriers (cost, complexity, distance) preventing access? A reform requiring expensive legal advice for ordinary citizens scores low on accessibility. Reforms should be understandable, affordable, and physically/procedurally accessible to all groups.

Queensland's Legislative Assembly is unicameral (single chamber) with 93 members elected from single-member electorates using preferential voting. It abolished its upper house (Legislative Council) in 1922, arguing a single chamber reduces costs, eliminates delays from two-house disagreement, and allows clearer accountability. Queensland remains the only state without an upper house. Critics argue a unicameral structure lacks checks on executive power.

Three key forces: (1) Social change—evolving community values (e.g., marriage equality reform); (2) Technological change—new technologies requiring new laws (e.g., cybercrime, AI regulation); (3) Political pressure—public demand, lobby groups, election commitments (e.g., climate policy). Other forces: international developments, court decisions finding laws inadequate, economic shifts, and recommendations from law reform commissions.

A lobby group is an organised body representing specific interests seeking to influence government policy and legislation. Methods: (1) direct lobbying of MPs and bureaucrats, (2) public campaigns and protests, (3) submissions to inquiries, (4) media engagement. Examples: environmental groups lobbying for climate laws, women's groups pushing domestic violence reforms. Effective lobbying can pressure governments to initiate reforms reflecting constituent interests.

An advocacy organisation campaigns for social or legal change on behalf of affected groups. Unlike lobby groups (interest-specific), advocacy organisations often represent broader causes or vulnerable populations. Examples: human rights organisations, disability advocates, Indigenous rights groups. They drive reform by raising awareness, supporting victims, producing research, and pressuring government. They amplify marginalised voices in law reform debates.

Significant events (disasters, scandals, tragedies) can create urgent political pressure for law reform. Example: The Port Arthur massacre (1996) led to nationwide gun control reforms. Other examples: the Jill Meagher murder (Victoria) prompted stalking law reform; workplace deaths trigger safety legislation; child abuse cases prompt institutional accountability reforms. Events shift public opinion and political priorities, making reform sudden and focused.