1. LEGAL STUDIES Unit 3 – Overview towards the Exam presented by HELEN VOIDIS September 2015

2. UNIT 3 – AN OVERVIEW At least 35 - 40 marks of the 70 2011, 2012, 2014 = 10 mark question Look carefully at the study design – key skills give a good indication of the knowledge you need to focus on!

3. AREA STUDY 1 – PARLIAMENT AND THE CITIZEN Key focus – structure and role of parliament, its effectiveness as a law-making body, the need for legal change and how this can happen

4. LET’S REVIEW AREA STUDY 1 You need a clear understanding of the principles of the Australian Parliamentary system Representative government – regular elections Responsible government - accountability Separation of Powers: Legislative – lawmaking arm through parliament Executive – administrating and enforcing laws Judicial – interpreting and applying the law

5. PRINCIPLES OF AUSTRALIA’S PARLIAMENTARY SYSTEM Know the structure of both the Victorian and the Commonwealth parliaments. get the names right! Constitutional Monarcy Bicameral system: Upper House – Senate/Legislative Council Lower House – House of Representatives/Legislative Assembly Role of the Crown – Governor General/Governor

6. Role of Crown & Houses of Parliament Role of Crown – royal assent, reserve powers, act on executive council with particular ministers Role of the HOR = initiate laws, determine government after an election, control government spending Role of the Senate =House of Review and State’ House – equal representation from each state protect interests of the states

7. Why do Laws need to Change? – need to know 2 reasons Advances in technology – up skirting, cyberstalking, identify theft Changes in values and attitudes – same sex marriages a possibility Changing international circumstances – terrorism Increased community awareness & information Access to the law – Koori Courts – Magistrate’s, County and Children’s

8. ROLE OF THE VICTORIAN LAW REFORM COMMISSION Central agency for developing law reform in Victoria Independent government funded organisation – not part of political process Inclusive – law reform involves the community Innovative – considers law reform and finds creative solutions Central agency for developing law reform in Victoria

9. VLRC - continued Terms of reference come from theAttorney General, community law reform projects Makes recommendations that can be adapted by Parliament wholly, partly or not at all Medicinal Cannabis – report out now Cannabis found to help some medical conditions Some families have been giving cannabis oil to sick children Became a public issue through TV, newspapers

10. Means by which Individuals and Groups can Influence Change Consider the three named in the Study Design PetitionsDemonstrations and the Use of Media Be able to describe each one and whether it is effective – task word evaluate What are the strengths and weaknesses of each Write with confidence and understanding Have a recent examples ( last 5 years)

11. Examples of Groups that have influenced Change in the Law Oscar’s Law – pet factory farming Same sex marriages Hurdle racing – RSPCA raising awareness to stop this in Victoria Breaching parole laws – after Jill Meagher case One punch criminal offences Brodie’s Law Do some research and find one that you are comfortable writing about

12. LEGISLATIVE PROCESS FOR A BILL THROUGH PARLIAMENT

13. LEGISLATIVE PROCESS FOR A BILL THROUGH PARLIAMENT Outlineeach of the steps Which are the key steps in the process and who introduces a bill to parliament ? Consideration in detail – bill is debated clause by clause in lower house – amendments likely Final stage – be clear about whena bill becomes law – two separate steps (Royal Assent and Proclamation) ( Assent is notified in the Government Gazette )

14. EVALUATION OF PARLIAMENT AS LAW-MAKING BODY BE CLEAR ABOUT 4 - 5 STRENGTHS AND THEIR4- 5 COUNTER WEAKNESSES Parliament is elected by the people to represent their interests however members of parliament represent the views of their political party rather than the views of their electorate More than just dot points, use however/whereas The task word is the driver of the type of answer you need to provide; don’t forget the marks

15. PAST EXAM QUESTIONS 2011EXAM: Q7A – example of media influencing change in the law – online media is the obvious choice – even Mr Abbott has a Twitter account Q7B – Evaluate two weaknesses of parliament as law-maker –remember both weakness and their strengths Q13 – on the VLRC TOTAL OF 18 MARKS

16. PAST EXAM QUESTIONS 2012 EXAM: Q1A – LAW-MAKING PROCESS STAGE Q1B – A REASON WHY LAWS CHANGE - OTHER THAN TECHNOLOGY Q12 – VLRC AGAIN – 7 MARKS TO WHAT EXTENT TYPE QUESTION – DO YOU AGREE /DISAGREE OR PARTIALLY TOTAL 11 MARKS

17. PAST EXAM QUESTIONS 2013 EXAM: Q2 – ROLE OF THE SENATE Q4 – INCORRECT STATEMENT FOR 1 MARK Q10 – EVALUATE THE EFFECTIVENESS OF TWO METHODS USED BY INDIVIDUALS/ GROUPS TO CHANGE LAW STENGTHS/WEAKNESSES PLUS CONCLUSION TOTAL 10 MARKS

18. PAST EXAM QUESTIONS 2014 EXAM: Q3- SEPARATION OF POWERS – 3 MARKS FOR 3 ARMS Q13 –ABILITY OF PARLIAMENT TO CHANGE LAW; RECENT EXAMPLE OF GROUP INFLUENCING LEGISLATIVE CHANGE – 10 MARKS 13 MARKS

19. THE CONSTITUTION & THE PROTECTIONS OF RIGHTS

20. WHAT ARE YOU EXPECTED TO KNOW GOING INTO THE EXAM? Role of the Commonwealth Constitution defining law-making powers within the federal structure Division of law-making powers & restrictions Analyse the means by which law-making powers change Section 128, High Court & Referral of Powers

21. WHAT YOU ARE EXPECTED TO KNOW FOR THE EXAM - continued Evaluate the effectiveness of the Commonwealth Constitution in protecting rights Structural protection, implied & express rights, High Court Case; comparison with another country Again use the Key Skills in the Study Design as a guide for your summary notes and preparation

22. DIVISION OF LAW-MAKING POWERS Post Federation distribution of law-making powers between Commonwealth and States Specific Powers listed in S51 of Constitution and can be exclusive or concurrent Exclusive – law-making powers that belong the Commonwealth by virtue of other sections of the Constitution Military forces – S114 Coining money – S115

23. Concurrent Powers Areas of law-making shared by the Commonwealth and the states Specific powers given to the Commonwealth Parliament to pass laws but at the same time were never taken away from the states Section 109 – must be included in an answer relating to these powers – Commonwealth shall always prevail over States if there is an inconsistency

24. Concurrent Powers - continued Examples include: S51(ii) Taxation S51(xxi) Marriage

25. Residual Powers Areas of law-making powers not listed in the Constitution Stay with the states Some areas were a deliberate choice others did not exist at the time of Federation S106-108 protects the laws and Constitutions of the states Examples criminal law, education, public transport – laws differ from state to state

26. Restriction placed on C’th & States Restrictions on States: Cannot make laws in areas of exclusive powers Cannot raise/maintain navy or military forces – S114 Shall not coin money – S115 Customs and Excise – exclusive to C’th – S90 Trade between states will be free – S92 Concurrent powers – if there is an inconsistency then C’th shall prevail – S109

27. Restrictions on Commonwealth Powers Cannot legislate in areas of residual powers Cannot make laws that interfere with entrenched rights – see next slide for examples Cannot change the Constitution without a referendum (S128)

28. Restrictions - continued Commonwealth shall: Not make laws establishing, imposing or prohibiting any religion S116 Not discriminate against people based on state of residence S117 Not give preference to one state over another S99 Acquire property on just terms – S51(xxxi) Not legislate to impose duties on interstate trade - S92 Acquire property on just terms S51(xxxi)

29. Past Exam Questions 2011: Q1 difference between exclusive and residual powers 2012: Q 4a – concurrent powers Q4b – S109 – to what extent question

30. Past Exam Questions 2013: Q3a – One restriction on state law - making powers Q3b – Two types of state law-making powers 2014: Questions focused on next section

31. CHANGING CONSTITUTIONAL POWERS Primarily through amending the wording of the Constitution via a referendum Based on a High Court decision where the Court has interpreted the words of the Constitution States referring their law-making powers to the Commonwealth Parliament Each method can change the constitutional division of law-making powers

32. Understanding the Referendum Process Section 128 states the only way the wording can be changed; can alter the division of law-making powers Proposed change in the form of a bill that goes through parliament and then is presented to the people for a ‘Yes or ‘No’ vote Understand how the double majority provision works =majority voters/majority of states (4/6) Consider factors that affect the likely success

33. Factors Affecting Likely Success Double majority provision – strict requirement Need for bipartisan support – both major parties Level of voter understanding Resistance to change/like it as is Timing – during federal elections/save money Voters’ reluctance to give Federal Parliament more power – motives for change Hence strike rate of 8 out 44

34. Need an example of ONE Successful Referendum 1967 Referendum held to change Sections 51 and 127 of the Constitution, and give the Commonwealth Government power to make laws for Indigenous Australians and include them in the national census ( increased their law-making powers) Key to understand impact of the yes vote – aboriginal affairs became a concurrent power so S109 can be applicable if there is a dispute between the C’th and the states

35. Role of High Court Can alter the division oflaw-making powers S71 & S76 – Only court to be able to interpret the wording of the Constitution and can only do so when a dispute or case regarding the Constitution comes before it C’th or states pass an act that is ultra vires – beyond its law-making power e.g. Franklin Dams Case

36. Role of the High Court - continued Remember the High Court’s interpretation leads to creation of a new precedent High Court decisions do not change the wording of the Constitution – they add meaning to it Can still alter balance of power based on the outcome of the decision The Study Design clearly stated you need to understand the significance of two and their impact on the law-making powers of C’th & states

37. What do you need to remember Name of each case Summary of Facts Section of Constitution in dispute Decision Impact – that is the most critical part – how did the decision alter the division of law-making powers between the C’th and the states Learn two, understand two, be able to write about two

38. EXAMPLE – R V BRISLAN S. 51 (v) of the Constitution gives the Commonwealth power to legislate on postal, telegraphic, telephonic, and other like services The Commonwealth Parliament had passed the Wireless Telegraphy Act (1905) which required all people who owned a wireless set to be licensed. This required the payment of a fee The defendant (Brislan) was charged and fined for not having a licence (£1)

39. Brislan Case The High Court determined that wireless radios did fall under ‘other like services’ and therefore the Wireless Telegraphy Act remained valid. This shifted the power away from the states ItalsomeantthattheCommonwealthhad movedintoanareaofresidualpoweras broadcasting to wireless sets was not mentioned in the Constitution. OtherpopularcasesincludeTasmanianDam Case

40. Referral of Powers States have the option to refer some of their residual powers under Section 51(xxxvii) States may choose this option because the area of law-making is more suited to the Commonwealth due to their expertise Or they areable to provide laws that are consistent across all the states States pass an Act that give their law making powers to C’th and then C’th pass Act to accept

41. Referral of Powers - continued The impact of the referral of law-making powers is that there is a change in the division of powers between the states and the Commonwealth in favour of the Commonwealth Example: Terrorism – previously a state responsibility under criminal law; post Sep 11 & Bali bombings states referred limited power to Commonwealth to make laws in relation to terrorist activities in Australia (2003)

42. Past Exam Questions 2011: Q10 - One method of changing constitutional power with an analysis of impact ( i.e. via a referendum, referral of powers, High Court) 2012: Q2 referral of powers – use an example to support answer – full marks Q13 – combines this part of course with protection of rights for 10 marks

43. Past Exam Questions 2013: Q12 –Focused on one referendum and one High Court Case 2014: Q6 a & b referral of powers & double majority

44. Protection of Rights Three parts that you need to review: Structural protection, express rights, implied rights Example of a specific High Court Case Comparison ofhow Australia protects rights with either Canada, New Zealand, South Africa or USA

45. Structural Protection Systems in Constitution that indirectly protect human rights by preventing abuse of power Representative Government – regular elections to vote out those that do not represent needs of voting public Responsible Government – levels of accountability, ministers explain actions Separation of Powers –prevents abuse and offers a system of checks and balances of 3 arms

46. Express Rights Rights protected by the wording of the Constitution; can only change/ removed through a referendum Five express rights: Acquisition of property on just terms (S51 xxxii) Trial by juryfor Commonwealth offences (S80) Freedom of interstate trade & commerce (S92) Freedom of Religion (S116) Freedom from interstate discrimination (s117)

47. IMPLIED RIGHTS Not explicitly stated or written in the Constitution High Court has found these rights to be suggested and intended by the writers of the Constitution – through interpretation One implied right – Freedom of Political Communication found in Australian Capital Television Pty Ltd v Commonwealth (1992) Further developed in Lange v’s ABC (1997)

48. Implied Rights - continued The High Court has found that systems of representative and responsible government established in the Constitution imply a freedom to discuss politicaland public affairs matters Roach case also significant as upholds the structural protection of the right for parliament to be directly chosen by the people as well as the right to representative government ( S7 and S24 of the Constitution)

49. Protection of Rights - continued High Court enforces express and implied rights If there is an infringement High Court has power to declare the law unconstitutional Parliament cannot overturn these rulings – but could push for a referendum ora change legislation

50. Protection of Rights – Comparison to anthercountry Focus on the similarities and differences with your chosen country of study Always begin with similarities Consider if the rights are constitutionally entrenched or statutory rights Are they limited ( Australia with 5) or extensive Role of the court in interpreting the laws in light of rights

51. Previous Exam Questions 2011: Q6 a and b – structural protection, express and implied rights 2012: Q13 – focus on referendums and political freedom case – hard question needs to be reviewed

52. Past Exam Questions 2013: Q7 – similarity and difference of country compared to Australia for protection of rights 2014: Q7a- express rights via example Q7b –High Court Case and protection of rights *could have been political communication case or Roach

53. AREA STUDY 3 – ROLE OF COURTS IN LAW-MAKING

54. What does the Study Design Say? Describe the operation of courts in law-making Evaluate their effectiveness as law-makers ( their strengths and weaknesses) Relationship with parliament – the link between the two Again review the key skills and create questions from the dot points that you can then answer as part of your revision

55. Courts as Law-Makers Court hierarchy – courts ranked in order of importance Facilitates the development of precedent Remember courts’ main job is to adjudicate cases and settle disputes Secondary role to create laws – through precedent or statutory interpretation – both have limitations

56. Limitations to Judge Made Law Needs to be a test case Superior courts of record can only create precedent – judgement is reported Precedent develops from cases on appeal that do not involve a jury Judges may be bound by an existing precedent that has already been established in a higher court

57. The Doctrine of Precedent Judgement that sets a principle Found in the ratio dividend – reason for the judge’s decision – binding part of judgement/creates precedent Visited the concept of ‘stare decisis’ – to stand by what has been decided/decision reached by higher court the reason is binding on lower courts Binding Precedent v’s Persuasive Precedent

58. The Doctrine of Precedent Techniques used by judges in applying precedents: Reversing – A higher court overturns the decision of a lower case on appeal Overruling – A higher court in a different, later case overturns a principle laid down by a lower court.

59. The Doctrine of Precedent - continued Distinguishing – facts of current case differ from case that established precedent – judge not bound theprecedent Disapproving –When a previous decision (precedent) has been made in a court at the same level in the court hierarchy, or at a lower level, the present court may state that it does not agree with the earlier decision.

60. Explored the Strengths & Weaknesses of the Doctrine of Precedent For each strength provide the counter weakness Precedent creates certainty and consistency as a case will be decided in a similar way to a previous case where the facts are alike. However as not tow cases are ever exactly the same it can also creates some uncertainties

61. Courts as Law-Makers – Statutory Interpretation Judge presiding over a legal dispute examining the words, phrases, sections in a statute and interpreting them before applying them to a case Dispute about what words in Act mean Reasons include ( must know at least 2): Mistakes in drafting a bill The changing nature of words Words in the act can be ambiguous Changing/Future circumstances

62. Aids used in the Interpreting of Statutes Intrinsic material – found within the act like definitions and headings Extrinsic materials – found outside the act like parliamentary debates, dictionaries, interpretation acts Judge’s common law rules like the class rule Not stated in the Study Design – helps you understand statutory interpretation

63. EFFECTS of STATUTORY INTERPRETATION BY JUDGES Words or phrases in the legislation are given meaning – Act does not change Statutory interpretation by courts of record creates new precedent A wide interpretation of the word or phrase may extend the law – Mansfield v Kelly drunk in a public place A narrow interpretation of the lawto cover specific situations – Deing v Tarolastudded belt case

64. EVALUATION OF COURST AS LAW- MAKERS Again for every strength you provide a weakness Courts are able to make laws quickly on an issue in a case brought before them however they need a test case and can only rule on the issue that is presented before them Go through and memorise at least 4 that you understand – again you need to write more than just dot points – evaluate type question strengths/weaknesses and a strong conclusion

65. THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT Remember Parliament is the supreme law- making body and has the power to make laws on any issue Courts responsible for settling disputes, small law-making role Parliament can override any laws made by courts or subordinate authorities Parliament and courts have a complimentary relationship/they need to work together

66. More on the Relationship Parliament passes legislation to create the structure and jurisdiction of courts Courts apply legislation created by Parliament and may have to give meaning to the words or phrases Parliament can change laws created by courts Parliament can codify laws made by courts (Mabo – Native Title Act) Courts fills in the gaps when applying the law to a case

67. Past Exam Questions 2011: Q5a & b – effect of statutory interpretation & relationship between courts and parliament Q8a & b – precedent (overlap with Unit 4) 2012: Q10 – courts changing law

68. Past Exam Questions 2013: Q1 a & b – precedent ( overlap with Unit 4) Q5a & b – stat interpretation and relationship between courts and parliament 2014: Q1 effect of statutory interpretation Q8 – Incorrect statements