Year 12 Legal Studies Unit 3 Revision.

Year 12 Legal Studies Unit 3 Revision

Area of Study 1

Principles of the Australian Parliamentary System

Representative Government
The elected government must represent the views of the people within its electorate and act on their behalf. This is achieved through regular elections, which allow the people to vote politicians into office to represent them in parliament. If the elected members are not representing the views of the people who voted for them, they will be removed from office at the next election.

Responsible Government
Government is answerable and accountable to parliament (and therefore the people) for its actions. It must act fairly and responsibly. - This is achieved through such devices as question time, debates and parliamentary committees. Government is chosen by gaining the support of the Lower House, and if the government loses the confidence or support of parliament, then it must resign. Ministers of parliament are also responsible to the parliament, and therefore the people, for their actions and decisions. Ministers are also responsible and accountable for the actions of their government departments.

Separation of Powers The doctrine of separation of powers states that there is three different types of power held by the Commonwealth must be exercised by different bodies and kept separate so that no one body has absolute power, and no one branch can control or interfere with the operation of another branch. Legislative Executive Judicial

Separation of Power Legislative Power - The power to make laws. This is exercised by parliament as outlined in Section 1 of Constitution. Executive Power – The power to implement and administer the laws. This is vested in the monarch by section 61 of the constitution and is exercisable by the Governor-General Judicial Power – The power to enforce the law and settle legal disputes. Exercised by the courts.

Purpose of Separation of Powers
It provides for a system of checks and balances on the power of the government Protects individual freedoms by ensuring the judiciary is kept independent from the law-makers Ensures that no one body has absolute power.

The Structure of Parliament
Both the Commonwealth and Victorian parliament operate on a bicameral system. This is the system of having two houses. Parliament consists of: Lower house Upper house Queens Representative (Crown)

The Structure of the Commonwealth Parliament
The Commonwealth parliament consists of: Lower House – House of Representatives seats. 3 year term. Each member represents an electorate. Upper house – Senate 76 seats. 6 year term senators are elected for each state. 2 each territory. Queens Representative (Crown) Governor -General

The structure of the Victorian Parliament
The Victorian Parliament consists of: Lower house – Legislative Assembly 88 seats. 4 year term. 1 member represent each electoral district. Upper house – Legislative Council 40 seats. 4 year term. 5 members represent 1 region making up 8 regions. Queens Representative - Governor

The structure of parliament
The Government is to determine by the preferential voting system in each electorate. The candidate with the most number of votes wins that seat. The government is formed by the political party who has the majority of seats in the lower house. The Cabinet consists of the Prime Minister and senior ministers at the Commonwealth level and the Premier and senior ministers at the state level. Their main role is to develop government policies and to discuss new laws which should be considered by parliament.

The Role of the House of Parliament
The House of Representatives (lower house) Make Laws – Most proposed laws or bills (and all money bills) are initiated in the Lower House. Any member can introduce a bill, but most are introduced by a member of the government. Determines the government – the political party which has the majority of seats in the lower house forms the government. It is known as the people’s house. Represents the people – reflects the current opinions and views of the people. This is achieved through having sufficient members to represent al Australians, that all votes of Australian voters are of equal worth, and that elections are held regularly so that members continue to represent the view of the voters.

The House of Representatives (lower house) Publicises and scrutinises government administration – Through debating, policy statements, discussion of matters of public importance, committee investigations and asking questions of ministers in parliament, the lower house checks the government’s administration. Controls government expenditure – Government cannot collect taxes or spend money unless allowed to do so through the passage of taxation or appropriation bills.

Senate (upper house) State’s House – The Senate provides for equal representation from each state. There are 12 representatives from each state and 2 from each territory (totalling 76). At the time of federation the states were concerned at losing their power to dominant/larger states. The equal representation overcomes this problem and ensures the interests of the states are protected.

Senate (upper house) House of Review – This house reviews bills which have been passed by the lower house. The bill is discussed/debated section by section. Any amendments must go back to the lower house for their approval and then forwarded to the upper house again. Initiation of Bills – The senate can initiate proposed laws, with the exception of money bills, which can only originate in the Lower House; however, the Senate can suggest amendments to these bills. Bills may be initiated in the Senate when the member in charge of the bill is a senator, or when the House or Representative is not sitting.

Effectiveness of the Senate A hostile house is effective. A hostile house is where the opposition has the majority in the upper house, therefore each bill is thoroughly debated and there can be a strong voice against the bill. Rubberstamping is ineffective. Rubberstamping is where the same political party has the majority in the upper and lower houses. As members vote according to ‘party lines’ bills are given approval with very little debate, merely rubberstamped with approval.

Role of the Victorian Parliament
Legislative Assembly (lower house) Legislative Council (upper house) Initiates most bills Determines the seat of government Represents the people Publicises and scrutinises government and administration Controls government expenditure House of Review Initiation of bills (except money bills)

Queen’s Representative
Role of the Crown Queen’s Representative

Governor- General Governor

Role of the Crown Gives Royal Assent – This is the signing of a bill by the Crown’s representative, after the bill has passed through both the Upper and Lower Houses of parliament, signifying the Crown’s approval of the bill. While royal assent is usually given as a matter of course, the Governor-General can withhold or reserve royal assent, return the bill to the originating house or suggest amendments to the bill. Dissolves the parliament and issues writs for new elections Officially commissions the Prime Minister/Premier and appoints other ministers after elections; can dismiss ministers and the Prime Minister/Premier to ensure that the country continues to be governed. Officially opens and closes parliamentary sessions. Acts on the advice of ministers through the Executive Council to issue regulations and proclamations; appoint federal judges; appoint ambassadors and high commissioners to overseas countries and other senior government officials; issue royal commissions of enquiry; exercise the prerogative of mercy. The crown can overrule or disallow any Commonwealth law within one year of its being given Royal Assent (s.59 Constitution)

Changing the Law

Reasons why laws may need to change
1. Community Values and attitudes in the community. The social, moral, economic and political values of society should be reflected in the law. Hence, when there is a change in these values, laws should also be changed so that they continue to be relevant and accepted by society. Over time we have seen values and attitudes change in areas such as status of women, acceptance of alternative domestic relationships and the environment. The growing acceptance of the de facto and same-sex relationships in society led to the passage of the Relationships Act 2008 (vic.), which established a register for the registration of domestic partnerships for people in a committed relationship, regardless of their gender. These couples are issued with a certificate that recognises their union. Rights of same-sex couples with children were also extended by the Assisted Reproductive Treatment Act 2008 (vic.) which gives legal recognition to non-birth parents for their partner’s children, so lesbian couples are able to have both of their names listed as parents on their children’s birth certificate.

2. Technological advances Changes in technology necessitate constant changes in the law as new areas of law or offences develop. As this happens there is often a need to regulate the actions of some individuals and groups in order to protect the rights of others. The growth in new technologies and Internet use in Australia has resulted in Internet crime being one of the fastest growing crimes in the world. The Crimes Amendment (Identity Crime) Act 2009 (Vic.) was passed to comprehensively criminalise identity crime. Further, it allows for victims of identify crime to obtain a court certificate to assist them in remedying the effects of the crime.

3. Changes in Society The way in which our society functions is continually changing, and laws need to keep pace with this. New methods of production and new products are continually being developed; these have resulted in changes to consumer protection and trade practices laws. Changes in the characteristics and composition of society, such as race, religion and age distribution, has necessitated legal changes. The growth in environmental concern and the desire to reduce greenhouse gas emissions has resulted in the passage of the Electricity Industry Amendment (Premium Solar Feed-in-Tariff) Act 2009 (vic.) which provides financial rewards for households that generate excess solar power and transfer it back into the power grid.

4. Protection of the community One of the roles of a legal system is to protect the community from har. Hence, if a new law becomes evident or an existing harm intensifies, the law will need to be changed to try to overcome this threat. Concerns regarding the protection of the community, and children in particular from serious sex offenders have resulted in a number of acts being passed to help alleviate the threat when these offenders re-enter the community. The Serious Sex Offenders (detention and supervision) Act 2009 (Vic.) states that its purpose is ‘to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sex offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention and supervision.’

Formal pressure for change: VLRC
Victorian Law Reform Commission: When deciding on areas of law for review/change, a parliament may refer the matter to a formal law reform body for investigation. Specialist body, that, at the request of parliament: Examine a particular area of law or issue Conduct investigations and inquire into that issue Make recommendations for change to parliament The VLRC only ADVISES parliament and cannot change the law itself.

Role of the VLRC Established in 2000
Independent, government-funded organisation. Research issues that the Victorian Attorney-General refers to it. Commissions role: Make law-reform recommendations on matters referred to it by the Attorney-General Make Recommendations on minor legal issues of general community concern Suggest to the Attorney General that he or she refer a law-reform matter to the Commission Educate the community on areas of law relevant to the Commission’s work Monitor and coordinate law-reform activity in Victoria The VLRC works closely with the community in its research. It consults experts in the issue under investigation, and invites the general public and interest groups to be involved through submissions, public hearings, discussions forums and comments on issues/discussion papers.

Law Reform process of the VLRC
Reference is received from the Attorney-General or begins with community law-reform project Submissions are invited from any interested individuals or groups. R – Roger R- Rabbit C-Consistently S – Smells C R A P The Attorney-General tables the report in Victorian Parliament Consultations are undertaken with members of the community, people working in the area and other relevant agencies The commission’s staff undertake initial research and consultation Parliament decides whether to implement the recommendations (in whole or in part) through legislation A consultation/issues/discussion paper is published, which explains the key issues and provides a basis for consultation A report is published with recommendations for changes to the law and presented to the Attorney-General

VLRC: Registration of sex offenders reviewed
The Reference: April 2011 Attorney General asked VLRC to review laws about the registration of sex offenders. Reference to look at how information about the registration of sex offenders was used by police and child protection services. Did these laws allow law enforcement and child protection agencies to assess the risk of re- offending, prevent further offences and protect children from harm? There were concerns raised about the scheme when it was reported that more than 300 registered sex offenders were found to be living with children or had unsupervised contact with them.

What is the Sex Offender Registration Scheme? Sex offenders Registration Act 2004 (Vic) All adults sentenced for committing sexual offences involving a child are automatically included in a register of sex offenders. Sex offenders under the age of 18 years, and adults sentenced for sexual offences against adult victims, may be registered if the sentencing court is satisfied that they pose a risk. The VLRC report estimated that approximately 50 people are added to the register every month The registration, maintained by Victoria Police, is not part of the offenders sentence. The purpose of the register is to protect children Registered sex offenders living in the community must keep the police informed about their personal details and whereabouts for a fixed period of time. Adult offenders report for 8 years, 15 years or life (depending on the offences) Young offenders report for 4 year or 7.5 years. More than 4000 people have been placed on the register. This number was expected to reach 10,000 by 2020

Law Reform Process A committee of experts was formed to provide advice to the VLRC. The VLRC published an information paper on 22 June The paper described the operation of the registration scheme and posed a number of questions. The commission received 32 written submissions Submissions were received from organisations such as the Law Council of Australia, Victoria Legal Aid and the Children’s Court The VLRC met with government agencies and community groups. Consulted with individuals who had specialist knowledge of sex offending or had been affected by the sex offender registration scheme. This included consulting with leading academics, forensic psychologists and psychiatrists, lawyers, judges, researchers, public officials, registered offenders and victim advocacy groups. 28 July 2011 the Commission hosted an open day. During the open day members of the public could make individual appointments with VLRC staff to discuss the operation of the sex offender registration scheme.

The Report: Report delivered to Attorney General on 22 December 2011 79 recommendations were made to make the sex offender registration scheme more effective One main recommendation was to replace automatic placement on the Register with individual assessment by the court when an offender is sentenced. The VLRC concluded that when individual offenders are automatically placed on the register, it is difficult to distinguish between potentially dangerous re-offenders and those offenders who pose little risk of sexually abusing children. The report recommended that an individual assessment by the courts would allow the police and child protection authorities to focus on those sex offenders who were more likely to re-offend against children.

The Report: Other Recommendations: Improve information share between Victoria Police, Department of Human Services and Corrections Victoria Allows the courts to impose special conditions on registered offenders Impose shorter registration period initially, but allowing for applications for an offender’s registration to be extended Enable authorised police and child protection workers to disclose to a child’s parent or carer that a person having contact with a child is a registered sex offender Introduce child protection prohibition orders. These orders would stop a registered offender from engaging in certain types of behaviour or employment, going to certain places or contacting certain people

Informal pressures of Changing the Law
1. Petitions A formal, written request to the Parliament for action in relation to a particular issue/law that is considered outdated or unjust Usually forwarded on to local MP to present in parliament Only needs one signature to be accepted The more signatures, its proves the level of community support and the more likely MPs will take the issue into consideration

Informal pressures of Changing the Law
Petition Rules: Must: Be addressed to only one house of parliament Refer to a matter that is within the power of parliament to address State the facts Contain a request to take action Can be presented to any MP (doesn’t have to be the local member for the group)

Informal pressures of Changing the Law: Demonstrations
Demonstrations are gatherings of members of the community, held in a public place that are designed to show their support for a change in the law. Mass Rallies Boycotts

Informal pressures of Changing the Law: Media
Individuals and groups can use the media to communicate their views to others. Without media coverage: Law-makers can’t gauge public opinion (more cynically perhaps) law- makers won’t stand up and take notice Individuals and groups can’t inform law-makers of change in values and attitudes Other people can’t find out and join the cause Getting an issue in the media means getting an issue on the (public/political) agenda. This is so important that organisations actually pay people/firms to do this for them! (PR)

Newspapers: Individuals/groups can write letters to the editor about their concern with a law. Often one sided, don’t read about both sides of the debate. Can alert law-makers of the need to amend the law

Radio Talkback – individuals/group can do interviews about changing the law Often very opinionated Can be more influential than a newspaper as it has the potential to reach more people.

Television: Programs can investigate issues in depth and inform the community of injustices and the need for change in the law. Can be more influential in public opinion than newspapers (due to a larger audience). Also, images can have a huge effect on public opinion due to the emotive element of visuals (Four Corners report on live animal exports in led to the massive GetUp! Campaign and subsequent changing of the law)

Technology has revolutionised communications in the 21st Century. New platforms means groups can communicate on a broader scale. Social networking media such as Facebook and Twitter have been used by political activists to conduct campaigns for change. Eg Occupy Melbourne

Evaluating of effectiveness of methods used by individuals and groups
Strengths Weaknesses Petitions Have the ability for both a large number, or only a few, members of the public to voice their concerns to parliament The greater the number of signatures, the greater the influence, as it signifies a higher degree of support Provide the ability for all citizens to have their views tabled in parliament Can be time-consuming, costly and difficult exercises Although tabled, it is not clear the degree to which petitions influence parliament – parliament may ignore the petition and not change the law De not generally attract much media attention, so not as effective in raising awareness of the issue in the general community. Demonstrations Likely to gain media attention, and thereby raise awareness of the cause Communicate the views of a number of people Serve an educative function for the rest of the community, who are made aware of the issue Rely on the support of a large number of people to be effective May inconvenience members of the public due to road closures etc. Parliament may dismiss them as vocal minority groups and not change the law Media Reach a large audience and can therefore influence views of the community, as well as report on them Members of parliament can readily gauge the views and attitudes of society Can present both sides of an issue May present biased reporting of an issue, rather than informing the public and parliament of both sides of a debate May highlight split views on an issue in the community, which could work against law reform

The Legislative Process
Drafting Process: Cabinet: While any member of parliament may draft and initiate a bill that proposes a change to the law, most legal changes are suggested by Cabinet. Cabinet is the government policy-making body that it is made up of senior ministers and the Prime Minister (federal level) or the Premier (state level). Cabinet is not mentioned in the Constitution, but is a convention Australia retained from British law. Parliamentary Committees: Parliamentary Committees can be composed of members of one house or a joint committee of both houses of parliament. Parliamentary committees conduct inquiries into specified matters and report their findings back to parliament for it to consider. Parliamentary Counsel: Once the desired content of the bill has been determined, cabinet or the relevant minister will brief parliamentary counsel, which will act on the advice of the minister and draft the legislation. The Office of Parliamentary Counsel consists of lawyers who work for parliament and are able to use their skills in using legal language and specialised legal knowledge when drafting legislation. While the parliamentary counsel possesses expertise and knowledge in the drafting of bills, it does face challenges in writing a bill that is able to incorporate future situations, is not in conflict with another bill and reflects exactly what the government desired.

Types of Bills Types of Bills Description Government Bills
Those bills that have been drafted and introduced into parliament by a minister representing the government. These are usually putting into legal form the policies decided by Cabinet. The majority of bills introduced into parliament are government bills. Private Member’s Bill A bill introduced into parliament by a member of parliament operating as an individual or private member. While these are not often passed because they do not have the backing of the government, they serve to bring particular issues to the attention of the people. Money, appropriation, supply or finance bill A bill that is concerned with passing a law to authorise the monetary receipts and spending of the government. These include bills that relate to taxation and government expenditure. The annual government budget is an example of an appropriation bill. Consolidation Bill A bill that gathers together a number of acts on a certain subject and re-enacts them in one statute. Private Bill A bill that is written to apply to a special person, group or company. These types of bills are quite rare.

Bill Act Notice of intention 2. First reading (clerk)
Copies distributed to MPs 3. Second Reading ‘Second Reading Speech’ by MP responsible for the introduction Debate and vote 4. Consideration in detail/committee stage **optional** Examined in detail 5. Third reading –debate on content Voting on bill 6. Second House Bill undergoes same process 7. Certification Clerk certifies -after passed through both houses 8. Royal Assent Crown’s representative Signs off on Bill 9. Proclamation In Australian Gazette Bill passes first house Act

Legislative Process: 1. Introduction/Notice of Intention:
The MP responsible for the Bill gives notice of their intention to present the Bill when Parliament next sits. 2. The First Reading: The ‘Long title’ is read out. There is no discussion or debate. Copies are circulated to all members of the house. The contents of the Bill are made known. At this time the Bill may move immediately to the second reading or a future date for a second reading is set.

Legislative Process 3. Second Reading
The minister will deliver a speech outlining the purpose, function and broad objectives of the Bill, called the second reading speech. In Victoria, this speech must begin with a statement of compatibility, stating whether the Bill is compatible with the Victorian Charter of Human Rights and Responsibilities. Members study the Bill and its effects. A Bill is then often referred to a committee for scrutinising. The Second reading debate then occurs, commencing with the opposition’s response to the Bill. This is usually the most substantial debate on the general principles of the Bill takes place. A Vote is taken to determine whether to continue with the Bill.

Legislative Process 4. Consideration in Detail/Committee Stage
An informal discussion of the Bill takes place where it is examined in detail, clause-by-clause, and amendments are made and voted upon. This stage can be bypassed if the members agree that the Bill does not need to be examined in detail. 5. The Third Reading The long title is read again There may be some debate on the content of the Bill. Voting on the Bill - If it passed the first house, the clerk again reads the long-title of the Bill to signify that the Bill has finally passed the House. Bill passes the first house and proceeds to the second house

Legislative Process 6. Goes to Second House
The Bill goes through the same procedures as the original house: Introduction/Notice of Intention and First Reading Second Reading Committee of the Whole/Committee stage Third Reading Vote on Bill Any amendments made in the second house must be communicated to the first house, and the Bill in its new form needs to be passed in the first house. The Bill must be passed in the same form in both houses.

Legislative Process 7. Certification
The clerk of parliament certifies the bill after it has passed through both houses of parliament 8. Royal Assent Bill is checked and signed by the Queen’s representative-the Governor-General (at Federal level) or the Governor (at state level) 9. Proclamation Proclaimed in the Commonwealth of Australia Gazette, and the date given of when the act will come into effect. (If not stated, the act comes into operation 28 days after royal assent)

Summarised evaluation Parliament as a law maker
Strengths Weaknesses Parliament’s main role is to make laws; therefore it can devote the majority of its time into creating and implementing new laws Parliament is not always sitting and this diminishes its capacity to implement important legislation quickly. Members of parliament are elected into office. This upholds the democratic principle of representative government and ensures that the laws are reflective of society’s views and values Because members of parliament are elected they are often preoccupied with passing popular laws and are reluctant to introduce unpopular but necessary legislation for fear of not being re-elected. Parliament is able to undertake investigations in order to ascertain what the most effective and reflective laws are required. The means that parliament can take into account the needs of the community and are more readily informed when making decisions. Investigations can be time consuming and costly and can delay legislative change. Parliament has the ability to pass laws in futuro, with the future in mind. This means it can anticipate a future situation and implement legislation to prevent or control it. Parliament cannot possibly foresee all future circumstances and this means that it is not always effective and parliament does not often pass such laws. Parliament is able to delegate some of its law making powers to subordinate authorities. This means that smaller, more specialised bodies are able to devote their time to very specific areas of the law (eg Vic Roads). This frees up parliament’s time whilst also ensuring every area of law is getting the required attention and expert knowledge. Subordinate authorities are largely un-elected bodies. This undermines the democratic system and could result in unpopular or ineffective laws being passed. The bicameral structure of parliament ensures there is sufficient scrutiny of new legislation and provides an arena for debate. In order for a bill to be passed it must be approved by both houses of parliament. This ensures there is sufficient opportunity to discuss and debate the contents of the bill before it is enacted. The bicameral nature of parliament can significantly slow down the passage of a bill and this becomes problematic where laws needs to be implemented quickly. Also, whilst senators are supposed to represent their states, in reality they tend to vote along party lines and this can impact the passage of a bill in the form of rubber stamping or creating a hostile senate.

Area of Study 2

Federation In the 19th Century, each of our current states was a separate colony, making laws on its own behalf. In the late 1800s there was real fear of invasion and realisation that there needed to be a central body to take charge of the defence in Australia.

The Constitution The Constitution is the formal document by which this process of federation was achieved. Its full title is the Commonwealth of Australia Constitution Act (UK). It was an act of British Parliament.

The Constitution The Australian Constitution’s main role is to:
Facilitate the division of law-making powers (what Commonwealth Parliament can and cannot do re: law- making) Provide a legal and political framework for the creation of the Commonwealth Parliament (including the House of Representatives and the Senate) Provide for direct election of MPs by the people of the Commonwealth of Australia Give the High Courts power to interpret the Constitution if the need arises It does not contain a bill of rights. However, it does provide some protection for a limited number of rights, which we will look at next term.

Division of Power under the Constitution
Specific Powers: Listed or enumerated in S.51 of the Constitution Powers given to the Commonwealth Parliament to make laws for the ‘peace, order and good government’ of Australia. The powers listed in S. 51 are known as the 39 heads of power (although there are actually 40 since the insertion of ss. xxiiiA in 1946). Examples: Trade and Commerce s.51(i) Taxation s.51(ii) External Affairs s.51(xxix) Specific Powers are either exclusive or concurrent.

Exclusive Power Areas of law-making power that ONLY the Commonwealth Parliament can exercise. They are specific powers that are made exclusive to the Commonwealth Parliament by virtue of other sections of the Constitution. For Example: S.51(xii) gives the Commonwealth Parliament power to make laws regarding currency, coinage and legal tender. S.115 declares that ‘a state shall not coin money’ thereby making this power exclusive to the Commonwealth Parliament. S.90 makes customs and excise exclusive by stating that on the imposition of these duties the power of the Commonwealth Parliament shall become exclusive. S. 52 lists a small number of exclusive powers. S.114 Defence and military forces

Concurrent Powers Areas of law-making power where BOTH the Commonwealth and State Parliaments have authority to pass laws, as they are shared powers, Concurrent Powers are specific powers that have been given to the Commonwealth Parliament to make laws, but they have not been made exclusive. S. 109 if there is an inconsistency in the laws made by the Commonwealth Parliament and a state parliament in one of these areas of shared/concurrent power, then S.109 states that the Commonwealth law shall prevail and the inconsistent part of the state law be invalid. Examples: S.51(ii) Taxation S. 51(xvii) Bankruptcy S. 51(xxi) Marriage

Residual Powers: NOT listed in the Constitution. Powers left to the state. Some of these areas of power were deliberately left to the states to legislate on, such as criminal law; others have developed as residual powers, as the area of law did not exist at the time the Constitution was passed and could not be listed, so they have fallen under the power of states. S of the constitution protect the laws and constitutions of the states. Examples Criminal Law Public Transport Health

Restrictions on law making powers
Restrictions on state powers Restrictions on commonwealth powers States cannot legislate in areas of exclusive power, as they belong solely to the commonwealth for example: A state shall not raise or maintain any naval or military force (s.114) A state shall not coin money (s. 115) The imposition of duties of customs and excise is exclusive to the Commonwealth (s.90) Trade between the states shall be free – no state can charge trade duties to another state (s.92) In areas of concurrent power, any state law that is inconsistent with a Commonwealth law shall be declared invalid (s.109) The Commonwealth shall not make any law for establishing, imposing or prohibiting any religion (s.116) No discrimination against people based on their state of residence (s.117) The Commonwealth shall not give preference to one state over another state (s.99) The Commonwealth cannot restrict free trade between the states (s.92) Any acquisition of property by the Commonwealth must be done on just terms (s.51 (xxxi)).

Amending the wording of the Constitution = referendum
3 main ways to change the division of law-making powers between State and Commonwealth Parliament. Amending the wording of the Constitution = referendum States referring or giving some of their law-making power to the Commonwealth Parliament Decision of the High Court that involves interpretation of the Commonwealth Constitution

Constitutional Change = Referendum
A referendum is a vote which is put to the Australian people who are eligible to vote in the House of Representatives election. Voters are required to vote YES or NO to a proposal/question. Section 128 of the Constitution provides for referendum. The Commonwealth Parliament can only initiate a change. The proposed change is drafted as a Constitution Alternation Bill and is passed through Commonwealth Parliament, like any other bill. The vote must satisfy the double majority provision. If accepted, Governor-General for royal assent

Referendum Process Changes to the Constitution can be recommended by sources such as : States A Constitutional Convention- eg the 1998 Constitutional Convention resulted in the proposal that Australia should become a republic. Parliamentary Inquiry *However, only Parliament can initiate a change*

2. The proposed change is drafted as a Constitutional Alteration Bill 3. The Bill is passed though Parliament like any other Bill 4. The Bill must be passed by an absolute majority in both houses- or if the Bill is passed by a majority in only one house, and rejected twice by the second house, The Governor- General could choose to submit the proposed change to the voters by referendum. If the G- G chooses not to then the proposal will lapse. 5. The proposed change is put to the voters in the form of a yes/no question (between 2-6 months of the Bill being passed through Parliament)

6. To be successful, the proposal must satisfy the double majority provision. This means that the question must receive a yes vote by: the majority of voters in the majority of states (4 out of 6) The majority voters in all states and territories (the whole of Australia) c) A majority of voters in any state directly affected by the proposal (doesn’t happen often as usually referendums affect the whole country) These are the ‘s.128 requirements.’ If they are not met , the referendum fails and the Constitution remains unchanged.

7. If the referendum achieves a double-majority, it can then be given royal assent by the Governor General. 8. The relevant section of the Constitution is reworded.

REFERENDUMS – CHANGING THE CONSTITUTION DIRECTLY (CHANGING THE WORDS OF THE CONSTITUTION)
Successful Referendums Unsuccessful Referendums Extension of Commonwealth power to legislate on social services under s.51(xxiiA) to include maternity allowance, child endowment and unemployment benefits (1946) The requirement that Senate elections be held at the same time as those for the House of Representative (1977 and 1984) Inclusion of Aboriginal people in the census and the law-making power of Federal Parliament, by changing s.51(xxvi) (1967) The recognition of local government in the Constitution (1988) Retirement of judges from courts created by the Federal Parliament at age 70, through change to s.72 (1977) Establishment of a republic (1999) Right to vote in constitutional referendums given to voters of the ACT and Northern Territory, to be included in the second part of the double majority provision in s.128 (1977) Alteration to the preamble of the Constitution (1999)

Factors that affect the likely success of referendum proposals
The double majority provision Bipartisan support from the major political parties Level of voter understanding Resistance to change Timing Vote Scepticism of Federal Parliament Power

Case study: changing the division of powers through referendum: Aboriginal people (1967)
Before 1967 The power to make laws regarding Aboriginal people remained with the states, as it was thought they were in a better position to make these laws. Section 51(xxvi) made Aboriginal affairs a matter for the states, empowering the Commonwealth to make laws with respect to the “people of any race, other than the Aboriginal race, in any state” Section 127 of the Constitution dictated that in “reckoning the numbers of the people of the Commonwealth, aboriginal natives shall not be counted.” (with the result that states with a large indigenous population couldn’t use this to gain extra parliamentary seats or extra funds. Aboriginal people had been granted citizenship and the right to vote before 1967, however, further action was needed to ensure the Constitution did not discriminate against Aboriginal people.

Referendum: Aboriginal people 1967
The Federal Parliament passed the Constitution Alteration (Aboriginals) Act 1967 (Cwlth) with the support of the majority of MPs. On 27th May 1967 a referendum proposal was put to the people. The question posed was: “To enable the Commonwealth to enact laws for Aborigines. To remove the prohibition of against counting Aboriginal people in population counts in the Commonwealth or a state.

The referendum received the support of per cent of voters- the highest ‘yes’ vote in every state (satisfying the double majority) The successful referendum was seen as a reflection of the desire of Australians to end the discrimination of Aboriginal people.

Impact of the 1967 referendum
The wording of the Constitution changed: Section 51 (xxvi) was changed by deleting the exclusion of aborigines: “The people of any race other than the aboriginal race in any state, for whom it is deemed necessary to make special laws...” Section 127 was deleted entirely

The responsibility for aboriginal affairs was now a concurrent power There was an increase in the Commonwealth Parliament’s law-making power (a new area added) The law enabled the Commonwealth Parliament to spend money on initiatives for aboriginal people rather than being reliant on the states to do so. Following the referendum, the PM set up an Office for Aboriginal Affairs and appointed a Minister for this new portfolio. This changed the law-making powers which allowed subsequent parliaments to pass laws of great impact.

High Court Interpretation of the Constitution
The High Court was established through s.71 of the Constitution. It obtains its jurisdiction from s.75 and s.76. When the Constitution was passed, it was recognised that there was a need to keep the Constitution relevant to the people of Australia- the High Court can do this by interpreting the words of the Constitution and giving meaning to them. According to s.76 of the Constitution, the High Court is the only court with the power to interpret the wording of the Constitution, and it can only do this when a dispute or a case regarding the Constitution comes before it. This usually happens when the Commonwealth or State Parliaments pass an act that another parliament, individual or group challenge in the High court as being ‘ultra vires’ (beyond their law-making power)

High Court Interpretation of the Constitution
The High Court, through its interpretation of the Constitution in the adjudication of such disputes had tended to shift the balance of power away from the states towards the Commonwealth. Some people have said the High Court has taken an ‘activist role’

The High Court’s role in interpreting the Constitution
To act as a guardian of the Constitution- it does this by interpreting and giving meaning to the words of the Constitution and applying them to everyday situations

To keep the Constitution up to date- because of changes community values, standards and technology since the Constitution was written, the High Court needs to interpret the words of the Constitution in a way that keeps them relevant and up to date with society. example: The Brislan Case

To act as a check and balance on injustices that may arise or any abuse of power- Either by the states or Commonwealth parliaments. An individual or group can bring a case to the High Court of they believe a law is unconstitutional (although its very expensive)

To give meaning to the words of the Constitution- and apply that meaning to everyday situations.

High Court approaches to the Constitution
Through interpreting the Constitution, the High Court has had a greater impact than referenda when it comes to altering the law-making capacity of parliaments. The High Court DOES NOT change the wording of the Constitution (remember this is only achievable through referendum!)

High Court approaches to the Constitution
Cases usually arise when Parliament passes a law that is considered to be outside of its law- making power (ultra vires) The High Court, through its interpretation of the Constitution in the adjudication of such disputes, has become less concerned with preserving the powers of the states.

High Court Interpretation of the Constitution – Changing the Constitution indirectly
Commonwealth of Australia v State of Tasmania (1983) Background Information: In Tasmania there was a beautiful rainforest area incorporating the Franklin River. The Tasmanian government wanted to build a dam. The area had a world heritage listing and was covered by an international treaty. Commonwealth of Australia’s argument: The Franklin River is covered by an international treaty and has a world heritage listing, therefore it is an exclusive power of the Commonwealth parliament under section 51 (xxix) external affairs. The Commonwealth argued they had the power to stop the building of the dam. State of Tasmania’s argument: Dam building is a residual power, therefore they have the law-making power to build the dam High Court decision: Decided in favour of the Commonwealth Parliament Impact of the decision: This decision increased the law-making powers of the Commonwealth parliament, in that they could legislate in the area of residual powers (where there is a world heritage listing or international treaty)

High Court Interpretation of the Constitution – Changing the Constitution indirectly
R V Brislan (1935) Background Information: Section 51(v) of the Constitution gave the Commonwealth Parliament power to legislate on postal, telegraphic and other like services. The Commonwealth Parliament had passed The Wireless Telegraphy Act (1905) requiring all owners of wireless sets to hold a licence. Brislan did not hold a licence and was charged. Brislan’s Argument: “Wireless sets” is not mentioned under section 51(v) in the Constitution and is not within the Commonwealth’s law-making powers Commonwealth Parliament’s Argument: “Wireless Sets” is included under section 51(v) under ‘other like services’, therefore they have every right to legislate in that area High Court decision: Decided in favour of the Commonwealth parliament Impact of the decision: The impact is that the case confirmed the Commonwealth’s law-making powers concerning wireless sets and clarified the meaning of Section 51(v).

The Referral of Power Outlined in s.51 (xxxvii ) of the Constitution
Outlines the process of the states handing some of their power over to the Commonwealth Requires the passing of two bills (state and federal level)

Referral of Power: Ex-nuptial Children
S.51(xxi) and S.51(xxii) of the Constitution gives the Commonwealth Parliament to make laws relating to marriage and divorce, however this power does not extend to de facto relationships, which remain an area of residual power. The Commonwealth Parliament created the Family Court to specialise in cases involving the dissolution of marriage, custody, maintenance and related issues. States have decided that similar disputes relating to the breakdown of de facto relationships should be treated similarly, and so have referred their powers in this area to the Commonwealth Parliament, to be dealt with by the Family Court. The Commonwealth Powers (Family Law – Children) Act (Vic) referred Victoria’s powers to resolve custody disputes involving ex-nuptial children to the Commonwealth. Most states passed similar legislation. The result is that children of de facto couples involved in custody disputes following the breakdown of the relationship are treated in the same way as children in married couples seeking divorce.

Evaluation of methods to change the Division of law-making
Strengths Weaknesses Referenda Double majority provision ensures that only those proposals with overwhelming public support are successful. The lengthy process means that proposals are considered completely and fully, thereby protecting the Constitution from changes without merit Smaller states are protected from domination by more populated states, due to needing the support of the people in at least 4 out of 6 states. As proposals must be passed through Commonwealth Parliament, the process is largely controlled by the Commonwealth, which often proposes increases in its power. Referendums are a costly process due to the information and publication provided to the public and the cost of the election process. The 1999 referendum cost around $66 million. The low success rate, which can be attributed to voter conservatism, lack of understanding and distrust of politicians, can lead to people voting no. Needs bipartisan support to be successful, otherwise voter loyalties are divided and the referendum will fail. High Court Interpretation of the Constitution High Court Judges are experts on constitutional law and its application, so are best placed to interpret its meaning. High Court interpretation of the Constitution has had the most success in changing the law-making process, and updating them for modern use. High Court is the guardian of the Constitution and can act (provided that someone has brought forward a case) to ensure that parliaments do not abuse their law-making powers. A change relies on someone being willing and able to challenge a case in the High Court, which is an expensive and time-consuming prospect. High Court Judges since the 1920s have generally favoured Commonwealth Parliament over state parliaments in their decisions, thereby increasing the powers of the former at the expense of the latter. The composition of the High Court can affect the interpretation given. For example, conservative judges may be reluctant to change law-making powers, but progressive judges are more inclined to do. Referral of Power The Commonwealth Parliament is able to make laws that are consistent across Australia, for the benefit of all Australians. States have the ability to decide specific areas of law-making that they feel would be best dealt with by the Commonwealth. Means to transfer or re-distribute legislative power between the Commonwealth and the states without the need to amend the Constitution. The potential impact of states deciding to revoke these referred powers is unclear. The Commonwealth may refuse to accept the powers referred to it by a state, thereby reducing the benefit of consistent laws. Some states may refer their powers in one area to the Commonwealth, while others do not, which means the laws will not benefit all Australians.

Protection rights in Australia
Structural Protection Express Rights Implied Rights

Structural protection
The Constitution sets up the Australian parliamentary structure. This structure provides for the protection of some rights. For example, the Constitution provides for: responsible government representative government s.7 and s.24 separation of powers These three constitutional principles underlie our democratic system of government and provide checks and balances to prevent abuse of power and thereby indirectly protect human rights. Structural protection = the systems, structures or mechanisms found in our Constitution that operate to indirectly protect human rights by preventing the misuse or abuse of power.

Express rights A small number of rights are actually expressly stated in the Constitution. These rights are entrenched, meaning they can only be changed or removed through referendum – the Commonwealth Parliament cannot remove them by passing an act of parliament. There are only five express/explicit rights in our Constitution • The acquisition of property ‘on just terms’ s.51 • Trial by jury s.80 • Freedom of interstate trade and commerce s.92 • Freedom of religion s.116 • Freedom from interstate discrimination: s.117

Implied rights Implied rights are those not explicitly stated or written in the Constitution, but which the High Court believes to have been ‘suggested’ or ‘intended’ by the authors of the Constitution. The High Court has found one implied right: Freedom of political communication/speech: in interpreting the Constitution, the High Court has indicated that there are implied rights to freedom of speech and communication on political matters

Roach v. Electoral Commissioner (2007)
Facts: Roach was serving 6 years for several offences Roach was unable to vote in the upcoming election due to 2006 amendments to the Electoral Act which stated that no prisoners serving time were eligible to vote. Roach contested this on the grounds that it was contrary to s.7 and s.24 of the Constitution which stated that members of parliament be directly chosen by the people (representative govt) The High Court found in Roach’s favour, ruling that the 2006 amendments were unconstitutional. Impact: Allowed prisoners serving under 3 years to vote Recognised the right to vote was structurally protected.

Evaluation of the Constitutional protection of rights for Australians
Strengths or the Constitutional protection of rights for Australians Weaknesses of the constitutional protection of rights for Australians The High Court was established to be the guardian of the Constitution and serves an important role in interpreting and enforcing protected constitutional rights in order to ensure that rights are upheld. Express Rights are entrenched in the Constitution, so that they can only be changed by a successful referendum, for this to be achieved there must be widespread support within the voting community. The High Court has the ability to find implied rights through interpretation; this may be needed and appropriate and helps to ensure justice. New rights could be added to the Constitution through a successful referendum. The High Court can declare legislation to be invalid if it infringes on any of the rights protected in the constitution. A combination of protection mechanisms, including structural protection, express rights and implied rights, prevents the abuse of power by the Commonwealth Parliament. The Constitution protects only a limited number of rights, with the legal system relying heavily on legislation and the common law to protect rights. The protected rights are spread throughout the Constitution, rather than in a more accessible form such as a bill of rights. The wording of the Constitution , and hence any express rights, is difficult to change due to difficult referendum procedure. The High Court must wait for a case to be brought to it with a relevant issue before it is able to make a declaration of invalidity – i.e. complaints based approach to rights protection. This can be a lengthy and costly procedure for the parties involved. There is no dialogue between parliament and the High Court at the drafting stage to check whether bills are likely to infringe upon protected rights; this can only be assessed once the act comes into effect, and a person whose rights are infringed can then pursue their claim to the High Court. In making a ruling the High Court declares the legislation in question to be either valid or invalid; it does not provide a remedy to aggrieved parties (a separate case may be needed if a remedy is sought). Most rights provisions apply only to the Commonwealth Parliament, and do not limit the actions of State Parliaments.

United States of America
Type of protection: Entrenched- the bill of rights is the name given to the first 10 amendments to the United States Constitution, although further amendments have since been added. Considered to be ‘the most important of all rights’ Some express rights protected: Freedom of religion, speech, press, peaceful assembly, petition Right to keep and bear arms Right to speedy and public trial Right to trial by jury in civil cases Protection from excessive bail fines and cruel and unusual punishments Mainly concerned with civil and political rights

United States of America
Implied rights: The US Supreme Court has also found implied rights within the US Bill of Rights, such as the right to privacy Structural Protection of rights: Representative government (articles 1, 2, 3) 18th amendment ‘right to vote’ Separation of powers provides checks and balances There is NO RESPONSIBLE GOVERNMENT in the US system

USA - Amending the Constitution
Sometimes referred to as a ‘referendum process’ but doesn’t always involve all of the people

Comparison of AUS to USA
Similarities Differences Express rights are entrenched and can only be changed by holding a referendum to change the Constitution (a more complex procedure in the US than here) Rights are fully enforceable by the courts, which can declare legislation that violates the protected rights as invalid; this declaration cannot be overruled by parliament/congress Structural protection of rights, with the separation of powers and representative government existing to protect human rights through the misuse of power The superior courts have found implied rights that have been read into the Constitution The US Bill of Rights has a far more extensive list of express rights than the Australian Constitution. The referendum procedure of the US is far more complex and lengthy than in Australia No doctrine of responsible government in the US, where the president is separate from Congress. He/she may still rule even without the majority support of Congress. Separation of powers is strictly adhered to in the US , whereas there is some overlapping of the legislative and executive functions in Australia.

Area of Study 3

Statutory Interpretation
How Courts Make Law?? Statutory Interpretation Precedent

The Doctrine of Precedent
Precedent – Is the judgment of a court that sets a principle of law. Ratio Decidendi: The reason for the decision – becomes a statement of court-made law The doctrine of precedent refers to the process by which judges follow the reasons for the decisions given by courts higher in the court hierarchy when deciding on similar future cases = Stare Decisis which means to stand by what has been decided. E.g. Switched at birth

Binding Precedent Precedent that must be followed by a court when making a decision on a similar case. It is the ratio decidendi, or reason for the decision, that forms the binding part of the precedent. Precedents that are binding on a court include: The decision of a higher court Court must be in the same court hierarchy Same similar facts

Persuasive Precedent Precedent that courts do not have to follow, but they may choose to do so for consistency. It is often highly influential in a court’s decision. Persuasive precedents include: The decision of a lower court in the same court hierarchy The decision of a court in a different court hierarchy, such as another state or country The decision of the same court if it is not one that is bound to follow its own decisions Obiter dictum statements.

Parts of a Court’s Judgment
Ratio Decidendi – the reason for the decision  forms the statement of law that is the binding part of the precedent. Obiter dictim – comments said by the way, that do not affect the outcome  is only ever persuasive precedent (regardless of the court in which it was stated) Stare Decisis - to stand by whats been decided  making the binding precedent on lower courts bound to stand by the precedent.

Developing or Avoiding Precedent
Reversing Distinguishing Overruling Disapproving

Reversing Judge in a Higher Court deciding a case on appeal may rule that the lower court wrongly decided that case. The superior court can reverse or change the previous decision. This creates a new precedent that is binding on lower courts. Overruling A judge deciding a case in a higher court may not agree with a precedent set in another case in a lower court. The superior court may decide not to follow the existing persuasive precedent and may overrule or change it.

Distinguishing A Judge may find that there are different material facts existing between the case currently being decided and the case in which an earlier binding precedent was set. If these differences are important enough, then the later court may choose to distinguish its case from the previous one, and create a new precedent for their particular set of facts. There will then be two different precedents – one for each of the two fact situations. Disapproving A Judge may refuse to follow an earlier decision of another Judge in the same court. They are then showing their disapproval and lack of agreement with the earlier decision. Both precedents remain in force until another case on the issue is taken to a higher court, which can overrule the previous decision and create a new precedent. Also, judges in a lower court can express their disapproval about a precedent set in a higher court that they are bound to follow.

Limitations on a Judge’s ability to make law
Judges can only make law if there is a test case before them The position of the court in the hierarchy The type of legal case and the mode of trial The personality of the judges Judges may be bound by existing precedent.

Advantages/Disadvantages of doctrine of precedent
Creates certainty and consistency as a case will be decided similarly to a previous, comparable case. Flexibility due to the fact that the methods of avoiding following precedent (distinguishing, overruling, reversing and disapproving) help prevent the law from becoming too rigid. Encourages efficiency as judges can refer to previous cases when making decisions. Allows judges to create new areas of law in order to uphold the rights of disputing parties before them. Inflexible, as a court is bound to follow precedent and may not be able to avoid it, so common law is limited in responding to changes in society. Some uncertainties, as no two cases are ever the same. Restricted by having to wait for a case to be brought to court – slow and irregular. Complicates the judicial law-making process.

Statutory Interpretation
Involves a judge or judges who are presiding over a legal dispute examining and interpreting the meaning of words, phrases or sections contained in a relevant statute (legislation), before applying these to the facts of the case before them. E.g. Studded Belt Case The Court needed to interpret the Control of Weapons Regulations 1990 (Vic.) to determine whether the belt with raised studs was considered to be a weapon when worn as item of clothing. The courts are required to rule on the meaning of legislation in around half of all reported cases in Australia.

Reasons for Statutory Interpretation
Mistakes in drafting the bill Words within the act may be ambiguous Future and Changing Circumstances Changing nature of words

Aids used in interpreting statutes
Intrinsic Materials: Sources contained within the Act Words of the Act Punctuation used Definition section Long title Preamble Headings Divisions and sub-divisions Marginal Notes Footnotes Extrinsic Materials: Sources outside the Act Parliamentary Debates e.g. 2nd reading speech Reports from parliamentary committees and law reform bodies Dictionaries – both legal and general English Interpretation Acts Previous decisions - binding and persuasive precedent Any relevant documents mentioned in the Act. Judge’s Common Law Rules Ejusdem generis (the class rule) - used when several specific terms are followed by a general term. The rule limits the general term to the same class as the specific term. Expression unius exclusion alterius – the express mention of one to the exclusion of others Words are assumed to have their meaning.

Effects of Interpretation by Judges
Words or phrases in the legislation are given meaning A wide interpretation of a word or phrase in a statute may extend the law A narrow interpretation of a word in a statute may restrict the law to cover only certain situations Statutory Interpretation by courts of record creates a new precedent

Evaluation of courts as law makers
Strengths Weaknesses Courts can make laws quickly when relevant cases are brought before them Courts are able to develop and clarify the law, and fill in the gaps left by parliament. The doctrine of precedent ensures consistency Courts help to maintain flexibility (RODD) Courts can interpret words to apply to modern situations Judges are independent from parliament and government Judges are experienced professionals The appeals process allows for a system of review Courts must wait for an appropriate test case to come before it Changes in law can be slow to develop in the courts Access to precedent is limited as it hard to locate and understand (time consuming and costly) Courts may be bound by old precedent Judges can be conservative Judges are unelected and not necessarily representative Courts have to rely on their own resources when investigating the need to change the law Law-making in the courts is only ever ex post facto Precedent can be over-ridden and abrogated by parliament.

Relationship between Courts and Parliament
Parliament passes legislation to create the structure and jurisdiction of courts Through the passage of legislation, parliament establishes courts, and their structures, jurisdictions and procedures. 2. Courts apply and interpret legislation created by parliament Courts must apply the case before them to any relevant legislation made by parliament. This can sometimes involve statutory interpretation. The impact of statutory interpretation is that the legislation and the precedent created by the court’s interpretation are read together to provide consistency.

Relationship between Courts and Parliament
3. Parliament can change laws created by courts Courts make laws via precedent and statutory interpretation. The supremacy of parliament means that it can override or abrogate any court made law through the passage of legislation 4. Parliament can codify laws made by courts Parliament can pass law that incorporates common law principles; this process is known as codification– making common law into statutes or codes, and thus strengthening the law. 5. Statements made by the courts can influence parliament In the process of hearing and deciding cases, judges may make statements that reflect their feelings on a law or its application. This may signify to parliament that there is a need to change the law

Year 12 Legal Studies Unit 3 Revision.

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