Studied by 10 people
Australian constitution
a set of rules and principles that guide the way that Australia is governed.
Commonwealth parliament structure
house of representatives
the senate
the crown
House of Representatives
there is 151 members that represent one of Australia’s electorates. It represents the views of the people. The political party with the most members in the House of Representatives forms the government.
House of reps - role in law making
to determine and form government
to initiate laws
provide a representative government
scrutinise government administration
control of expenditure.
The senate
Has 76 members that represent the states and their views.
Senate - roles in law making
act as a house of reviews
represent the states
initiate bills
scrutinise bills and government administration.
Victorian parliament structure
the crown
legislative council
legislative assembly
Legislative Assembly
88 members that represent the views and interest of the people in their district. The party with the majority of seats forms the government.
legislative assembly - roles in law making
initiate bills
form government
scrutinise government administration
represent the people
act as a house of reviews
control government expnditure
Legislative council
there are 40 members representing the regions of victoria
legislative council - roles on law making
act as a house of reviews
initiate bills
scrutinise government administration
The crown
The king is represented by the governor general at a federal level and by the governor at a state level.
Royal assent
approval for a bill to become a law.
Residual powers
law making powers that are left with the states. The commonwealth parliament has no authority to make laws in these areas. for things like criminal law, road laws and education.
Exclusive powers
law making powers that are held only by the commonwealth parliament and the states cannot legislate in these areas. They can be exclusive by either nature or by construction. for things like defence, currency and customs.
Concurrent powers
law making powers that are shared by both the states and the federal parliament. for things like trade, tax and marriage.
Section 109
helps to resolve conflicts between state and commonwealth laws. mostly in areas of concurrent powers. The commonwealth law will prevail and the state law will be invalid to the extent of the inconsistency.
Bicameral structure of parliament
Both the commonwealth and victorian parliaments have 2 houses. In the Australian constitution the need for 2 houses is in section 1. for state parliaments the need for 2 houses is in section 15 of the constitution act. It means that bills need to be passed in an identical form by majority on both houses.
Hostile senate
When the government of the day does not hold the majority of seats in the Senate. This may mean that it will be harder to pass bills and more scrutinisation of the bills. The original purpose of the bills will also likely get watered down. It can force the government to consider a wider range of views.
Rubber stamp senate
when the government of the day also holds that majority of seats on the senate. Any bills introduced when there is a rubber stamp senate will inevitably get passed. This can prevent bills from being adequately debated.
Strengths of bicameral structure
ensures a robust review of bills through scrutiny of the second house.
scrutiny of bills prevents errors.
Weaknesses of bicameral structure
event of a rubber stamp senate
event of a hostile senate
Law making process
bills will pass through both houses in the same way and then will receive royal assent. in the house the bill was introduced in there will be a number of readings and it will get voted on, if it passes the same process will follow in the second house.
International pressures
demands or forces applied to parliaments to persuade them to make or not to make law to address matters of international concern.
Sources of international pressure
local activists
international activists
other countries
non-government organisations
transnational corporations
representative nature of parliament
The extent to which the diversity of parliament reflects the diversity of Australia. Parliament and government should consist of members who are elected by the people to make laws on their behalf. This encourages mps to listen to the views of the community and make laws in accordance with these views.
Separation of powers
Each branch of power is kept separate and idependant from each other.
The Executive
s.61. Administers law and manages the business of government. Consists of the prime minister, the governor general and cabinet. They are the body that initiated the majority of bills. It proposes the direction of the country and thus bills are introduced into parliament.
The Legislature
S.7 and 24. It has the power to create law. It consists of the parliament which is the supreme law maker, not the absolute law maker. The legislature forms government and scrutinises government through debate, process of law making and bicameral structure (check on executive).
The Judicial
S.71. Has the power to enforce law. Consists of the courts. Courts are independent from government and parliament. They can rule on the validity of the legislation (check on legislature).
Separation of Power - strengths.
Judiciary have the power to invalidate a statute
Judiciary is independent of the legislature and the executive
separation of powers is specified in the constitution
Separation of powers - weaknesses
Legislative and executive power are combined
judges are appointed by the executive
The ability of the judiciary to act as a check on parliament is dependant on peoples willingness to challenge laws.
HC protecting representative government
The HC has the power to give meaning to the words in the constitution but cannot alter the wording of the constitution. By addressing S.7 and S.24 the HC can protect representative government.
HC check on parliament in law making
Ability of HC to address ultra vires cases (cases where HC declares laws created by parliament exceed their division of power) ensures government does not legislate in areas beyond law making power, BUT can only engage in this check when a case is presented/legislation is challenged by a party with standing
High Court - strengths
independent to the legislature and executive
Enables a means for people to have their constitutional case heard
They have specialisation in constitutional law which ensures a proper decision is made
High Court - weaknesses
Must wait for a case to be brought before them
Can only alter the meaning of the words if the constitution not the words themselves
Judges are appointed by the prime minister.
Express rights
Rights that are entrenched in the constitution and can only be removed through a referendum. There are 5 express rights, the right to freedom of religion, the right to free interstate trade and commerce, the right to receive just terms when property is acquired by the commonwealth, the right to trial by jury for commonwealth indictable offences and the right not to be discriminated against on the basis of the state where you reside.
The right to freedom on religion.
Section 116. The commonwealth cannot make a law that establishes a state of religion, imposes any religious observance, prohibits the free exercise of any religion.
The right to free interstate trade and commerce.
Section 92. Interstate trade and commerce must be free. it restricts taxes on good from moving from one state to another from being imposed.
The right to receive just terms when property is acquired by the commonwealth
Section 51(xxxi). The commonwealth must pay fair and reasonable compensation for property that is compulsory acquired. The commonwealth is only able to acquire property for a purpose or area for which it has the power to make laws (airports and national parks).
The right to trial by jury for commonwealth indictable offences.
Section 80. There must be a jury trial for indictable commonwealth offences under criminal law.
The right not to be discriminated against on the basis of the state where you reside.
Section 117. Makes it illegal for the states and commonwealth to discriminate against someone on the basis of the state in which a person resides.
Express rights - strengths
imposes limits on parliament when making laws in certain areas.
rights cannot be removed without a referendum
An individual can have their express rights case heard in the HC
Express rights - weaknesses
HC needs a case to be brought before them to protect the rights
rights that are protected are limited in scope
need standing, time and money to go to the HC.
McBane v State of Victoria
Section 109 Case
Facts:
McBane was a gynaecologist the specialised in reproductive technology
Lisa Meldrum was a single woman seeking IVF which was illegal at the time.
Issue:
There was an inconsistency between victorian legislation, which made it illegal for Lisa to get IVF, and the federal legislation, the sex discrimination act, which says you cannot discriminate on medical treatments.
conflict between state and federal legislation
Outcome:
state legislation is invalid to the extent of the inconsistency and federal legislation prevails
Significance:
federal powers are extended and state powers are reduced
R v Brislan (1935)
HC on law making powers case
Facts:
At the time you needed a licence to own a radio
Brislan had a radio but did not have a licence
S.51V provides the commonwealth with exclusive power over postal, telegraphic, telephonic and other like devices
Issue:
Falls under the jurisdiction of the HC to interpret constitution
The state law should not exist because only the federal government should have control over these types of devices, conflict between state and federal law.
Outcome:
HC judges found in favour of the commonwealth
The wireless technology falls under S.51V and criminal law does not apply
S.109 applies and state law in invalid
Significance:
shift in power
residual power of the state is reduced
Commonwealth v Tasmania - Tas Dams case (1983)
HC on law making powers case
Facts:
finish this later
dont know this case
Australian Communist Party v Commonwealth (1951)
separation of powers case
Facts:
The cold war after WW2 saw tensions between the USSR and the USA with communist ideas threatening liberal democracy
in 1950 the federal parliament passed The Communist Party Dissolution act to dissolve the communist party
Issue:
The communist party challenged the legislation in the HC as an ultra vires case.
legislation is claimed to have been made outside the law making powers of the federal parliament
Outcome:
HC found in favour of the communist party
Significance:
highlights separation of powers between the judiciary and the executive and legislature.
Australian Capital Television Pty Ltd v The commonwealth (1992)
HC in protecting rep government case
Facts:
Commonwealth amended the Broadcasting Act (1942), significantly reduced the broadcasting of political advertising on TV and radio 6 months before an election period
In creating the Political Broadcasts and Political Disclosures Act (1991), only existing members of Parliament were allocated a set period of advertising time
Issue:
ACTV in 1992 challenged the Constitutional validity of the new law on the basis of representative government established in S7 and S24
Goes against intended purpose of S.7 and S.24
ACTV argued that the law compromised freedom of political speech and communication, which is an implied right in S7 and S24 of the Constitution
Outcome:
6 HC judges to 1 found in favour of ACTV
The Political Broadcasts and Political Disclosures Act (1991) is outside of the powers of Parliament, thus the law is invalid
Significance:
HC interpretation has been broadened to encapsulate representation to mean freedom of political communication
Roach v Electoral Commissioner (2007)
HC protecting rep government case
Facts:
Prisoner charged with an indictable offence and was serving 6 years
Government made amendments to an act that said if you are in jail then you cannot vote in elections
Issue:
It is going against intended purpose of 7 and 24 because not all people are choosing the members of parliament.
S7 and S24 state that members are to be chosen ‘directly by the people’. Prisoner disenfranchisement prevents this.
Outcome:
4:2 HC judges found in favor of Roach
It allowed the original piece of legislation - prisoners serving less than 3 years can vote
Common Law
law made by judges through decisions in cases
Statutory interpretation
interpreting the meaning of a statute to resolve a case. This occurs when there's a dispute over the meaning of words and phrases contained in an act of parliament. When doing this judges can narrow or broaden it's meaning.
reasons for statutory interpretation
Particular words of acts may be too broad or vague
Acts may not clarify all future applications and technologies
Effects of statutory interpretation
The words or phrases in the disputed legislation are given meaning
The courts decision is binding on the parties
A precedent may be set for future cases to follow
The meaning of legislation can be restricted or expanded
Precedent
the reason behind a courts decision. It provides guidance when deciding future cases
Doctrine of precedents
depends in the courts being ranked in a hierarchy. Only superior courts can set precedents and make law.
Reasons for precedents
Ensures common law is consistent and predictable
Provides and indication of the potential outcome of a case by looking back at past decisions
Provides judges with guidelines on decision making
Provides lower courts with guidelines made by more experienced higher courts
Ensures an efficient manner of decision making
Key features of the doctrine of precedents
Binding precedent
Persuasive precedent
Ways to develop and avoid precedents
Binding precedent
a precedent that has been established in the superior courts and must be followed by lower courts in the same hierarchy when the material facts are similar. They are obliged to follow it. This includes the ratio decidendi and the stare decisis
Persuasive precedent
precedents that are not binding on a court but may still be considered by a judge and used to influence their decision. They may be set by courts in a different hierarchy, a lower court or by a court of the same standing. It includes the obiter dictum.
Developing and avoiding precedents
Reversing
Overruling
Distinguishing
Disapproving
Reversing a precedent
When a judge in a superior court may disagree with and decide to change the previously established precedent set by a lower court. This occurs in the same case on appeal.
Overruling a precedent
When a judge in a superior court may decide not to follow a previously established precedent set by a lower court. This occurs in a different and later case.
Distinguishing a precedent
A judge may be able to avoid following an existing precedent if they can find a difference in the material facts.
Disapproving a precedent
When judges or magistrates who are bound to follow a precedent express their dissatisfaction with the precedent.
Advantages of precedents
the doctrine of precedents allows for consistency and predictability in similar cases.
Disadvantages of precedents
The difficulty and cost involved in locating a precedent (it can be hard to find precedents that are relevant to the case due to the large number of cases that have previously been decided)
The difficulty in identifying the legal reason behind a decision
The difficulty predicting future developments
Limitations of the doctrine of precedent
Judges must wait for a case to be brought before them
Judges make law ex post facto
parliaments can legislate to abrogate common law.
Judicial conservatism***
When a judge believes that they should maintain tradition and will not make significant changes to common law to keep it the way parliament intended it to be. they will give a narrow interpretation.
Judicial activism***
To seek change and progression in common law according to the shifting social values. They will give a broader interpretation.
Cost factors
Can limit the ability of the court to make law because they cant make laws unless a case is brought before them. The main costs of taking a case to court are the cost of legal representation and court fees.
Time factors
Can limit the ability of the court to make law because they cant make laws unless a case is brought before them. Courts have the ability to make law relatively quickly once a dispute has been brought before them.
Need for standing
The party initiating a case must have standing (sometimes referred to as locus standi). This means that party must be directly affected by issues or matters involved in the case. This prevents waste of court resources.
Supremacy of parliament
Parliament is the supreme law making body with the ability to make and change any law within it's constitutional power. They are also responsible for making law to create the courts and determine their jurisdictional power. Parliament is also able to pass legislation that restricts the ability of the courts to make decisions with respect to certain matters
Ability of courts to influence parliament
Courts can directly influence parliaments to make and change laws. Judges may make comments that could encourage parliament to initiate law reform. A courts decision may also highlight a problem or even cause public outcry that can lead to the parliament changing law.
Codification of common law
The parliament has the power to pass legislation that assembles all the relevant law in a particular area, including both common law and statute law. The codification of common law also allows parliament to pass legislation that reinforces the principles established in court rulings. Enshrining.
Abrogation of common law
To pass legislation that cancels decisions make through the courts, with the exception of high court decisions made on constitutional matters. May occur where parliament believes the courts have interpreted the meaning of the words or phrases in a statute in a way that was not the intention of parliament.
How to statutory interpret
Ejusdem generis
Expressio unius exlusio alterius
Ejusdem generis
“Of the same kind” – Any general term that follows a list of specific terms results in the general term being of the same ‘class’ as the specific terms. This broadens the definition of a term.
Expressio unius exlusio alterius
“Expression motion of one is to the exclusion of others”. Words that are not included within a list are assumed to be completely excluded and intentionally not regulated by that law. Narrows the definition of the terms
Law reform
the process of changing a law. It ensures our laws are effective and relevant
Reasons for law reform
changes in beliefs, values and attitudes
changes in living conditions
advances in technology
a greater need for community protection
all turtles cant pee
Informal law reform processes
petitions
media
demonstrations
formal law reform processes
courts
law commissions
Petitions
a formal written request to parliament for a law to be altered due to it’s unjust or outdated nature. They can only be addressed to one house of parliament. It is a request for action that can be legally taken
Petition strengths
raises awareness and is easy to organise
displays the impact of current outdates/unjust legislation
petitions with large numbers of supporters may place more pressure on parliament
provides link to parliamentarian in tabling petition
ROD LP
Petition weaknesses
Does not compel parliament to act, nor is parliament obligated to act
Limited in gathering further public support and/or investment in the issue beyond a petition
Too many petitions
NC LS TM
Demonstrations
Organised groups of people demonstrate their support for a change in law. They bring attention to the community and law makers about the law and need for change
Demonstration strengths
Raise public and media awareness
Enables public engagement in an issue
Demonstration of greater number more likely to draw attention to parliament
RAEL
Demonstration weaknesses
Inconvenience caused can dissuade public support of the issue
No direct contact with parliament
Limited ongoing support
Demonstration numbers
Time consuming and difficult to organise.
Media
Used to inform the public of an issue. Can be used to influence community opinion and law reform. Parliament may use media as a means to gauge public support of an issue
Media strengths
Used by government to gauge public support for the issue
Wide reportage raises more awareness
Can enhance other methods of individual law reform
Social media is easy to access and use.
gaee
Media Weaknesses
Government will tend to only address an issue if there is high enough community support
Bias reporting
Misinformation
VLRC
Independent law reform organisation which reviews, researches and makes recommendations to the Victorian Parliament about possible changes to Victorian law. It is funded by the government.
VLRC - justice system response to sexual offences
202 terms of reference established to examine laws relating to sexual offences and how the justice system may better support victims of sexual assault. VLRC made 7 recommendations and the parliamentary response was a new definition of consent in the crimes act.
VLRC strengths
Has extensive resources available
Can measure social views through feedback and consultation
Has direct link to government
Impartial to government
RF LI
VLRC weaknesses
only investigates issues that are requested by the attorney general
Parliament not compelled to follow recommendations
Limited by terms of reference
ANCR
Royal Commissions
Investigations conducted under the GG, usually in response to a catastrophic event. The investigation is in relation to matters of concern.
Why royal commission
issue requires immediate action
issue extends beyond the legislative capacity
issue involves government inpropriety
How to royal commission
Established through the crown
Once enables, the government cannot stop a royal commission
Terms of reference established - the scope and limitation of the RC
Review: papers/submissions from stakeholders, witnesses, case studies
Conduct public/private hearings where witnesses and stakeholders and questioned
Compulsory to attend and provide evidence and answer questions
RC will create a report with recommendations
Recommendations are created and tabled to parliament
RC can also recommend to the DPP individuals that should be prosecuted
Note
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