Legal unit 4

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:

• Tasmania wanted to build a dam for hydroelectricity which fell under residual; power

• protests by Australians led to CTH passing a law to protect the river under the World Heritage Property Conservation ACT 1983

• CTH claimed they had the power to do this as it was to enforce an international treaty to protect heritage sites

Issue:

• Tasmania claimed that electricity was a residual power so they could build the dam

• Under S.51 (xxix) - the CTH has the power to make laws for international affairs and claimed that international affairs included the law they passed

Outcome:

• HC found in favour of the commonwealth and interpreted external affairs to include international treaties that Australia has signed

Significance:

• Exclusive powers extended and residual powers reduced - shift in the division of powers

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.

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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