Legal - Unit4Aos1

The Crown

• Federal representative of the monarch: Governor-General (appointed by King on PM’s advice)

• State representative of the monarch: Governor (appointed by King on Premier’s advice)

• Key functions: grant royal assent to Bills, prorogue parliament, dissolve both houses (double dissolution), chair Executive Council, approve delegated legislation

Parliament

• All elected representatives plus the Crown

• Passes statute law (Acts)

• Supreme law-maker except in constitutional cases

• Bicameral: composed of two houses (Lower and Upper)

Government

• Party or coalition with majority in the lower house

• Runs the country and administers law

• Executive authority

Commonwealth Parliament structure

• Crown: Governor-General

• Lower House: House of Representatives (150 members, 3-year term)

• Upper House: Senate (76 members; 6 states × 12 + 2 territories × 2, 6-year staggered terms)

• Leader: Prime Minister

Victorian Parliament structure

• Crown: Governor

• Lower House: Legislative Assembly (88 members, 4-year fixed terms)

• Upper House: Legislative Council (40 members, 8 regions × 5 members, 4-year fixed terms)

• Leader: Premier

Roles of lower houses

• Decide government (majority forms government)

• Provide representative government (electorate views, petitions, question ministers)

• Assist responsible government

• Scrutinise government (debates, question time)

• Control government spending (money bills originate here)

Roles of upper houses

• Review, amend, reject bills from lower house

• Represent states/regions equally (not population)

• Use proportional representation encouraging diversity

• Hold government accountable, review rushed legislation

Law-making powers

Section 109 (Constitution)

• Commonwealth law prevails over state law when inconsistent in concurrent powers

• Only as far as the inconsistency

• Ensures national consistency and Commonwealth supremacy

Tasmanian Dams case (1983)

• Commonwealth used external affairs power (s51(xxix)) to stop dam construction

• Expanded Commonwealth power to legislate on international treaty matters

• Example of High Court broad interpretation affecting federal-state powers

Factor’s affecting parliament’s ability to make law

• Bicameral structure: review, scrutiny, hostile Senate may block government agenda

• International pressures: treaties may mandate law changes

• Representative nature: parliamentarians respond to public opinion, may avoid unpopular laws

Checks on parliament by the Constitution

• High Court: hears constitutional cases, can declare laws ultra vires (invalid), implies rights

• Separation of Powers: legislature (makes laws), executive (administers), judiciary (interprets) balance power

• Senate/upper house reviews government and legislation

Express rights (entrenched in Constitution)

Statutory interpretation

• Judges interpret and apply legislation's words when applied to cases

• Interpretation decisions bind lower courts

• Parliament can codify (adopt) or abrogate (override) judicial interpretations

• Examples: Deing v Tarola (regulated weapon), Re Kevin (marriage/gender), McBain (state/federal clash)

Doctrine of precedent

• Stare decisis: stand by decided cases (binding precedent)

• Ratio decidendi: binding legal principle behind decision

• Obiter dictum: persuasive comments, not binding

• Overruling: superior court reverses previous decision

• Reversing: same case, different outcome on appeal

• Distinguishing: case facts different, so precedent not followed

• Disapproving: judge disagrees but cannot overrule, signals need for law change

Factors affecting courts making law

• Bound by precedent

• Judicial conservatism vs. activism

• Costs and delays in bringing cases

• Requirement for standing (must be affected)

Relationship between courts and parliament

• Parliament is supreme but subject to Constitution/High Court

• Courts reactive and case-dependent

• Parliament can codify court decisions or abrogate common law

• Together they provide checks and balances in law-making