U4 - AOS1 - The people and the law reform

The Australian constitution acting as a check on parliament

• Uphholds a democratic society by ensuring the executive and parliament are held accountable to the people as responsible and representative.

• “Acts as a check – checks parliament actions and decisions, ensuring they act within their powers and responsibilities by placing limits on what the Commonwealth and state parliaments can do

Principle of representative government

Government should be chosen by the people and act on their behalf , meaning citizens should elect members of parliament to represent their interests and views in the law-making process.

Section 7 and 24

• “The senate shall be composed of senators for each state, directly chosen by the people of the state”

• “The HOR shall be composed of members directly chosen by the people of the commonwealth”

Roach V Electoral commisionser (2007) - legal issue and facts

• In 2006, the Commonwealth amended the Commonwealth Electoral Act 1918 (Cth) banning all prisoners from voting in Commonwealth elections (Before this the law only banned those serving term over three years from voting)

• Roach was serving a six-year prison term.

• Roach challenged the validity of the law, arguing this law does not uphold section 7 and 24 of the Australian Constitution

Roach V Electoral commisioner (2007) - decision and significance

• The High Court held this law is inconsistent with sections 7 and 24 of the Constitution - government must be chosen by a substantial majority of the population and the right to vote could only be removed for a significant reason.

• The Court established a person imprisoned is still a member of the community and mainatins an interest in how society in governed

• Tthe previous ban to vote on those serving a prison term over three years was held to be acceptable

• As roach has a sentance of 6 years she did not gain the right to vote

High Court role in protecting representative government

Sections 75 and 76 of outline the original jurisdiction of the High Court including the power to hear matters arising under the Constitution or involving its interpretation.

• Resolving disputes about constitutional meaning

• Ensuring Parliament does not exceed its powers

• The High Court can declare laws ultra vires (invalid)

Advantages of the high court as a check on parliament

• Can declare a law ultra vires if it breaches the principle of representative government and has been made beyond the law-making powers of parliament.

• Is an independent judiciary, meaning it is not subject to the influence of other branches of government - enables the impartial interpretationof the Constitution and declaring a law ultra vires if appropriate

• The difficulty in bringing a case to the High Court and establishing standing to do so ensures that only relevant cases are brought before it

Disadvantages of the high court as a check on parliament

• can only declare a law ultra vires if a person with standing challenges its validity - until then an invalid law remains in practice

• can only protect the principle of representative government relevant to the facts of the case before it - cannot create laws to further protect representative government outside the case.

• judges are appointed by the government of the day - may lead to appointment of judges who are sympathetic towards the government’s position, rather than being impartial.

Legislative power

The power vested in the parliament that enables it to make laws

• The Commonwealth exercise’s legislative powers

• section 1

Executive

The power, vested in the King and exercised by the Governor-General, to maintain and administer the business of the law

• It can be exercised by the prime minister, senior ministers, and cabinet

• Section 61

Judicial

The power vested in courts and tribunals that enables them to enforce laws and resolve legal matters.

• section 71

Key reasons for separations of power

• preventing any abuses of power by bodies involved in the creation of laws and the administration of justice

• upholding the rule of law and ensuring one body cannot simultaneously make, administer, and apply the law

• ensuring parliament cannot prosecute and adjudicate legal matters, the same way judges cannot hold seats in parliament where the laws are being made.

Overlaps in legislative and executive powers

combined and operate together - the power to administer the law and manage the business of government (executive power) resides with Cabinet, which is also involved in creating legislation (legislative power).

Judical power independancy

judicial powers must operate independently. Judges and the courts are separate from the parliamentary process of making legislation and cannot exercise legislative or executive powers. Similarly, a member of parliament (MP) must also not exercise judicial powers.*

Advantages of the eperation of powers

• The independence of the judiciary ensures legal matters can be determined without the influence of political pressures, as judges cannot be associated with political parties.

• The legislative branch acts as a check on the power of the executive as bills introduced by members of the executive (Cabinet) can still be scrutinised and not passed if parliament does not agree with its purpose.

• The separation of powers is constitutionally guaranteed, meaning it must be upheld and cannot be removed without a referendum.

Disadvantages of the seperation of power

• executive and legislature overlap - limits the ability of parliament to act as a check on itself internally – ministers as both part of the legislature and executive may pass laws that do not benefit the people but rather benefit the executive agenda

• Judges are appointed by the executive - may be influenced by the political motivations and values of the executive of the day.

• requires each branch of government to act as a check on each other - slow down decision-making and delay the passing of laws

Express rights

The five human rights that are explicitly stated and entrenched in the Australian Constitution.

• can only be amended or removed through a referendum

• legally enforceable - if legislation is passed that breaches an express right, the law’s validity can be challenged in the High Court by a person with standing.

Trial by jury for Commonwealth indictable offences

Section 80 of the Constitution states ‘the trial on indictment of an offence against any law of the Commonwealth shall be by jury’

• decision must be unanimous for the accused to be found guilty beyond reasonable doubt

• section 80 only applies for Commonwealth indictable offences - individual states and territories should uphold this right for their respective indictable offences by passing relevant legislation

Limitations of the right to trial by jury for Commonwealth indictable offences

• Most criminal offences are created by state laws, not Commonwealth law.

• Section 80 does not prevent state parliaments from passing laws to have serious offences tried by judges alone.

• Section 80 is not applicable to summary offences.

Freedom of religion

According to section 116 of the Constitution, the “Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth” - the Commonwealth cannot pass laws that restrict religious practice, impose a religion on an individual, or promote discrimination against an individual on the basis of religion.

Limitations of the right to freedom of religion

• Section 116 does not apply to state parliaments - it does not stop states from passing laws to limit the freedom of religious practices.

• A law that has the effect of forcing a person to do something their religion prohibits does not necessarily breach s 116. e.g.,  the Commonwealth can pass a law conscripting individuals to fight in a war, even though it may be contrary to some individuals’ religious beliefs about protecting life.

 

Strengths of express rights

• Enshrined in the Constitution and can only be modified or removed through a referendum

• Enforceable by the High Court, meaning legislation that breaches an express right can be declard ultra vires if an individual with standing takes the case to the High Court

• The High Court is independent of the executive and legislature - not politically affiliated with any party and can rule against a law breaching an express right even if breaching the right is desired by parliament.

Disadvantages of express rights

• The High Court has interpreted some of the express rights narrowly - certain laws can be created by parliament that may appear to breach an express right.

• There is no mechanism preventing parliament from passing laws that are constitutionally invalid or breach the express rights in the first place - can only be declard ultra vires when a case is brought before the High Court

• Few rights are entrenched in the Constitution as there are only five express rights - no significant limits on parliamentary law-making in regards to legislating on the core rights of each citizen, and there are few rights that are constitutionally protected.

• referendums are very costly and time-consuming.

Statutory interpretation

a process whereby the courts give meaning to the words in legislation when applying the legislation to a case.

• the courts may be required to clarify the meaning of legislation

• A court’s interpretation may form precedent (principle of law that can be applied in similar cases in the future)

• a person with standing must bring a case before the court

Reasons for statutory interpretation

• To clarify the specific meaning of words – to identify the scope of the statute and determine whether it extends to certain areas – where legislation is vague the court may add meaning to the words and phrases of the Act through their interpretation.

• To clarify the changing nature of words - As society progresses, the meaning of words and how they are used may prompt Judges to interpret the meaning of words to align with society’s values.

• To clarify unforeseen circumstances - Laws are drafted with the intention to cover future legal issues - the court must interpret legislation and apply it to unforeseen circumstances that were not anticipated by parliamentarians when drafting legislation.

Deing v Tarola [1993] - facts and legal issue

• Deing wore a belt with raised metal - Deing was charged in the Magistrates court under section  6 of the Control of Weapons Act 1990 (Vic) -  that it is illegal to ‘possess, carry or use any regulated weapon without lawful excuse’.

• Deing appealed the conviction in the Supreme Court.

• The court had to interpret the words ‘regulated weapon’ and determine if studded belts were included in that category.

Deing v Tarola [1993] - decision and significance

• Justice Beach determined that a ‘regulated weapon’ is a broad term and should be defined as anything that is ‘not commonly used for any other purpose than as a weapon’.

• Deing’s belt was found not to fall within the definition of a weapon allowed his conviction to be overturned.

• The judge narrowed the definition of ‘weapon’ by excluding items, such as studded belts, thus clarifying the specific meaning of the words in the Act.

Effects of statutory interpretation

• The creation of precedent - all future cases with similar material facts heard in the lower courts must abide by interpretation - creates consistency between cases ensuring they are treated the same before the law.

• broadening the operation of a statute - expands the scope of legislation – allows the statute to be applied more frequently.

• narrowing the operation of a statute - restricts the scope of the law through its interpretation.

• prompting legislative change - If the courts interpret the law in a way that parliament disagrees with, they may amend the legislation in order to override the court decision or may confirm a decision made by the courts and create legislation to institutionalise the court’s decision.

Reasons for precedent

• like cases are resolved in a similar manner – parties in a dispute can seek previous cases to gain an idea on how the court may decide their case

• legal representation are able to give advice on the likely outcome of the case

• judges have guidance – through the decisions of previous cases

• the same point is not repetitively being decided – waste of resoruces

• Flexability - precedent can change and develop over time allowing the gradual expansion of common law, interpretation of the meaning of words or phrases used in oast precedents can be made clearer to apply to new cases

Doctrine of precedent

a rule in which judges must follow the reasons for decisions given by superior courts in the same court hierarchy when deciding a case before them with similar facts.

• Based upon the principle of “stare decisis” meaning “to stand by what has been decided” therefore cases with similar material facts are decided in a similar manner to ensure consistency and predictability

A judges written reason for their decisions can be divided into two parts

• Ratio decidendi, meaning ‘the reason for the decision’ - the legal reason for the decision - the binding part of the judgment, that is the principle of law that must be followed by courts lower in the hierarchy.

• Obiter dictum, meaning ‘by the way’ - comments made by the judge to provide context to the judgment or legal suggestions - persuasive part of the judgment, it does not have to be followed, but can provides guidence for judges in future cases.

Binding precedent

a previous court decision that lower courts within the same court hierarchy are obligated to abide by when the facts of a case are similar

• ensures that cases with similar facts are heard in the same way, therefore providing predictability in the legal system.

Persuasive precedent

decisions that are not binding, but can be used as a tool to help judges determine an outcome for the case before them - If there is no law applicable to a particular case, the parties can utilise persuasive precedents to persuade the judge to make a judgment in their favour. 

• comments that are obiter dictum

• decisions made by the same court or courts at a lower level in the hierarchy

• decisions made by a court in a different hierarchy, such as NSW or England.

Reversing a precedent

 an act whereby a superior court changes a precedent set by a lower court in the same case on appeal which as a result sets precedent

Overruling precedent

when a superior court invalidates a previous decision made by a lower court by setting a new precedent in a new case with similar facts (courts can also overrule their own past decisions)

Distinguishing precedent

when a lower court refrains from applying a prior ruling - lower courts are only able to not abide by precedent by demonstrating the current case has dissimilar facts compared to the case in which the precedent was established.

Disapproving precedent

when a lower court acknowledges its disagreement or lack of approval towards a binding precedent, whilst still being obliged to follow it. These expressions of disapproval are obiter dictum. Disapproving a precedent does not change it, it merely shows the judge deciding upon the present case does not agree. If the judge is in a court lower in the hierarchy, they are still required to follow it.

Advantages of the doctrine of precedent

• if no statute or common law exists or it is not clear how the law should be applied to teh case before tehm judges are able to establish precedent and therefore develop laws

• Judges can distinguish a precedent by demonstrating the current case has different material facts to the case in which the precedent was established, surrounding - allowing development of new precedent uf necessary interpreting statutes - allowing judges to create and apply legal principles that specifically address the matters in the case by considering issues that have not been accounted for by the legisation

• enables courts to fill in the gaos of existing legislation when

Disadvantages of doctrine of precedent

• judges make laws ex post facto - they only make laws retrospectively only after a case is brought before them

• courts can only develop new laws where no law currently exists or it is not clear how the law applied to the case before them - courts cannot make laws simply on the basis that they disagree with existing legisation

• although courts can create new laws - parliament is still able to pass legislation that abrogates these laws due to the supremacy of parliament

Judicial conservatism

Judges which are reluctant to develop new laws as they believe it is parliamnets responsibility to do so as the supreme law maing body

• conservative judges interpret legislation narrowly, focusing only on the case before then, aiming to ensure interpretation is not based on their own political views and opinions

• make case specific judgements rather then creating precedent

Advantages of judical conservatism

• conservative judges show restrain in making decisions that could significantly change the law - ensuring the law remains stable

• prevents the creation of controversial laws as judges do not base their decisions on their own political opions and views

• courts will not make radical and controversial changes - reducing the likelihood of appeal being made on a question of law in which the precedent may be reversed

Disadvantages of judicial conservatism

• conservative jduges tend to interpret law narrowly - restricts the courts form making substantail changes to the law

• may result in superior courts applying outdated precedent rather then creating new ones - relevent community views and values are not reflected in existsing precedent

Judical activism

Judges may take an activist approach and change in the law in areas where parliament is hesitant to do so

• judges are not elected by the people free from political influence - allows them to make controversial changes in the law without needing to consider their prospect of reelection

Mabo Case

• In 1982 the Meriam men led by Eddie Mabo lodged a case against the Queensland Government and the Commonwealth of Australia in the High court to determine the legal rights of the First nations Meriam people

• On June 3 1992 the high court overturned the legal principle that Australia was am empty land belonging to no one (terra nullius) before the 1700s British colonisation

• they set precedent allowing First nations peoples to claim native title over their land

Advantages of judicial activism

• judges with this approach feel their role extends beyond merely applying legal principles to the case before them and therefore undertake a secondary role in developing common law

• judges are not elected by the people and therefore can make controversial changes on the law without fear of not being re elected

• judges can develop laws that put pressure on parliament to make leislative change

Judicial activism disadvantages

• Activist judges may be viewed as overstepping their role by developing the law beyond Parliament's intention, reducing the separation of powers.

• f judges depart from existing precedents or develop new legal principles, it can make the law less predictable for individuals and courts.

• Judges are appointed, not elected, they should not make significant social or political changes because they are not directly accountable to the public.

Costs in bringing a case to court

• fees for legal representation - solicitor or barrister

• court fees to comence and prgress a court proceeding such as court filing fees

• jury fees if one or both parties request one

• some or all of the other parties fees depending on the outcome of the case

Advantages of the costs associated

• VLA is available for some civil matters meaning parties may be able to accress resources that can assist them in persuing their case through the courts - providing more oppurtunities for the courts to make law

• judges give directions to parties such as limiting the number of witnesses or topics that they may be questioned about to reduce the cost as the time is lessened

Disadvantages of costs

• eligibility requirements for VLA is strict for civil cases - therefore parties who cannot gain VLA support or afford cossts will be unable to engage in the justice system - reducing the ability of the courts to make laws

• The reluctance of parties to pursue a matter through the courts due to the high costs - fewer oppurtunities for judges to develop common law

Time

• time taken to gather evidence and prepare for a trial

• lengthy trials - the time spent hearing the oral arguments of legal practioners and examining witnesses

Advantages of time

• judges often give directions to parties such as limiting the number of witnesses or topics they are questioned on with the aim of reducing the length of a trial - parties are able to have their case heard in a timely manner - more oppurtunities for the courts to make laws as a greater number of cases per year can come before the courts

• The Victorian court hierarchy enables administrative convenience to be achieved - seperating disputes across the courts and minimising delays - permits the courts to hear more cases each year and increasing capacity to create or amend common law

• Rather then bills being introduced with complex processes to become a law courts law making is instant from when decision is handed down to the parties - the precedent becomes binding in future cases heard in lower courts

Disadvantages of time

• Judges in superior courts need to wait for a case to come before them before they can develop law - time taken to appeal to higher courts slows the development of the law as precedent is generally set on appeal

• some cases in higher courts can take months to be determined resulting in delays to the law being amended

• reluctance of parties to persue a matter through the courts due to the time it takes for a case to be resolved means there is fewer oppurtunities for judges to develop common law - resulting in outdated precedent remaining binding

The requirements for standing

The requirement that in order to rbing a case to the courts an individual or group must be affected by or have a special interest in the issues involved in the case

• they must be an aggrieved party - whose interests are or would be adversely affected by the matters involved in the case

• tehir private rights have been directly impacted by a legal issue

• the action of another party and the infringement would continue unless court provided relief

“Special interest”

• a public interest group challenging a government decision that could be of public concern

• a trade union challenging government decisions that may impact its members

• a business challenging a government decision that may be favourable to a commercial rival

• members of the public challenging government decisions that directly impacts them

The special interest test was established by the high court “Australian Conservation Foundation Inc v commonwealth (1980)” requiring a party to show that their interests are adversly affected by the decisions of another party beyond that of other memers of the public