atar book legal unit 4 aos 1

Crown

Represented in Australia by the GG and in the 6 states by governors

3 Roles of the crown in law making

• Royal assent

• Make and approve delegated legislation

• Issuing royal commissions of inquiry

Roles of the crown in law making - Royal assent

The formal signing and approval of a proposed bill by the monarch's representative GG.

Without this approval, a bill cannot become an Act of Parliament.

The Crown has the legal power to refuse to sign a bill, acting to ensure that democratic processes are upheld.

Roles of the crown in law making - Make and approve delegated legislation

The Crown's representative, GG/G, meets with the Executive/Vic Council to sign Orders in Council based on the advice of the Executive Council.

The Executive Council consists of the Premier/Prime Minister and cabinet ministers who advise the Crown.

Roles of the crown in law making - Issuing royal commissions of inquiry

Through functions of the commonwealth/Vic executive councils, the Crown initiates royal commissions of inquiry, which are comprehensive investigations into matters of major public importance, controversy, or suspected systemic failure.

2 Roles of the Commonwealth Parliament

• Make laws

• Represent the people of Australia

The idea of having two houses in the Commonwealth parliament is to ensure..

That the power to make law is not held by one single group of people. Instead, the two houses can consider and decide whether a law should be made.

Commonwealth level houses of parliament

Upper - Senate

Lower- House of Reps

Crown = GG

Roles of the house of Representatives

• Initiate, debate, and vote upon proposed laws

• Represent the people

• Determine the government

Roles of the house of Representatives - Initiate, debate, and vote upon proposed laws

Introduce proposed laws (Bills), debate over them, and vote to decide if they will proceed to the upper house to potentially become a law.

• Bills introduced and passed by House of Reps should be designed for peace, order and good government of Aus

• Has full authority to initiate and amend money bills

Roles of the house of Representatives - Determine the government

The political party/ies which hold the majority of the seats in this house form government, meaning the government will have a fair influence in law-making and will be able to defeat opposition bills rather easily.

Roles of the house of Representatives - Represent the people

Members of this house are democratically elected to represent the people of their electorates, the laws introduced and passed in this house should uphold the views, interests, and values of the Aus people

Roles of the Senate in law-making

• Represent the states

• Act as a house of review

• Initiate proposed laws

Roles of the Senate in law-making - Act as a house of review

As the second house of parliament, the Senate has the role of reviewing and scrutinising bills that have passed through the House of Reps.

• Important, given that the government can usually pass bills in the lower house easily

Roles of the Senatei n law-making - Initiate proposed laws

The Senate is also able to introduce bills and vote and debate on them.

• Most bills are initiated in the House of Reps

• Under S53, the Senate CANNOT initiate and amend money bills

Roles of the Senate in law-making- Represent the states

Ensure the interests of the states are protected and equally represented in the laws enacted by Parliament

Victorian level house of Parliament

Upper - Legislative Council

Lower- Legislative Assembly

Crown - G

Roles of the Legislative Assembly in law-making

• Initiate, debate, and vote upon proposed laws

• Represent the people

• Determine the government

Roles of the Legislative Assembly in law-making - Initiate, debate, and vote upon proposed laws

Introduce proposed laws (bills), debate and vote upon them to decide whether they will proceed to the upper house and potentially become a law.

• bills introduced and passed should be designed for the benefit of Victoria.

Roles of the Legislative Assembly in law-making - Represent the people

Parliament is elected by the people, with a system by which the members reflect the views and values of the majority through legislation. If they fail, it jeopardises re-election chances.

- Diversity of Parliament

- Regular elections

- Acting in accordance with majority

Roles of the Legislative Assembly in law-making - Determine the government

The political party/ies that holds the majority of seats in the house forms government. This majority means the government will have fair influence in law making and will be able to defeat opposition

Roles of the Legislative Council in law-making

• Act as a house of review

• Initiate proposed laws

Roles of the Legislative Council in law-making - Act as a house of review

As the second house of parliament, it had the role of reviewing and scrutinising bills which have already passed through the legislative assembly. Important given the government can usually pass bills in the lower house rather easily

Roles of the Legislative Council in law-making - Initiate proposed laws

Exclusive powers

Only the commonwealth parliament can pass laws in this area.

eg. Defence, minting money, customs

Concurrent powers

Both the commonwealth and state parliaments can pass laws in this area.

eg. Marriage, bankruptcy, taxation

Residual powers

Powers left with the states at federation, only they pass laws in this area.

eg. Criminal law, education, public transit

Significance of S 109

1. Provides a way to resolve inconsistencies between state and commonwealth laws.

2. Acts as a restriction on state parliaments if commonwealth laws exist that govern a certain area.

3. The state still has the ability to pass a law, s109 does not physically prevent it.

4. A state law must be challenged before it is declared invalid, meaning it is only significant if challenged.

5. Ensures a consistent approach to the way it is dealt with.

6. Only the extent of the inconsistency is declared invalid. (The High Court doesn't say "this whole Act is invalid" — it looks at exactly which words, section, or requirement in the state law directly contradicts the Commonwealth law, and invalidates only that bit.)

High Court case Constitution-as-check point) Roach V Electoral Commissioner - facts

- Roach was serving a 6 year sentence

- Cth. amended the Commonwealth Electoral Act 1918 to include a ban on all prisoners from voting, compared to the previous ban on voting for those with a sentence over three years.

Factors affecting parliament’s law-making abilities

• The Bicameral structure of Parliament

• International pressures

• The representative nature of Parliament

Factors affecting parliament’s law-making abilities - The Bicameral structure of Parliament

(2 houses - upper/lower)

Factors affecting parliament’s law-making abilities - International pressures

Placed on Australia to change Australian laws, from within inside Australia or abroad to make laws (or not to make laws) that address matters of international concern.

- Creates pressure from outside to respond to a domestic issue (i.e. age of criminal responsibility)

- Creates pressure to respond to a global issue (i.e. Israel weapons exports, climate change)

Factors affecting parliament’s law-making abilities - The representative nature of Parliament

Parliament is elected by the people, with a system by which the members reflect the views and values of the majority through legislation. If they fail, it jeopardises re-election chances.

- Diversity of Parliament

- Regular elections

- Acting in accordance with majority

Aus constitution acting as a check on parliament

• S 106,107,108 (guarantee of state powers)

• S 116 (freedom of religion)

• S 99 (preference)

• S 92 (free trade)

• S 51xxxi (acquiring property)

• S 128 (changing the constitution)

Aus constitution acting as a check on parliament - S 106,107,108 (guarantee of state powers)

Aus constitution acting as a check on parliament - S 116 (freedom of religion)

Parliament cannot make a law that establishes a state religion, imposes religious observance or prevent people from practicing their religion (unless it is a national security threat.)

Aus constitution acting as a check on parliament - S 99 (preference)

Aus constitution acting as a check on parliament - S 92 (free trade)

Aus constitution acting as a check on parliament - S 92 (free interstate trade)

Interstate trade and commerce must be free, provides freedom of movement between states without hindrance.

Aus constitution acting as a check on parliament - S 128 (changing the constitution)

High courts role in interpreting the constitution

Role of the High Court in protecting the principal of a representative gov

• S 7, 24

• Separation of legislative, executive and judicial powers

• Express protection of rights

Advantages/Disadvantages of the separation of powers

AD

In the constitution, minimises abuse of power

- Independent judiciary means legal matters are determined free of political influence

- Legislature can scruitinise executive bills, may not pass them

- Judiciary can declare laws to be ultra vires, restricting legislature

- Entrenched, cannot be removed without referendum.

DIS

- Legislature and executive overlaps, limiting checks.

- Judges are appointed by executive, may have biases.

- Double majority means legislature may not effectively scruitinise the executive's bills

- Invalid laws may not be declared ultra vires if not brought to HC with standing

- Constitution entrenches separation at Cth. level but not state level, however many states have put it in their own constitutions.

Role of the High Court in protecting the principle of a representative gov- 5 Express protection of rights

1- Freedom of religion

2- Freedom of interstate trade and commerce

3- Freedom from discrimination on the basis of state

4- Right to trial by jury

5- Acquisition of property on just terms

Role of the High Court in protecting the principal of a representative gov - S 7, 24

Role of the High Court in protecting the principal of a representative gov - Separation of legislative, executive and judicial powers

1. Prevents power being concentrated in one branch

2. Provides checks and balances, no branch can make a ruling and then decide upon its legality

3. Protects freedoms of the people

4. Protects impartiality of the judiciary

5. Independence of judiciary means it can review other branches

6. Prevents judges from sitting in parliament

DIS

- Legislature and executive overlaps, limiting checks.

- Judges are appointed by executive, may have biases.

- Double majority means legislature may not effectively scruitinise the executive's bills

5 Express protection of rights - Acquisition of property on just terms

5 Express protection of rights - Right to trial by jury

5 Express protection of rights - Freedom from discrimination on the basis of state

5 Express protection of rights - Freedom of interstate trade and commerce

5 Express protection of rights - Freedom of religion

Advantages/Disadvantages of Express protection of rights

Vic courts in law-making

In Vic, the superior courts of record (Supreme Court & Court of Appeal) take part in law-making

Vic courts in law-making - are able to make law when

• Deciding on a case where there is no other law to apply to the case

• Conducting statutory interpretation

Vic courts can make law when - Deciding on a case where there is no other law to apply to the case

Vic courts can make law when - conducting statutory interpretation

Courts must apply statutes that parliament makes, or interpret them to clarify, broaden or narrow a statute.

set for future cases to follow, Binding on parties, Meaning added

The high court takes part in law-making when:

• interpreting the constitution or an act of Parliament

• Expanding or changing a previous principle of law so that it may be applied to a new situation, or when deciding on a case when there is no other law to apply.

Statutory interpretation

When judges interpret the meaning of a word or phrase in an Act of parliament (a statute).

- Creates precedent through their interpretation that is binding or persuasive.

- Does not change the words, but only their meaning and application.

Reasons for statutory interpretation

• An act not accounting for future circumstances

• The meaning of the words within an act chaning over time

• The meaning of words within an act being ambiguous

• Mistakes occurring during the drafting of an act

• Legislation being drafted in general terms but needing to be applied to specific circumstances

Effects of statutory interpretation

• words in an act being given meaning

• precedents being set for future cases to follow

• the law being restricted through a narrow interpretation of an act

• The law being expanded through a broad interpretation of an act

Factors affecting the ability of courts to make law

• doctrine of precedent (binding/persuasive)

• Judicial conservation

• Judicial activism

• Costs and time in bringing a case to court

• The requirement for standing

Factors affecting the ability of courts to make law -

- Doctrine of precedent

- Judicial conservatism/activism

- Costs and time

- Requirement for standing

Factors affecting the ability of courts to make law -The requirement for standing

S - Standing reduces the amount of frivolous claims by people with general interest, reducing delays and creating more opportunity to make common law.

W- Individuals with standing may not have enough money to bring their case forward, law cannot be created.

Factors affecting the ability of courts to make law - Costs and time in bringing a case to court

COST

S - Judges give directions, reducing delays and increasing overall amount of trials heard, more opportunities to make common law.

W- Some cases can take months to be resolved, delays to making law in important areas.

TIME

S- VLA is available for some civil matters, meaning parties may have the resources necessary to go to court, improving likelihood of common law.

W- Reluctance of parties to bring a matter court due to high costs means less opportunity to make common law.

Factors affecting the ability of courts to make law - Judicial activism

S- Judges are not elected and can make controversial law without being voted out.

• High Court is not bound by previous decisions

W- Due to narrow interpretation of the law, the court is restricted from making substantial changes to it

Factors affecting the ability of courts to make law - doctrine of precedent (binding/persuasive)

S - 1. Provides consistency and predictability.

- Resources are not wasted arguing the same issues over and over.

W- Cannot effectively predict or account for future developments.

• Difficult and costly to find relevant precedents.

4 means by which courts can challenge a precedent

1- Reversing

2- Overruling

3- Distinguishing

4- Disaproving

Latin - Stare decisis

Principle at the heart of precedent, the stand by what is decided.

- Where appropriate and required, judges should stand by previous decisions to ensure common law is consistent and predictable.

Latin - Ratio decidendi

Latin - Obiter dicta

Things said by the way. Statements that are not binding or part of the ratio decidendi, but influential and discuss matters deemed important by the judge.

Binding precedent

Must be followed by:

- Courts in the same hierarchy

- Lower courts

- Similar material facts.

Persuasive precedent

A decision made by a court in another hierarchy or a lower court in the same hierarchy.

- Noteworthy and influential on the decision, but the court is not bound to follow it.

Features of the relationship between courts and parliaments in law-making

• The supremacy of Parliament

• The ability of courts to influence Parliament

• The codification of common law

• The abrogation of common law

Relationship between courts and parliaments in law-making - The supremacy of Parliament

- Abrogation

- Supremacy of Parliament

- Influencing Parliament

- Codification

- Statutory Interpretation - Courts must apply statutes that parliament makes, or interpret them to clarify, broaden or narrow a statute.

Relationship between courts and parliaments in law-making - The ability of courts to influence Parliament

Relationship between courts and parliaments in law-making - abrogation of common law

Relationship between courts and parliaments in law-making - codification of common law

High court interpretation

Only the High Court of Australia has the power to Interpret the meaning of the words within the constitution.

When interpreting the constitution, the judiciary must consider the spirit in which it was written and the rule of law, creating binding precedent on all other courts in Australia.

Tasmanian Dam Case - Facts (had an impact on state and Commonwealth law-making powers - division-of-powers)

• Tasmanian government passed legislation to dam the Franklin and Gordon rivers, believing it resided under their residual powers of forestry and water.

- Southwest Tasmania was added to a world heritage list, leading the commonwealth parliament to pass legislation halting the dam, arguing it fell under 'external affairs'

Tasmanian Dam Case - Law (had an impact on state and Commonwealth law-making powers - division-of-powers)

S51 of the constitution gives the parliament power to legislate in regards to 'external affairs', including treaties.

Tasmanian Dam Case - Issue (had an impact on state and Commonwealth law-making powers - division-of-powers)

Whether the commonwealth parliament can use their external affairs powers to legislate in an area of residual power when enacting obligations under an international treaty.

Tasmanian Dam Case - Decision (had an impact on state and Commonwealth law-making powers - division-of-powers)

- High court rules in favour of the Commonwealth government, therefore their legislation was valid.

- Held that external affairs enabled the commonwealth to legislate in residual power areas when enacting obligations under an international treaty.

- Meaning of 'external affairs' extending to include implementing the obligations necessary in an international treaty.

Tasmanian Dam Case - Significance (had an impact on state and Commonwealth law-making powers - division-of-powers)

1. Shifted the division of power in favour of the commonwealth at the expense of the states.

2. Extended 'external affairs' to include upholding obligations under international treaties.

3. Increased the law-making power of the commonwealth to legislate in residual areas.

4. Created persuasive precedent for other High Court cases.

5. Used to create laws to uphold other international treaties.

How does the composition of the lower house affect ability to make law?

- Majority Government -

Party with most seats forms govt, legislative program easily accepted, passed, but bills may not be adequately scruitinised.

- Minority Government -

Must seek support from the crossbench, constant negotiation can water-down policies, however bills will be adequately scruitinised.

How does the composition of the upper house affect ability to make law?

- Rubber Stamp -

Party has a majority in both houses, approves decisions of the lower house, easy implementation of legislative program but little scrutiny

- Hostile Upper House -

Govt. does not hold a majority, increases difficulty of passing bills, obstructing policy, but promotes scrutiny.

May have minor parties in balance of power with disproportionate strength compared to their voter base.

- Rubber Stamp - Upper house composition

Party has a majority in both houses, approves decisions of the lower house, easy implementation of legislative program but little scrutiny

- Hostile Upper House - Upper house composition

Govt. does not hold a majority, increases difficulty of passing bills, obstructing policy, but promotes scrutiny.

May have minor parties in balance of power with disproportionate strength compared to their voter base.

How does the composition of the lower house affect ability to make law?

Majority Government -

Party with most seats forms govt, legislative program easily accepted, passed, but bills may not be adequately scruitinised.

- Minority Government -

Must seek support from the crossbench, constant negotiation can water-down policies, however bills will be adequately scruitinised.

- Majority Government - lower house composition

Party with most seats forms govt, legislative program easily accepted, passed, but bills may not be adequately scrutinised.

- Minority Government - lower house composition

Must seek support from the crossbench, constant negotiation can water-down policies, however bills will be adequately scruitinised.

Strengths of representative nature on law-making power

- Influences MPs to enact laws based on the views of the people.

- Regular elections place pressure to represent the views of constituents, or get voted out.

- More women have been elected recently, improving parliament's ability to reflect the composition of society.

- MPs can cross the floor to align with constituent views

- Compulsory voting means the views of the majority are represented

- Representative nature improves the quality of the bill, as more community views are consulted when law-making.

Weaknesses of representative nature on law-making power

- Compulsory voting can lead to uninformed voting

- MPs may not enact law reform where there is a vocal minority

- Parliaments are not representative of minority groups, lacking their oversight on bills.

- MPs may vote on party lines rather than constituent views.

- Fixed term length may not be enough for productive legislative change, shallow election promises

- Diversity of parliament can only reflect those who self-nominate to become MPs.

Roach Case: Issue (Role of the High Court in protecting the principle of representative government - Constitution-as-check point)

- Determining whether the Commonwealth Parliament could pass legislation that prohibited convicted and sentenced prisoners from voting in elections.

- Roach challenged validity, arguing s7 and 24 guaranteed her the right to vote, arguing there was an implied right to vote due to 'chosen directly by the people'.

Roach Case: Decision (Role of the High Court in protecting the principle of representative government - Constitution-as-check point)

- HC disagreed, as to protect representative government, the right to vote could only be taken away for significant reasons, including 6 year imprisonment.

- Found that less than 3 year imprisonment was not significant enough, invalidation the Cth. legislation.

Roach Case: Significance (Role of the High Court in protecting the principle of representative government - Constitution-as-check point)

- Roach did not regain the right to vote

- Prisoners with less than three year sentences or on remand regained the right to vote

- Cth retained ability to pass laws on who can vote, but ability was restricted by their interpretation of S7 and 24.

McBain Case - Facts (the significance of section 109 of the Australian Constitution)

Dr McBain wanted to provide IVF to a single woman under the Commonwealth Sex Discrimination Act 1984, but Victoria's Infertility Treatment Act 1995 only allowed IVF for married or de facto women.

McBain Case - Issue (the significance of section 109 of the Australian Constitution)

Whether the Victorian law's marital status requirement was inconsistent with the Commonwealth law prohibiting discrimination on the basis of marital status.

McBain Case - Decision (the significance of section 109 of the Australian Constitution)

The Federal Court found the Victorian law inconsistent with the Commonwealth Sex Discrimination Act. Under s109, the 'marital status' provisions of the Victorian Act were invalid to the extent of the inconsistency.

McBain Case - Significance (the significance of section 109 of the Australian Constitution)

1. Practical example of s109 resolving a direct conflict between state and Commonwealth law.

2. Confirmed Commonwealth law prevails even in areas of concurrent power (health/IVF regulation).

3. Showed a state law is only invalidated once successfully challenged in court, not automatically.