legal studies 4.1

Commonwealth parliament - house of representatives

• Commonly referred to as the Lower House

• 151 members, each elected from equally populated electorates

• Elections held approximately every three years

• House of Government, where the Prime Minister sits

Commonwealth parliament - senate

• Commonly referred to as the Upper House

• 12 representatives from each State, and two from each territory

• Each Senator is elected for six years (half elected every three years)

Commonwealth parliament - governor-general

• The representative of the Crown

• Appointed on the advice of the Prime Minister

• Largely ceremonial role

Commonwealth parliament - bicameral structure

A parliament that operates with two houses – an upper and a lower

Victorian parliament - legislative assembly

• Commonly referred to as the Lower House

• 88 members, each elected from equally populated electorates

• Elections held every four years

• House of Government, where the Premier sits

Victorian parliament - legislative council

• Commonly referred to as the Upper House

• 40 representatives from eight ‘regions’

• Each Member is elected for four years

Victorian parliament - governor

• Governor

• The representative of the Crown

• Appointed on the advice of the Premier

• Largely ceremonial role

Commonwealth parliament: house of representatives - roles

Determine the government

• The political party with the most seats in the HoR becomes the Government of Australia

• Leader becomes Prime Minister

Initiate and make laws

• To make a new law, or amend an old law, it must be agreed upon by both houses and the Governor-General

• Most bills commence in the HoR – supply bills must commence there

Provide responsible government

• Ministers are accountable to parliament for their actions and decisions

• Prime Minister and ministers have to answer questions about this during question time

Commonwealth parliament: senate - roles

House of Review

• Most bills are initiated in the HoR, hence the Senate becomes the review house

• Government rarely has a majority in the Senate, therefore more scrutiny on legislation

Initiate and make laws

• Same law-making power as the HoR, bills must be approved by both houses

• Some bills are initiated in the Senate

• Supply bills must be initiated in the HoR

States’ house

• Historical role, as each state is equally represented regardless of population

• Initially to protect smaller states from being taken advantage of

Commonwealth parliament: governor-general - roles

Royal Assent

• To make a new law, or amend an old law, it must be agreed upon by both houses and the Governor-General - this is known as Royal Assent

• Formally signs a bill into law and makes it an Act of Parliament

Executive Council

• The GG formally heads the executive – outlined in the Constitution

• Acts on advice of ministers and Prime Minister

Reserve Powers

• Holds some powers that are not listed in the Constitution – does not need legislative approval to use them

• Includes the ability to dismiss a government or end parliamentary sessions

Victorian parliament: legislative assembly - roles

• Determine the Government

• Initiate and make laws

• Provide responsible government

• Represent the people

• Control government expenditure

Victorian parliament: legislative council - roles

• Initiate and make laws (except supply bills)

• House of review (scrutinise bills)

Victorian parliament: governor - roles

• Royal Assent

• Executive Council

• Reserve Powers

Types of law making power - division of powers

The splitting up of law-making responsibility between the Commonwealth parliament and state parliaments

Types of law making power - residual powers

• Not listed in the Constitution

• Some deliberately left to the states, others have developed as areas of law over time

• Commonwealth cannot legislate in these areas

• S 107: Every power of the State shall continue unless exclusively given to the Commonwealth or withdrawn from the State

Types of law making power - exclusive power

• Listed in the Constitution

• States cannot legislate in these areas

• Exclusive by their nature, due to another section of the Constitution, or listed in s52

Types of law making powers - concurrent powers

• Listed in the Constitution

• Both C’wealth and states can legislate in these areas

• All specific powers that are not made exclusive are concurrent, so everything else in s51

Section 51 of the Australian Constitution

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to it.

Discuss the extent to which the High Court has had an impact on the division of law-making powers and how its powers are distributed

The Commonwealth parliament has the power to legislate in areas of exclusive and concurrent powers. Exclusive powers are powers outlined in the Australian Constitution as being exercised solely by the Commonwealth parliament, such as currency. Concurrent powers are powers outlined in the Constitution belonging to both state and Commonwealth parliaments, such as marriage. Residual powers are powers not outlined within the Australian Constitution thus exercised solely by the states parliaments, such as areas of environmental law.

s109 of the Commonwealth of Australia Constitution

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

s109 in Action - IVF access laws

Victorian Infertility Treatment Act 1995 (Vic):

• You must be living with or married to a man to access IVF

Commonwealth Sex Discrimination Act 1984:

• Unlawful to refuse service to someone on the basis of their marital status

John McBain v The State of Victoria and Ors (2000):

• IVF doctor successfully proves his patient, a single woman (Leesa Meldrum) has been discriminated against by the Victorian Act – the Victorian Act is invalid as far as it says that only women living with a man can have IVF.

Role of the high court - what

• The High Court is independent of parliament and government

• High Court has the power to rule on all matters involving the interpretation of the Constitution

Role of the high court - impact on law making powers

• There can sometimes be debate over meaning of words in the Constitution, which can lead to debate over who has law-making authority

• If a case is brought, The High Court rules on these debates, and can decide if parliaments are acting within their powers, or beyond them (ultra vires)

• If a parliament is acting ultra vires, the High Court can declare that legislation invalid

High court cases

FACTS

A brief summary of the situation. What is the name of the case, who is involved, what are they doing etc.

LEGAL ISSUE

What is each party claiming, and what specific laws/sections of the Constitution are involved?

DECISION

Whose favour did the High Court find in? Why?

IMPACT

The most important section – what was the lasting effect of the decision? How did it effect further cases? What are the limitations of the decision?

Tasmanian dams case - facts

In 1974 the Commonwealth Government signed the Convention for the Protection of World Cultural and Natural Heritage

In 1982 the Tasmanian Government passed legislation to construct a dam on the Franklin River – the environmental impact of this worried many people

Shortly after this the area was declared a World Heritage Site by UNESCO

In 1983 the Commonwealth Government passed the World Heritage Properties Conservation Act 1983 which placed restrictions on what could be done on heritage sites – this prohibited the building of the dam

Tasmanian dams case - legal issues

The Tasmanian Government argued that the Commonwealth Government did not have specific powers in the Constitution over the environment or electricity production; therefore they could not restrict the building of the dam

The Commonwealth argued that the external affairs power (s51(xxix)) gave them the power to make laws that cover matters covered by the treaty, regardless of whether they are in the Constitution or not

Tasmanian dams case - decision

Found in favour of the Commonwealth – the World Heritage Properties Conservation Act 1983 (Cth) was valid and the Tasmanian government could not build a dam on the Franklin River

The High Court established a broad interpretation of the External Affairs power:

s51(xxix) should be interpreted to give the Commonwealth the power to legislate over anything of legitimate international concern – if there is a treaty on a particular matter, then this suggests that the matter is of legitimate international concern.

Tasmanian dams case - impact

The Commonwealth has the ability to legislate on any matter covered by a treaty even if it is an area of power left to the states

Some academics have claimed that this could effectively give the Commonwealth unlimited law-making powers

This interpretation of External Affairs was a further development on earlier cases (R v Burgess, Koowarta v Bjelke-Peterson) and was subsequently influential in Croome v Tasmania, leading to the overturning of Tasmania’s laws which criminalised homosexuality

However, the treaty must be bona fide and the legislation passed must give effect to the treaty. Also, states still retain their powers overall

Bicameral structure - what

• Bicameral means a parliament with two houses – an Upper and a Lower

• At Commonwealth level this is the House of Representatives and the Senate, and in Victoria the Legislative Assembly and Legislative Council

• Each house has a different voting method

• This leads to each house playing different roles

• Ultimately, any law reform must be passed through both houses by a majority vote

Bicameral structure - how does it affect the parliament?

• By having a different voting method for each house, one party (or coalition) rarely achieves a majority in both houses

• Six-year Senate terms also ensure a good spread of political views (Legislative Council runs to the same election schedule as the Leg. Assembly)

• Proportional voting in the upper house provides greater opportunities for minor parties to be elected, which can increase the range of community viewpoints represented in the Parliament

• Means legislation must be considered, debated, and agreed upon from multiple viewpoints, ensuring one party cannot abuse their law-making power

• This supports the role of the upper house to scrutinise and reviews the work of the lower house/the government

• Added onus on the lower house to vote in-line with the views of their electorate, or else they face losing the next election

Representative nature of parliament - what

• Australia is a representative democracy

• Elections held approx. every three years federally, and fixed four-year terms in Victoria

• Lower house electorates are equally populated areas – ensures everyone’s vote carries equal weight

Representative nature of parliament - how does it affect the ability of the parliament

• If Parliament passes a law that the public disapprove of, they may vote for someone else at the next election

• Ensures law reform is in line with public interests

International pressures - what

• As well as pressure from voters, politicians often have international pressures they need to address

• These pressures could include global pressure (external) to change the law regarding a domestic issue

• Or include domestic pressure (internal) to change the law in response to global issues

International pressures - how

• Global bodies like the UN, or other countries, can influence Australia or Victoria to change our laws regarding a domestic issue

• This can occur through the development international treaties or declarations, or the work of global committees. If we don’t change the law, our international standing may be compromised

• Likewise, global issues can cause people to apply pressure to parliament domestically (protest, petition, use of the media)

• This links with the representative nature of parliament – if they don’t respond they risk voter backlash

Bicameral structure - affects

• A political party rarely achieves a majority in both houses, therefore legislation must be negotiated and may not be easily passed

• The lower house is expected to provide representative government – therefore they can’t pass laws the public don’t agree with

Bicameral structure - doesn’t affect

• If a political party achieves a majority in both houses than they can pass law reform easily

• If both major political parties agree, then legislative change can be enacted quite quickly and easily

Representative nature of parliament - affects

• The lower house is expected to provide representative government – therefore they can’t pass laws the public don’t agree with or they will be voted out at an election

• Often there are conflicting views about when change is necessary such that parliament may be reluctant to change

Representative nature of parliament - affects

• The lower house is expected to provide representative government – therefore they can’t pass laws the public don’t agree with or they will be voted out at an election

• Often there are conflicting views about when change is necessary such that parliament may be reluctant to change

Representative nature of parliament - doesn’t affect

• The public is likely to elect a parliament whose policies they agree with, thus the parliament won’t be restricted from legislating in these areas

International pressures - affects

• Parliament is likely to respond to pressures from the international community – don’t want to risk our international reputation

International pressures - doesn’t affect

• No ability for international bodies or other countries to force parliament to change the law – parliament much more likely to respond to domestic pressures as they can lead to voter backlash

• If parliament believes acting on a global issue will lead to voter backlash, they will avoid legislating in this area

Factors affecting the ability of parliament to make law - cans

• Parliament has access to expert opinion, and can thoroughly investigate, consider and debate any need for law reform

• Members of parliament are elected into office by the people, thus are accountable to the people, and laws passed should be acceptable to the majority of people

• Parliament is the supreme law-making body, and can therefore make or change laws at any time. The law can be changed as required

• Parliament can legislate on an entire topic, providing certainty surrounding a particular issue.

• Parliament can delegate some its law-making powers to subordinate authorities. This saves time and allows organisations with expertise to write laws.

Factors affecting the ability of parliament to make law - can’ts

• The process of passing legislation can be very time-consuming, and the process can add delays in making law

• The bicameral structure of parliament and roles of the houses in law-making can exacerbate this

• Politicians may fear voter backlash from vocal minorities, or selfish majorities, and so will avoid controversial issues (like gay rights, euthanasia and abortion)

• Usually members of parliament are required to vote along party lines, which may interfere with their ability to represent the interests of their electorate when voting on proposed laws.

• It is not always possible for parliament to act quickly as there are conflicting values in society, and the majority view is not always easy to determine

• Difficulties in drafting legislation, especially in highly technical areas. Can cause confusion and lengthy court cases

• Subordinate authorities (excepting local councils) are not elected, and so may not be representative of the needs of the people.

The high court and representative government - what

• Government must represent that views of the people, or they risk being voted out at the next election

• There are several sections of the Constitution that protect these concepts:

• s7: Establishes that members of the Senate shall be selected for 6 years, and must be “directly chosen by the people”

• s24: Establishes that members of the HoR must be “directly chosen by the people”

• s28: Establishes that members of the HoR will be chosen for 3 years

The high court and representative government - how

• Parliament cannot legislate to remove elections – they are required by the Constitution

• The High Court has interpreted the meaning of “directly chosen by the people” to show that a substantial majority of the population must vote in an election

The roach case - facts

• The Commonwealth Electoral Act prevents anyone serving a prison sentence of over three years from voting

• In 2006 this was amended to prevent anyone serving a prison sentence of any time from voting

• Vicki Lee Roach was serving a six year prison sentence at this time. As she was personally affected by the law, she was able to challenge it in the High Court

The roach case - legal issues

• Centred around the interpretation of ss7 & 24 – to what extent are the public required to vote to meet the ‘directly chosen by the people’ wording

• Roach made multiple claims around this, including that the constitution has an implied right to vote, and that the act limited the operation of the system of representative government

The roach case - decision

• Found in favour of Roach – the Commonwealth law was unconstitutional.

• The Constitution establishes a system of representative democracy and elections, and in order to be truly representative a substantial majority of the population must be entitled to vote.

• The Commonwealth is able to determine who can and cannot vote in these elections within reasonable limits – that is, the right to vote can be removed if there is a substantial reason for doing so.

• The court held that removing the right from all prisoners was excessive; only those convicted of a ‘serious’ offences should be denied the right to vote.

The roach case - impact

• The Commonwealth has the ability to exclude people from voting if there is a substantial reason (unsound mind, treason, seriously violated community expectations), but the majority of the population must be able to vote to ensure representative democracy

• The Constitution does not include a personal right to vote (as it can be removed in limited circumstances) – there is no implied right to vote

Separation of powers - what

• The splitting of legislative, executive and judicial power to separate bodies:

• Legislative power: The power to make laws (Parliament) – Chapter 1 of the Constitution

• Executive power: The power to administer the laws and manage the business of Government (Governor General, but in practise carried out by the Prime Minister and senior ministers and Government departments) – Chapter 2 of the Constitution

• Judicial Power: The power to settle disputes arising under the law (High Court and other federal courts) – Chapter 3 of the Constitution

Separation of powers - how

• To prevent power from being concentrated in one body, and helps protect individual rights by providing checks and balances on the law-making powers of the Commonwealth Parliament

Express protection of rights - what

• Rights explicitly written in to in the Constitution (five only). These rights are entrenched because they cannot be changed or removed without following the referendum process in S128

• They are: s116 (limited freedom of religion), s117 (no discrimination based on state of residence), s92 (free interstate trade and commerce), s51xxxi (just terms for acquisition of property) and s80 (trial by jury for C’wealth indictable offences)

Express protection of rights - how

• The Parliament is restricted from making any law that breaches one of these express rights

• Any legislation that breaches these express rights will be declared invalid by the High Court (provided it is challenged by someone with standing)

Separation of powers - is a good check

• The Separation of Powers ensures that no one body holds absolute power

• As a separate judiciary, the High Court can declare laws invalid if they breach Constitutional rights

• The legislature can refuse to pass bills proposed by the government, particularly if the government does not have a majority in the upper house

• SoP is enshrined in the Constitution, the check can’t be removed without a referendum

Separation of powers - isn’t a good check

• The High Court can only declare laws invalid if someone with standing brings a case, and it can only happen after the fact

• The Executive and Legislative branch are not completely separate in the Australian system – members of the Executive also sit in parliament

• If the government also controls the upper house of parliament, then there is a limited legislative check on the executive

• Judges are appointed by the government – they may be able to influence decisions through their appointments

Express rights - is a good check

• Parliament cannot legislate in areas covered by express rights – if they do it can be declared invalid by the High Court

• They are entrenched in the Constitution and can’t be removed or altered without a referendum

Express rights - isn’t a good check

• The High Court can only declare laws invalid if someone with standing brings a case. Very expensive to bring a case

• Express rights are limited, both in number and in scope – don’t cover broad human rights like the US Bill of Rights

• Adding more or broadening the ones we have is unlikely – very difficult to achieve through a referendum

The high court and representative government - is a good check

• The High Court can declare laws invalid if they breach the concept of representative government as provided by the Constitution

• The principle itself ensures that parliament acts in the interests of the people – if they don’t then they will be voted out

• The High Court is able to extend the protections if a case is brought and the right arguments are made

The high court and representative government - isn’t a good check

• Someone must bring a case to the High Court for legislation to be deemed invalid, therefore the parliament is still effectively able to restrict voting – any invalidation can only be retrospective

• Bringing a case is costly and takes a lot of time

• There is no implied right to vote in the Constitution – parliament can still restrict the ability to vote within the scope of previous High Court decisions

Role of the courts - resolve disputes

• This is the primary role played by the courts

• They consider the facts of a case and then apply the law to those facts to determine whether or not a party’s actions are lawful or unlawful

Role of the courts - make law

• A secondary role of the courts

• Sometimes, through the process of resolving disputes, courts will actually make law

• This is either done through establishing new rules when there is no legislation on a particular area (common law), or through interpreting words in an Act of Parliament and applying them to a case (statutory interpretation)

Statutory interpretation

The process undertaken by judges to apply the words of an Act of Parliament to specific fact situations.

Reasons for statutory interpretation - broad and general terms

Most legislation is drafted to cover a spread of situations, e.g. Deing v Tarola

Reasons for statutory interpretation - future circumstances

The act might need to be clarified as new situations arise, e.g. ‘External affairs’

Reasons for statutory interpretation - ambiguous wording

Some words or phrases might have multiple meanings, e.g. Davies v Waldron

Reasons for statutory interpretation - changing nature of words

As society changes, the meaning of different words can change, e.g. Kevin and Jennifer case

Effects of statutory interpretation - words develop specific meaning

This meaning enables the statute to be applied to specific fact situations, e.g. Deing v Tarola

Effects of statutory interpretation - precedent is developed

In future cases the legislation and interpretation are read together to form the complete law

Effects of statutory interpretation - parliament can abrogate

Parliament may choose to amend the legislation overruling the court’s interpretation

Effects of statutory interpretation - parliament can codify

Parliament may choose to amend the legislation confirming the court’s interpretation

Role of courts - resolve disputes

• This is the primary role played by the courts

• They consider the facts of a case and then apply the law to those facts to determine whether or not a party’s actions are lawful or unlawful

Role of courts - make law

• A secondary role of the courts

• Sometimes, through the process of resolving disputes, courts will actually make law

• This is either done through establishing new rules when there is no legislation on a particular area (common law), or through interpreting words in an Act of Parliament and applying them to a case (statutory interpretation)

Types of law

Common law

• Judge-made law or case law

• Originated in England. Decisions made by judges in cases are written down and then followed in future cases

Statute law

• Legislation, or Acts of Parliament

• Superior to common law. Made by parliament, and then interpreted by courts

Role of the courts in law-making

Precedent

• The reason for the decision of a court (ratio decidendi) establishes a principle of law that is followed by future courts

• This is known as precedent

• Precedent can be binding (must be followed), or persuasive (influential only)

• Decisions by higher courts are binding on lower courts within their jurisdiction

Ability to make precedent

• Judges have the ability to make/develop precedent when:

• The case involves a new issue not covered by existing precedent or statute

• The case involves interpreting a statute that hasn’t previously been interpreted

• When a lower court has developed a precedent

Developing or avoiding precedent

When deciding cases, parties will direct the judge to consider precedents developed in earlier cases. The judge will decide whether to adopt the precedent or avoid having to follow it. There are four ways they can avoid it.

Avoiding precedent - reverse

• Same case

• Higher court makes a different decision than a lower court (on appeal)

• The initial precedent no longer applies

Avoiding precedent - overrule

• Different case

• Higher court makes a different decision than a lower court

• The initial precedent no longer applies

Avoiding precedent - distinguish

• Different case

• The court decides the facts of this case are sufficiently different that the precedent cannot be applied

• Both precedents continue to exist

Avoiding precedent - disapprove

• Different case

• The court expresses in their judgement that they do not agree with the previous precedent, but they are bound by it

• Likely to promote an appeal

Doctrine of precedent - what

• Where the ratio decidendi of cases is used to inform future decisions

• Based on the principle of stare decisis – to stand by what has been decided

Doctrine of precedent - how

• It IS the ability of courts to make law – decisions made are either binding or influential on future decisions

• Courts are unable to make law if they are bound by a previous decision

• Unable to make law if there is a statute covering the fact situation

• Judges may be able to distinguish their case from previous cases, and therefore still make law even when bound

• May be unwilling to make law if there is a persuasive precedent in place (see JUDICIAL CONSERVATISM)

Judicial conservatism and activism - what

• Many judges are conservative in nature. Heavily influenced by the Separation of Powers - they view law-making as the responsibility of parliament

• Judicial conservatism is where judges adhere strictly to stare decisis

• Effectively the opposite of judicial conservatism, judicial activism is where some judges believe it is their responsibility to develop common law in line with social changes

Judicial conservatism and activism - how

• Judicial conservatism means judges are unlikely to take opportunities to make law

• May apply outdated precedents, even if it is morally right to change the law

• Judicial activists are more likely to make law

• The Mabo case was a prime example of judicial activism at play – it overturned a precedent over 100 years old

Costs and time - what

• Bringing a legal case to court is very expensive – filing fees, court costs and hiring legal representatives

• Legal action takes a long time – cases may not be resolved for years

Costs and time - how

• Limits the opportunities for courts to make law, as there is less likelihood that people will bring a case to court