UNIT 4 LEGAL STUDIES

Statutory Interpretation

When judges interpret words or phrases within a statute to determine what parliament intended to say and add meaning to the word or phrase.

reasons for statutory interpretation

problems that occur as a result of the drafting process

problems that occur when court is applying the act of parliament to resolve a case

Statutory Interpretation

When judges interpret words or phrases within a statute to determine what parliament intended to say and add meaning to the word or phrase.

reasons for statutory interpretation

problems that occur as a result of the drafting process

problems that occur when court is applying the act of parliament to resolve a case

Problems in Drafting Process (statues)

mistakes - words are missed, not included, punctuation

doesn’t cover all circumstances - not able to predict all circumstances

intention is not clear - confusion on how it should be interpreted, undertake research

resolving problems in statues

general terms - words are too broad/narrow

out of date - societal views and values change

ambiguous meanings - have more than one meaning

silent on issue - courts need to fill in gaps, or not forseen when drafting bill

meaning can change over time - fertility act defacto relationship was initially man and woman is now gender inclusive, text was a passage to be read is now texting, currency now needs to include digital currency.

Aids in Interpretation

determine parliaments interpretation

use variety of resources to determine what was intended

legislation contains section that defines key words, also section that sets out purpose or objectives of the legislation

refer to other materials outside of legislation (dictionary, records, reports)

effect of statutory interpretation

precedent set for future cases

decision is binding until there is an appeal

words or phrases in disputed acts are given meaning so the relevant statue can be applied

meaning of law can be restricted or expanded, narrow meaning after interpretation or have broad meaning covering wide range of circumstances

Precedent

Legal principle developed by courts, serving for the future, found in law reports, and can form common law and case law.

reasons for precedent

cases are decided in a like manner

legal rep can give advice on likely outcome

judges have guidance

decisions are made by more experienced judges and followed in lower courts

point is decided on once, not multiple times (waste of resource

principles of precedent

stare decisis - to stand by what has been decided

ratio decidendi - forms binding precedent on all future similar cases

obiter dictum - statements support the ratio decidendi of case, act as persuasive precedent in future cases

how precedent words

binding - courts must follow a set precedent if it has been set in higher court in the same court hierarchy and the case facts are similar

persuasive - courts at times do not follow a set precedent but may be persuaded by precedent set. these may come from same hierarchy or another

precedent can change

distinguishing - decide precedent set does not apply to case they are hearing

disapproving - judge in lower court disapproves precedent set in higher court, sending a message that it may need to change (obiter dictum)

overruling - judge in higher court may overrule precedent that was made in an earlier different case. this eliminates earler precedent that existed.

reversing - same case has taken on appeal to higher court, agree with lower court, change decision. new precedent have been set and needs to be followed

effects of changing precedent

process of reversing, overruling, distinguishing and disapproving precedent, the following has occurred in some laws:

• laws have expanded over time

• meaning have been broadens or narrowed

Doctrine of Precedent

Rule that decisions of higher courts are binding on lower courts with similar facts, ensuring consistency and predictability in the law.

Ex post facto

Latin term meaning 'out of the aftermath,' used to describe a law established after an event has occurred.

Consistency and Predictability (doctrine of precedent)

Doctrine of precedent allows parties to anticipate how the law may apply to their situation, providing an idea of the outcome.

flexibility of doctrine of precedent

through reversing, overruling, distinguishing and disapproving, precedents change over time to allow the gradual expansion of common law. superior courts can reverse or overrule previous precedents in a later case and can avoid following a precedent by distinguishing between material facts of the case and of precedent set

assists in ability (doctrine precedent)

deciding case to make law, interpret, determine, establish precedent. binding or persuasive on courts.

stare decisis ensures consistency predictability in common law, lower courts must follow precedents set

common law is flexible because judges in superior courts can overrule, and reverse. lower courts can avoid them through distinguishing material facts. signal disapproval

setting precedent courts can make law to complement current legislation

limits the ability (doctrine of precedents)

lower courts must follow binding precedent even if outdated or inappropriate

judges in higher may be reluctant to change, preferring parliament to change the law. courts of same standing rarely overrule their own precedents

judges can only interpreted legislation and establish precedent when appropriate case is brought. parties must be willing to pursue dispute through appeals process

courts can clarify the meaning of legislation after a dispute over its meaning has arisen (es post facto)

parliament can abrogate common law, unless it involves conditional interpretation

Judicial Conservatism

Judges adopting a narrow interpretation of the law to avoid major changes, maintaining stability, and showing restraint in decision-making.

assists in its ability (judicial conservatism)

reflects the idea that courts should show restraint when making decisions that court lead to significant changes in the law

judges exercising conservatism helps. maintain stability in the law because judges are cautious and show restraint when making decisions that could lead to significant changes in the law

conservatism can lessen the possibility of appeals on a question of law

limits its ability (judicial conservatism)

restricts ability to make major and controversial changes in law

judges may not consider a range of social political factors when making law

may be seen by some as not progressive, factoring 21st century views or values when decision cases

Judicial Activism

Refers to judges considering social and political factors when interpreting the law, leading to more radical changes, but can be seen as overstepping their role.

assist in it ability (judicial activism)

allows judges to broadly interpret statues in a way that recognises the rights of people and may lead to more fair judgement

allows judges to be more creative when making decisions and making significant change

limits ability (judicial activism)

lead to courts making more radical changes in law that do not reflect the community values or are beyond communities level of comfort

judges are limited in being progressive or active given the nature of their role in decision cases within confines of case and exisiting law. parliament as supreme court can abrogate any decision it does not agree with

may lead to more appeals on a question of law, meaning that more of the courts resources and time are being uses.

cost

fees required to pursue a court case

legal representation costs

to ensure a party wins their case they must invest in legal representation to ensure case is prepared and presented in the best possible manner.

e.g. lawyers must research into case, analyse evidence and documents, present legal arguments and evidence to the court in accordance with strict rules or evidence and prodecure.

a party unprepared will be disadvantaged, discouraging people who wish to take legal action. at the same time however costs involved can discourage people who have trivial claims from using courts to pursue those claims.

court fees

lodging a civil case with a court incurs several costs. these can be expensive.

for example

• leave to appeal to vic supreme (appeal 2423.20)

• hearing fees cost 896.80 for every day/part day, after first day

• if party requests jury in supreme court, costs 1636.00 for first day, 303.60 per day for days 2-6, and 543.60 from day 7 onwards

time

law made quickly

judges required to follow lengthy procedures like those involved in process of developing, drafting and passing bill through parliament.

assist (time)

law made quickly

not required to follow lengthy processes like those involved in the process of developing, drafting and passing a bill thorugh parliament when deciding cases

limit (time

some courts especially appeal courts where most precedents are established, can take months to hear and determine more complex cases.

parties can be delayed in getting a case ready for trial

assist (costs)

costs involved (legal representation, filing and hearing fees)

able to manage disputes to narrow issues in dispute, saving the parties costs and allowing them to proceed all the way to trail for a final determination

high costs may mean only meritorious and legitimate claims are pursued all the way to appeal

limit (costs)

deter litigants who cannot afford these costs, who do not qualify for legal aid, from pursuing their case and their rights in court.

high costs can deter parties from pursuing the appeals process

prohibitive nature of costs may mean that old or bad precedents are never challenged or brought to the court for review

requirement of standing

is the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine it. courts must wait untill a party pursues a case before they can create precedent and make law. essential in cases that are challenging commonwealth law in the high court. this is because the court only hears cases when a person has special interest.

purpose of requirement of standing

to ensure cases are only pursued through the courts by people who are genuinely affected by an issue or matter and to ensure the cases have merit and it discourages frivolous actions. this prevents waste of court resources on cases were the plaintiff is not directly affected. this can prevent plaintiffs who have general interest in case from pursuing it on behalf of another person or in the interest of public. also prevent people who have greater financial capacity, time, oral skills and confidence from pursuing matters on behalf of another who is less willing

assists (requirement of standing)

ensures cases are only pursued through the courts who are genuinely affected

encourages people not affected to seek other avenues of redress rather than court

limit (requirement of standing)

people who have interest have no right to pursue legal action on behalf of public or common interest

means potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost

relationship between parliament and the court

have interconnected role in law-making. working together the law is flexible and can be applied to any situation that may arise. (interpreting statues) judges can not only clarify the meaning of legislation but broaden or narrow its meaning. have constitutional authority to interpret meaning of constitution and alter the division of law making power between commonwealth and states.

parliament has power to confirm, add or change common law and override court decisions.

feature of relationship: supremacy of parliament

has power to pass legislation to either confirm or abrogate decisions made by courts. responsible for passing legislation to create the courts and determine jurisdictional power.

also pass legislation to change jurisdiction of courts. amendments to create specialists and divisions.

also able to pass acts of parliament that restrict the ability of the courts to make decisions with respect to certain matters. in accordance with principles of separation of powers, parliament must allow the courts to remain independent and retain power to determine if parliament has passed its laws beyond its authority.

feature of relationship: courts to influence parliament

can indirectly influence parliament to amend or create a law. judges make comments when handing down judgements, either as a reasoning for their decision or as obiter dictadictum. investigate the law and possibly initiate a law reform

feature of relationship: codification of common law

to collect all law in one topic together into a single statute. parliament can pass an act that assembles all relevant laws in a particular area to try create one all encompassing law. allows parliament to pass legislation that reinforces principles established in court rulings. gives opportunity to clarify, expand or reform relating area of law.

feature of relationship: abrogation of common law

parliament has power to abrogate decisions made in the courts or common law. may be necessary in situations where parliament believes courts have interpreted the meaning of a statute in a way that it was not meant to be read or the does not reflect the current meaning of the act of parliament. can be argued that power to cancel laws could lead to unjust laws if the parliament overrides a valid legal principle or court decision.

law reform

the process of continually updating and changing the law so it remains relevant and effective.

changes in belief, values and attitudes (law reform)

if law is to remain relevant, it must be kept up with changes, community changes as knowledge increases and society becomes more educated and aware.

age of criminal responsibility was meant to change in 2025, but now will remain at 12 years after the last change from 10 - 12. this is because there was huge pressure by community to put accountability on teens who commit crimes.

changes in living conditions (law reform)

our laws need to continually reform to make sure they remain relevant and keep up with changes in living conditions. (COVID19)

social - population grows and changes, maintain basic standard of living

changes sin economic conditions - continually changing, in tech and globalisation create issues that need to be addressed, governments need to monitor and change laws that regulate buy, selling and production of goods and services.

changes in international conditions - circumstances or global events often influence law reform. global violence and terrorist attacks, international conflict are examples of influences. commonwealth goverment monitor both so it can alter law.

advances in technology (law refrom)

rapid advancement creates new challenges that require legal updates to address issues. cyber bullying, cyber crime, privacy invasion and noise pollution from drones are examples. laws must regulate new inventions and protect individuals from harm or exploitation.

a greater need for protection of the community (law reform)

is crucial to protect individuals and groups from various forms of harm, including physical, emotional and economic harm. vulnerable groups, such as children, workers, consumers, and those facing discrimination, require special legal protections. society evolves, new laws are needed to address emerging challenges and ensure the safety and wellbeing of all community.

criminal responsibility

petitions

a formal, written request to the parliament to take some action or implement law reform. theses are to introduce a new law, amend an existing law or take a particular course of action in relation to a policy matter or complaint.

strengths (petitions)

1) a direct way for individuals can make known to the parliament their desire for changes to the law

2) are relatively simple, easy and inexpensive way to express support for a change in a law. E-petitions are easier to set up, sign and monitor.

3) creating a petition and gathering signatures can generate public awareness of an issue and support for the desired legislative change

4) of not initially successful, its tabling can help gain attention of other members of parliament and the media, which can then generate further community support.

weaknesses (petitions)

1) privacy reasons some will be reluctant to put their name, address or email on a petition. Therefore, while they may support the change they may not be prepared to demonstrate that support by signing a petition.

2) to be presented parliament, petitions have to adhere to rules. (word limit or the petitions may be tabled)

3) parliament receive hundreds of [petitions each year and there is no guarantee or compulsion for the suggested law reform to be adopted.

4) many do not gain public and media attention after being tabled, especially if there is no other source of community pressure beyond the petition. This means valuable requests for law reform may be overlooked.

5) opposing petitions and multiple petitions on the same topic can also reduce the impact of a petition

are petitions effective?

The influence of a petition on law reform largely depends on the number of signatures it gathers, as a petition with widespread support is more likely to reflect the views of the community and gain attention from members of parliament. A petition with few signatures may struggle to generate interest, especially given the volume of petitions received by parliament annually. Additional factors include the prominence and passion of the MP presenting the petition and whether it is supported by a media campaign. Only e- petitions created on a parliamentary website can be tabled in parliament, limiting the effectiveness of other online petitions

demonstrations

is a gathering of people to protect or express their common concern or dissatisfaction with an exisiting law as a means of influencing law reform. can take different forms, but all aim to bring attention to an issue

strengths (demonstrations)

1) can be effective in gathering an awareness for a need to change the law

2) attract large numbers of participants that often attract media attention, which can generate further public support for the desired law reform. Import because in attempt to make laws that reflect majority, parliament are more likely to consider laws reform that has strong support within the community.

3) can gain support of members of parliament who want to ‘adopt a cause’ – particularly ones that might improve their public profile or image

4) can alert and educate members of the community about social, economic, political and legal injustice and the need for law change.

weaknesses (demonstration)

1) number of people that attend affect ability to influence. Few participants = less interest or awareness generated

2) demonstrations ability to influence law change may depend on the type or nature of the demonstration.

• Cause inconvenience, can become violent or lead to breaches of the law will be less effective in generating positive media coverage. • Non-violent that involve civil disobedience (human blockade) generate media coverage and persuade members of community to consider various injustices.

• Simple events may not generate ongoing support

3) may focus on an injustice or issue that cannot be changes by parliament (human rights issue in a Country over which Australia has no authority), may attract global attention but have no long-term influence

4) disorganised demonstrations, or demonstrations that have no clear call for action or messaging, may be less effective. Organised demonstrations, particularly those where there is a global movement or messaging, may have more of an impact

are demonstrations effective?

The effectiveness of demonstrations in influencing law reform depends on their ability to capture media and public attention. Successful demonstrations can raise awareness about injustices and build community support for law change, which may pressure members of parliament to respond. However, demonstrations that are violent, poorly attended, disorganised, or lack a clear message may be less effective and fail to generate the desired impact.

courts

individuals can be instrumental in bringing a change in the law by taking a matter to court. they may be involved in a dispute or even a criminal case, which highlights the need for a change in the law. individual may be proving their own claim, change an area of law, unclear area be clarified or identified.

strengths (courts)

1) individuals and groups can influence a change in the law by challenging the validity, meaning or fairness of an existing law in the courts. A judge’s decision can lead to a change in the law or clarify the meaning of the law.

2) challenging an existing law in a superior court can clarify a vague or unclear law. Even if the challenge is unsuccessful, it may gain significant media coverage

3) judges can rule legislation made outside the power of the parliament (ultra vires) is invalid

4) judges are politically independent and determine cases based on facts and merit rather than for electoral concerns

weaknesses (courts)

1) courts are limited in their ability to change the law because they can only do so when a case is brought before them and only in relation to the issues in the case. Relies on individuals being willing to mount a court challenge (have standing and willing to pursue costly and time-consuming stressful cases with no guarantee of success.

2) exception of high court disputes involving the interpretation of the constitution, a judge-made law ca be abrogated by parliament

3) judges must wait for a party to challenge the authority of parliament to legislate before they can make a ruling and declare legislation invalid. Must also have standing

4) judges are unelected and their decisions and comments may not necessarily represent community views and values.

are courts effective?

The ability to use the courts to influence law reform depends on whether someone is willing and able to challenge the law in court. Such a challenge can draw attention to legal issues or result in the law being declared void. However, this method can be costly, time-consuming, and offers no guarantee of success. Additionally, the requirement of standing limits who can pursue this approach to change the law.

media

the way information is communicated to the public, including print media, broadcast, and digital media, which includes media distributed through the internet and electronic devices and social media.

strengths (media)

1) media including digital platforms, can reach a vast audience quickly, making it effective tool for informing the public about social, political, and legal issues. 83% of aussies have social media

2) can shape public opinion by presenting information, commentary and investigative reports. This influence can drive public support for or against a legal reform

3) media can spotlight social injustices and legal issues, raising public awareness and generating interest in law reform. Documentaries and investigative journalism often highlight problems that may otherwise be overlooked.

4) media polls and data analytics help gauge public opinion, assisting governments and political parties in understanding community support for law reform. Guide legislative decisions.

weaknesses (media)

1) concentration of media ownership in aus, where a few corporations control a significant portion of media landscape and lead to biased reporting. Limit the diversity of viewpoints in ways that reflect the interests of media ownership.

2) digital platform, which are less regulated than traditional media, can be breeding ground for misinformation. False information can spread rapidly eroding public trust in reliable sources and leading to misguided calls for law reform based on incorrect or misleading information

3) social media algorithms can limit the diversity of news content users see by prioritizing information that aligns with their previous behaviour. This can create echo chambers, where users are only exposed to certain viewpoints, potentially limiting their awareness of broader issues and need for law reform

4) media outlets, especially those with concentrated ownership, may exhibit political bias, influencing public opinion and law reform debates in a way that reflects the interests of particular political groups rather than the broader community

Victorian law reform commission (VLRC)

is an independent body established by the vic parliament to assist it with law reform and research in the state. funded by parliament and they will set terms of reference but not controlled by the parliament

5 main roles (VLRC)

major inquiry - examine and report on matter referred to by the attorney general. make recommendation to the attorney general for law reform

community inquiry - examine a minor issue which the VLRC believes is of concern and make suggestions to the attorney general for law reform.

monitoring - after consultation with various groups and law refrom bodies, VLRC may make more suggestions to the AG for reform to areas where law reform would be desirable

education - educate the community of their role

process of VLRC

1. commission receives a reference and begins community law reform

2. staff begin research and consult

3. expert panel is formed

4. consultation and questioning are published and submissions are called for

5. consulting with affected parties and the community

6. submissions received and considered

7. commission writes report

8. report is delivered to victorian AG

9. report is tabled in parliament then published

10. government decides on response

11. parliament decides on legislation

strengths (VLRC)

• government refers and willing to enact change

• conduct through investigation

• act without parliament (minor issues) on community suggestions

• measure community views through consultations and submissions

• independent of parliament (objective and unbiased)

• recommendations have been adopted in 75% of cases

weaknesses (VLRC)

• government may not support VLRC recommendations. needs it support to pass bill. time consuming to pass in parliament

• investigate minor community issues, based on availability of resources

• time consuming and costly

• limited by terms of reference, even is VLRC considers areas may merit reform. Ag tells VLRC to investigate

• no obligation on government to enact reforms

• VLRC can only recommend changes to victorian parliament not commonwealth

stalking case (VLRC)

The Victorian Law Reform Commission (VLRC) was tasked with examining and improving the legal framework surrounding stalking in Victoria, focusing on enhancing victim safety and addressing the barriers to reporting. Stalking is defined as a criminal offense under section 21A of the Crimes Act 1958 (Vic), with offenders facing up to 10 years of imprisonment. The inquiry was prompted by the Attorney General due to the prevalence of stalking, particularly non-family violence stalking, which affects one in six women and one in fifteen men. The inquiry revealed a lack of public awareness about stalking as a crime and the difficulties victims face in seeking assistance through the criminal justice system. The VLRC process included 115 submissions, 36 consultations, and 254 survey responses to gather insights. The interim report, due by 31 December 2021, focused on enhancing police response, while the final report, due by 30 July 2022, addressed preventive measures. Key recommendations included improving victim reporting to police and the police's recording practices. However, as of the latest update, none of the recommendations have been implemented

parliamentary committee

Both the state and federal parliaments have committee which can investigate issues and report back to parliament about the need for law reform. They consist of government and non-government members of parliament. They investigate a specific issue, policy or proposed bill and report their findings and recommendations back to parliament.

committee process

hearings are usually public but on occasion can be private. Most committees have the power to compel certain individuals and experts to give evidence.

1. terms of reference and date for report due

2. community input - publicity in media and public hearings

3. recommendations - report and tabling

4. implementation - government response and changes to the law.

committee types

• standing committees - committees that exist for the life of parliament and are often renewed. They are ongoing that investigates and reports on issues. Exist in both houses of parliament

• select committees - appointed to investigate a particular issue as a need arises. Once the inquiry has been reported the committee disbands. Involves only one house.

• joint investigatory committees - ‘joint’ refers to the fact that they involve both houses. appointed each parliamentary term, they are usually standing committees.

• domestic committees - committees that specifically examine the operation and practices of parliament. involve members from one house of parliament

strengths (committee)

• small group working on an inquiry therefore more efficient than all of parliament working on researching an issue

• acts as a check on law making by parliament

• allows for in-depth investigation of a political, social and legal issue which will enable parliament to be well informed when discussing and supporting the passing of the bill

• community and expert input

• power to request individuals to appear at hearings to give evidence and answer questions regarding the inquiry

weaknesses (committee)

• lack of funding and time constraint committees cannot be used to examine all issues and concerns

• committees can only investigate the terms of reference, they cannot go beyond that

• no requirement for the government to implement recommendations

• committees are most effective when there is a bipartisan approach. party politics can be constraining force.

• parliamentarians may be reluctant to take on the word of a committee due to the time needed to the inquiry process

• members of public may not know that a public inquiry is taking place regarding a particular issue and have not given a submission

compare committee and VLRC

VLRC is independent from government whereas parliamentary committee is made up of government members and non-government members. VLRC has a attorney general that instructs VLRC to research an area and write recommendations for law reform, whereas prime minister or premier will determine the parliamentary committee and will be part of the committee.

racial vilification (committee)

The Victorian parliamentary standing committee conducted an inquiry into anti-vilification laws, focusing on acts that offend, insult, humiliate, or intimidate others based on specific attributes. This state-level inquiry, initiated in September 2019 by the legislative assembly, aimed to assess the effectiveness of current laws and explore whether they should be expanded to protect more groups. The committee received 73 public submissions, including contributions from Lifeline Australia, the Victorian Gay and Lesbian Rights Lobby, the Jewish Community Council of Victoria, and Gender Equity Victoria. The report, released in March 2021, made 36 recommendations, such as extending anti-vilification provisions to cover additional attributes like race, religion, gender, sexual orientation, and disability, and funding research into why people engage in vilification. The Victorian government responded in September 2021, showing support or support in principle for all but two recommendations, with plans for further community consultation. The inquiry's recommendations influenced legislation like the Summary Offences Amendment [Nazi Symbol Prohibition] Act 2022, reflecting the committee's role in updating and improving laws on vilification

recognise FN people (reasons for constitutional reform)

There is no mention of australia’s first nations people in the constitution, nor is there any recognition of the fact that first nations people have been living on the continent for at least 65000 years, long before European colonisation in the late 1700’s. This led to inconsistencies in the law across individual states.

there have been calls for the Australian Constitution to be amended to recognise first nations people. there have been two proposed changes.

to establish a first nations voice to parliament: would have been a body enshrined in the constitution to allow first nations people to provide advice to the Commonwealth parliament on polices or laws that impact directly on first nations people. the body would have been chosen by themselves, working alongside exisiting organisations and structures.

to honour and recognise first nations people in the constitution: in 1999 referendum, there was a proposed change to insert a ‘preamble’ to the constitution. this sought to honour ‘aboriginies and torres strait islanders, the nations first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’ this referendum was not successful.

increase protection of rights (reasons for constitutional reform)

the five express rights impose limits or restrictions on what laws the commonwealth parliament can make. it is broadly accepted that the number that the number of rights protected by the australian constitution are therefore protected by statute law or common law, rather than by the australian constitution.

change commonwealths law-making powers (reasons for constitutional reform)

the commonwealth parliament has exclusive powers and concurrent powers, and the states have concurrent powers and residual powers. listed are examples of past referendums where the commonwealth sought to increase its power

1. 1911, commonwealth proposed to change the constitution to extend its power to control companies, labour and employment. the commonwealth argued these were national issues that should be regulated at a federal level. proposal was not passed, but an almost identical reform was put in 1913, but again did not pass.

2. 1919,, commonwealth sought to alter the constitution to extend its powers in relation to air navigation and aircraft. commercial did not exist at the time, high court held that parliament did not have the general power over aviation and so proposal was put to people, it did not pass.

3. 1946, a proposal to change constitution was put to give the commonwealth the power to legislate on a wide range of social services. a high court case found that the commonwealth did not have power to legislate in relation to unemployment benefits, medical and dental services, benefit for family and students, parental leave, but had already done so despite having power. proposal was successful

sought to increase law-making powers. there had been suggestions to change constitution to decree commonwealths law-making powers. previously this power has been seen as potentially allowing the commonwealth to make laws the negatively discriminate against certain races. if power were removed law making powers would be reduced or decreased.

reform australia’s political system (reasons for constitutional reform)

Final need is to reform our political system.

timing of federal elections: constitution only allows for maximum terms and the prime minister of the day can call elections whenever they choose prior to that maximum term. parliaments around the worlds have longer terms, 10% globally have three year terms. referendum in 1988 tried to change the constitution to increase term of house of representatives to four years and reduce term of senate from six to four. this failed. in 2004, a parliamentary committee recommended that federal term for house be extended for four. some argue that this would encourage the making of long term policy decisions and would enhance business confidence. save resources otherwise spent on number of elections, longer and fixed term may also stop elections being held at a time that is convenient for federal government.

allow for more people to be eligible to sit in parliament: at times there has been criticism that those who represent people do not reflect the broader composition of society. in 2017, high court had to determine whether some members of parliament were invalidy elected because of section 44. some members did not even know if they were technically incapable of sitting as a member of parliament. there has been calls to change the constitution to delete section 44 (i) or to amend it to clarify its effect. some have called for it to be clarified to require candidates to be aussie citizens, but allow parliament to legislate to determine disqualification where a person has foreign allegiance as result of their ancestry.

becoming a republic: calls to change political system to make australia a republic. mean to have an australian person elected as head of state instead of a British monarch. 1999, there was a proposal to make a republic. this failed to win majority support in any state. despite this, many aussies believe a modern australia should formally remove its ties to the monarch. as of 2023, a proposed referendum on a republic was being explored by federal government.

(process to change constitution) the parliament

the first house passes the bill and the other house votes too. if the bill is not passed in second house (achieving majority 51%), it can go through the houses again after 3 months. It can continue if it gets majority house, however if it is rejected again the governor general can submit the proposal change to eligible voters (aka the public). A bill will only pass if it gains absolute majority of both houses of parliament, where it will be given to voters after 2-6 months.

(process to change constitution) yes and no case

Those who are eligible to vote must participate in the referendum. because of this information is sent to every household before the referendum, it explains the proposed change and provides arguments for and against it. this is called yes and no cases.

(process to change constitution) process of double majority and the importance of achieving double majority

A double majority is a voting system that requires a national majority. meaning majority of people in states (51%) and majority of states (4/6), the territories are not counted in this but in the majority of people. Double majority is required for change to be made to the wording of the australian constitution at a referendum, allowing for an equal voice regardless of its size or population

(factor that affect success) bipartisan support

refers to approval by two or more political parties. usually means support from two major parties: Australian labour party and liberal party.
success rests on the opinion of the political party they support. if their party supports the change they will likely too. if there is bipartisan support the proposal will likely be passed. major party apposes change, voters will not be encouraged to support change as they look towards political parties for guidance on how to vote. likely to succeed as voters will see that both major political parties in agreance at both state and commonwealth.

(factor that affect success)do voters want change

if dependent the people or during the change they may be more willing to vote ‘YES’, whereas if it is owned and supported by the government the people will likely vote the same as their political party. support and ownership to change by the voters? voters driving the change then it will be successful. if government tun the public may be more cautious because of distrust and suspicion. also state government or political parties may be lacing doubt in the minds of the voters if change will increase powers to the commonwealth

(factor that affect success) nature of proposal

One thing that may affect the success of a referendum is whether the proposed change is straightforward and accessible or complex and difficult to understand. straight forward and easy to understand. easier to receive ‘YES’ vote. difficult for double majority if voters do not understand wording, or complexity. if the ‘NO’ party proposes a better change voters may choose that

(factor that affect success) education about proposal

rarely subject to mainstream analysing and general public has very little knowledge of the constitution and government/parliament structures. strong education campaign needed in the lead up to the referendum, straight forward and plain explanations so the voters understand the change and how it will impact law making and the right of the individual. lack of awareness of the constitution and its purpose in our law-making by a majority of voters. if booklet for campaign for yes, is confusing or complex then voters will likely vote no

1967 referendum

The 1967 referendum in Australia sought to amend the Constitution to remove discriminatory references to Aboriginal and Torres Strait Islander peoples. Two proposals were presented to the public: one to alter the composition of the House of Representatives, and another to change the wording related to Indigenous Australians in the Constitution. Specifically, the referendum proposed removing Section 127, which excluded Aboriginal people from being counted in the population, and amending Section 51(xxvi), which prevented the Commonwealth from making laws for Aboriginal people. The first proposal was rejected, but the second proposal received overwhelming support, with 90.77% of voters in favor. The successful change made Indigenous Australians a concurrent power under Commonwealth law, allowing the federal government to legislate on issues affecting them. This led to significant advancements, such as the Native Title Act 1993 following the Mabo case, and the establishment of bodies dedicated to addressing the welfare, rights, and anti-discrimination of First Nations people. The referendum marked a pivotal moment in closing the gap between Indigenous and non-Indigenous Australians

2023 referendum

In May 2022, Australian Prime Minister Anthony Albanese announced a referendum to establish an Aboriginal and Torres Strait Islander Voice to Parliament, aiming to recognize First Peoples in the Constitution. By November 2022, the National Party declared it would not support the proposal, indicating a lack of bipartisan support. Despite this, late 2022 polls suggested over 60% of Australians were in favor of the Voice. Early in 2023, amendments to the Voice were introduced to Parliament and passed by an absolute majority in both houses. The referendum proposal asked voters if they approved of altering the Constitution to recognize First Peoples by establishing a Voice to Parliament. However, the proposal faced criticism for still allowing Parliament to make laws affecting First Nations people based on advice from the Voice, with concerns that the scope of change was too limited. The referendum was ultimately rejected, with 60.06% of voters nationally voting 'NO.' The lack of bipartisan support contributed to the failure, despite strong support in Aboriginal communities. The 'YES' campaign struggled to clearly communicate the implications of the change, leading many to vote 'NO' out of caution. The outcome highlighted ongoing challenges in addressing the rights and recognition of First Nations people in Australia, with some viewing the rejection as influenced by unconscious or conscious racism.

commonwealth parliament

Parliament of australia consists of; the King (represented by the Governor-general), the Senate (upper house), and the house of representatives (lower house). Two key roles are the making of laws and representation of the people of australia. By having two houses they have two groups of people, this ensures the power to make law is not held by one sinlge group.

house of representatives

Has 151 members, with each representing one of Australias electorates. The elected member is expected to represent the views and interests of the people in their house, the house of representatives often referred to as the ‘peoples house’.

role of house of prepresentatives

• initiate and make laws

• determine government

• act as house of review

• control government expenditure

• represent the people

• scrutinise government administration

the senate

The Senate consists of 76 elected members, called senators. Each state elects 12 representatives, regardless of the population of that state. There are also two representatives elected from each mainland territory. Each senator represents the interests of their state or territory; therefore, the Senate is often referred to as the states’ house.

role of the senate

• act as house of review

• allow for equal representation of the states

• initiate bills

• scrutinise government administration

legislative assembly (lower house)

has 88 members voted by members of districts to represent them in parliament. every four years

the role of legislative assembly

• initiate and pass bills

• scrutinise government administration

• represent the people

• act as house of review

• control government expenditure

legislative council (upper house)

40 members electe dby public who serve 4 year term. mainly act as house of review, overseeing the passing of bills.

role of legislative council

• act as house of review

• initiate and pass bills

• scrutinise government administration

the crown

is the British monarch. Has 1 seat in federal parliament as Govenor-General and 6 seats in state level as Governor. They have three main roles (granting royal assent, withholding it, and appointing executive council)

granting royal assent

The Crown’s representative in both the Commonwealth Parliament (the Governor-General) and the Victorian Parliament (the Governor of Victoria) is required to approve bills before they can become law. This is known as royal assent. Royal assent is normally given as a matter of course on the advice of the Prime Minister or ministers at the Commonwealth level, and on the advice of the Premier of Victoria or ministers at the Victorian level.

withholding royal assent

The Crown’s representative has the power to withhold royal assent (that is, refuse to approve a bill in order to make it an Act of Parliament). However, this rarely occurs, and the ordinary course is that the Crown’s representative will approve bills on advice of the Prime Minister, Premier or ministers. At a federal level, the Australian Constitution specifies the circumstances in which the Governor- General can withhold royal assent.

The Australian Constitution does not specify the process at a Victorian level, but it is accepted that the Governor of Victoria acts on the advice of the executive when giving royal assent.

appointing executive council

comprises of leader of government, senior ministers, and assistant ministers.

role of the Executive Council is to give advice to the Crown’s representative on matters such as whether to approve regulations. For example, the Environment Protection Amendment (Banning Single- Use Plastic Items Regulations 2022 (Vic) was made under the advice of the Executive Council. These regulations specify what single-use plastic items are now banned from being used or sold by businesses, such as drinking straws, cutlery, cotton buds and drink stirrers. In reality the Crown’s representative acts on the advice of the prime minister or premier when approving regulations.