Unit 4 - The People and the Law Makers

What is the structure of Commonwealth Parliament?

Our federal parliament is bicameral and has three tiers: upper house, lower house, king’s representative.

What is the structure of the Senate (upper house)?

-The State’s House.

-76 seats, stays the same number for every state.

-This protects small states like Tasmania being dominated by the much more populous states of Victoria and NSW.

What is the structure of House of Representatives?

-The People’s House.

-One member of parliament represents a set number of the population.

-150 seats, and each electorate has the same number of people.

What is the role of the House of Representatives?

-Prime minister is selected from the party that forms government. (need 76 seats to win)

-Initiate new legislation (introduce new laws or ask for amendments for pre-existing laws)

-Initiate money bills- anything to do with Government spending must start in the HoR, must start with the treasurer who always initiates spending.

-Represent the people in law-making.

-Review legislation and propose amendments (changes).

-Scrutinise government administration (investigate and question the government).

What are the roles of the Senate?

-Acts as a house of review.

-Acts as a State’s house. (MOST IMPORTANT)

-Scrutinises legislation. (MOST IMPORTANT)

-Initiates legislation.

What is the role of the Crown?

-Name of the Crown’s representative at the CWTH level is the Governor General.

-Granting Royal Assent - changes a bill to a law.

-Withholding Royal Assent.

-Appointing the Executive council = prime minister and senior members of parliament.

What is the structure of the Victorian Parliament?

-The Legislative assembly.

-The Legislative Council.

What is the Legislative Assembly?

The lower house of the Victorian Parliament which is comprised of 88 members of parliament representing the electoral districts across Victoria.

What is the Legislative Council?

The upper house of the Victorian Parliament, comprised of 40 members. They representing 8 regions across Victoria, 5 per member.

Who is the premier?

Jacinta Allan -Labour party.

Who is the PM?

Anthony Albanese.

Who is the treasurer?

Jim Chalmers.

What is the role of the Legislative Assembly?

-Initiate new legislation.

-Determining the party to form government,

-Representing the people in law-making.

-Review legislation and propose amendments.

-Scrutinise legislation.

What is the role of the Legislative Council?

-Scrutinising legislation.

-Initiating legislation.

What is the role of the Crown (state)?

-Name at state level is Governor.

-Grant Royal Assent.

-Act as Head of State.

-Chair the Executive council.

How was the Australian constitution established?

-In 1900, Australia was a collection of six settler colonies, each with their own parliament and constitution.

-From 1901, the six colonies became states.

(Division of Law-making Powers) What are exclusive powers?

Powers that only the Commonwealth parliament can make laws about.

-They are made exclusive by what the other sections of the constitution state.

• E.G. S115 states that the “states shall not coin their own money”, it gives the commonwealth power to make laws regarding currency, coinage, and legal tender.

What are concurrent powers?

Law-making powers that are shared by the Commonwealth and state parliaments.

-If there is an inconsistency in the laws made by the Commonwealth and State Parliaments, S109 states that Commonwealth law will always prevail.

E.g. taxation, bankruptcy, marriage and divorce, trade and commerce between states.

GST- goods and services tax, this is a commonwealth tax.

What are the residual powers?

Powers that were left to the state parliament at the time of Federation, and only the states can make laws in these areas.

-Powers that are NOT listed in the Constitution, therefore they remain with the states.

-E.g. criminal law, education, public transport, police, prisons.

What is the McBain v Victoria case?

-Victorian legislation provided that only a married woman or woman in a de facto relationship could access IVF treatment.

-However, there was a Cwth legislation that made it unlawful for a person who provides goods or services to others, to discriminate based on their marital status, sexual orientation etc.

-The Federal Court ruled that the 2 pieces of legislation were inconsistent with each other.

-S109 indicated that the Vic legislation would be invalid to the extent of the inconsistency.

-Therefore, women who were not married or in a de facto relationship could not be denied access to IVF treatment.

What is the role of the high court?

Act as a guardian of the constitution. It was established to hear constitutional matters (original jurisdiction).

What are the factors that affect parliament in making laws?

Bicameral structure of the Commonwealth parliament, international pressures, the representative nature of parliament.

How does the bicameral structure of the Commonwealth parliament affect law-making?

-Composition of the upper house affecting law-making = rubber stamp, hostile upper house.

What is a rubber stamp?

-Majority government in both houses (more than 76), the upper house will generally approve the decisions made by the government at the lower house.

-A rubber stamp may prevent the upper house from adequately fulfilling its role as a house of review or representing the interests of the states or regions.

What is a hostile upper house?

-The upper house is considered hostile when the government does not hold majority seats.

-Government may have difficulty implementing its policy agenda.

-A diverse upper house can also be seen as a more effective parliament.

What is the balance of power?

-A hostile upper house may have a group of independents or minor parties that hold high levels of power compared to their voter base.

-The Government needs to win support of the minority parties and independents to have bills passed.

What are international pressures?

Refers to the influence that other countries and international organisations exert on parliaments to ensure the laws created reflect and comply with international standards.

Where can international pressures come from?

-International treaties and declarations.

-The United Nations.

-Other international organisations.

What is an international treaty?

-Binding agreement between countries.

-Requires ratification.

What is international declaration?

-Non-binding agreement between countries.

-Can be influential.

-Can lead to treaties being made.

What is the United Nations?

-Intergovernmental organisation that aims to promote better living standards and human rights, maintain international peace and security and develop friendly relations.

-Australia is a founding Member State of the UN, formed in 1945.

-Australia is bound by the UN Charter since it was ratified.

What is the representative nature of parliament?

Parliament and government makes laws on behalf of the people who elect them. If they do not make laws reflecting the views and values of the people, they may not be re-elected.

-Section 7 and 24 enshrines a system of representative government.

-Directly chosen by the people.

What is section 7?

-Sets out matters related to the Senate.

-Requires senators to be directly chosen by the people.

What is section 24?

-Sets out matters related to the House of Representatives.

-Requires members to be directly chosen by the people.

How can people be effectively represented?

1. Members of Parliament must reflect the community.

   - Each member of parliament must consider the views of the people of their electorate or electoral district.

2. Regular elections must be held.

   -Enabling the Australian people to elect members to represent them, ensuring the government is mindful to act in the best interest of people, as a failure to do so may increase the risk of being voted out of office.

How does the high court protect representative government?

-Section 7 and section 24 sets out how the Senate and HOR is to operate.

-These sections also establish the principle of representative government in that it is a clearly stated that both houses must be chosen by the people.

(Sample answer) Discuss the significance of S7 and S24 for protecting the right of representative government.

S7 and S24 of the Australian Constitution are two important sections that deal with the composition of the Senate and the HOR. Both sections detail that the members of these Houses will be directly chosen by the people. An important case that dealt with the interpretation of this section was ACTN v the Commonwealth where the recognition of an implied right to vote was suggested. In 1991, the Commonwealth passed legislation to restrict television advertising during the lead up to an election. The ACTN took this to the High Court where the Justice found that S7 and S24 establish the principle of representative government. For this to be effective, voters have to be able to hear from political parties and discuss political issues so that they can make informed decisions in electing law makers. Due to S7 and S24 require voters to be free to communicate on political issues, a right to free political communication was implied by the words “directly chosen by the people”. The Political Broadcasting Act was deemed as invalid as it breached the implied right.

What are the strengths of the representative nature of parliament on the ability of parliament to make law?

-The representative nature of parliament influences MPs to enact law that represent the views and values of the people.

-Regular elections place pressure on MPs to represent the views of their constituents as failure to do so could put them at risk of being voted out at the next election.

What are the weaknesses of the representative nature of parliament on the ability of parliament to make law?

-Australia’s compulsory voting system may result in people casting uninformed votes, thus, the elected party may not be truly representative of the people’s views.

-Members of parliament may not vote for law reform in areas where vocal minority group are against the law out of fear of not being re-elected, even if the law reform is needed to improve society as a whole.

What are the elements of the constitution as a check on parliament?

Representative government, the separation of powers, express protection of rights.

What is the Guardian of the Constitution?

The High Court is the only court with the power to give meaning to the words in the constitution.

What is ‘acts as check on any abuse of power’?

-Parties who claim a state or commonwealth Government or body has acted beyond its powers can challenge such actions in the High court.

-Only those who have standing (those directly affected by the actions) are able to initiate such claims.

-Actions done outside lawful powers are declared ultra viries and of no legal effect.

What is ‘Gives meaning to words in the constitution’?

The High Court decides how the words are to be interpreted.

What are the strengths of the High Court in protecting the principle of representative government?

-Judges are independent of the legislature and executive, so act as an independent check on their exercise of power.

-Judges are experienced and experts in the constitutional law so can bring these qualities to their decision-making.

-The High Court can act as an independent Check to confirm if a law is an abuse of power.

What are the weaknesses of the High Court in protecting the principle of representative government?

-Judges are reactive and have to wait until a case is brought to them.

-The High Court cannot change the actual words of the Constitution and can only affect the meaning of the words.

-Judges are appointed by politicians and governments often appoint judges with leaning towards their sides of politics.

What is the separation of powers?

-A principle established by the Australian Constitution that ensures the legislative, executive, and judicial powers remain separate.

Legislature- State and Commonwealth parliament.

Executive- the government and public service.

Judiciary- the courts (judges are appointed not voted on)

What are the reasons for the separation of powers?

-Prevents power being concentrated in one branch of government.

-It provides a series of checks and balances on the power of government so that no arm can both make a ruling and also rule on its legality.

What are the strengths of the separation of powers?

-Allows executive to be scrutinised by the legislature- legislature can refuse to pass legislation sought by the executive.

-Judiciary is independent of the other two arms. This is especially important in cases where the Commonwealth is a party.

-Ministers are still subject to question time in parliament so that legislature can review and expose decisions made by executive arm.

What are the weaknesses of the separation of powers?

-In reality, there is significant overlap between the legislature and executive - ministers are in both arms. This reduces the level of scrutiny provided.

-Judges are appointed by the executive so the executive can influence the composition of the bench.

-The Australian constitution only enshrines separation of powers at the federal level. Each state decides whether to adopt the principle in their own state constitution.

What are express protection rights?

-Explicitly stated in the constitution.

-Only removed or amended by a referendum.

-Protect human rights by limiting the law-making powers of the Commonwealth Parliament.

-There are 5 express rights, as other mechanisms in the constitution protect our other rights.

What are the express protection of rights?

-Freedom of religion.

-Not to be discriminated against based on state of residence.

-Trial by jury for indictable Commonwealth offences.

-Free interstate trade and commerce.

-To receive ‘just terms’ when property is acquired by the Commonwealth.

What is the right to ‘just terms’ when Cwth acquires property?

-The Commonwealth must pay fair and reasonable compensation for property that is compulsorily acquired.

-Property can be tangible, intangible, real or personal.

What is the right to jury trial for Commonwealth indictable offences?

Guarantees individuals a jury trial if charged with an indictable offence.

What is free interstate trade?

-Interstate trade and commerce must be free.

-This right restricts taxes on goods moving from one state to another being imposed.

-This right also applies to individuals movement from one state to another.

What is freedom of religion?

The Cwth parliament cannot make a law which:

-Establishes a state religion.

-Imposes restrictions on any religious observance.

-Prohibits the free exercise of any religion.

What is no discrimination based on state of residence?

It is unlawful for state and Cwth governments to discriminate against someone on the basis of the state in which that person resides.

What are the strengths of express rights?

-Impose effective limits on law-making powers of the Commonwealth.

-Opportunity for the public to become aware that such rights exist.

-High court can act swiftly declaring a law ultra vires.

What are the weaknesses of express rights?

-Express rights can only be changed by a referendum.

-Cost of initiating a court case is high.

-Rights that are protected are limited in scope.

Tasmanian Dams Case:

-In 1945 Australia signed and ratified an international treaty called the Convention Concerning the Protection of the World Cultural and Natural Heritage. 

• In 1982, The Tasmanian government had decided to flood the Gordon river to build a dam in the wilderness area with many unique features. They passed legislation to construct the dam for hydro-electricity.  

• The C'wealth govt. Passed the World Heritage Properties Conservation Act 1983 which placed restrictions on what could be done on heritage sites.

• The Tasmanian government argued that the C'wealth government did not have the constitutional power to make laws with regards to the environment or electricity production, therefore could not restrict the building of the dam. 

  • The c'wealth argued that the external affairs power S51 gave them the power to make laws that cover international treaties. (exclusive power) 

  - The HC found in favour of the C-wealth. The HC decided that the commonwealth could pass the legislation preventing the construction of the dam, such as legislation was an exercise of the commonwealth's external affairs power.

What is statutory interpretation?

When the meaning of a phrase in a statue is unclear, courts can give meaning to these words or phrases.

How does the way an act is drafted lead to problems?

-Mistakes can occur during drafting.

-The act may not have taken future circumstances into account.

-The intention of the act may not have been expressed clearly.

-The same word might be used inconsistently in different parts of the same act (giving it different meanings).

-The act may not cover new types of technology.

How is specific meanings for words a reason for statutory interpretation?

-Judges may be required to interpret the specific meaning of words or phrases to identify the scope of the statute and determine whether it extends to certain areas.

Example case: Studded belt (Deing v Tarola).

How is the changing nature of words a reason for statutory interpretation?

As society changes, the meaning of different words can change.

How are unforeseen circumstances a reason for statutory interpretation?

The act might need to. be clarified as new situations arise.

What are the effects of statutory interpretation?

-Words of phrases in the act are given meaning.

-The decision is binding on the parties to the case.

-Precedent is created for future cases to follow.

-The meaning of legislation may have been narrowed or broadened.

What is the doctrine of precedent?

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

What is precedent?

-Reasoning behind a court’s decisions. Establishes a legal rules that must be followed by lower courts in the same hierarchy in future cases that are similar.

-The guidelines used by courts when making law are known as the doctrine of precedent.

-Precedents are normally created by superior courts hearing cases on appeal.

-The legal reasoning behind the judge’s decision forms the precedent that is binding on lower courts in that hierarchy.

What is the purpose of the doctrine of precedent?

-Ensures consistency and predictability as parties can anticipate how courts will apply the law to their dispute by looking at how past cases of a similar nature were decided.

What is ratio decidendi?

The reason for the decision.

What are binding precedents (ratio decidendi)?

Decisions that must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts.

What are persuasive precedents?

Those that may influence a judge but which a judge is not obliged to follow.

-May be created by a court from another hierarchy, by a lower court, by a court of equal standing or less important obiter dicta.

What is obiter dictum?

Latin term meaning ‘things said by the way’.

-Rather than the parts of the judgement relating to the reasons for deciding.

-Obiter dictum comments can never be part of the binding precedent may be persuasive for courts in later cases.

How do courts develop or avoid precedent?

When deciding how to deal with a persuasive precedents, judges can either:

-adopt or apply the precedent— follow it.

-affirm the precedent— agree with it.

-avoid the precedent — not follow it.

When do judges have the ability to make precedent?

-New issue not covered by existing precedent or statue.

-Interpreting a statue that hasn’t previously been interpreted.

-When a lower court has developed a precedent.

(How judges can avoid precedent) what is reversing?

When a decision is appealed, the superior court changes the original decision set by a lower court. A new precedent is created and the old decision is no longer valid.

What is overruling?

When a superior court does invalidate a previous decision made by a lower court by setting a new precedent in a new case with similar facts. Courts can also overrule their own past decisions.

What is distinguishing?

A judge can avoid following a precedent where the material facts of their case are different to the case that created the precedent.

What is disapproving?

When a court expresses its dissatisfaction with an existing precedent. If that precedent is binding, the court still has to follow it but the disapproval could encourage parliament to review the relevant law or encourage a party to the case to lodge an appeal.

What is the impact of the doctrine of precedent?

Ensures that;

-Similar cases are decided in a like manner, promoting consistency and predictability.

-Decisions made by experienced judges in superior courts are followed in lower courts.

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

What are the advantages of DOP?

-Consistency is ensured as lower courts have to follow binding precedents from superior courts.

-Common law is flexible and develops overtime as judges can reverse, overrule and distinguish earlier precedents.

-Judges are independent, not subject to political pressure and are not voted in so need not be concerned with public opinion.

What are the disadvantages of DOP?

-Binding precedents must be followed even if they are outdated.

-Decisions of judges may not fully reflect community values.

-Judges must wait for a case to come to them, and cannot change the words in legislation, only the meaning of words.

What are the factors that affect the court’s ability to make law?

Judicial activism, judicial conservatism, cost and time, the requirement of standing.

What is judicial conservatism?

-The idea that courts should be cautious when making decisions that could lead to significant changes in the law.

-Should interpret the law, not rewrite it.

-Reflect legal considerations, not personal opinion.

E.g. State Government Insurance Commission v Trigwell (1979).

What are the strengths of judicial conservatism?

-Conservative judges show restraint in making decisions that could significantly change the law, ensuring the law remains stable.

-Judicial conservatism prevents the creation of controversial laws as judges do not base their decisions on their own political views and opinions.

-Judicial conservatism means courts will not make radical and controversial changes in the law, reducing the likelihood of appeals being made on question of law, whereby the precedent may be reversed.

(only need 1 strength and weakness)

What are the weaknesses of judicial conservatism?

-Conservative judges tend to interpret the law narrowly, which restricts courts from making substantial changes to the law.

-Judicial conservatism may result in judges in superior courts applying outdated precedents rather than creating new ones, even in circumstances where the court is not bound to follow the existing precedent. This may mean that relevant community views and values are no longer reflected in the existing precedent.

What is the State Government Insurance Commission v Trigwell case?

-Previously, the Trigwell family had been in an accident with another car.

-The driver of the car had lost control due to roaming livestock.

-Trigwell’s sought compensation from the deceased negligent driver’s insurance company and the owner of the livestock.

-An old precedent was applied, outlined that the owner of roaming livestock could not be held liable for the damage caused by animals.

-As a result, the owner of the livestock did not have to pay damages but the insurance company did.

-The State Government Insurance Commission appealed to the High Court, believing the original decision to be unjust.

-However, the original decision was upheld as the majority of the High Court justices believed the old precedent was still applicable. They did not embrace the role of law-maker.

-Subsequent to this decision, the Victorian Parliament passed a law abrogating the old precedent.

-As a result, farmers would be held liable for the damage caused by their roaming livestock.

What is judicial activism?

-The willingness of judges to consider a range of social and political factors, such as community values, and the rights of the people, when making decisions.

-Limited by precedent.

Mabo v Queensland

What are the strengths of judicial activism?

-Judges can develop laws that put pressure on parliament to make legislative changes.

-Unlike parliament, judges are not elected by the people and can make controversial changes in the law without the fear of not being re-elected.

-As the High Court is not bound by any previous decisions, judges in this court are able to engage in judicial activism and radically change the law.

What are the weaknesses of judicial activism?

-Courts must wait for a relevant case before actively changing the law.

-Parliament is the supreme law-making body and therefore can abrogate any radical common law created by the courts such as legislation and will prevail over such law.

-Judges are not elected by the wider community meaning that the common law created may not actually reflect the views and values of the majority.

How do costs affect the ability of courts to make laws?

-Can deter litigants who cannot afford costs and cannot access legal aid from pursuing their case or appeals.

-Can discourage frivolous (not well founded) claims.

-Can encourage parties to use other methods of dispute resolution or other institutions.

How do delays affect the ability of courts to make laws?

-Courts can resolve disputes quickly when the need arises.

-Courts do not have to follow the lengthy process involved in passing legislation.

-Some courts face backlogs in their case loads.

-The pre-trial procedures can delay preparation for cases.

What is the requirement of standing?

Courts can only hear cases when they have jurisdiction, a party initiates the case and the party has standing.

-Standing means they are either directly affected by the issues involved in the case or have a special interest meaning they must be more affected by the issue than the general public.

What is the purpose of the requirement of standing?

-Ensures cases are only brought to court by people who are genuinely affected by an issue or matter.

-Encourages people not directly affected by an issue or matter to seek other avenues of redress.

-Means that people who have a general interest in a case have no right to pursue a legal challenge on behalf of public interest or the common good.

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

What is the supremacy of parliament?

-Parliament can always override court, so long as its acting within its power (not ultra vires).

-Can also establish and define the power of the courts.

-Can alter jurisdictions of the courts.

What is the ability of courts to influence parliament?

-The parliament may wish to codify a court precedent it likes, but will abrogate a decision with which it disagrees.

-Judges may make suggestions for legislative action in their obiter.

What is codification?

-Codification of common law is the process of parliament enshrining a precedent in legislation.

-Codification is rarely a ‘word for word’ substitution of legislation for precedent but can arrange the principles into a more organised statement of the law.

-Usually the codification will adopt some of the principles from the precedent, but offer further clarification, alter details, or even expand or restrict application of the common law.

Mabo v Queensland:

-Recognised land rights of Aboriginal people in Australia Native title was said to exist where:

-there was ongoing connection to or occupation of the land under traditional law and customs and

-there had not been clear and plain intention to extinguish native title with respect to a piece of land.

-Although this decision created a common law concept of native title, there was no provision for the recognition of other native title claims, other than additional court action in each case.

-In 1993, Australian parliament passed the Native Title Act to create a system for the recognition of Native Title.

-The Native Title Act sets up processes to determine where native title exists, how future activity impacting upon native title may be undertaken, and to provide compensation where native title is impaired or extinguished.

What is abrogation?

-When parliament disagrees with a legal principle developed by a court and renders the law invalid by passing legislation.

-Can be express (we hereby abolish) or implied (where a new law is incompatible with an old one).

-A common cause for abrogation is where an older precedent is no longer in keeping with modern values or tech

What is the Deing v Tarola case?

-Mr Deing was apprehended as his studded belt was considered as a weapon, prompting debate of whether it could be considered as one as it was not being utilised in a violent manner in the first place. 

-Magistrate's court found him guilty but on appeal the Supreme Court had overruled this, setting a precedent for a more narrow definition on what could be classified as a weapon as it is purely dependent on context as Deing was simply wearing a belt.  

-Justice Beach determined that the word 'weapon' was not clearly defined in the act as the definition was under any article fitted with raised pointed studs which is designed to be worn as a piece of clothing.  

 -He decided that a studded belt was not considered as a weapon as it was being used as an item to hold up his clothing as opposed to something being used to instigate violence.  

 -Narrowed the meaning of the word 'weapon', to ensure an everyday item used for its purpose was not considered to be a weapon, e.g. a studded belt.  

• This created a precedent for all lower courts to follow.

What cases are reflective of what?

Trigwell- judicial conservatism - abrogation.

Mabo- judicial activism - codification.

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Whenever you see the word ‘relationship, parliament and courts’ start with ‘parliament is the supreme law making body’.