VCE Legal Studies 2026 Unit 4 AOS 1: 'The People and the Australian Constitution'

What is Australia’s system of governance?

Australia is a constitutional monarchy with the King as head of state, and a constitution establishing guidelines for the government. It is a representative democracy with leaders elected by the people.

What is the role of parliament in law-making?

To make laws on behalf of the people, known as ‘bills’, which must receive royal assent.

What is the role of courts?

To apply existing laws. Judges in the Supreme and High Courts can make and change laws when deciding cases through statutory interpretation, known as common law.

What is the rule of law, and how is it upheld?

The principle that everyone is bound by the law, even those who create it. The rule of law is upheld by the Constitution, separation of powers, freedom of speech and association, the ability to challenge government through the courts, and statutory interpretation.

What does the Australian Constitution establish?

The constitution establishes the Commonwealth Parliament, and its powers, structure and composition, the High Court (and its powers of interpretation), and allows for referendums.

What is the House of Representatives?

The upper house of the federal parliament. It has 151 members each representing one of Australia’s electorates, voted in during federal elections held every 3 years. Whichever party holds the majority forms government, and its leader becomes Prime Minister.

What is the role of the House of Representatives?

To initiate and make laws by introducing and passing bills, determining government, act as a house of review, control government expenditure through money bills, represent the people, and scrutinise government administration and uphold responsible government during question time.

What is the Senate?

The lower house of the Commonwealth Parliament, with 76 elected senators, 12 from each state and 2 from the territories. It represents the interests of the state or territory for a 6 year term on a half rotation every 3 years. It cannot initiate or amend money bills.

What is the role of the Senate?

To act as a house of review, allow for equal state representation, initiate bills, and scrutinise bills and government legislation during question time.

What is the Legislative Assembly?

The lower house of the Victorian parliament. It has 88 members representing Victoria’s electoral districts, each holding office for 4 years. Whichever party wins majority forms state government with the leader becoming Premier of Victoria.

What is the role of the Legislative Assembly?

To initiate and pass bills, form government, scrutinise government administration, represent the people, act as a house of review, and control government expenditure by initiating money bills.

What is the Legislative Council?

The upper house of the Victorian parliament, with 40 members representing 8 regions for a 4 year term.

What is the role of the Legislative Council?

To act as a house of review for bills passed by the legislative assembly, initiate and pass bills, and scrutinise government administration.

What are the roles of the governer-general and the governors?

To grant royal assent to bills so that they can become Acts of Parliament, to withhold royal assent, and to appoint the Executive Council.

What are some residual powers left to the states?

Criminal law, medical procedures, road laws, education and public transport.

What are some exclusive powers of the Commonwealth Parliament?

Defence, currency, customs and border protection. It also holds exclusive powers of the ACT and the NT.

What are some concurrent powers shared by both the states and the Commonwealth?

Trade, taxation, marriage and divorce, and postal, telegraphic and telephonic services.

What is Section 109 of the Australian constitution?

It resolves inconsistencies that arise when concurrent powers are exercised by the Commonwealth Parliament and a state parliament, in which ‘the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.’ It is up to the High Court to determine whether or not there is a conflict when a relevant case is brought before it.

What is one High Court case that involved the use of Section 109?

McBain v. State of Victoria (2000). In this case, the Infertility Treatment Act (Vic) prohibited an IVF doctor from providing treatment to a single woman. He held that this was discriminatory under the Sex Discrimination Act (Commonwealth), and the Victorian law was declared invalid.

What is one case involving the division of law-making powers?

The Tasmanian Dam case. In 1982, Tasmania passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas), which involved the creation of a dam in a UNESCO world heritage site. When the Labor party came to power, they passed the World Heritage Properties Conservation Act 1983 (Cth) to prohibit the construction. The High Court determined that involvement in an international treaty was considered a Section 51 of the constitution ‘external affair’, and under Section 109 the state law was declared invalid.

Explain how the composition parliament affects law making.

It there is a hostile upper house, legislation may be more readily amended or rejected by those who hold the balance of power. If the government has the majority, it can pass bills easily, known as ‘rubber stamping’. Crossbenchers usually hold the balance of power if there is no government majority in the upper house, allowing for diverse and effective law making but giving a small group disproportionately high power.

How can international pressure affect law making?

Through treaties, international organisations, and global advocacy. Australia is a member of the UN and a signatory to treaties such as the Convention on the Rights of the Child (1989) and the 1984 Convention against Torture. The UN has called Australia a ‘hold out’ on climate change. 31 countries recommended Australia raise its age of criminal responsibility in 2021 from 10 to the UN standard of 14.

In what section of the constitution is representative government enshrined?

In Sections 7 and 24. It means that representatives must act in accordance with the views of the electorate.

How does the High Court act as a check on parliament?

Through protecting representative government, the separation of powers, and express rights.

What is the High Court?

The highest court in Australia established by Section 71 of the Constitution and provided with jurisdiction to hear certain matters.

What are the High Court’s strengths and limitations?

Strengths: Judges are independent, individuals can bring the case before the court, judges are experienced, and it is protected by the Constitution.

Limitations: Can only interpret law, not add or change, can only intervene if the case is brought before the court, and it changes in composition over time.

What is the executive power?

The power to administer laws and manage the business of the government. It is held by the Governor-General and state governors according to Section 61, although in practice is carried out by the cabinet.

What is the legislative power?

The power to make laws. It resides in parliament according to Section 1.

What is the judicial power?

The power to enforce the law and settle disputes under Chapter 3 of the constitution, vested in the Federal Courts.

What are the strengths of the separation of powers?

Courts can invalidate statutes, judiciary is independent of political parties, separation is protected by the Constitution.

What are the weaknesses of the separation of powers?

The legislative and executive powers are combined in practice, judges are appointed by the executive, laws must be challenged for the judiciary to have effect, and the separation of powers does not extend to states.

What is the express right of Freedom of Religion (116)?

The Commonwealth Parliament cannot establish a state religion, impose a religious observance, or prohibit exercise of a religion (limited). This does not apply to states.

What is the express right to Free Interstate Trade and Commerce (92)?

Freedom of movement between states and prohibits interstate taxes, applying to both trade and people.

What is the express right to Just Terms for Property Acquisition (51)?

The Commonwealth may only acquire property, tangible or intangible, for a purpose that it has the right to legislate on, with just compensation.

What is the express Right to Jury Trial (80)?

There must be a jury trial or all indictable Commowealth offences.

What is the Right to not be discriminated against based on state residence (117)?

A NSW resident living in Vic cannot be subjected to a Victorian law that would place them in a worse position than if they were born in Victoria.

What are the strengths of express rights?

They impose limits on parliament and protect the public, they cannot be removed without referendum, the are protected by the independent High Court.

What are the weaknesses of express rights?

They are limited in scope, and it is difficult to hold a referendum to increase this right, they have to be brought before the court to be defended, and they do not prevent parliament from passing breaching legislation.

What is the purpose of statutory interpretation?

To resolve problems that occur during the drafting process, and to resolve problems that occur during the application of statutes.

What is one case in which statutory interpretation is used?

In 1993, a man was charged with ‘possessing a regulated weapon’, an offence under the Control of Weapons Act 1990 (Vic). He was found guilty but appealed to the Vic Supreme Court, where the judge ruled that a weapon is ‘anything that is not in common use for any other purpose but that of a weapon’.

What is the purpose of the Doctrine of Precedent?

To ensure common law is consistent and predictable, cases are decided in a like manner, legal representatives can give advice on likely outcomes, judges have guidance, and the same point is not decided repeatedly.

What is ratio decidendi?

The binding part of a court judgement, meaning ‘reason for decision’.

What is stare decisis?

The principle behind the Doctrine of Precedent, meaning ‘let the decision stand’.

What is obiter dictum?

Comments made by a judge in a particular case that may be persuasive. ‘A thing said by the way’.

What is reversing a precedent?

When a judge overturns a lower court precedent on appeal, creating a new precedent.

What is overruling a precedent?

When a judge does not follow a precedent set by a lower court, creating a new precedent.

What is distinguishing a precedent?

Establishing a difference between the material facts of two cases.

What is disapproving a precedent?

When a judge expresses dissatisfaction but is still bound to follow the precedent. May be brought up in appeal.

Strengths and weaknesses of the Doctrine of Precedent?

Strengths: Precedents are consistent and predictable, can be changed over time,

Weaknesses: Lower courts are restricted in ability to make common law, precedents may be outdated, judges must wait for relevant cases and make law ‘ex post facto’, and parliament can abrogate.

What is judicial conservatism?

When judges adopt a narrow interpretation of the law, believing it the duty of the parliament to oversee law reform.

What is judicial activism?

When judges consider a range of factors, including community values and rights when interpreting legislation.

What is the requirement for standing?

A party must be directly affected by an issue to bring it before court, to ensure only genuinely affected parties are involved.

What is the supremacy of parliament?

Parliament can codify or abrogate common law, create courts and determine their jurisdiction. They can also restrict the ability of courts to make decision on certain matters (eg. restrictions on sentences). Courts and judicial activism may influence parliament through ‘obiter dictum’ comments.