legal studies u4 aos 1

role of the governor general in law making

- Granting royal assent:

- Withholding royal assent: The Crown's representative has the power to withhold royal assent.

- appoint exexutive council: This comprises of the leader of the government and senior ministers. The role of the Executive Council is to give advice on government matters as well as approve secondary legislation.

role of the senate in law making (commonwealth parliament upper house)

- Act a house of review – the majority of bills are initiated in the lower house, and the Senate has the task of reviewing bills already passed through the lower house.

- Initiate and pass bills – the Senate is able to initiate bills (other than money bills) or pass bills that have previously been passed through the HOR.

- Act as the state’s house – Section 7 of the constitution provides that the Senate should have equal representation from each state, regardless of size or population. In this way the Senate represents the interests of the states in law-making.

- Scrutinise bills through the committee process - The Senate has a number of committees whose role it is to assess legislative proposals to determine what effect the proposals would have individual rights, freedoms and obligation as well as the rule of law.

roles of the house of representatives in law making (commonwealth parliament lower house)

- Initiate and make bills.

- Act as a house of review.

- Determine government – the political party (or coalition of parties) that has the most members in the House of Representatives forms government.

- Control government expenditure – a bill must be passed through both houses of parliament before a government is able to collect taxes or spend money, but only the lower house can introduce money bills.

role of the legislative council in law making (upper house in Victorian parliament)

- Acts as a house of review

- Examine bills through its committees

- Initiate and pass bills

role of the legislative assembly in law making (lower house in victorian parliament)

- The government is formed in the Legislative Assembly: the political party that has the most members in the legislative assembly forms government.

- Initiate and pass bills

- Provide Representative Government

- Acts as a house of review (when a bill has been initiated by Legislative Council)

- Control government spending

exclusive powers

law making powers that can only be solely exercised by the Commonwealth Parliament, meaning that only the Commonwealth Parliament can make laws in these areas.

e.g:

- defence (adf, army, navy, air force)

- currency (printing and coining money)

- customs and border protected

concurrent power

law making powers that are shared by the commonwealth and state parliaments.

e.g:

- trade.

- taxation

- marraige and divorce

- Postal, telegraphic, telephonic and other like services

residual powers

law making powers that were left with the states, the commonwealth parliament generally has no authority to make laws in these areas.

e.g:

- criminal law.

- education

- public transport.

- Hospitals

- environment.

comparison of parliament and commonwealth law making powers

section 109

states that “When a law of a state is inconsistent with a law of the Commonwealth, the latter (most recent) shall prevail, and the former shall, (to the extent of the inconsistency) be “invalid”

significance of section 109

- it acts as restriction on state parliaments. meaning that the state parliament will, in passing laws in areas of concurrent powers, recognise that its powers are constrained where a Commonwealth law already exists.

- however section 109 does not automatically operate that the state parliament lacks the power to pass a law which is inconsistent with a Commonwealth law. The law must be challenged before it is declared to be invalid.

- Section 109 is also significant because it imposes a consistent approach to the way inconsistencies between state and Commonwealth laws will be dealt with. That is, there is no doubt that the Commonwealth law will prevail.

example of cases with section 109 in action (not compulsory)

John McBain 2000 case.

- Dr John McBain and his patient with standing, Leesa Meldrum, argued the inconsistency between the Infertility Treatment Act 1995 (Vic.) (which discriminated against marital status, stating that a woman had to be married or in a de facto relationship to assess IVF treatment) and the Sex Discrimination Act 1984 (Cth) (which stated a person cannot be discriminated against based on marital status) in the High Court.

- On the basis of S109 of the Constitution, the federal law prevailed and therefore the discriminatory section of the Victorian law was deemed invalid and inoperable to the extent of the inconsistency.

discuss the significance of section 109

the two houses of parliament

Bicameral means that there are two houses - an upper house and a lower house.

the lower house is the house of representatives and the upper house is the senate

hostile upper house

when the upper house of parliament is not controlled by the government.

- there is a lot of disagreement and argument of bills

rubber stamp senate

when the upper house (senate) is controlled by the government, with the senate passing bills with not much additional scrutiny.

minor party

a party with members elected to the Australian Parliament, but not in enough numbers to form government or opposition. but they can pressure the government on specific issues to bring about law reform.

independant (party)

a member of parliament who is not affiliated with a political party (not members of government or opposition)

strengths of bicameral structure in allowing parliament to make law.

- bills are passed quickly when there is a 'rubber stamp' upper house (however hostile senates are still often very effective in passing legislation).

- if the upper house is hostile, it allows for bills to be scrutinised, debated, reviewed.

- the upper house is usually made up of a variety of political parties/independents with a variety of politcal views.

- historically, parliament has been fasrt at passing legislation.

- there are committees that members of parliament sit on which can results in meaningful legislation being discussed and potentially passed.

weaknesses of bicameral structure in allowing parliament to make law.

- if there is a 'rubber stamp' upper house it takes away from one of the main roles (if not the main role) of the upper house; this is to act as a 'house of review'. this can reduce parliaments ability to reflect the views of a cross section of society.

- hostile upper house can slow down the law making process, as can the various stages of the bill process, however this is seen as necessary in many instances.

-parliament sits on relatively few days.

- parliamentarians are often on committees; many people say these committees take up too much time.

international pressures

demands or forces that persaude governments to make laws (or not make laws) on issues that are of international concerns.

- talk about UK rather than US.

strengths of international pressures to affect the ability of parliament to make law (based on an example)

- in the 2022 election, many independants were funded by an organization known as 'climate 200'. these were know as 'teal' independents and many won seats due to their stance on climate change.

- the UK has banned the sale of new petrol and diesel cars by 2030.

- australia has committed to cut emmisions by 43% by 2030

- pressure government to be better global citizens.

weaknesses of international pressures to affect the ability of parliament to make law (based on an example)

- it doesnt look at domestic issues (such as youth crime, or the economy of australia)

- dont know the domestic and economic situation.

- in 2022 the UN called on Australia to do more on climate change.

- leaders of pacific nations have put pressure on australia to act on climate change as they are at great risk of rising sea levels.

- australia has not implemented this same legislation banning these cars yet.

- the australian economy is largley supported by mining companies through the income they make an the tax they pay.

futhermore, there are many jobs in australia that are created through mining companies; many of these jobs fall in areas that the national party have seats.

representative nature of government/parliament

Parliament is elected by the people to 'make laws for the people'. if they fail to do this, they risk losing their seat at the next election.

strengths/examples of gov/parliament being representative of its population

- there are many groups and law reform bdoies that can support minority groups.

- the government is answerable to the people and will hopefully listen to the wishes of the people.

- voting is compulsory and state elections are held on fixed date.

weaknesses/examples of gov/parliament not being representative of its population

- minority groups are often not specifically represented in parliament.

- the government may support popular laws, especially before an election. furthermore, unpopular or controvesial areas of law may not be legislated on by parliament.

- commonwealth elections are not held on a fixed date.

- it can be hard for parliament to asses the views of the people and the future needs of the people.

factors required for a representative parliament

- regular elections:

- diversity of parliament:

role of the high court

at times, the high court has been called on to determine the meaning of sections 7 and 24 of the constiution. in doing so, the high court has been so to have acted as a guardian of the constituion by protecting the principle of representative government through:

- restricting the ability of commonwealth parliament to make laws that infringe on the rights of people to vote in electrions, so that they can choose the members of parliament.

- protecting the ability of people to freely communicate on politcal matters, so that they can cast effective an informed votes when choosing their members of parliament.

sections 7 and 24 of the commonwelath constitution

Sections 7 and 24 require the Senate (Section 7) and the House of Representatives (Section 24) to be directly chosen by the people of the state (7) and commonwealth (24).

•This enshrines the concept of representative government where the government reflects the majority of people who voted for it.

strengths/ability of the high court to protect the principle of representative government.

- judges are independant of the government, and decisions are based on legal principles rather than pressure. the court can seek to uphold process that uphold the principle of representative government.

- high court judges are experienced and experts in constitutional law. ensuring their decisions are appropriate.

- the existance of the high court allows individuals who have an intrest in the case to bring the matter to court and have a law overturned. which reinforces that members of parliment are not above the law, and judges are able to overturn laws (including those that dont uphold rep government).

weaknesses/inability of the high court to protect the principle of representative government.

- the high court cannot change the actual words of the constitution

- the decision of the high court may depend on the composition of the justices, as some justices are more conservative than others.

- judges cannot intervene and protect the principle of representative government unless a case is brought before them. ( + can only rule on the facts of a case brought before them)

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

legislative

power to make laws (given to parliament)

executive

the power to administer the law and manage the business of government. (put laws into action) (governor general, ministers and government departments)

judiciary

power to enforce law, settle disputes, and interperate the law (courts and tribunals)

seperation of power

section 61 of the constituion

the executive power of the commonwealth is vested in the Queen (crown), and is exercised by the Governor-General as her representative.

section 71 of the constituion

judicial power shall be vested in the the High Court of Australia and other federal courts created by Parliament.

seperation of powers definition and reason for it.

- a doctrine established by the australian constituion that ensures the three powers of our parliamentary system remain seperate.

- this ensures that no one body has absolute power or control of the functions of the politcal and legal systems.

how the executive and the legislative have some overlap

- although the crown is technically the head of executive, they are guided by senior government ministers and the prime ministers. these ministers also sit in the legislative (parliament) so there is an overlap between those who administer and pass laws.

ability/strength of seperation of powers to act as a check on parliament.

- while parliament is the supereme law making body, the judiciary (court) has the power to invalidate or declare void a statute that has been passed by parliament beyond its law making power.

- the judiciary (court) is 100% independant from the other 2 arms. which is important when the commonwealth is a party in a case before the court.

- the seperation of powers is specifically provided for and entrenched in the constitution, and can only be changed via referendum.

- legislative can refuse to pass bills sought by the executive.

inability/weakness of seperation of powers to act as a check on parliament.

- in reality, the legislative power and the executive power are combined, decreasing the ability of the seperation to act as a check

- judges are appointed by the executive. this may result in the perception that the executive seeks to influence judicail benches.

- the ability of the judiciary to act as a check is dependant on the peoples willingness to challenge laws. (as courts can only act as a check on parliment when there is a case before them, meaning someone must be willing to initiate such a case).

- the seperation of powers in the aus constitution does not extend to states, meaning states are not bound by this seperation.

express rights (explicit rights

rights of the australian people that are "specifically stated" in the constitution. (there are 5)

the 5 express rights

1. freedom of religion. (section 116)

2. free trade and commerce between states (interstate). (section 92).

3. receive "just terms" (compensation) when property is acquired by the commonwealth. (Section 51(xxxi). this involves tangible property, and intangible property such as intellectually property).

4. trial by jury for commonwealth indictable offences. (section 80)

5. not to be discriminated against based on state of residence. (section 117).

how do express rights act as a check on parliament

express rights Impose effective limits on law-making powers of the Commonwealth. and the commonwealth cannot pass laws that conflict with express rights.

strengths of express rights acting as a check on parliament

- Impose effective limits on law-making powers of the Commonwealth. This protects the public against the parliament being able to make any laws it wants to. (they cannot pass laws that conflict with express rights).

- the high court fully enforces express rights.

- express rights are fully protect and cannot be changed or removed unless through referendum.

- the high court is usually quick in declaring a law "unconstitutional" or "ultra vires"

weaknesses of express rights acting as a check on parliament

- express rights can only be changed by a referendum. but referendums often fail, and there is a limited ability for rights to be added to the referendum to prove additional checks on parliments.

- very exprensive to go to high court

- there is only 5 (ER's) and they protect rights many believe are outdated.

- commonwealth can pass laws that conflict with express rights and it will be valid until a part challenges it.

statutory interperatiation

when an act of parliament contains words or phrases that are unclear and a case is brought before the court that is challenging or asking for this act to be clarified; the judge may "interperete" these words to make a decision

reasons for statutory interpretation

- resolving probelms that occur during the drafting process.

- resolving problems that occur when applying the act of parliament to resolve the case.

effects of statutory interpration

- the words or phrases contained in the disputed legislation are given meaning.

- the precedent may be set for future cases to follow.

- the courts decision on the meaning of the legislation is binding on the parties.

- the meaning of the legislation can be restricted or expanded.

doctrine of precedent

a principle established in a legal case that should be followed by courts in later cases where the material facts are similar.

binding precedent

a ruling made by superior courts (supreme and above) that must be followed by lower courts in the same hierarchy when the material facts are similar.

Persausive precedent

rulings made by lower courts in the same hierarchy or courts in a different hierarchy that are not binding but may still be considered by a judge and used to influence their decision.

factors/ways to avoid and develop precedent

- reversing

- overruling

- distinguishing

- disapproving.

reversing

When a case is taken on appeal to a higher court, the superior court may disagree with and decide to change the previous decision/precedent of the lower court.

(same case on appeal)

overruling

When a superior court decides not to follow a previously established precedent, set by a lower court in a different and earlier case, it can choose to overrule the existing precedent.

distinguishing

A judge may be able to avoid following an existing binding precedent if he or she can find a difference in the material facts of the case they are deciding and the material facts in the case in which the existing precedent was set.

(wont follow it)

disapproving

When a lower court disagrees with an existing binding precedent set by a superior court in the same hierarchy, it may wish to express its dissatisfaction with the previous precedent.

(cant avoid following precedent, as they are still bound)

obiter dictum

means "a thing said by the way", which refers to those statements or comments made by a judge that are not an actual part of the decision (and are therfore not binding), but still important points to consider for future cases.

stare decisis

means "let the decision stand", meaning where appropriate and required, judges should stand by previous decisions to ensure common law is consistent and predictable.

ratio decidendi

means "The reason for the decision", is the legal reasoning behind a judges decision. forms the binding part of a precedent

factors that affect the ability of courts to make laws.

- the doctrine of precedent

- judicial conservatism and activism.

- cost and time in bringing a case to court.

- the requirement for standing

doctrine of precedent as a factor in the ability of courts to make laws (image)

doctrine of precedent as a factor in the ability of courts to make laws

- binding nature of precedent can restrict ability of courts to make law (lack of flexibility)

- Can in some circumstances allow courts to avoid following or change existing precedent. (flexibility)

- Courts are restricted to making and clarifying laws retrospectively (ex post facto). This can limit the effectiveness of the doctrine of precedent. (other)

- Restricted to making law that is needed to clarify some issue or matter raised (flexibility)

judical conservatism

the idea that the judges should show restraint or caution when making decisions and rulings that could lead to significant changes in the law. (conservative approach that doesnt take societies values into account)

- influences the ability of the courts to make law, because judges who take a conservative approach to the way they interpret statutes will not go very far beyond the established law.

judicial activism

judges being willing to take a range of values (social and political factors, including community views and values) and the rights of the people into account when deciding a case.

requirement for standing

Courts must wait until a party decides to pursue a case before they can create precedent. A party cannot take a case to a court unless the court has jurisdiction.

- In addition, the party initiating the case must have standing, meaning the party must be directly affected by the issues or matters involved in the case to have the right to commence a legal proceeding in court.

supremacy of parliament

parliament as the supreme law making body has the primary role to make laws that reflect societies values.

how courts can influence parliament

Courts have the ability to indirectly influence parliament to make and change the law

- a Judge may make comments when handing down judgements, either as part of the reasons for the decision or as obiter dictum, that encourage parliament to initiate law reform.

- Parliament can also be influence to change the law if a court is bound by precedent and makes a decision that is unjust.

courts interpreting statutes.

By giving meaning to unclear words and phrases in statutes, judges can not only clarify legislation so it can be applied to resolve the dispute before them, they can also broaden or narrow its meaning. This then establishes precedent which are to be followed in future similar cases.

codification of common law

the parliament can make laws that confirms a precedent set by the courts. This is referred to as codification of common law and it involves collecting all law on one topic together into a single statute.

abrogation of common law

parliament has the power to pass law that has the power to cancel (abrogate) decisions made through common law.

the impact of the franklin dam case

- the commonwealth parliament has the power to legislate in areas of residual power where there is an international treaty.

- the law making power of the commonwealth parliament was substantially broadened.

- the decision interpreted the words 'external affair' to include any area covered by an international treaty.

- the commonwealth is able to move into law making areas previously considered residual powers as long as it is to give effect to an international treaty.

- there are concerns that the use of external affairs powers can give the commonwealth unlimited power as long as it is to give effect to an international treaty.

international treaty

a binding agreement between countries and is governed by international law. It can be bilateral (between two countries) or multilateral (between three or more countries).

- The power to enter into treaties is considered an executive power under section 61 of the Constitution. It is the responsibility of the executive rather than parliament to negotiate treaties. Commonwealth Parliament has a role in ratifying a treaty which then makes it binding under international law.