Legal Studes UNIT 4 AOS 1
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56 Terms
Structure of Commonwealth Parliament
House of Representatives role in law-making
Initiate and Make Laws:
Most bills are introduced in the House, especially by government ministers
Bills are debated, scrutinised, and may be referred to committees
Amends or repeals existing legislation or introduces new laws
Determine the Government:
The political party (or coalition) with the majority of seats in the House forms government
Reflects the will of the electorate and controls legislative agenda
Act as a House of Review:
If a bill originates in the Senate, the House acts as the reviewing chamber
Reviews, debates, amends, and either passes or rejects the bill
Control Government Expenditure:
Only the House of Representatives can introduce money (appropriation) bills
Ensures accountability in collecting taxes and government spending
Represent the People:
Members are directly elected by the public
Should introduce and vote on bills that reflect the values and interests of their constituents.
Scrutinise Government Administration (Responsible Government):
Ministers must be accountable to the Parliament
Question Time and parliamentary committees allow scrutiny of government actions and policies
Senate’s role in law-making
Act as a House of Review:
Review bills passed by the House of Representatives.
Can pass, amend (or request amendments to money bills), or reject bills
Acts as a check on government power, especially if the government does not hold a Senate majority
Provide Equal Representation of the States:
Each state has equal representation in the Senate (12 senators per state) as per s7 of the Constitution
Ensures that smaller states have a voice and their interests are protected in the law-making process
Initiate Bills:
Can introduce bills (except money bills)
Ministers in the Senate may introduce bills relevant to their portfolio
Scrutinise Bills and Government Activity:
Uses a comprehensive committee system to assess bills and policies
Committees, such as the Senate Standing Committee for the Scrutiny of Bills, examine the impact of proposed laws on rights, freedoms, and the rule of law
Question Time allows senators to hold ministers accountable for their actions and policies
Structure of Victorian parliament
Roles of the Crown: Royal assent - giving and withholding
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.
Roles of the Crown: 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.
Roles of the Crown: Appointing executive council
The Governor-General (or governor of each state) is responsible for appointing the Executive Council, which comprises:
the leader of the government (the prime minister at the federal level and premiers at the state level)
senior ministers
assistant ministers
The 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.
Executive council
A group consisting of the prime minister and senior ministers (at the Commonwealth level) or premier and senior ministers (at the state level) that is responsible for administering and implementing the law by giving advice about the government and government departments
Separation of powers
A doctrine established by the Australian Constitution that ensures the three powers of our parliamentary system (i.e. executive power, legislative power and judicial power) remain separate
Division of powers
The way law-making powers are allocated between the Commonwealth and state parliaments in the Australian Constitution, these powers are divided into three categories
Types of division of powers
Exclusive powers |
Powers in the Australian Constitution that only the Commonwealth Parliament can exercise (as opposed to residual powers and concurrent powers) |
Effects the whole country |
E.g. Currency, defence, etc. |
Concurrent powers |
Powers in the Australian Constitution that may be exercised by both the Commonwealth and the states (as opposed to residual powers and exclusive powers) |
E.g. Health |
Residual powers |
Powers that were not given to the Commonwealth Parliament under the Australian Constitution and which therefore remain solely with the states (as opposed to concurrent powers and exclusive powers) |
E.g. Transport, police, etc. |
Model Answer
Distinguish between separation of powers and division of powers and, using examples, explain how the Constitution plays a role in this. 6 marks
Both the separation of powers and division of powers are structures and mandates that ensure the good government of Australia. The separation of powers doctrine can be found in the Constitution and it creates the 3 arms of government. Firstly it creates the executive arm of government which provides the power to administer the country. This falls to the crown in theory but in practice is performed by the government who can introduce bills that reflect the government's policies. They have the power to raise revenue (taxes etc) and to spend money on projects.
The second arm of government is the legislature which is performed by the parliament. They have the power to make laws, generally put to them by the government in the form of bills and ensure accountability of government.
Thirdly, the judicial arm is created in the Constitution which is performed by the Courts. The role of the courts is to provide an independent and unbiased opinion/decision when there are conflicts concerning issues relating to either government, the parliament or in. fact the Constitution.
The purpose of keeping the 3 arms separate is to ensure that no one arm of government has absolute power and to prevent collusion and bias between the three arms.
As distinct to this structure that protects our rights, the Constitution also creates the Division of Powers. This is to clarify the law-making powers of the Commonwealth parliament and the State parliaments. It does this by classifying powers in the Constitution into three categories. It classifies some powers as exclusive, which are powers held solely by the Commonwealth. States cannot make laws in these areas which include Coining of money and defence. Some of the powers listed in the Constitution are shared with the States and if powers have not been made exclusive to the Cwlth then they are shared with the States such as marriage and taxation. In such areas, State laws cannot contradict Cwlth laws (S.109). Finally, any powers not mentioned in the Const automatically become sole powers of
Make sure to add why both exist in terms of preventing bias and corruption etc
Section 109 significance
Section 109 of the Australian Constitution is designed to help resolve conflicts and inconsistencies between state and Commonwealth laws.
These inconsistencies sometimes arise when concurrent powers are exercised by the Commonwealth Parliament and one or more state parliaments.
For example, if the Commonwealth Parliament and a state parliament make a law in the same area, and the state law is inconsistent with the federal law, there may be a conflict between the state and Commonwealth legislation that needs to be resolved.
Under section 109 of the Australian Constitution, if there is a conflict between state and Commonwealth laws, the Commonwealth law will prevail to the extent of the inconsistency between the two pieces of legislation. State law provisions that are inconsistent with the Commonwealth law will therefore be invalid and unenforceable
McBain Case (use this to explain section 109)
Victorian law (Infertility Treatment Act 1995) allowed IVF only for married women living with their husband.
Commonwealth law (Sex Discrimination Act 1984) prohibited denying services based on marital status, including for single women.
Dr McBain challenged the inconsistency after being unable to provide IVF to single woman Leesa Meldrum.
Legal conflict: State law denied IVF access to singles; federal law protected against such discrimination. Federal Court ruled Victorian law was invalid to the extent of the inconsistency (Section 109).
Outcome: Commonwealth law prevailed; unmarried women gained IVF access. Significance: Demonstrates how Section 109 resolves conflicts in favour of Commonwealth laws.
Franklin Dam Case
The key issue was the High Court’s interpretation of section 51(xxix), which gives power to the Commonwealth to legislate in relation to ‘external affairs’.
In this case, the Tasmanian Government sought to build a dam, which was within their residual law-making power. The dam raised environmental concerns and was in an area that was ultimately included in the world Heritage List. The Commonwealth intervened, passing legislation to prohibit construction of the proposed dam. The legislation gave effect to the Commonwealth’s obligations under the World Heritage Convention to protect national heritage.
The majority of the High Court held that external affairs power extends to the Commonwealth’s power to pass laws to give effect to international treaties. This therefore broadened the Commonwealth’s power as it allowed it to make laws in any area to give effect to treaty obligations, at the expense of the states.
The interpretation is significant for both Commonwealth and states: it substantially increases the power of the Commonwealth to move into a law-making area previously considered to be a residual power. This means it can intervene in state matters if the intervention is required to give effect to international treaties. This could occur even if the subject-matter of the treaty is not otherwise within the Commonwealth’s power.
The decision has been affirmed since, and the Commonwealth has relied on its external affairs power to make laws in other areas, such as in relation to sexual conduct involving consenting adults in private.
Concerns have been raised about the scope of power, with some suggesting it should be narrowed or reduced.
There are, however, limitations on the power:
– the laws must give effect to the international treaty
– the treaty must be genuine
– the power does not allow the Commonwealth to infringe on express rights
– the states otherwise maintain their residual area of power.
Model Answer
Discuss the significance of ONE, High Court case that has impacted on the law-making powers of the State and Commonwealth parliaments.
One High Court case that impacted on both state and Commonwealth law-making powers is the Tasmanian Dam case.
The interpretation of the Constitution by the High Court in this case is significant because the Commonwealth Parliament was able to move into an area of law-making not previously given to them by the Constitution and ultimately remove or erode one of the State's residual powers.
The decision drastically expanded the law-making powers of the Commonwealth at the expense of the states. The decision allowed the Commonwealth Parliament to at times encroach on the residual law-making powers of the state parliaments when in relation to treaty obligations. This resulted in the state parliament’s having their residual powers restricted, as to some extent the interpretation of the external affairs power is very broad and unlimited, assuming the Commonwealth law is in relation to upholding treaty obligations. Once a treaty is ratified (turned into a law), then it will override all laws including residual powers.
Waterways is a residual power as it is not mentioned in the Constitution. This was eroded in this decision by the High Court when it allowed the treaty that the Cwlth had signed to be ratified (turned into legislation). State's still had residual power over waterways but not if those waterways were in a wilderness area. The Franklin River was in a wilderness area and therefore the Cwlth had power over this area. Ultimately, the High Court ruling validated the Cwlth Act (World Heritage Act) protecting wilderness areas. This Act was then inconsistent with the State Hydro Electricity Act and S.109 takes over and requires that any inconsistency be settled in favour of the Cwlth meaning the State law was invalid; they could not dam the Franklin river.
However, as this increase of legislative power for the Commonwealth is based on the interpretation by the High Court, it is subject to change in future High Court cases and is not an absolute and guaranteed power.
Hostile upper house
A situation in which the government does not hold a majority of seats in the upper house and relies on the support of the opposition or crossbench to have their bills passed
Independents
Individuals who stand as candidates in an election or are elected to parliament but do not belong to a political party
Minor parties
A political party that can pressure the government on specific issues to bring about law reform, despite not having enough members or electoral support to win government
Factors that affect the ability of parliament to make laws
Refer to the bicameral structure of parliament
Positively + Negatively affects the ability
Positive:
The existence of two houses allows for review of legislation by the second house. This review process acts as a ‘quality control’ to ensure bills can be double-checked and debated, and amendments can be suggested. It also provides for checks against any misuse of law-making power
If the government does not have a majority in the upper house (which is almost always the case), this can increase the ability of the upper house to act as a check on parliament in law-making. It means there is no guarantee of the bill passing both houses, particularly more controversial bills, and can result in robust discussion and amendments to satisfy minor parties or independents, thus enhancing the parliament’s effectiveness
The detailed and complex process of getting a bill through parliament ensures there are several opportunities for bills to be considered, debated and voted on. Parliament can also act swiftly when needed, which was demonstrated during the CoVId-19 pandemic when parliaments were able to pass laws quick
Negative:
Where the government controls the upper house, it tends to be a ‘rubber stamp’, confirming the decisions about legislation that were made in the lower house. This can dilute the role of the upper house in law-making in scrutinising and debating legislation. In this situation, the government can pass bills readily, but the legislation may be less effective or representative of community given the lack of scrutiny and review
If the upper house is not controlled by the government, this allows for more rigorous scrutiny and debate, but it could mean that members of the crossbench have a disproportionately high level of power compared to the size of their voter base. There may also be questions as to whether they represent the views and values of the majority of the community, either in the way they vote or in the amendments they propose
The law-making process can slow down the legislative process, given the number of stages and the opportunities for debates. However, this depends on the bill. Less controversial bills will likely take less time to pass. The detailed law-making process is also necessary to ensure proper and rigorous consideration of laws
International Pressures
Demands made on parliaments, from within Australia or beyond, to make (or not make) laws that address matters of international concern
International Pressures Example (Age of criminal responsibility)
Sources of pressure: United Nations (UN):
Australia has been criticised in the past by the UN about this issue
In 2017, the UN sought a response as to why Australia was ‘out of step’ with the rest of the world
In 2019, the UN Committee on the Rights of the Child noted its serious concern about the age in Australia and called on it to act to ensure the age was at an internationally accepted level
The Committee encouraged Australia to invest in early intervention regarding juvenile offenders, focusing on the prevention and rehabilitation of children
In addition, UN member countries have noted the age of criminal responsibility as a key issue of concern
The Universal Periodic Review is a UN Human Rights Council peer- review process in which member states consider the human rights record of other member states, including Australia. In the 2021 review, 31 countries recommended that Australia raises its age of criminal responsibility
International pressures - Explanation points
Australia is part of the global community and plays a key role in addressing global concerns. It is often a signatory to international agreements and has passed legislation to formally recognise its commitments under treaties.
As an active participant in the global community, Australia can sometimes be subjected to international pressures to change the law, or not change the law. This can include laws relating to terrorism, climate change or human rights.
Pressures can come from international sources, such as the uN and Amnesty International, or from local sources, such as individuals and local bodies and organisations.
Examples in the past have included putting pressure on parliament to address the growing concern of climate change, and to change the age of criminal responsibility.
International pressures - Discussion points
Whether the pressure impacts on governments and their willingness to act may depend on the issue, where the pressure is coming from, and how supportive people are of the change. For example, the need to address climate change has gained support over the years to the point where it would be difficult for governments to ‘refuse’ to act.
On a particular issue, governments may be faced with competing pressures or views. For example, in relation to climate change, the need to address the growing concern of raising temperatures and reducing emissions needs to be considered against Australia’s reliance on coal and energy as a source of revenue. As another example, the pressure to increase the age of criminal responsibility needs to be balanced against the need to ensure proper frameworks are put in place for young people who may need to be supported or deterred from offending.
Powerful bodies or organisations can have an impact on the way people vote. For example, hashtags such as #raisetheage, or school student climate protests, may influence voters or the way they think about an issue.
Law reform in areas where there is international pressure must also be balanced against law reform in other, more pressing areas, such as immediately dealing with pandemics or natural disasters. There must also be a consideration of the financial impact of making law reform (i.e. whether the change comes at a cost).
The Representative Nature of Parliament
Both Commonwealth and state levels, parliament and government consist of members who are elected by the people to make laws on their behalf
If these members fail to make laws that reflect the views and values of the people, or fail to address the needs of the community, they will jeopardise their chance of being re-elected
Representative Nature of Parliament - Explanation points
Parliament is elected by the people and can make laws that reflect the views and values of the community. If members fail to make laws to reflect those views and values, they can jeopardise their chances of being re-elected.
Australia is a diverse country, and some expect Australia’s parliaments to reflect the broader make-up of our communities. However, across all parliaments in Australia, while female representation is increasing, the number of First Nations members of parliament or those who have non-European backgrounds are below the general population. Some have argued that this means some groups and their interests are not well represented.
The representative nature of parliament encourages members of parliament to listen to the views of the community. Social media is a powerful way for parliament to gauge community views.
The requirement under the Constitution to hold elections allows the public to vote out of office a government that fails to act in the interests of the majority or one that breaks its promises.
Fixed-term elections, such as in Victoria, give parliaments a specified period to implement their programs and there is certainty for voters as to when the next election is held.
Representative Nature of Parliament - Discussion points
Although parliamentary diversity does not generally reflect the diversity of our communities, some may argue that individuals, pressure groups, and law reform bodies can have an impact on law reform so that the views of minority groups are considered by parliament when passing legislation.
The need for parliament to reflect the views of the public may see governments support populist law reform to win voter support while avoiding contentious issues, especially before an election.
Governments may not initiate law reform in areas where there is opposition from well organised and vocal minority groups.
It can be difficult for parliament to assess majority views where there are conflicting views on controversial issues. It can also be difficult to predict future views and needs.
Whilst there is compulsory voting, a criticism of the federal system is that elections are not held on a fixed date, which means that early elections can be held.
Vicki Lee Roach Case (Protecting voting in elections)
Vickie Lee Roach challenged the electoral and referendum Amendment Act 2006 in the High Court
Act banned all prisoners from voting in federal elections
She argued this violated Australian Constiution’s sections 7 and 24, which that the Parliament members be “directly chosen by the people”
Court ultimately ruled in her favour, stating that all prisoners can vote, if their sentence is less than 3 years (2004 Act was valid whereas the 2006 Act was invalid)
Shows the commonwealth can be certain people (not a majority of people)
This is not an implied right it is a structural protection (Set up in the design and framework of the Constitution - Representative government)
Limitations on High Court in protecting representative government
Limited to interpreting the words and phrases of the Australian Constitution. It cannot ‘add’ new words or phrases, or expressly provide for a right to vote. For example, the principle of representative government does not extend to guaranteeing a right to vote for everybody; there can be reasonable limitations imposed on the right of people to directly choose the members of the houses
Can only intervene and protect the principle of representative government if a person challenges a law. This requires a person with standing, costs and time to do so.
The interpretation of the High Court will depend on its composition. Some justices are more conservative in their approach and may be reluctant to adopt a liberal approach when protecting the principle of representative government.
Strengths and Weaknesses of the High Court
Strengths:
Judges are independent of the executive and the legislature, and decisions are based on appropriate legal principles rather than political pressure. The Court can seek to uphold processes that promote representative government, even if they are contrary to the will of the parliament (e.g. where parliament is seeking to restrict who can vote).
The existence of the High Court allows individuals who have an interest in the case to bring the matter to court and have a law overturned. This reinforces that members of parliament are not above the law and the judges are able to overturn laws, including those that do not uphold the principle of representative government.
The judges of the High Court are experienced in making decisions and have available to them a wide range of legal resources, ensuring that decisions are appropriate.
Both the High Court and the principle of representative government are contained in the Constitution and therefore can only be abolished if there is a referendum.
Weaknesses:
Judges can only rule on the facts of the case brought before them. They cannot create general principles of law outside the immediate case, which limits the Court’s ability to protect the principle of representative government more broadly if the case does not address issues relating to that principle.
High Court judges cannot protect the principle of representative government unless a case is brought before them. Such cases are often complex and expensive for the ordinary person, and standing is required. Unless cases are brought, a law that does not uphold representative government may remain.
The decision of the High Court may depend on the composition of the Court. Some justices are more conservative in their approach to the Constitution and may be reluctant to adopt a liberal approach to interpreting the Constitution.
The interpretation of the scope of the principle, such as the ability of people to vote in elections and the extent of the freedom of political communication, could be subject to further change if a future High Court interprets the Constitution differently.
Separation of Powers (Types)
Executive Power |
The power to administer the laws and manage the business of government, which is vested in the Governor-General as the King’s representative |
Legislative Power |
The power to make laws, which resides with the parliament |
Judicial Power |
The power given to courts and tribunals to enforce the law and settle disputes |
Reasons for the separation of powers
Prevents power from being concentrated in one set of hands
Helps to protect individual rights by providing checks and balances on the power of the parliament. No one body can make law, administer law and also rule on its legality. The government and the parliament must work together to pass laws, and the independence of the judiciary (a legal term used to describe the courts as well as judicial officers such as judges), which have the power to apply and interpret the law) must be preserved.
Strengths and Weaknesses of Separation of Powers
Strengths:
While parliament is the supreme law-making body, the judiciary (courts) have the power to invalidate, strike down or declare void a statute that has been passed by parliament beyond its law-making power.
The judiciary is independent of the legislature and executive. This independence is vital, especially when the Commonwealth is a party in a case before the Court. It also ensures decisions about the application of law can be made without the fear of electoral backlash as judges are not aligned with political parties.
The separation of powers is specifically provided for in the Australian Constitution, therefore cannot be abolished without a referendum.
Weaknesses:
In reality, the legislative power and the executive power are combined. This can decrease the ability of the separation of powers to act as an ongoing check. The power to administer the law through government departments is carried out by ministers (members of Cabinet), who are drawn from the executive.
Judges are appointed by the executive. This may result in the perception that the executive seeks to influence judicial benches. The government can choose which judges they want to serve on the Court and some people believe that these choices are influenced by their progressive or conservative views.
The ability of the judiciary to act as a check on parliament is dependent on people’s willingness to challenge laws. That is, the courts can only act as a check on parliament when there is a case before them, and that requires someone willing and able to initiate such a case.
Express rights
Rights that are stated in the Australian Constitution, thus are entrenched, meaning they can only be changed by referendum
Express Protection of Rights
Religion (Freedom of religion)
Section 116 of the Australian Constitution states that the Commonwealth Parliament cannot make a law which:
Establishes a state religion (that is, declares a particular religion as the official national religion)
Imposes any religious observance
Prohibits the free exercise of any religion (that is, prevents people from practising their religion) – although this can be limited because of national security or to ensure that people follow the laws of the country, as established in Adelaide Company of Jehovah’s Witnesses Inc. v Commonwealth
Requires a religious test as a requirement for holding any Commonwealth office
Jury trial
Under section 80 of the Australian Constitution, there must be a jury trial for indictable Commonwealth offences under the criminal law. The High Court has found that a decision of a jury in such a trial must be unanimous. However, section 80 provides only a limited right to trial by jury for two reasons:
Most indictable offences are crimes under state law, and this section only applies to Commonwealth offences
The High Court has ruled that indictable means ‘crimes tried on indictment’. Therefore, the operation of section 80 only extends to those most serious offences. The Commonwealth Parliament decides whether a crime is tried ‘on indictment’ or not.
Trade within the Commonwealth
Under section 92 of the Constitution, interstate trade and commerce must be free (whether it be by means of road or sea).
This right prevents parliament from treating interstate trade differently from trade within a state
It provides freedom of movement between states, without burden or hindrance. For example, it restricts taxes on goods moving from one state to another from being imposed.
This right mainly refers to trade and commerce, but it can also refer to movement of people between States
Strengths and Weaknesses of Express Protection of Rights
Strengths:
Impose limits on parliament when making law in certain areas. For example, section 116 prohibits the Commonwealth Parliament from making a law that restricts the free exercise of any religion. This protects the public against the parliament being able to make any laws it wants to.
Are entrenched and cannot be removed or amended without a successful referendum. Referendums are difficult to pass (see Chapter 14), so this means that the express rights will continue to act as a check on parliament without any risk of being removed.
When a matter is brought before it, the High Court can act swiftly in declaring a law to be beyond parliament’s power (ultra vires) and thus invalid.
Weaknesses:
The rights that are protected are limited in scope. For example, some express rights only apply to the Commonwealth and not the state parliaments, and some rights are narrow, such as the right to trial by jury. This limits the restrictions that are imposed on the Commonwealth Parliament.
Given referendums are so difficult to pass, the express rights in the Constitution have not increased in number or been amended since Federation. This reduces the checks on government because there is unlikely to be any additional rights added to act as a check on parliament in the future.
For the High Court to hear a challenge against actions of parliament regarding express rights, a case must be brought to court. The court is reactive. Litigation is an expensive and time-consuming process and the person bringing the matter to Court must have standing in the case.
Statutory Interpretation
The process by which judges give meaning to the words or phrases in an Act of Parliament (i.e. a statute) so it can be applied to resolve the case before them
Reasons:
Mistakes in the drafting of a bill
Mistakes may be made when drafting a bill, which may be minor or more technical in nature. Words may have been missed in the text, a heading may not have been properly included, or there may be an issue with punctuation (a High Court case once had to consider the inclusion of a comma in a clause to then determine what the clause meant to say)
The intention of the bill might not have been clearly expressed
Sometimes a policy or instructions regarding the purpose of a proposed law may not be clearly expressed, leading to confusion about how it should be interpreted
The bill might not have taken future circumstances into account
Resolving problems that occur during the application of statutes
Most legislation is drafted in general terms
This is so it can cover a wide range of circumstances. However sometimes the terms used are so broad that they need to be interpreted before they can be applied to specific circumstances. For example, in the case of Deing v Tarola (see pages 387–388) the court had to determine if wearing a studded belt was an offence under the Control of Weapons Act 1990 (Vic) which banned the carrying of a ‘regulated weapon’. As another example, a person needs to establish they have suffered ‘serious harm’ if they wish to make a claim for defamation, but those words are broad and are not otherwise defined.
The act may have become out of date and no longer reflect community views and values
For example, while each state has laws banning the use of obscene and indecent language in a public place, what is considered offensive and indecent language changes over time, as is demonstrated in the following scenario.
The meaning of the words may be ambiguous
The words and phrases used in a statute attempt to cover a broad range of issues. As a result, the meaning of some words might be ambiguous. It is therefore necessary for the courts to interpret the words or phrases to determine their meaning according to the intention of the statute. For example, in the case of Davies v Waldron on page 395, the Supreme Court judge was required to interpret the phrases ‘in charge of a motor vehicle’ and ‘start to drive’, as stated in the Road Safety Act 1986 (Vic). The judge had to determine whether an intoxicated driver, who was sitting in the front seat of his parked car while the engine was running, was guilty of being ‘in charge’ of his motor vehicle with more than the prescribed concentration of alcohol in his blood, as defined and prohibited by the Road Safety Act.
The act might be silent on an issue and the courts may need to fill gaps in the legislation
A statute tries to cover all situations that might arise in relation to the issues covered in the statute. This may not be possible as some situations may arise that were not foreseen, or gaps may have been left in legislation. An Act of Parliament may therefore be silent on an issue that comes before the courts. For example, would legislation that prohibits the possession of firearms (guns) and imitation firearms cover all possible types of fake or replica firearms, even those that are considered toys, such as water blasters and water pistols? As another example, does the word ‘distribution’ in relation to a document include ‘distribution’ over the internet?
The meaning of words can change over time
For example, words such as ‘vehicle’, ‘mental illness’, ‘document’ and ‘consent’ have changed over time as society has changed. As another example, the word ‘currency’ or ‘money’ may now need to extend to digital currency. The following scenario demonstrates the need for statutory interpretation and how judges make law through statutory interpretation.
The effects of statutory interpretation
The word or phrases contained in the disputed legislation are given meaning
This is so that the relevant statute can be applied to resolve the case before the court. The meaning of the legislation as determined by the court will also provide guidance for parties involved in a dispute in relation to the same word or phrase.
The court’s decision on the meaning of the legislation is binding on the parties
Once a court has reached a decision on the meaning of a statute, the parties to the case are bound by (or must follow) that decision until one of the parties lodges a successful appeal against the decision (that is, the appeal court reverses it).
A precedent may be set for future cases to follow
If the interpretation of the words and phrases in legislation is made by a superior court (e.g. the Supreme Court or High Court), the reason for the decision forms a precedent that is then read together with the Act of Parliament to determine the outcome of future cases. The case will remain as precedent unless it is changed by a higher court on appeal or abrogated (cancelled) by an Act of Parliament – although parliament cannot abrogate (cancel) a High Court decision involving constitutional matters
The meaning of the legislation (law) can be restricted or expanded
If a court interprets a word or phrase narrowly, this could restrict the scope of the law. For example, the decision in Deing v Tarola restricted the definition of a regulated weapon to items likely to be used for an offensive or aggressive purpose only. Similarly, a broad interpretation of a word or phrase in a statute can extend the meaning of legislation to cover a wider range of circumstances or new areas of law. For example, the decision in the Tasmanian Dam case extended the interpretation and meaning of the phrase ‘external affairs’ in the Australian Constitution to include areas covered by international treaties – thus allowing the Commonwealth Parliament to make laws in any area covered by an international treaty.
Reasons for Precedent
The application of precedents to current cases helps ensure common law (or law made by the courts) is consistent and predictable. It is one of the ways in which the rule of law is upheld, providing some certainty in the way that laws are applied.
Having lower courts follow the legal principles established by higher courts in the same hierarchy, in cases where the material facts are similar, ensures that:
Like cases are decided in a similar manner. This enables the parties in a dispute to look back to previous cases to gain some idea of how a court might determine their case
Legal representatives are able to give advice on the likely outcome of a case, as they will have some understanding as to how the court may decide the case
Judges have some guidance, as they can refer back to previous cases and decide accordingly
Decisions made by more experienced judges in higher courts are followed in lower courts
The same point is not being decided over and over again, which would be a waste of resources
Binding Precedent
The legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction (i.e. court hierarchy) in cases where the material facts are similar
Precedents does not apply to sentencing
Ratio Decidendi
A Latin term meaning ‘the reason’; the legal reasoning behind a judge’s decision.
Forms the binding part of a precedent
Stare decisis
A Latin term meaning ‘let the decision stand’. The basic principle underlying the doctrine of precedent
Where appropriate and required, judges should stand by previous decisions to ensure common law is consistent and predictable
Obiter Dictum
A Latin term meaning ‘by the way’; comments made by the judge in a particular case that may be persuasive in future cases (even though they do not form a part of the reason for the decision and are not binding).
Persuasive Precedent
The legal reasoning behind a decision of a lower (or equal) court within the same jurisdiction, or a court in a different jurisdiction, that may be considered relevant (and therefore used as a source of influence or followed) even though it is not binding.
E.g. Snail and the bottle case from England (Donoghue v Stevenson) and the Grant vs Australian Knitting Mills
Developing and avoiding precedents (RODD)
Reversing a precedent: (In the same case on appeal) When a superior court changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent |
Overruling a precedent: (In a different and later case) When a superior court changes a previous precedent, established by a lower court in a different and later case, thereby creating a new precedent which overrules the earlier precedent |
Distinguishing a precedent: The process by which a lower court decides that the material facts of a case are sufficiently different from those of a case in which a precedent was established by a superior court so that they are not bound to follow it |
Disapproving a precedent: When a court expresses dissatisfaction with an existing precedent but is still bound to follow it
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Factors that affect the ability of court to make law
The way precedent affects law-making
Consistency and predictability:
Limitations: The difficulty and cost involved in locating relevant precedents:
The difficulty in identifying the legal reasoning behind a decision:
The difficulty in predicting future developments:
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Flexibility:
Limitations: The doctrine of precedent restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court:
Judges in superior courts may be reluctant to reverse or overrule existing precedents:
While not being technically bound by their own court’s previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them:
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Strengths and Weaknesses of Precedents
Strengths:
In deciding cases, judges can make law, known as common law. When interpreting existing statutes, determining a case where there is no existing applicable law, or where the law does not cover the particular situation, judges can establish precedents. Precedents can either be binding or persuasive on courts, depending on where they sit on the court hierarchy
The principle of stare decisis ensures consistency in common law because lower courts must follow precedents set by superior courts in cases with similar material facts.
The principle of stare decisis can ensure predictability in common law because parties can anticipate how the law is likely to be applied to resolve their dispute by examining past cases.
Common law is flexible because judges in superior courts can overrule and reverse precedents and lower courts can avoid them through distinguishing material facts. Courts can also signal their disapproval of a precedent, which may result in a party appealing the case so the precedent can be overruled (or the case getting the attention of parliament).
By setting precedents, courts can make law to complement legislation
Weaknesses:
Lower courts must follow a binding precedent even though they may consider it to be outdated or inappropriate
Judges in superior courts may be reluctant to change an existing precedent, preferring parliament, as the supreme law-making body, to change the law, similarly, with the exception of the High Court, courts of the same standing, by convention, rarely overrule their own precedents
Judges can only interpret legislation and establish precedents when an appropriate case is brought before a superior court, which is generally reliant on parties being willing to pursue a dispute through the appeals process
Courts can only clarify the meaning of legislation after a dispute over its meaning has arisen (i.e. ex post facto)
Parliament is able to abrogate common law, unless it involves constitutional interpretation
Judicial conservatism
The idea that the courts should show restraint or caution when making decisions and rulings that could lead to significant changes in the law.
An expression used when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases (i.e. avoid major or controversial changes in the law and not be influenced by their own political beliefs or the views of the community)
E.g. Trigwell case
Facts: The Trigwell family sued the State Government Insurance Commission after a collision with stray sheep on a highway, arguing the landowner (a farmer) should be liable for not fencing his property.
Legal Issue: Should courts overturn the old English common law rule that landowners are not liable for animals straying onto roads? High Court Decision: The High Court upheld the old common law, stating that changing the law was a matter for Parliament, not the courts.
Judicial Conservatism in Action:
The judges followed precedent rather than creating new common law.
They showed restraint, refusing to make law on a social policy issue.
Emphasised parliamentary supremacy — law reform should come from the legislature.
Aftermath: In response to the High Court's decision, the Victorian Parliament passed legislation making landowners liable in certain cases — demonstrating the law-making role of parliament.
Strengths and Weaknesses of Judicial conservatism
Strengths:
Reflects the idea that courts should show restraint when making decisions that could 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
Could lessen the possibility of appeals on a question of law
It allows the parliament, which has the ability to reflect community views and values, to make the more significant and controversial changes in the law
Weaknesses:
Judicial conservatism restricts the ability of the courts to make major and controversial changes in the law
Judges may not consider a range of social and political factors when making law
It may be seen by some as not being progressive enough and not factoring in twenty-first century views or values when deciding cases
Judicial activism
Judges who were willing to make rulings against the more politically conservative, or traditional mainstream, view in an attempt to protect the interests or rights of a minority party or group.
An expression used when judges consider a range of social and political factors when interpreting Acts of Parliament and deciding cases (i.e. consider the changing political beliefs and the views of the community)
E.g. Mabo case
Facts: Eddie Mabo and other Meriam people challenged the legal doctrine of terra nullius, which claimed that Australia was uninhabited before British settlement.
Legal Issue: Could the common law of Australia recognise native title (Indigenous land rights) despite over 200 years of law denying it?
High Court Decision: Overturned the doctrine of terra nullius. Recognised native title as part of Australian common law. Stated that Indigenous people had a pre-existing connection to the land that survived British colonisation.
Judicial Activism in Action:
The High Court significantly changed the common law, departing from past precedent.
The judges acted progressively, aiming to correct historical injustices.
They showed a willingness to make major legal and social change from the bench. They engaged with international human rights principles.
Aftermath: The Native Title Act 1993 (Cth) was passed by Parliament to codify and expand on the Mabo decision.
Strengths and Weaknesses of Judicial activism
Strengths:
It allows judges to broadly interpret statutes in a way that recognises the rights of the people and may lead to more fair judgments
It allows judges to be more creative when making decisions and making significant legal change (as occurred in the Mabo case)
Weaknesses:
Judicial activism can lead to courts making more radical changes in the law that do not reflect the community values or are beyond the community’s level of comfort
It may lead to more appeals on a question of law
Judges are limited in being ‘progressive’ or ‘active’ given the nature of their role in deciding cases within the confines of the case and in light of existing law
Parliament is the supreme law-making body; it can abrogate any decisions it does not agree with
Cost factors
Explanation points
The costs involved in bringing a case to court include costs of legal representation and filing and hearing fees
The courts are able to manage disputes to narrow the issues in dispute, possibly saving the parties costs and allowing them to proceed all the way to trial for a final determination
The high costs may mean that only meritorious and legitimate claims are pursued all the way to appeal courts
Discussion points
High costs can deter litigants who cannot afford these costs, and 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
The prohibitive nature of costs may mean that old or ‘bad’ precedents are never challenged or brought to the court for review
Time factors
Explanation points
Courts can make law relatively quickly once a dispute has been brought before them and cases must continue until a decision has been made to resolve the dispute
Courts are not required to follow lengthy processes like those involved in the process of developing, drafting and passing a bill through parliament when deciding cases
Discussion points
Some courts, particularly 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
Standing
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 the case
In a court case, the party initiating it must have standing; that is, be directly affected by the issues or matters involved to have the right to commence a legal proceeding
In the High Court, a person must have a ‘special interest’; meaning they are more affected than other members of the general public
The requirement for standing ensures cases are only brought to court by people who are genuinely affected by an issue or matter rather than wasting valuable court time and resources on listening to people who are not affected by a matter
It encourages people not directly affected by an issue or matter to seek other avenues of redress (e.g. lobbying members of parliament, petitioning or demonstrating) rather than going to court
The requirement for standing means that people who have a general interest in a case (e.g. where legislation potentially breaches individual rights) have no right to pursue a legal challenge on behalf of public interest or the common good
It 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
The relationship between parliament and the courts
Supremacy of parliament:
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The ability of courts to influence parliament:
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The codification of common law:
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The abrogation of common law:
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Note 
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