Politics and Law

Liberal Democracy

a form of government which combines rule by the people with the protection of the rights and freedoms of minority groups

Democracy

A system of government where supreme power is vested in the people. There are 2 types of democracies: representative democracy and direct democracy.

Direct Democracy

A form of democracy in which people directly participate in decision-making and law creation, rather than through elected representatives.

Representative Democracy

Where the citizens of a country elect people to represent them, make decisions on their behalf, and vote on legislation. It is the solution to the problem of having very large numbers of citizens involved in self-governance.

Rule of Law

the principle by which everyone is subject to the law and nobody is above the law.

All people, governments, corporations, and other entities are subject to the law regardless of power, wealth, or any other quality

Four characteristics of Rule of Law

Universality and supremacy of law

Freedoms and equality before the law

law should be known, clear, and understood

Judicial Independence

Universality and Supremacy of Law

Nothing and no one is above the law - all individuals, from ordinary citizens to heads of state, must obey the law and can be held accountable if they break it.

Freedom and Equality Before the Law

All people have basic legal protections and equal treatment in the eyes of the law

Judicial Independence

Judges must make decisions free from political pressure, corruption or outside influence.

Law Should be Known and Clear

Laws must be publicly accessible, understandable, and applied consistently; people should know what is legal and illegal.

Political Participation

Citizens being involves in decision about how a country is run. e.g. voting, protesting, sending a letter to local representatives, signing a petition, joining a political party, running for parliament

Four key principles of liberal democracy

Equality of Political Rights

Majority Rule

Political Participation

Political Freedom

Majority Rule

When the individual or party with the majority support of the people is the one who exercises the power of government

Political Freedoms

Entitlements enjoyed by citizens that enable political participation e.g. freedom of speech, freedom of association, freedom of assembly, freedom of press

Equality of Political Rights

All citizens have the same political entitlements and protections, ensuring that no individual or group is legally privileged or disadvantaged.

How does Australia uphold Majority Rules?

Through its process of holding referendums. For a referendum to pass, a double majority needs to be achieved (majority of people and the majority of states need to vote yes). Because of this, the Voice to Parliament referendum did not pass as it did not have the support of the majority of Australians.

The Separation of Powers

A theoretical concept for governance where sovereign power is distributed into at least three branches, each with their own individual functions. It is practised by democratic nations in order to prevent tyranny and the monopoly of power by one person or group,

How does Australia undermine Majority Rule?

It can be argued that Australia does not uphold majority rule because citizens do not directly elect their prime minister. Instead, the prime minister is chosen by the elected Legislature. This has resulted in the replacement of Prime Ministers between elections, without the public’s say. e.g. Rudd, Gillard, Rudd government and Abbott, Turnbull, Morrison government.

How does Australia uphold Political Freedoms?

Australia uphold political freedoms through explicit protection written in our constitution, such as section 116 which limits the government’s ability to interfere with religious freedoms, upholding freedom of religion.

How does Australia undermine Political Freedoms

Australia has an absence of a constitutionally enshrined Bill of Rights, relying heavily on implied rights that are interpreted by the High Court. Additionally, recent laws put in place by the NSW government following the attack on Bondi ban protests and mass gatherings, which critics argue undermines the right to protest and peacefully assemble.

How does Australia uphold Equality of Political Rights

Through universal adult suffrage, meaning all Australian citizens aged over 18 have the right to vote.

How does Australia undermine Equality of Political Rights

Voting rights have developed unevenly in Australia. Women couldn’t vote until 1902 and Aboriginal Australians couldn’t until 1962. Along with this, prisoner serving sentences longer than three years are not permitted to vote, or permanent residents.

The right to hold office is also restricted by Section 44 of the Constitution which disqualifies dual citizens from parliament.

How does Australia uphold Political Participation?

Australia allows all elected representatives to introduce legislation, including independent and opposition members of parliament. e.g. Marriage Amendment Act 2017 which enabled same sex marriage.

Holding referendums allows citizens to directly participate in decision-making. e.g. Voice to Parliament Referendum.

How does Australia undermine Political Participation

New provisions enacted in late 2025 in NSW allows their Police Commissioner to declare Public Assembly Restriction Declarations after a terrorist incident, temporarily limiting protests for up to 90 days.

Bicameral Parliament/Bicameralism

a system of government where the legislature is divided into two houses or assemblies, typically an upper house and a lower house. It serves as a democratic check preventing the concentration of power and providing more thorough scrutiny of legislation.

Constitutionalism

The idea that power should be limited by a fundamental body of law.

Constitutional Monarchy

Where a King or Queen is head of state but their position is largely ceremonial due to their governing powers being limited by a constitution.

Key Westminster Conventions

Ceremonial Role of Monarch

Majority Rule

Cabinet Solidarity

Responsible Parliamentary Government

Responsible Parliamentary Government

A system where the executive branch (Prime Minister and their Cabinet) must be drawn from and directly accountable to the legislature. The government must maintain the confidence of the lower house to stay in power, ensuring they are accountable for their choices and must be able to explain and justify their decisions.

Federalism

the division of a nation’s sovereignty between one national government (federal gov) and other regional governments (state/territory and local govs)

Federal Balance

refers to the distribution of power and responsibilities between national and regional governments within a federal system. The central government can be weak, equivalent, or dominant when compared torsional governments.

Types of Federalism

Coercive (Dominant)

Coordinate (Equivalent)

Cooperative (Equivalent)

Confederation (Weak)

Coercive (Dominant)

Where the central government has more power than the regional governments. They assert control, often using financial powers (e.g. tied grants) to ensure the states have limited power and autonomy in some political areas

Coordinate (Equivalent)

The Commonwealth and states are politically and financially independent each with their own defined areas of responsibility. Both levels of government have a similar level of power. Emphasises the separation of powers

Cooperative (Equivalent)

Governments work together, sharing responsibilities to achieve common, often national, objectives.

Confederation (Weak)

When regional governments have more power than the central government.

Concurrent Powers

Powers shared by the commonwealth and the states as listed in Section 51 of the constitution. e.g. Marriage, Taxation, and Trade and Commerce

Exclusive Commonwealth Powers

Powers that are only granted to the Commonwealth government. e.g. Section 115 sites that states are prohibited from issuing their own currency.

Residual Powers

Law-making powers not explicitly granted to the Commonwealth government and remain under state jurisdiction. e.g.education, health, transport, civil and common law.

How does Federal Balance Change

Through Intergovernmental Cooperation: National Cabinet working together

Financial Control: Commonwealth dominance via tied grants and GST allocation

High Court rulings

Referendums

Financial Control

Commonwealth has strengthened its financial power over time. Increased levels of Commonwealth financial power creates vertical fiscal imbalance.

Vertical Fiscal Imbalance

A common situation in federal systems where the central government collects more money than it needs from taxes for its own functions, requiring it to redistribute money to state governments to cover their expenditure

High Court Rulings

In resolving constitutional disputes between the Commonwealth and sates, the High Court has often favoured the federal government, increasing the centralisation of power and coercive federalism.

Engineers case (1920)

Dispute between workers of a National Trade Union over working conditions and whether or not federal or state laws should apply to industrial relations.

Federal laws would have the workers under an award which gave them better wages and working conditions.

Constitution implies that industrial relations is only a commonwealth matter if it is across multiple states.

High Court decided that Commonwealth industrial laws would apply more broadly and override state laws despite the dispute being in only one state.

Decision led to greater federal intervention in employment and set the stage for a more centralised industrial relations system in Australia. Key turning point in the shifting of power from the states.

The First Uniform Tax Case (1942)

Dispute over the Commonwealth’s introduction of a uniform income tax system. which required individuals to pay tax solely to federal gov.

Section 51 of constitution implies that taxation is a concurrent power.

High Court ruled that the Commonwealth could dominate income tax due to Section 96 grants.

This decision removed states’ ability to levy their own income tax and shifted financial control to the Commonwealth, making states dependant on federal grants.

Tasmanian Dams Case (1983)

Tasmanian government wanted to build a hydroelectric dam on the Gordon River, a World Heritage listed site. Commonwealth opposed the project and argued they had the power to stop the dam.

Land use and environmental protection are not outlined in the Constitution, implying it falls under residual power and is a state responsibility.

High Court ruled the Commonwealth could make laws to protect the Franklin River and stop the dam because it was an accordance within an international treaty Australia signed.

Expanded Commonwealth powers by allowing it to legislate on matters previously handled by the states if an international treaty was involved- citing that treaties are a Commonwealth responsibility under external affairs power in Section 51.

Who coined the Separation of Powers doctrine

Baron Montesquieu

What are checks?

Mechanisms that limit or stop one arm of government from becoming too powerful

What are Balances?

Power is balanced between the three arms of government, with each arm having its own separate functions and responsibilities. When power is balanced no arm has complete authority or has enough power for the checks to be overridden.

What are Westminster Conventions?

unwritten rules about the powers and processes of governance derived from the British political tradition.

Examples of checks

Executive implements laws passed by the legislature

Legislature can refuse to pass laws they find unacceptable

Executive appoints judges to the courts

Judiciary can declare actions of the executive unlawful

Judiciary can make unconstitutional laws invalid

Legislature can remove judges for misconduct and pass laws to override court decisions.

Statute Law

Statute law is the laws made by parliaments

Parliamentary sovereignty

the concept that laws made by parliament are supreme to common law because parliament is the primary legislative authority in the Constitution and because it has democratic authority due to parliament being elected and representative

Legislative Process

is the procedures through which a proposed law must pass in order to become an Act of Parliament and come into force.

Private Member Bills

a bill that is introduced into parliament by a member who is generally not a member of the Cabinet or Minister

Private Member Bill Advantages

Create more diverse legislation

Reflect the beliefs of those outside major parties

Often well considered

Disadvantages of Private Member Bills

Difficult to pass, low success rates

Time constraints

What is an issue of the legislative process

Expedited passage of legislation: the passage of bills facilitated by a guillotine motion, a parliamentary procedure that limits debate time, enabling the swift advancement of legislation

Criticism of Expedited Passage of Legislation

Lack of Parliamentary Oversight: limits the opportunity for thorough debate and analysis, potentially compromising the quality of the legislation.

Stakeholder Consultation: effective lawmaking involves comprehensive engagement with affiliated parties. Limited consultation may affect the law’s acceptance into the community.

Implementation: rapid legislative action, while addressing urgent concerns, can lead to issues in the implementation state

Delegated Legislation

lawmaking power granted by parliament to executive or subordinate authorities. Executive made laws are called regulations, ordinances, and instructions

Common Law

Is law made by judges

THE common law

is the body of law based on court decisions

Stare Decisis

meaning to stand by things decided. Courts and judges need to follow earlier decisions and rulings- otherwise known as caselaw- when dealing with similar cases later.

The Court Hierarchy

the ranking of courts in order of authority and responsibility. Lower courts handle less serious matters while higher courts deal with more serious cases and appeals

Advantages of the Court Hierarchy

Efficiency: minor and straightforward matters are dealt with quickly by lower courts, reducing delays in higher courts for serious cases.

Access to Justice: people don’t have to go to the highest court for minor issues— they can access quick and local justice through lower courts like the magistrates court.

Appeals: people who believe the court made a legal error can have their case reviewed by a higher court. This promises fairness and consistency.

Consistency/Predictability: lower courts follow the decisions (precedents) set by higher courts. This makes outcomes more predictable and reinforced the rule of law.

Jurisdiction

Refers to the legal authority of a court to hear and determine cases. It tells the court what it’s responsible for and what it’s not, this means courts can only deal with. certain cases, in certain places, and for certain problems.

Types of Jurisdiction

Geographical

Legal/Subject-Matter Jurisdiction

Original Jurisdiction

Appellate Jurisdiction

Monetary Jurisdiction

Geographical Jurisdiction

This refers to the physical area (like a state, territory, or region) where a court has authority.

Legal/Subject-Matter Jurisdiction

This refers to the type of cases a court can hear. For example, the Family Court of Australia hears cases about divorce, custody, etc.

Original Jurisdiction

This is the power to hear cases for the first time. For example, the Magistrates Court has original jurisdiction over minor criminal offences. The High Court has original jurisdiction in cases involving constitutional issues.

Appellate Jurisdiction

This refers to the power to review and change the outcome of a case decided in a lower court, The Supreme Court in each state has appellate jurisdiction over decisions made in lower courts.

Monetary Jurisdiction

This relates to how much money is involved in a civil case. For example the Magistrates Court can only hear cases involving up to $75,000 and the District Court can only hear cases involving between $75,000 and $750,000.

Legal/Subject Matter Jurisdiction of the Magistrates Court

Handles less serious criminal offences such as theft and minor civil disputes.

Legal/Subject Matter Jurisdiction of the District Court

Hears more serious (indictable) criminal offences such as assault and sexual assault. Also hears significant civil matters

Legal/Subject Matter Jurisdiction of the Supreme Court

Deals with serious criminal cases (e.g. murder, manslaughter) and complex civil cases (e.g. wills and estates)

Legal/Subject Matter Jurisdiction of the High Court

Deals with interpretations of federal laws, constitutional matters, disputes between states and commonwealth, matters involving treaties or international law.

Precedent

A legal principle or rule established in a previous court case. Courts use precedent to guide decisions in similar future cases.

Ratio Decidendi

Reason for the decision. Judges must explain their decisions in the ratio decidendi which form the precedent. This enhances the openness and transparency of court proceedings.

What does the doctrine of precedent ensure?

consistency, fairness, and predictability

Binding precendent

precedent made by higher courts which must be followed by lower courts in the same hierarchy.

Persuasive Precedent

precedent that can influence a decision but does not have to be followed. e.g. decisions from other countries.

Fairfax Media Publications v Voller [2021] HCA 27 Facts and Outcome

Dylan Voller, a former detainee, sued media outlets for defamation over third-party comments made on their public Facebook pages, claiming they were publishers of the comments

Courts had to rely on common law to decide who qualifies as a publisher, as that is not defined in the Defamation Act 2005 (NSW)

In previous High Court decision of Webb v Bloch (1928), the court held every person who was involved in the distribution or publication of defamatory material can be considered a publisher, even if they did not write the comments themselves.

The High Court ruled (5-2) that yes, they were publishers of the comments. By creating a public Facebook page and encouraging comments, the media companies facilitates the publication of third-party defamatory material, and were therefore legally liable, even if they did not write or endorse the comments.

Fairfax Media Publications v Voller [2021] HCA 27 significance and impacts

Clarified that media companies can be held liable for third-party comments on social media.

Expanded the common law definition of a publisher to fit the digital age.

An example of how precedent can evolve and reflect changes in technology and society, ensuring the law remains relevant and protective of individual rights in modern contexts.

Generates uncertainty and compliance burdens for media organisations as monitoring and moderating comments became required of media organisations. There was some confusion over the extent of monitoring required which led to many companies disabling comments completely. It was argued that this level of liability on organisations was excessive and deterred freedom of expression online

This triggered a legislative response under Defamation Amendment Act 2023 (NSW) which protects platforms if they have a complains system and remove comments within seven days of being made aware of them. Clarifies that platforms are not liable for third-party comments if unaware of defamation and act promptly once notified.

Reflects parliamentary sovereignty which enables parliament to override or modify common law via legislation.

Mabo No 2 [1992] HCA 23 facts and outcome

Eddie Mabo inherited land on Mer (Murray island) after his grandfather died. He later learned that under Australian law, the land he believed he had inherited actually belonged to the State of Queensland.

The High Court of Australia has to decide whether Australian law should continue to recognise the doctrine of terra nullius. It alo had to determine if Indigenous Australians could hold a legally recognised form of land ownership.

terra nullius meant there was no legal need fir a treaty of any compensation to be paid for those whose land was taken. It had been affirmed as common law in R v Murrell and Bummaree (1836) in colonial times when racial values and attitudes were very different.

The High Court decided (6-1) to override the existing precedent in Murrell, abolishing terra nullius and recognising a form of Indigenous land ownership known as ‘native title’.

Mabo No 2 [1992] HCA 23 significance and impacts

Corrected a fundamental legal injustice by recognising that Indigenous Australians had existing rights to land before colonisation, rather than the land being ‘empty’.

It was an example of the common law evolving to be in line with changing attitudes in society.

Altered the entire legal basis of Australian land law by sweeping away terra nullius because the precedent was binding across the whole continent.

The Commonwealth Parliament passed the Native Title Act 1933 to clarify and support the High Court’s native title precedent. This codified the Mabo decision, creating a statutory framework that established a process for making Native Title claims.

The Native Title Act 1993 (Cth.) established native title where Indigenous people were on land that had not been sold by the Crown and where they had maintained a continuing connection to the land before 1788. Native Title could also be extinguished with compensation to be provided by the Commonwealth.

Act also established a Native Title Tribunal to adjudicate such claims.

Statutory Interpretation

The process undertaken by Judges to apply the words of an act of parliament to specific fact situations.

How do courts interpret statutes

through rules, Maxims, and Acts Interpretation Acrs

Rules of Statutory Interpretation

The Literal Rule: where the courts use the ordinary meaning of the language within the statute. the act is read literally.

The Golden Rule: allows the courts to depart from the literal meaning of statutes to avoid absurdity or inconsistency, but only to the necessary extent.

The Purpose/Mischief Rule: where the court seeks out the original purpose of the legislation and/or what mischief it sought to prevent.

The Literal Rule Case Example

Whiteley v Chappel 1968, where the defendant was deemed not guilty after impersonating a deceased individual due to the statute claiming it was an offence to “impersonate anyone entitled to vote.” the courts interpreted the word “entitled”literally, as a deceased person, you are not entitled to anything.

The Golden Rule Case Example

Adler v George (1964)

Adler was charged under section 3 of the Official Secrets Act of 1920 (UK) for obstructing a police superintendent while inside a Royal Air Force station

Adler argued that he could not be guilty because the Act only referred to people “in the vicinity of” a prohibited place, and he was actually inside it.

The court rejected this literal interpretation, stating it would be absurd if the law punished obstruction near a prohibited place but not inside.

The court held that “in the vicinity of” should be interpreted as meaning “in the vicinity of or in,” and upheld Adler’s conviction.

The Mischief/Purpose Rule Case Example

Corkery v Carpenter (1951)

The defendant has been riding a bicycle drunk

The Licensing Act 1872 prohibited being in charge of a carriage while drunk on a public road, however it didn't mention bicycles.

The Court reasoned that the purpose of the act was to prevent people from being intoxicated while using any form of transport on a public road.

Since a bicycle is a form of transport, the court found the defendant guilty, even though the word ‘bicycle” wasn’t in the act

Maxims Definition

The use of other words in the statute to help give meaning to specific words that require interpretation

Maxims Examples

Of The Same Kind: where there are specific words listed followed by general words, the general words are limited to the same class/kind/nature as the specific words. e.g. “cats, dogs, and other animals” might read to mean other domestic animals.

Express mention of one thing is the exclusion of all others: if a law lists specific items, it is assumed that anything not listed was intentionally excluded. e.g. “trucks and vans may park here,” implies that cars may not.

A word is known by the company it keeps: words in a statute must be read in the context of the other words around them. e.g. if a statute refers to”cars, trucks, and vehicles,” the word '“vehicles",” may be interpreted to mean road vehicles only.

Acts Interpretation Acts

Are statutes that provide rules and guidelines for how legislation should be read and understood.

the Acts Interpretation Act (1901) included provisions such as:

definitions of common terms, rules about how to interpret ambiguous or unclear provisions, and guidance on using extrinsic materials (like parliamentary speeches) to understand intent.

States and territories have their own similar legislation, these acts aim to help judges and lawyers interpret laws in a more structured, predictable way.

Common Law vs Parliamentary Sovereignty

Most new laws are created through legislation

While courts still develop common law, parliaments can amend and override judicial decisions, limiting their long-term impacts. The Voller case is an example of this as parliament introduced legislation to narrow the scope of the High Court precedent.

In contrast, Mabo v Queensland NO2, Parliament enacted the Native Title Act 1993, accepting and codifying the decision while further regulating native title rather than leaving it solely to the courts

However, unlike common law, constitutional interpretations cannot be overridden by Parliament through ordinary legislation.

Criminal law

The body of law that relates to crime. It regulates the way people behave towards each other and includes the punishment of those who violate those laws.A

Adversarial system

involves the prosecution and the defence arguing against each other in court. The two sides present their case to an impartial judge or jury. The aim is that if both sides are given the chance to argue their case, test evidence, and challenge the other side, the truth will be uncovered quickly.

Pre-Trial Phase Australia

Arrest: the police need to have “reasonable suspicion” or some factual basis to believe the person is guilty of the crime in order to arrest them.

Prosecution Lays Charges: The DPP (Department of Public Prosecutions) decides whether or not to proceed with charges. An mention hearing is held in the Magistrates court where the charges are read and bail is granted to denied.

Disclosure: DPP provides a hand-up brief (a summary of the prosecution’s evidence) to the defence.

Committal Hearing: if the accused pleads guilt the case moves to sentencing. If they plead not guilty the case may go to further hearings before going to criminal trial to determine guilt.

Jury Selection: potential jurors receive a jury summons and go through a selection process.

Australian Trial Phase

Opening Address: Prosecution goes first, then defence. No evidence is presented yet, just a summary of their arguments

Presentation of Cases: After opening addresses, each side presents their case. They present arguments and examine/cross-examine/re-examine witnesses

Closing Address: each side summarises their arguments and evidence

Jury then decides verdict on a jury case or judge decides verdict on judge-alone trials

Australian Post-Trial Phase

Sentencing: if the accused is guilty, the judge alone decides the sentence based on the circumstances of the case, sentencing provisions, and any relevant legislation. The Judge may consider victim impact statements, aggravating and mitigating factors, and prior convictions

Appeal: an appeal may happen after the verdict and sentence is given. If a party believed there was a legal error (e..g incorrect interpretation of the law or unfair procedure) they can apply to a higher court to review the case.